An explainer: Clearing up some confusion surrounding Chester’s referendum

By Shawn Cunningham
©2014 — Telegraph Publishing LLC

On Tuesday Nov. 18, Chester voters will have the opportunity to cast a ballot – Yes or No – on a zoning issue. Over the past few weeks, there have been many posters, letters to the editor, Facebook posts, a petition and even a mailing from the Planning Commission. Many of these reflect the heat of the battle. So, before the vote takes place, we thought it would be a good time to look at all the claims – establishing the facts and teasing out the gray areas that don’t get talked about in a black and white discussion.

Below are some claims and questions we have seen in print or received from readers.

A  ‘Yes’  vote will change Chester’s zoning law

The previous zoning map.
Click to enlarge.

Actually, the new Unified Development Bylaws represent some of the biggest changes to Chester’s zoning since zoning was adopted by a public vote in 1975. The new bylaws have created new districts, redrawn old districts, reduced the number of conditional uses and added a few new uses. All in all, this is a very complex document that took years to draft and is just now getting its first bumpy test drive.

Maybe the best way to illustrate how substantial the changes are is to look at the businesses that have been identified by the Select Board as affected by the vote.

Zoning before the Unified Development Bylaws

Jiffy Mart was in the Residential-Commercial area that used to be only the area from Grafton Street to Pleasant Street along Route 11 and 103. That also encompassed the Sunoco station and — since automotive uses were not allowed there under the original zoning regulations — gas stations in that area had operated as grandfathered-in for about 40 years.

The Abenaque Car Wash was built in a Commercial district that included Motor Vehicle Sales & Service. But according to its conditional use permit, the Development Review Board did not see washing cars as the same as servicing cars and interpreted a use that combined Auto Service and “commercial drive in facility” to allow the permit.

Spaulding’s Garage — on Route 103 North in Gassetts — is perhaps the oldest automotive-related business in town, predating any kind of planning or zoning and operating legally without a zoning permit in the Residential 80 district.

Zoning with the Unified Development Bylaws

The new zoning map.
Click to enlarge.

The bylaws created three separate Residential-Commercial areas, downsizing the original district so that it begins at the eastern boundary of the St. Joseph’s Catholic Church property and goes to Pleasant Street. What was cut off from that district (including the Jiffy Mart) became part of the very restrictive Village Center district. The commercial district on Route 103 south around the American Legion (and including the Abenaque Car Wash) was rezoned Residential-Commercial and the Residential 80,000 section north of Gassetts was rezoned to Residential-Commercial. Automotive uses were added to these three separate sections of R-C districts. But, by eliminating “commercial drive-in facilities” from the conditional uses, the Planning Commission made the car wash a non-conforming use (since the drive-in use was integral to getting its permit in the first place) whichever way the automotive services vote goes.

So to sum up: A “Yes” vote will change the new bylaws to keep a portion of the old zoning regulations in place and a “No” vote will confirm the new zoning bylaws, which change the old zoning regulations. Don’t worry, it gets a bit clearer from here.

Grandfathered businesses cannot
expand or change

This is a gray area. Section 3.19 (D) says that nonconforming uses can be continued indefinitely and that they can expand, extend, move or enlarge if the DRB finds that the change does not increase the degree of the non-conformance. According to Jason Rasmussen, senior planner with Southern Windsor Regional Planning Commission which assisted with the drafting of the bylaws, this area is open to interpretation. Chester Planning Commission chairman Tom Bock has repeatedly said that these bylaws give the DRB the discretion to do what is “appropriate for Chester.”

Underground storage tanks could not be replaced
for grandfathered businesses

This is false. Section 3.19 (D) 1 d states that the “DRB shall permit the alteration or expansion of a non-conforming use for the sole purpose of conformance with mandated environmental, safety, health or energy codes.” Rasmussen said that installing larger tanks underground is an interesting case since the measures of non-conformance (like set backs and lot coverage) are taken above ground and the statute does not concern itself with what’s not seen.

A ‘No’ vote will make transitional housing go away

If the “No” votes prevail and Jiffy Mart receives a conditional use permit to operate at the corner of 11 and 103, the Springfield Justice Center would have to move the furloughed prisoners out of the house. The Justice Center could decide to leave Chester or it could find another property in Chester.

If the Jiffy Mart does not get a conditional use permit by the end of the lease in April 2015, it would be up to the owner of the property to decide whether or not to extend the lease. If it does not, the Justice Center could decide to leave Chester or stay and find another property.

New zoning brings the uses in line with existing businesses

Generally speaking, zoning laws are meant to look to the future. Normally, a use is zoned out – with the existing examples grandfathered – because it does not fit the vision that the community has for the district.

Once a grandfathered business stops operation,
that use is lost forever

This is true, but only to the extent that the use must lapse for two years before it is lost. Remember that the Sunoco station was closed for quite a while, but it did not lose its grandfathered use. And the regulations do not spell out how long operations need to be resumed in order to restart that two-year time clock. Would one day be enough or one hour? It’s unclear.

Regional Planning said automotive uses were standard and appropriate in an R-C district

We have heard this enough to ask senior planner Jason Rasmussen. In a telephone interview with The Telegraph, Rasmussen said his original presentation of draft bylaws did not have automotive uses in the RC district and he made no recommendation. It is his recollection that the automotive uses were requested by a commission member, but he does not recall which one. Rasmussen says that Automotive uses are allowed by some towns and not by others and that is a matter of local preference.

Mixed use development

Opponents to the inclusion of Automotive uses in the Residential-Commercial district have cited a preference for mixed use development, which the bylaws call for as well. The details are a bit elusive though. While the bylaws define “mixed uses” as occurring within multi-level buildings, the Planning Commission – at several of its meetings – has leaned toward interpreting it as mixing separate uses in individual buildings within the district, which is easier to accomplish.

On the other hand, mixed use buildings are a harder type of development to bring about since they require a developer to figure out what uses are needed, coordinate with businesses that want to do those things and bring it all together in an area that makes sense. Mixed used buildings are a “downtown” pattern while mixed use individually in a district is a “suburban” pattern.

Defining a strip

The phrases “strip mall” and “strip development” have been used quite a bit. If a strip mall is something like Riverside Plaza on River Street in Springfield, then it’s pretty clear that the bylaws discourage that use. Strip development is characterized by multiple uses in a row so that there is a long strip of parking lot next to the road. Does the inclusion of auto sales/service and fuels mean that we will see strip development along 103 and 11? That remains to be seen.

A ‘No’ vote means Jiffy Mart will move across from the Sunoco

Affirming the Automotive uses may start the process, but there will still be conditional use review including traffic and flood hazard review. The site fronts on two state highways, so it’s conceivable that the Agency of Transportation may have a say along with the Agency of Natural Resources regarding the flood areas that  surround the station. It is certainly possible that the project could clear these hurdles.