The Lyndeborough Zoning Board has overturned an administrative decision that a portable toilet business didn’t fit under the town’s home business guidelines – but made that decision dependent upon the owner going through a site plan review with the Planning Board.
The business, Portable Privies, owned and operated for the past 30 years by Larry Boisvert of Lyndeborough, is operated out of a home office, with some portable toilets stored on his property on Center Road – some in trailers and some outdoors. In 2005, the town brought the business to court for zoning violations, and the court ruled in the town’s favor that the business didn’t qualify as a home occupation, because it was not incidental to the primary residential use.
At that time, the portable toilets were moved off-site to be stored in Milford. But in 2012, the town amended its home business ordinance, and Boisvert interpreted the new ordinance to mean that Portable Privies would now qualify as a home business, and moved the storage back onto his property.
In March, the town’s then-Code Enforcement Officer Bart Hunter issued a letter issuing a decision that the business did not qualify, citing three main arguments: That the business didn’t take place entirely within the home, that the use wasn’t “secondary and incidental” to the main use of the property, and that it may interfere with the other business – a paintball and airsoft facility – also located on the property.
James Lombardi, the attorney representing Boisvert, refuted those arguments during the Zoning Board’s hearing on the appeal of the administrative appeal of the decision. Because the Zoning Ordinance allows for outdoor storage as long as it’s screened from view – which Lombardi argued is the case here – so not all aspects of the business are meant to be indoors. There is also nothing in the ordinance that prevents multiple home businesses operating at once. And the primary use of the property is as a residence, said Lombardi, and the town has approved similar home businesses which would be comparable in scope.
Zoning Board member Tom Chrisenton went back to the 2005 court decision, pointing to the court conclusion that the business – which had grown since then – was found not to be incidental to the residential use.
Though Lombardi argued that the town’s zoning had changed since then, making the court decision moot, and that the court was using a definition of incidental based on past court law, Chrisenton wasn’t entirely convinced.
“The wording hasn’t changed,” said Chrisenton.
However, Chrisenton, who also serves on the Planning Board, said he was willing to overturn Hunter’s administrative decision, if Boisvert was willing to go through a site plan review.
“If Larry were to go through site plan review, I can’t see a reason he wouldn’t be approved,” said Chrisenton.
The board was amenable to that, but wanted to add additional conditions, including barring Boisvert from washing the interior of his portable toilets on the property, and that the business not expand beyond its current size, and that the business cannot continue to operate on that property if it is sold, and that Boisvert will have to apply for the site plan review within a reasonable amount of time.
The board agreed to those conditions, and then agreed unanimously to approve the appeal of the administrative opinion.
Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.