Zoning Board of Adjustment
Monday/August 23, 2004
Present: Thomas Vannatta (Chair), Betsy Soper (Vice-Chair), Ernie Pagragan, Alex Azodi, William Cluff and Tanya McIntire.
Thomas Vannatta called the meeting to order at 7:04 p.m.
The Board reviewed the minutes from July 26, 2004 and corrections were made. A motion was made to accept the minutes as corrected. Seconded. All were in favor.
Mr. Vannatta passed out a Special Exception checklist, similar to the Variance checklist that he passed out at the last meeting.
Old Business
Mr. Vannatta asked if there were any more items that anyone wanted to discuss regarding the Planning and Zoning Conference from May.
Ms. Soper said that at a previous meeting, someone had mentioned that the Zoning Board did not have a method for a correction of error. She said that paragraph 16.9 addressed that. She said that it states that any party to the action or proceeding may apply for a rehearing and that would include the Zoning Board itself.
Mr. Vannatta said that he felt it should be re-written to include the Board itself based on a majority vote. He said that he would check with Ken McWilliams.
Mr. Pagragan said that he did not feel that it needed to be re-written. He felt that it was clear that the ZBA was a party to the action of proceeding.
The Board agreed.
Ms. Soper said that it was also mentioned by a Board member at a previous hearing that the Board needed to give reasons for approving an application. She said that according to 16.8.1 and 16.8.3, the Board only needed to give reasons for denying the application.
Mrs. McIntire said that she thought that she recalled learning at the conference that the Board members should give reasons for both denying and approving applications. She said that she would review her materials again.
Mr. Vannatta said that there were a few people from the volunteer recruitment session of July 19, 2004 that were interested in becoming members of the ZBA. He said that one gentleman was present tonight, Clay Rucker.
Mr. Vannatta asked Mr. Azodi to be a voting member tonight.
Mrs. Cluff read the public notice as follows:
Notice is hereby given that the Newbury Zoning Board of Adjustment will hear the following proposals on Monday, August 23, 2004 at the Town Office Building at 937 Route 103 in Newbury, NH:
At 7:30 p.m., Chris Clifford, 23 Route 103, Newbury, N.H., will seek a Variance as provided in Paragraphs 16.7 and 7.5.1 of the Newbury Zoning Ordinance to permit the following: Addition of a deck to an existing non-conforming dwelling unit that encroaches in the 50' setback requirement. Newbury Tax Map 051 Lot 371-430.
Copies of the plans are available at the Town Office building at 937 Route 103 Newbury, NH.
Mr. Clifford presented his plans to the Board and explained what he was looking to do. He explained that he would like to build a deck off his cabin that was 35' long and 10' wide. He said that the deck would be on the lake side of the cabin.
Mr. Clifford explained his case as follows:
16.7.1 No diminution in value of surrounding properties would be suffered because it would increase the value of their property and would be aesthetically pleasing from the lake and Route 103.
16.7.2 Granting the Variance would be of benefit to the public interest because he would be keeping all of the vegetation in place while allowing them to view the lake from their cabin. The bushes maintain the integrity of the bank thus minimizing erosion.
16.7.3.1 The zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment because he would like to enjoy the view of the lake from his cabin. The view was currently obstructed by established vegetation that he did not want to remove.
16.7.3.2 No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because many of his neighbors have decks and are equally as close to the water. He showed the Board photos.
16.7.3.3 Granting the Variance would not injure the public or private rights of others because the lots next to his property were currently vacant and his cabin could not be seen by any of his abutters.
16.7.4 By granting the Variance substantial justice would be done by following the precedence set forth by many of his lakeside neighbors.
16.7.5 Granting the Variance would not be contrary to the spirit of this ordinance.
Mrs. McIntire asked if all of the cabins were connected to the same septic.
Mr. Clifford said that all of the cabins had their own septics.
Mr. Vannatta opened the hearing to public comment.
With no comments from the public, Mr. Vannatta closed the hearing for deliberation.
Mr. Azodi asked the other Board members how they saw the hardship issue. He said that Mr. Clifford purchased that property knowing that it was a non-conforming building.
Ms. Soper said that she felt a precedence had already been established with other properties on the lake.
Mr. Vannatta said that part of the reason that the Zoning Board existed was to help people make the best use of their property. He did not feel that what he was asking for was unreasonable considering other properties near his house.
Mr. Azodi said that he disagreed with Mr. Vannatta.
Mrs. McIntire said that she did not have a problem granting the Variance because it was already flat and clear where he intended to put the deck. She said that he was not going to be removing any vegetation and there was already a vegetation buffer along the shore line. She said however, that she did not feel that any precedence had been set and she was by no means in favor of granting this Variance because other surrounding properties had decks that were equally as close to the water.
Mr. Azodi agreed with what Mrs. McIntire said.
A motion was made to vote on the Variance. It was seconded. The Board voted unanimously to grant the Variance.
Mrs. Cluff read the notice for the next public hearing as follows:
Notice is hereby given that the Newbury Zoning Board of Adjustment will hear the following proposals on Monday, August 23, 2004 at the Town Office Building at 937 Route 103 in Newbury, NH:
At 8:00 p.m., Michele Noyer, 25 Route 103A, Newbury, N.H., will seek the following:
Variance as provided in Paragraph 4.10.6 of the Newbury Zoning Ordinance to permit the following: Construction of an accessory apartment in a dwelling that is less than five (5) years old. Newbury Tax Map 020 Lot 107-334.
Variance as provided in Paragraph 4.10.4 of the Newbury Zoning Ordinance to permit the following: Construction of an accessory apartment on a lot that is less than 2 acres. Newbury Tax Map 020 Lot 107-334.
Special Exception as provided in Paragraph 4.10 of the Newbury Zoning Ordinance to permit the following: Renovation and occupancy of an accessory apartment. Newbury Tax Map 020 Lot 107-334.
Copies of the plans are available at the Town Office building at 937 Route 103 Newbury, NH.
Mrs. Noyer addressed the Variance for the construction of an accessory apartment on a lot that was less than 2 acres first. Her case was presented as follows:
16.7.1 The proposed use would not diminish surrounding property values as they were replacing a dilapidated building which was not up to code with a modern, much more ascetically pleasing building that was also in keeping with their house renovations. The apartment would be in keeping with the residential theme, structure, use and setting of the neighborhood.
16.7.2 Granting the Variance would be of benefit to the public interest because it would most likely increase the property values and make their buildings more in keeping with improvements in the immediate area. She said that they intended to use the apartment for their immediate family. They have an older son who is coming back from Iraq to live with them.
16.7.3 Denial of the Variance would result in unnecessary hardship because:
16.7.3.1 They require more space to comfortably house their family. They are located in a residential rural area and plan to continue that use. They have already added on to their house and cannot add on anymore. As mentioned above, they have a son coming back from Iraq and they are also licensed foster parents and could have up to two additional children living with them at any given time. Denying the variance would interfere with their reasonable use of their property because they would not be able to adequately house their family.
16.7.3.2 There was no substantial relationship between the general purposes of the Zoning Ordinance and the restriction placed on their property because we were not asking for a change of use.
16.7.3.3 Granting the Variance in this case would not injure the public or private rights of others because they were asking only to be able to expand their residential space. It would not result in any significant increase in traffic or noise and would in no way adversely impact surrounding properties.
16.7.4 By granting the Variance substantial justice would be done because they would be more comfortably able to house their family.
Mrs. McIntire asked if the septic was adequate.
Mrs. Noyer said that it was because they have a four bedroom septic design and only a three bedroom house.
Mr. Vannatta opened the hearing to public comment.
Bob Messenger said that not too long ago, he came before the Board for this same issue and was granted the Variance. He said that this lot was established well before the two acre minimum was put in place. In his opinion, the two acre minimum was put in place because of the septic and to keep the ordinances consistent.
Mr. Vannatta closed the hearing to pubic comment for deliberation.
With no comments from the Board, a motion was made to Vote. Seconded. The Board voted unanimously to grant the Variance.
Mrs. Noyer’s case for the second Variance, to build an accessory apartment in a building that was less than five years old, was essentially the same as the first Variance. She said that there had been a garage there for many years, but it was substandard and dilapidated.
With no comments from the Board, a motion was made to Vote. Seconded. The Board voted unanimously to grant the Variance.
Mrs. Noyer addressed the Special Exception application. She explained that they met all of the requirements of article 4.10 now that she had been granted the two Variances. She said that they would only have one apartment on the lot, they or their children would be occupying both dwellings, there will be 3+ parking spaces, the entrance would be from inside the formal entrance of the garage, the interior floor area of the apartment would not exceed 50% of the accessory building and the use of the apartment would be subordinate to the principle use of the building as a 3 car garage.
Mrs. Noyer said that they meet all of the Special Exception conditions as put forth in Article 16.6:
16.6.1 The use of the area above their garage as an accessory apartment would not be detrimental to the character of the neighbor hood and would be in keeping with that character.
16.6.2 Having an apartment above their garage would in no way be offensive or detrimental to the neighborhood. The apartment would be an interior change only.
16.6.3 The use of the space as an accessory apartment would not be contrary to the public health, safety or welfare. There would be ample parking with 3 spaces in the garage and 2 in the driveway. The apartment would not result in “undue traffic congestion” as it would mean only an increase of one car.
16.6.4 The location of the entrance, size of the use, and the nature & intensity of use would not change and would remain in harmony with the neighborhood. The entrance to the apartment will be from inside the garage and the closest adjacent buildings were a least 300 feet away. The location of the garage and accessory apartment would not impair the value of any of these surrounding properties.
16.6.5 The operations in connection with such use shall be as dwelling space for their family and therefore would not create noise, fumes, odor or vibrations above and beyond existing conditions.
Mr. Vannatta asked if the Board had any questions or comments.
Ms. Soper said that the request seemed reasonable to her.
Mr. Vannatta opened the hearing to public comment.
With no public comment, the hearing closed for deliberation.
With no additional comments from the Board, a motion was made to vote. The motion was seconded. The Board unanimously voted to grant the Special Exception.
A motion was made to adjourn. Seconded. All were in favor. The meeting adjourned at 9:15 p.m.
Respectfully Submitted,
Lacy L. Cluff
Land Use Board Assistant
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