Zoning Board of Adjustment
September 25, 2006
Members Present: Thomas Vannatta (Chair), Betsy Soper (Vice Chair), Elizabeth Ashworth, Katheryn Holmes, Ernie Pagragan, Helen Wright (Alternate) and Lacy Cluff (Alternate).
Mr. Vannatta opened the meeting at 7:30 p.m.
The Board reviewed the minutes of August 21, 2006 and made corrections. A motion was made to accept the minutes as corrected. It was seconded. All were in favor.
Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on September 25, 2006 at the Town Office Building at 937 Route 103 in Newbury, NH:
At 7:30 p.m., Richard and Suzanne Rothstein, for property located at 46 Brats Cove Road, Newbury, NH, will seek a Variance as provided in Paragraph 7.3.2 and 5.9.1of the Newbury Zoning Ordinance to permit the following: to construct a new home within the 15 ft. side setback and within the 75 ft. setback from the lake.
Newbury Tax Map 017-639-294
Copies of the above application are available for review during regular business hours at the Newbury Town Office building.
Mrs. Cluff read the above noticed hearing.
Mr. Vannatta said that the above two hearings were going to be heard simultaneously and explained the procedure as follows:
1. The Board would introduce themselves.
2. The applicant would present his case.
3. The Board would ask questions.
4. The hearing would be opened to public comment.
5. Close the hearing for deliberation.
6. The Board would vote.
7. There would be a 30 day appeal period.
Deirdre Sheerr and George Pellettieri introduced themselves as the applicant’s authorized agents.
Ms. Sheerr said that before they began, Mr. Rothstein wanted to speak.
Mr. Rothstein explained the history of their property and their desire to move to the area to live there full time.
Ms. Sheerr said that Mr. Pellettieri was going to lead the presentation and she was going to add additional information was necessary.
Mr. Pellettieri showed the Board a plan of the existing site and the existing conditions. He explained that it was a long narrow site and became narrower the farther away from the lake it got. He said that there was an existing structure that could be renovated in place, but he would speak more to that after. He explained that there was a significant grade change, more so than other lake side lots. There was an existing four bedroom septic. He said that they work as a team and that he had an office full of well trained people.
Ms. Sheerr commented that Mr. Pellettieri had won national recognition for his work on the lakeside.
Mr. Pellettieri said that he was also the past chair of the Warner Planning Board. He said that they supported the regulations and wanted to improve the current conditions. When they are first called into a project, they look at how they can best meet the client’s needs within the regulations. If that is not possible, they look at alternatives and ways to make the property more conforming and ways to improve the property. He explained that in this case, he talked to the Rothstein’s about the adjoining property that had over 6 acres and the residence was on the opposite side. He asked the Rothstein’s if they had approached them to purchase additional land. The Rothstein’s said that they had and that they had declined. He asked that they approach them again
with a plan (he showed those plans). They again declined. He had the letters from both parties. The next step was to look at the NH Shoreland Protection Act. He said that he was currently serving on the commission to make recommendation on changes to the NH Shoreland Protection Act. He wanted to find out if they complied so, in May they had an informal meeting with them and followed up with an application on June 17, 2006. They had 90 days to respond and they have not had a response from them yet. When they had the informal meeting with them, they indicated that they did not see any reason why they would deny it. The applicant would be happy to make that a conditional approval.
Mr. Pellettieri said that they approached the State to move the house outside of the 50 ft. setback. They understood that the Town’s setback requirement was 75 ft. and he would address that later.
Ms. Sheerr said that there would be a 35% decrease in volume within the 50 ft. buffer. She said that they were pulling it back 5 ft. from the shore and therefore making it more conforming. They could renovate it in place and the plans allow for that, but they would like to get the house out of the 50 ft. buffer zone. Also, the house was originally built as a summer home and they thought if they were going to spend all that money to renovate, then why not build a new, more energy efficient house. The State agreed that it would be better to move the home out of the 50 ft. buffer, but it would encroach 5 ft. into the side setback requirement.
Ms. Holmes asked how many feet the existing house was from the lake.
Mr. Pellettieri said that it was 45’ at one end and 75’ at the other.
Ms. Holmes said that they were proposing to have it 50’ from the lake at its closest point.
Mrs. Wright asked if they could still build in the current location if this variance were denied.
Mr. Pellettieri said that they could.
Ms. Holmes asked when the home was built.
Mr. Rothstein said that he did not know when it was originally built, but that it was rebuilt in 1984.
Ms. Holmes asked when they bought the property.
Mr. Rothstein said that they bought the property in 1996.
Mr. Pellettieri e-xplained that they were asking for two variances. The first variance was to move the house back 5 ft. to get it out of the 50’ buffer zone, but encroaching in the 15’ side setback requirement. The home would remain the same dimensions as would the deck. They would leave the spa in its current location unless the Board would like them to move it back. He said that they would be re-planting as part of their permanent erosion control plan. They would submit those plans with the building permit application. No additional trees would be taken down for the house. It is going to be put in the same clearing that currently exists.
Mrs. Wright asked how many trees were going to come down where they were intending to put the garage.
Ms. Sheerr said that they had a map of the trees that were going to be coming down for discussion later on in the presentation.
Mr. Pellettieri said that it was their client’s desire to have an attached garage.
Ms. Sheerr explained that the way the way the driveway was did not allow them to turn around very easily.
Mrs. Cluff asked if they could build the garage within the regulation somewhere else.
Ms. Sheerr said that they could, but they would still have difficulty turning around. She said that it would also be safer in the winter to have it attached with the connector. She said that she thought that it was reasonable to expect a garage. She said that a lot of people in the neighborhood had garages, but did not have the challenge of turning around that their client had. She showed some pictures of garages in the neighborhood. She said that the design they came up with was the best that they could do with the narrow property.
Ms. Holmes asked if they explored the possibility of changing the road.
Ms. Sheerr said that they did.
Mr. Pellettieri said that a lot more vegetation would have to be cut. He said that the Board needed to look at what could be reasonably expected by the applicant. He felt that it was reasonable to have an attached garage with a 16’ grade change. He said that they looked a number of alternatives to see what would work best.
Mr. Pellettieri said that a question about tree removal for the garage came up earlier and he would like to address it now. He showed a plan of the trees that needed to be removed. There was only one in the 50’ buffer that may need to come down. The Client’s were requesting that they save as many trees as possible. There were four trees in the 75’ setback that needed to be removed. One of those trees was right up against the house and a potential hazard. There were a total of 7 trees that were going to be coming down. Two of those trees were outside of the 75’ buffer. There were currently 30 trees in the 150’ setback from the lake.
Ms. Sheerr said that there were still going to be enough trees left that you would not see this addition from the lake.
Ms. Holmes asked what the size of the garage was.
Ms. Sheerr said that it was 24’ by 26’.
Ms. Holmes asked if it was going to be on a slab.
Ms. Sheerr said that it was going to be on piers with a suspended slab. There was going to be no blasting.
Mr. Pellettieri said that he wanted to point out that trees that grew up together were a unit and the outside trees were the strongest. They were planning on removing the interior, weaker, trees.
Ms. Sheerr pointed out the house was mostly behind the trees. She showed pictures of this.
Mr. Pellettieri said that there was no lawn as there is on other properties and they intended to keep it that way. He said that lawns adjacent to the lake were harmful.
Mr. Pellettieri went on to discuss drainage. He said that the drainage was not handled now and ran untreated into the lake. With the new construction, they were going to put in state of the art drainage systems. He said that they would submit landscape plans along with the required documentation with the building permit application.
Ms. Holmes asked if the permanent erosion control plans were going to be improvements.
Ms. Sheerr said absolutely and the Mr. Pellettieri had won national awards for his designs.
Mr. Pellettieri said that they would be taking some of the current impervious areas and allowing for more permeability.
Ms. Sheerr said that they were trying to improve the current situation.
Ms. Holmes commented that it was going to be a huge disturbance.
Ms. Sheerr said that it was going to be in an area that was already disturbed. She said that when they looked at other options, they would have to take away the tree buffer between their client and their neighbor making it worse for their neighbor. She said that with the shape of the lot, once you removed the setbacks and the driveway, there was not a lot of space to build on.
Ms. Holmes asked what the existing size of the structure was compared to the proposed.
Ms. Sheerr said that the existing house was 2,208 square feet as was the proposed. The proposed connector was 1,300 square feet and the garage was 460 square feet. She said this was the livable space.
Ms. Holmes asked how high the roof was.
Ms. Sheerr said that it was not more than 34’.
Mr. Vannatta asked how high the garage was from the lake elevation.
Ms. Sheerr said that the lake side elevation was going to be more and that the drive up side would be less.
Mr. Vannatta asked about the sill height because the regulations said that they could not be more than 30’ above the ground.
Ms. Sheerr said that all heights meet the regulations.
Mr. Vannatta asked if they needed documentation from the Conservation Commission for tree cutting.
Ms. Holmes serves on the Conservation Commission and said that they would need that.
Mr. Vannatta said that that would be an obvious condition then.
Mr. Vannatta asked that the applicant go over the variance criteria. He said that the Board was going to treat each application separately.
Mr. Pellettieri went over the variance criteria for the two variances per the applications (please see file).
Mr. Vannatta interrupted the hearing to announce that the Dutcher hearing that had been noticed would not be heard tonight because it was referred back to the Planning Board.
Mr. Vannatta asked what was in the connector area that was three floors.
Ms. Sheerr said that they added a unifying piece for visual interest and that the connector had a mud room and stairs the lead over the garage to a weaving studio.
Mr. Vannatta asked if they were going to have plumbing above the garage.
Ms. Sheerr said that they had talked about putting a half bath.
Mr. Vannatta asked if there was any chance of that becoming living space.
Ms. Sheerr said that it was a small area and that they may put in an 8 x 10 office.
Mr. Vannatta asked what was below the garage.
Ms. Sheerr said that there was going to be a sliding door and there would be storage under there for canoes etc.
Ms. Holmes asked where the storage currently was.
Ms. Sheerr said that it was in the crawl space under the house.
Ms. Holmes commented that the 1,300 square foot connector was half the size of the existing house.
Mr. Pellettieri said that if they moved the garage closer to the house, there would not be enough turning space.
Ms. Ashworth asked where the outside stairs area went.
Mr. Pellettieri said that it was the summer access to the lower area.
Ms. Ashworth said that they were already proposing a breezeway and garage.
Ms. Sheerr said that that was for winter access.
Ms. Holmes asked what they were doing for a foundation.
Ms. Sheerr said that they were proposing a basement, but would be willing to do a crawl space. They need some place to put their utilities.
With no more questions from the Board, Mr. Vannatta opened the hearing to public comment. He asked that anyone wishing to speak, raise their hand, wait to be recognized, state their name and address and direct their question to the Chair. He asked that they only speak to the two variances.
Robert Mills, abutter directly south, said that he had written a letter to the Board. He submitted the same letter again with his major points highlighted.
Mr. Vannatta said that all of the Board members had received a copy of the letter and read it (please see file).
Mr. Mills asked if the Board had received a letter from LSPA.
Mr. Vannatta said that they had received a letter from June Fighter on behalf of the LSPA. The letter, along with other points stated that the LSPA supported upholding the 75’ setback requirement so that controlled, thoughtful growth could occur (please see file).
Mr. Mills said that he was not opposed to the construction of a new home as long as the same rules applied to them as applied to him eight years ago. He said that he also had a narrow lot and felt that there were other options available. He said that the footprint could be moved without variances and that alone should be grounds for denial.
Mr. Vannatta said that there was also a letter from Harvey and Nancy Cohen (please see file). That letter said that they believed that the zoning was in place to protect the lake and also felt that there were other options without variance or the impacts on the lake.
Hank Dolbin, abutter, said that he did not want anyone to use his property for turning purposes. He also did not support building in the 75’ setback.
Lance Macy, abutter, said that he has known the Rothstein’s for 10 years and felt that they had the lakes best interest in mind. That was shown by them hiring well qualified people to design the project. He was in favor of the project.
With no further comment from the public, Mr. Vannatta closed the hearing to public comment and the Board went into deliberation.
Prior to deliberation, the Board took a 5 minute break.
Mr. Vannatta said that the Board members had all visited the site and heard all points of view. It was now the Board’s turn to speak among themselves.
Ms. Soper said that she understood the hardship of not having a garage and having to back up 1/10th of a mile in order to turn around, but it looked like they were almost doubling the size of the home with the connector and the garage.
Mr. Pagragan said that he had several issues. His first issue was the wording in the application. The application said replacement of an existing structure and addition in part in the 75’ setback. He thought that 85 % - 95% of it was in the 75’ setback. The 50’ State setback that they kept referring to does not exist in our ordinance. The setback requirement is 75’. Moving the house back 5’ is not making the house less non-conforming especially when they are doubling the size of the house. He did not feel that hardship was met. He did not agree that there would be no decrease in the surrounding property values when they took down all those trees. He felt that it was not in the spirit of the ordinance because they were doubling the size of
the structure. It was contrary to the public interest since many of the abutters were opposed to it. He also had a problem with them saying that this was the only way it could be done. There is always another way. He felt that this was going to be an astronomical disturbance to the 75’ setback.
Ms. Holmes said that they had very good architects designing the project and that it was not easy to make a summer home a year round residence. She said that it was a difficult case in terms of hardship. The regulations in general create hardships on a lot of lots. However, she felt that this would be a huge disturbance. She understood that what Mr. Pellettieri Wanted to do would enhance the property. The proposed structure was almost twice as large as the existing structure. She said that it was a beautiful design, but because of the disturbance that it would cause, it would not be prudent to approve. The application did not comply with the tree removal regulations and the state had not blessed it yet. She said that hardship was always difficult to meet. People have a
right to do something with their property, but the Board has regulations to uphold.
Ms. Ashworth was concerned about the size of the house and would like to see a more conservative design.
Mr. Vannatta said that he understood the different positions, but the Board was being asked to judge the merits of this application against the ordinance. What are the special conditions leading to hardship and is it in the spirit of the ordinance. Why was the ordinance written? He felt that the Board had a good handle on that. He said that he was concerned about the overall project. He said that some people would give anything to have that property just the way it was. He agreed with Ms. Ashworth that it was not a conservative project. He felt that this project was a wish list. He did not think that hardship had been met and felt that there were alternatives that would still meet the client’s needs. He said that he would find it difficult to approve the
applications.
Ms. Soper said that Mr. Pellettieri said that they could renovate the existing structure. She said that she did feel that a garage was essential in the winter, but thought that the plan was too big.
Mr. Pellettieri interrupted deliberation as a point of order and asked if they could continue the hearing and come back with a new plan or did they need to re-apply.
Mr. Vannatta said that they would need to re-apply.
Ms. Ashworth made a motion to vote on the variance for the 15’ side setback per paragraph 5.9.1 as it was presented. Ms. Soper seconded it. The Board voted as follows:
Ms. Holmes voted to deny the project because of the size of the project in the 75’ setback.
Mr. Pagragan voted to deny because he did not feel that it was in the spirit of the ordinance or that hardship had been met.
Ms. Soper voted to deny because of the size of the structure in the 75’ setback.
Ms. Ashworth voted to deny because hardship had not been met.
Mr. Vannatta voted to deny because hardship had not been proven and it was not in the spirit of the ordinance.
Ms. Holmes made a motion to vote on the variance for the 75’ setback. Ms. Ashworth seconded it. The Board voted as follows:
Ms. Holmes voted to deny the project because of the size of the project in the 75’ setback.
Mr. Pagragan voted to deny because he did not feel that it was in the spirit of the ordinance or that hardship had been met.
Ms. Soper voted to deny because of the size of the structure.
Ms. Ashworth voted to deny because hardship had not been met.
Mr. Vannatta voted to deny because hardship had not been proven and it was not in the spirit of the ordinance and the land was not unique, it was the same all around the lake.
Mr. Vannatta said that both variances were denied. They would receive a notice in the mailed within 72 hours. There was a 30 day appeal period from today.
Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on August 21, 2006 at the Town Office Building at 937 Route 103 in Newbury, NH:
At 9:00 p.m., Carl Bingham, for the property located on Gerald Drive, Newbury, NH, will seek a Variance as provided in Paragraph 7.3.2 of the Newbury Zoning Ordinance to permit the following: to construct a dwelling unit within the 75 ft. setback from Chalk Pond. Newbury Tax Map29A-055-377.
At 9:30 p.m., Carl Bingham, for the property located on Gerald Drive, Newbury, NH, will seek a Variance as provided in Paragraph 5.9 of the Newbury Zoning Ordinance to permit the following: to construct a new home within the 15 ft. side setback.. Newbury Tax Map29A-055-377.
Copies of the application are available for review during regular business hours at the Newbury Town Office building.
Mrs. Cluff read the above public notice.
Mr. Vannatta said that the above two hearings were going to be heard simultaneously and explained that this hearing was continued from September 25, 2006 and the procedure as follows:
1. The Board would introduce themselves.
2. The applicant would present his case.
3. The Board would ask questions.
4. The hearing would be opened to public comment.
5. Close the hearing for deliberation.
6. The Board would vote.
7. There would be a 30 day appeal period.
Bob Stewart from RCS Designs introduced himself as the authorized representative for Mr. Bingham.
Mr. Vannatta explained that the hearing had been continued because there was a concern from an abutter that the property line had not been properly surveyed and a possible deal with the Selectmen that the lot would not be buildable. Mr. Vannatta confirmed with the Town Administrator that no such deal existed.
Mr. Stewart said that the other outstanding issue was the survey. He said that if the abutter had a concern about the lot line then it was his responsibility to prove otherwise. A survey had been completed on 04/19/06 and recorded at Merrimack County Registry of Deeds. He commented that on that survey it showed that Mr. Tibbles, the abutter disputing the lot lines, dock encroached on his client’s property.
Mr. Stewart said that his client was looking to build a two bedroom single family dwelling. He said that this was a small grandfathered lot and there was no other options.
Mr. Vannatta asked for a draft of the design.
Mr. Stewart said that he did not have one, but that it was going to be a ranch with a walk out basement, similar to the abutting property, long and narrow.
Mr. Vannatta said that that would have to be a condition.
Mr. Stewart went over the variance criteria per his application.
Mr. Stewart explained that the State had very strict regulations. He had to show every tree and every diameter to verify that all conditions were met. There are conditions under which trees can or cannot be cut. This has been approved by the State and a copy was in the file.
Mr. Pagragan asked about the appeal for reconsideration that had been submitted.
Mr. Stewart said that that appeal had been denied and he had a letter to prove that (please see file). The primary reason was because of the clean solution system that they were proposing for the septic.
Ms. Holmes asked if the State cautioned people on what not to pour down the drain.
Mr. Stewart said that the Clean Solution system did not clean everything; it had its greatest effect on bacteria. He said that it was cleaner than the pond itself. The reason that the septics have sand and stone was for undesirable things to attach themselves to. He said that that was true with any type of septic. He said that the State of New Hampshire was one of the few states that had four feet of separation instead of two.
Ms. Holmes asked how the drainage from other sites affected this.
Mr. Stewart said that it was level off the road, but that there was very little runoff. He said that the state does not take lake front property lightly and that there were approximately 21 Clean Solution systems around Lake Sunapee. They have enabled people to upgrade substandard systems that have failed.
Mr. Stewart said that there was a concern from the Chalk Pond Association that a permanent stream ran through the property. He presented photos and explained that the water only ran when it was raining and it was not a permanent stream per the zoning ordinance because it was not named and therefore setbacks to it did not apply.
Mr. Stewart commented that the road encroached 8 feet onto this property. Had the road been built in the proper location, the house would meet the 30’ setback requirement from the road.
Mr. Stewart said that they would be putting in rip rap that was designed to carry any water off. He said that there was a series of terraces leading down to the water and that they were designed to treat the runoff and slow down the water so that it could percolate into the ground. It was one of the best management practices. He said that they would be putting in hay bails to protect during construction.
Mr. Stewart said that they had done everything possible to keep the pond clean. He said that the plan was the most environmentally friendly because of the Clean Solution system and the terracing.
Mrs. Cluff asked about the water supply.
Mr. Stewart said that there was a curb stop that exists for the water to be hooked up to.
Mr. Stewart said that paragraph 15.2.1 allowed for them to build on a non-conforming lot. He said that no waivers from the Shoreland Protection Act were necessary. He explained that as the regulations changed, more and more lots became non-conforming and did not feel that the current zoning should apply because this was a grandfathered lot.
Mr. Pagragan disagreed that the current zoning should not apply because these subdivisions that created tiny lots was the reason that the zoning was put in place.
Ms. Holmes asked what the size of the house was.
Mr. Stewart said that it was 600 Sq. feet.
Mr. Pagragan asked if the sale of the property was contingent on these variances getting approved.
Mr. Stewart said that it was.
Mr. Vannatta opened the hearing to public comment.
Sue Russell from the Chalk Pond Association said that the association would like a copy of the plan. She was concerned about the steepness and erosion problems even if it was a small house.
Mr. Stewart said that his office would be happy to provide them with a copy of the plan.
With no further comment, Mr. Vannatta closed the hearing to public comment and went into deliberation.
Ms. Soper said that this lot is what it is and would not hold a large structure. She liked the idea of the Clean Solution system and felt that it was a modest plan. She also felt that he had proven hardship.
Ms. Ashworth agreed with Ms. Soper. She said that she would just like to see a house plan.
Mr. Pagragan said that he did not feel that the variance criteria had been met, especially hardship because the property had not been purchased yet.
Ms. Holmes said that it seemed like the regulations interfered with their reasonable use of the property, but that the area was already very dense. She did not know if they would be serving Chalk Pond best if they approved this application. It seems like we were paying for our past mistakes of allowing land to be subdivided into these small lots.
Mr. Vannatta said that when he first looked at this application he did not see how they could approve it and was looking at the regulations to see a way to nullify it, but has not been able to. The regulations do provide for relief and that he was satisfied with the arguments given. He felt that all of the criteria had been met.
Ms. Ashworth made a motion to vote on the variance for the 30’ right of way setback as presented. Ms. Soper seconded it. The vote was as follows:
Ms. Ashworth voted to grant with the condition the house plans be submitted.
Ms. Soper voted to grant with the condition the house plans be submitted.
Ms. Holmes voted to deny because she could not grant without seeing the house plans.
Mr. Pagragan voted to deny because it was not in the spirit of the ordinance and he did not feel that hardship had been met because the land had not been purchased yet.
Mr. Vannatta voted to grant with the condition of town and state approval and that the construction was to be done per the testimony and documentation presented tonight otherwise the decision was recinded.
Ms. Ashworth made a motion to vote on the variance for the 75’ setback from the high water as presented. Ms. Soper seconded it. The vote was as follows:
Ms. Ashworth voted to grant with the condition the house plans be submitted.
Ms. Soper voted to grant with the condition the house plans be submitted.
Ms. Holmes voted to deny because she could not grant without seeing the house plans.
Mr. Pagragan voted to deny because it was not in the spirit of the ordinance and he did not feel that hardship had been met because the land had not been purchased yet.
Mr. Vannatta voted to grant with the condition of town and state approval and that the construction was to be done per the testimony and documentation presented tonight otherwise the decision was recinded.
A motion was made to adjourn. It was seconded. The meeting adjourned at 12:00 a.m.
Respectfully submitted,
Lacy L. Cluff
Recording Secretary
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