Zoning Board of Adjustment
December 14, 2009
Approved February 8, 2010
Members Present: Helen Wright, Vice-Chair; Steve Russell; Barbara Richmond; Peter Fichter; Sue Russell, Alternate.
In the absence of Ms. Holmes, Chair, Ms. Wright, Vice-Chair, chaired the meeting.
Ms. Wright called the meeting to order at 7:08 p.m.
Ms. Wright appointed Sue Russell, Alternate, to be a voting member of the Board for this meeting.
ADMINISTRATIVE BUSINESS:
Minutes
The Zoning Board of Adjustment (ZBA) reviewed the minutes of November 9, 2009 and made no corrections.
Ms. Richmond made a motion to accept the minutes of November 9, 2009. Ms. Russell seconded the motion. All in favor.
Application Checklist
The Board reviewed the current draft of the ZBA Application Checklist and made suggestions. Mr. Fichter requested that a qualifying statement be added to the sentence, “The completed Application will be heard on the 2nd Monday of the following month.” He said applications should be heard on a first-come, first-serve basis, depending on the number of applications each month. Mr. Russell agreed.
Ms. Russell suggested adding the words, “if applicable” to the following requirements: Site Plan; Architectural Drawing; and, Erosion Control Plan. She said not all applications will require these items.
The Board directed the Recording Secretary to confer with the Chair, Katheryn Holmes, and discuss the suggested changes.
At 7:15 pm, Jeffrey & Bonnie Nester, property located at 67 Old Post Road, Newbury, NH, will seek a Special Exception as provided for in 5.7, 5.7.1, 5.7.4, & 5.7.8 to permit the following: To allow the construction of an accessory apartment on the second floor of an existing detached three bay garage. Newbury Tax Map 031-640-002.
Ms. Russell said that the application lists Article 5 and Paragraph 5.7.1. She suggested amending the application to reflect the Paragraphs listed in the Public Notice: Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8. The Board agreed.
Mr. Nester presented to the Board. He introduced Naomi Lavertue, the care provider for his two special needs children. She is a trained one-on-one para-educator at Kearsarge Regional high School. He said the apartment under question is for Ms. Lavertue so she can be available on site for the care of his two special needs children.
Mr. Nester said he built his garage three years ago with the intent of putting an apartment above it. He said he knows the zoning regulations call for a minimum of five years before allowing an apartment to be built. He said Ms. Lavertue’s current living situation will change within a year and this is an opportunity to place her in an apartment that is close to his children. He said it is difficult to find qualified caregivers for his two special needs children and this is an opportunity to streamline his children’s care while giving Ms. Lavertue affordable housing.
He said occupancy for the apartment would occur a year from now so the requested variance would be for one year, meaning the existing building would be four years old and not the required five years.
Mr. Nester said he is applying for a special exception to build the accessory apartment but in the special exception, under the accessory apartment category there is a stipulation that the existing building must be five years or older.
Ms. Wright clarified Mr. Nester’s presentation by stating a special exception is needed to build the apartment and a variance is needed to address the five-year requirement. She said the Board will hear the application for a special exception first, and then hear the application for a variance.
There was general discussion among the Board members regarding Paragraph 5.7.4 and the parameters governing a special exception. The Board discussed whether or not a variance was also needed.
Mr. Nester referred to a 1991 case in which the applicant had to apply for a special exception and a variance, noting the situation was similar to his.
There was further discussion and Ms. Wright stated that each case stands alone and former cases do not influence current cases.
Mr. Russell said Mr. Nester’s application is a two-step process. First, the applicant is applying for a special exception and, second, he is asking for relief from the ordinance (the variance) from the five-year requirement. Mr. Fichter agreed
Mr. Nester continued his presentation, saying he spoke with his neighbor whose property line abuts his garage. His neighbor supported the Nesters’ proposed apartment.
His plans show the garage is currently a “shell” and the second floor is an open loft. Mr. Nester said the Building Code Officer said the apartment’s egress must be directly to the outside, not through the garage. The proposed plans indicate the required egress.
The plans call for a two bedroom apartment, living room, kitchen, and bath. Laundry facilities are not included. A deck is planned for the rear of the garage. Mr. Nester said his intention is to alter the look of the existing garage (which currently resembles a barn) as little as possible.
Ms. Russell asked if the proposed apartment changes the garage’s roof line. Mr. Nester said no.
Ms. Russell asked about the square footage. Mr. Nester said the proposed apartment will be 810 square feet, less than 50 percent of the total square footage of the existing garage.
Mr. Nester reviewed the existing septic system for his property, saying his four-bedroom house is serviced by an existing septic system that was approved by the state for a six-bedroom house capacity. He said he owns the adjoining lot and said space on his property for an additional septic field has been guaranteed through a covenant in his property deeds for both lots.
Mr. Fichter asked if Mr. Nester’s existing septic field is close to the allotted space for the future additional septic field mentioned above. Mr. Nester said it would be new septic field.
Mr. Fichter asked how it is determined when a septic field fails – or reaches its capacity. Mr. Nester said the current system is 12 years old and said when a septic field fails black puddles leech out onto the property and are visible. He said he installed filters in the existing septic tank to minimize clogging and lengthen the life of the field.
Mr. Nester said his family does not tax the existing septic system and the addition of Ms. Lavertue would not substantially change the demand on the system.
Mr. Nester said his proposed apartment is intended as a one-person dwelling and will be used only as housing for the caregiver for his children. He added that the proposed apartment would not be viewed as an income-producing property.
Mr. Nester added that the proposed windows on the side of the garage facing the neighbors would be awning windows opening form the bottom and would be opaque to guarantee privacy.
Ms.Wright asked how the exterior staircase and deck would be constructed. Mr. Nester said the area is currently flat and prepped, saying the deck and stair supports would be placed directly on existing rocks and ledge and tie in to the side of the garage. He said site work or interrupting the soils does not need to be done.
Ms. Wright asked if he planned to do any blasting on the rock. Mr. Nester said no.
Mr. Fichter asked if Mr. Nester has applied for a building permit for the deck construction. Mr. Nester said no, not yet.
16.6 Special Exception – General Conditions
There being no more questions from the Board, Mr. Nester addressed Articles 16.6.1 – 16.6.5 of the zoning ordinance:
16.6.1 That the use will not be detrimental to the character or enjoyment of the neighborhood by reason of undue variation or undue violation of the character of the neighborhood because: The use of the apartment will only be used for housing 1 or 2 additional individuals on the property. The primary intent is to house an individual to care for our children now and over the long term.
16.6.2 That the use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: The use of the apartment will only be used for individuals who specifically require housing. No storage of dilapidated vehicles and/or equipment shall be allowed on the premises which would be an eye sore. The existing barn garage would remain looking like a barn to keep any appearance of an apartment hidden as much as possible with the entrance in the back of the building.
16.6.3 That the use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal, or similar adverse causes or conditions because: Only one or two additional cars would be entering and leaving Old Post Road on a daily basis. A state approved six bedroom septic plan has been designed for installation when the existing septic field is at the end of its useful life. There would be ample parking available with 1 space in the barn garage and 2 in the driveway.
16.6.4 The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the proposed use and the location of the site with respect to the existing or future street giving access to it, shall be such that it will be in harmony with the neighborhood. The location nature and height of buildings, walls, and fences will not discourage the appropriate development and use of the adjacent land and buildings or impair the value thereof. In this regard, the Board may impose the following safeguards in addition to the applicable requirements of this Ordinance, including, but not limited to the following:
16.6.4.1 Front, side or rear setbacks greater than the minimum requirements of this Ordinance;
16.6.4.2 Screening of parking areas or other parts of the premises from adjoining premises or from the street by walls, fences, planting or other devices;
16.6.4.3 Footprint or lot coverage;
16.6.4.4 Modification of the exterior features or appearance of the building;
16.6.4.5 Limitation of size, number of occupants, method or time of operation or extent of facilities;
16.6.4.6 Regulation of number, design, and location of drives or other traffic features;
16.6.4.7 Off street parking or loading spaces beyond the minimum requirements; or
16.6.4.8 Control of the number, size, and location of lighting and signs.
The entrance to the apartment will be in the back of the building and the building will remain looking like a barn with minimal appearance of an apartment from the street or side(s) adjacent to existing neighbors. The size of the existing building will not change in any way. No trees will be required to be taken down nor will any site work be required.
16.6.5 Operations in connection with such a use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operation of any permitted uses in this district which are not subject to special exception procedures because: The operations with this use shall be no different than the current use of the primary residence dwelling and therefore would not create any additional noise, fumes, odor or vibrations above and beyond existing conditions on the property.
Ms. Wright closed this part of the meeting and opened the public session portion of the meeting. There being no public present, Ms. Wright closed the public session part of the meeting and moved the meeting to deliberations
Ms. Russell asked for clarification on the square footage noted in Paragraph 5.7.8. which states, “The interior floor area of an apartment within a dwelling shall not be less than three hundred square feet, and not more than eight hundred square feet, but in no case shall it exceed twenty-five percent of the interior floor area of the dwelling building in which it is located, unless, in the opinion of the Zoning Board, a greater or lesser amount of floor area is warranted by specific circumstances of the particular building. There shall be no more than two bedrooms in an apartment. The above rules shall apply to accessory buildings, except that the interior floor area shall not exceed fifty percent of the floor area of the accessory building. For example, a garage must have space for one or more cars on the
ground floor, thus relegating the apartment to the back or the attic.”
Ms. Russell questioned if the aforementioned 800 square feet is the maximum allowable square footage and, if so, the proposed apartment exceeds that figure.
Mr. Nester said the proposed 810 square feet could be modified to 800 square feet if necessary.
Mr. Fichter said his interpretation of Paragraph 5.7.8 having to do with “interior floor area” refers to the square footage of the garage plus the square footage of the second floor space, which totals 1818 square feet. The proposed apartment’s 810 square feet which is 44 percent of the total floor area. He said additional relief will be needed from the “twenty-five percent of the interior floor area” requirement.
Mr. Nester asked the Board to refer to the portion of Paragraph 5.7.8 that covers accessory buildings, noting the requirement is “…that the interior floor area shall not exceed fifty percent of the floor area of the accessory building.”
Mr. Fichter said Mr. Nester was right.
Ms. Richmond pointed out that the plans for the apartment indicate that the actual size of the apartment is smaller than the exterior dimensions of the garage.
Mr. Russell said that Mr. Nester has completed all the necessary work, including a septic design that can be implemented in the future if needed. He said the application is complete and falls within the parameters of the Article.
There being no further discussion. Ms. Wright moved to vote.
Ms. Russell made a motion to vote on the request for a special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8. Ms. Richmond seconded the motion. All in favor.
Mr. Fichter voted to Grant the special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8.
Mr. Russell voted to Grant the special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8.
Ms. Russell voted to Grant the special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8.
Ms. Richmond voted to Grant the special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8.
Ms. Wright voted to Grant the special exception from Paragraphs 5.7, 5.7.1, 5.7.4, and 5.7.8.
Ms. Wright advised Mr. Nester that there is a 30-day appeal period in which an abutter or party of interest may appeal the Board’s decision(s).
At 7:30 pm, Jeffrey & Bonnie Nester, property located at 67 Old Post Road, Newbury, NH, will seek a Variance from the requirements of paragraph 5.7.4 to permit the following: To permit the construction of an accessory apartment in a dwelling that is less then 5 years old. Newbury Tax Map 031-640-002.
Mr. Nester was present to and made his presentation to the Board. He said the proposed accessory apartment falls short of the five year requirement under Paragraph 5.7.4 and he is applying for a variance from that requirement. He said the reason he wants a variance is because he wants to be able to use the proposed apartment as housing for the caregiver for his two special needs children. He said the apartment would be ready one year from now, which is one year short of the five year requirement.
16.7 Variance
Ms. Wright asked for questions from the board. There being no more questions from the Board, Mr. Nester addressed the Articles 16.7.1 – 16.7.5 of the zoning ordinance:
16.7.1 The variance will not be contrary to the public interest because: we are not asking for a change of use to the accessory apartment ordinance but rather a 1-year reduction in the ordinance time requirements. We are asking for this because of the opportunity which has risen to have a care provider on the premises to provide needed care for our two special needs children. She will need a place to live come next September and this is a win/win opportunity for all parties.
16.7.2 Special conditions exist such that literal enforcement of the ordinance
results in unnecessary hardship because: it has been very difficult to find qualified people who can provide the care that our children require. We have a great opportunity to have such a person living on the premises to provide this care on an as needed basis. This opportunity will help provide better care for my children and a low cost place to live for a special care provider. Not having the opportunity to provide an apartment before next September eliminates this opportunity.
16.7.2.2 Applicant seeking an area (dimensional) variance: N/A
16.7.2.2.1 An area variance is needed to enable the applicant’s proposed use of the
property given the special conditions of the property because: N/A
16.7.2.2.2 The benefit sought by the applicant cannot be achieved by some other method
reasonably feasible for the applicant to pursue, other than an area variance because: N/A
16.7.3 The variance is consistent with the spirit of the ordinance since: we are not asking for a change of use to the accessory apartment ordinance but rather a 1-year reduction in the ordinance time requirements.
16.7.4 Substantial justice is done because: our children will have better access to a special care provider which will benefit them plus the care provider will have an affordable place to live at the same time.
16.7.5 The value of surrounding properties will not be diminished because: The use of the apartment will only be used for individuals who specifically require housing. No storage of dilapidated vehicles and/or equipment shall be allowed on the premises which would be an eye sore. The entrance to the apartment will be in the back of the building and the building will remain looking like a barn with minimal appearance of an apartment from the street or side(s) adjacent to existing neighbors. The size of the existing building will not change in any way. No trees will be required to be taken down nor will any site work be required. The operations with this use shall be no different than the current use of the residence dwelling and therefore would not create any additional noise, fumes, odor or vibrations above and beyond
existing conditions on the property. The value of the property will more than likely increase with the addition of an accessory apartment.
Ms. Wright asked for questions from the Board. There being none, she opened the Public Session portion of the meeting. There being no one from the public, Ms. Wright closed the Public Session and reopened the meeting and the Board went into deliberations.
Ms. Wright asked the board if Mr. Nester has met all of the requirements of the variance, adding the most difficult to determine is hardship.
Mr. Fichter said that the case does sound like a hardship because the caregiver will have to move two times, each move incurring the attending logistics. He said for the one-year time difference involved, it does sound like a hardship.
Ms. Russell said the caretaker can be on the premises for the children a year earlier. She also said the point should be made that the garage has been in existence for a number of years. She said by the time the proposed apartment is completed, there will be one year of “give” to consider on the five year variance.
Mr. Russell and Ms. Richmond agreed with Ms. Russell. Ms. Wright closed the hearing.
Mr. Fichter made a motion to vote on the request for a variance from Paragraph 5.7.4. Ms. Richmond seconded the motion. All in favor.
Ms. Richmond voted to Grant the variance from Paragraph 5.7.4 because of hardship.
Ms. Russell voted to Grant the variance from Paragraph 5.7.4 because of hardship.
Mr. Russell voted to Grant the variance from Paragraph 5.7.4 because of hardship.
Mr. Fichter voted to Grant the variance from Paragraph 5.7.4 because of hardship.
Ms. Wright voted to Grant the variance from Paragraph 5.7.4 because of hardship.
Ms. Russell made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.
Meeting adjourned at 8:17 p.m.
Ms. Russell made a motion to re-open the meeting. Ms. Richmond seconded the motion. All in favor.
Ms. Wright re-opened the meeting at 8:20 p.m. Ms. Wright advised Mr. Nester that there is a 30-day appeal period in which an abutter or party of interest may appeal the Board’s decision(s).
Ms. Russell made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.
Meeting adjourned at 8:24 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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