Zoning Board of Adjustment
November 14, 2011
Approved January 9, 2012
Members Present: Katheryn Holmes, Chair; Peter Fichter, Vice-Chair; Harry Seidel, Sue Russell, Members; Alex Azodi, Steve Russell, Alternates.
Ms. Holmes called the meeting to order at 7:02 p.m.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of October 17, 2011 and made corrections.
Mr. Seidel made a motion to accept the minutes of October 17, 2011 as corrected. Mr. Fichter seconded the motion. All in favor.
Motion for Rehearing
Ms. Holmes introduced the Board and appointed Mr. Russell as a voting member for this meeting.
On Monday, November 14, 2011, the Zoning Board of Adjustment will vote on whether or not to rehear the Ashworth-Hafer Trust case, Tax Map Lot # 022-127-464.
Ms. Holmes referred to the letter dated November 4, 2011 from Timothy N. Therrien requesting a rehearing on the Ashworth/Hafer Trust special exception decision on October 17, 2011.
Mr. Therrien cited three reasons as the basis for his request: (1) the Newbury General Conditions for Special Exceptions (16.6.4), specifically the nature and intensity of the operation involved, and the time of operation; (2) Newbury’s definition of a Cottage Industry (under 5.4), specifically the business must clearly be subordinate to the residential use of the dwelling; and (3) NH RSA 673:14 Disqualification of a Member, citing personal interest and prior affiliation/friendship with the applicant resulting in a conflict of interest.
Ms. Holmes addressed Item # 3. She noted that she, Mr. Russell and Ms. Russell served on the Zoning Board of Adjustment while Elizabeth Ashworth was Chair. She said their collective affiliation was professional, not personal. She also noted that every member of the Zoning Board takes - and upholds - an oath of impartiality. She added that every member engages in due diligence for every case that appears before the Board.
Ms. Russell added that no one on the Zoning Board of Adjustment has any personal or monetary relationship with the applicant in question.
Mr. Azodi said the Board may consider a rehearing only if there is new information.
Mr. Fichter added that another reason to consider a rehearing is if the Board made an error in its initial decision. He said Mr. Therrien put a lot of thought into his request and added that the Board did put limitations on its granting of the Special Exception.
Mr. Fichter read into the record 2.33 Cottage Industry. He noted that the applicant’s primary use of her property is residential and the doggie daycare business is secondary. He referred to 5.4 Uses Permitted by Special Exception and subject to Site Plan Review approval by the Planning Board and noted that 5.4.1 (Cottage Industry) and 5.4.9 (Bed & Breakfast establishment) fall under the Special Exception. He concluded that the Board did not make any valid error in its consideration of the application.
Ms. Holmes said the Board thoroughly went over 16.6 Special Exceptions - General Conditions. She added that the Board considers cases within the contest of the Town Ordinance, not the master Plan.
There was discussion regarding Mr. Therrien’s claim that the business will impair the value of adjacent properties. Mr. Seidel noted that information supporting that claim was not included with the letter. Mr. Fichter said it is the Board’s charge to consider a rehearing if new information is presented, adding that Mr. Therrien has not provided any new information.
Ms. Holmes called for a motion to vote.
Mr. Fichter made a motion to vote on whether to rehear the Ashworth-Hafer Trust Special Exception finding of October 17, 2011. Mr. Russell seconded the motion. All in favor.
Mr. Fichter voted to deny the request for a rehearing of the Ashworth-Hafer Trust Special Exception finding of October 17, 2011.
Mr. Russell voted to deny the request for a rehearing of the Ashworth-Hafer Trust Special Exception finding of October 17, 2011.
Ms. Russell voted to deny the request for a rehearing of the Ashworth-Hafer Trust Special Exception finding of October 17, 2011.
Mr. Seidel voted to deny the request for a rehearing of the Ashworth-Hafer Trust Special Exception finding of October 17, 2011.
Ms. Holmes voted to deny the request for a rehearing of the Ashworth-Hafer Trust Special Exception finding of October 17, 2011.
Ms. Holmes told Mr. Therrien that his request for a rehearing has been denied. Mr. Therrien thanked the Board for their time.
Notice is herby given that the Newbury Zoning board of Adjustment will conduct a Continuance of the following hearing at 7:45 p.m.: Briott LLC/agent: Richard & Bartlett Assoc LLC, for property located on Southgate Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 9.3 of the Newbury Zoning Ordinance to permit the following: Construction of a driveway through a section of steep slopes. Newbury Tax Map 051-694-483.
Mr. Seidel, an abutter, recused himself to the audience.
Ms. Holmes appointed Mr. Russell as a voting member for this hearing.
Mark Sargent, agent, presented to the Board. He presented the engineering drainage report which was requested by the Board at the October 17, 2011 meeting. He noted that Jeff Burd, PE was hired to examine the property and produce a certified report on the drainage surrounding the area of the proposed driveway. Mr. Sargent said Mr. Burd concluded that the amount of runoff currently coming off the steep slope versus the amount of runoff coming off the same slope when the driveway is completed will not change. He said when the driveway is completed, the runoff will be held on the site longer than it currently is held and that the ditches dug for the driveway will help mitigate the water runoff.
There was discussion about pervious surfaces, the speed of water off the steep slope and the proposed drainage areas.
Ms. Holmes said Scott. Falvey, applicant, should have a Forestry Plan that is submitted to DES.
Discussion followed regarding the use of the proposed driveway – as a logging road or for access to a residential lot. Frontage requirements were discussed and Mr. Sargent said there is only 100 feet of road frontage on the property. Ms. Holmes said Mr. Falvey will need a variance in order to build a residential house on the lot.
There was discussion about how the property will handle a 50 year storm event. Mr. Sargent said there will be no difference between how the water is handled now and how it will be handled after the driveway is put in. He said the water ends up going into the wetlands.
There was discussion of the engineering report, its methodology and the interpretation of the data. Mr. Fichter noted that the current 15” culvert that runs under the road is inadequate and said the engineer recommended a 24” culvert.
Mr. Sargent said that when the driveway crosses the wetlands, twin 15” culverts will be installed. He said it will ensure that water doesn’t back up and will also minimize the impact to the wetlands.
Mr. Fichter said the Board asked the applicant for more information on the water runoff on the property and the request was fulfilled by the applicant.
There was discussion about the existing culvert and how the amount of water runoff won’t change with the installation of the driveway.
Ms. Holmes expressed concern about what happens when the trees are harvested, specifically the increase in water runoff. Mr. Sargent said there will not be a clear cut and that Mr. Falvey plans to log throughout the property.
Mr. Sargent discussed the map contours, location of the existing abutter driveway, wetland locations, proposed culvert locations and steep slope locations.
There being no further questions from the Board, Ms. Holmes opened the hearing to the Public.
Harry Seidel, 62 Emily Lane, Newbury, expressed concern that Mr. Burd should be present to explain the engineering report in an understandable way. He added that he walks the RR track almost daily and notices the water runoff from the adjacent hill. He said the RR track is a sensitive area and should be considered separate from the driveway. He said there would be no protection to the RR bed once logging commences on the property. He added that there shouldn’t be more water flow leaving the property post development than was on site pre development.
Ms. Holmes recommended that Mr. Seidel write a letter to Mr. Falvey expressing his concerns.
There was further discussion about the need to put in a driveway if logging was the only intended use for the property.
Mr. Azodi questioned whether the ordinance contained regulations addressing Mr. Seidel’s concern.
There being no further questions from the public, Ms. Holmes closed the Public portion of the meeting and the Board went into deliberations.
Ms. Holmes reviewed the sequence of Mr. Falvey’s application as follows:
- The Code Enforcement Officer denied a driveway permit because of wetland crossing and steep slope.
- The Planning Board (PB) granted a Conditional Use Permit for the wetland crossing.
- The applicant is before the ZBA for a Variance for construction of a driveway through a section of steep slopes.
Ms. Holmes said it would have been helpful to have Mr. Burd present to present and explain the data contained in his engineering report.
Ms. Russell questioned whether there is another access for logging that does not require such a long driveway.
Mr. Russell said the PB decided whether this access is a logging road or a driveway and decided it is a driveway.
Ms. Holmes reopened the hearing to Public with the Board’s agreement.
Mr. Sargent said he did not want the record to show that Mr. Falvey was restricted from ever subdividing his property. Ms. Holmes said the record will reflect his concern.
There being no further comment from the Public, Ms. Holmes closed the public portion of the hearing and the Board resumed deliberations.
There being no further questions/comments/deliberations from the Board, Ms. Holmes called for a motion to vote.
Mr. Russell made a motion to vote on the request for a variance from the requirements of Paragraph 9.3 of the Newbury Zoning Ordinance to permit the following: Construction of a driveway through a section of steep slopes. Mr. Fichter seconded the motion. All in favor.
Ms. Russell voted to Grant the variance from Paragraph 9.3 with no conditions.
Mr. Russell voted to Grant the variance from Paragraph 9.3 with no conditions.
Mr. Fichter voted to Grant the variance from Paragraph 9.3 with no conditions.
Ms. Holmes voted to Grant the variance from Paragraph 9.3 with no conditions.
Ms. Holmes advised Mr. Sargent that there is a 30-day appeal period in which an abutter or party of interest may appeal the Board’s decision(s).
Mr. Fichter made a motion to adjourn. Mr. Russell seconded the motion. All in favor.
The meeting adjourned at 8:34 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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