Meeting Minutes

Zoning Board of Adjustment

July 12, 2021

Approved August 9, 2021

Members Present: Peter Fichter, Chair; David Blohm,Vice-Chair; Reed Gelzer, Member; Katheryn Holmes, Member; Hank Thomas, Alternate

Public Present: Joanne Lord; Jerry Walls; Mark Carroll

Mr. Fichter called the meeting to order at 7:02 p.m.

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of June 14, 2021. Mr. Fichter made a motion to accept the minutes as presented. Ms. Holmes seconded the motion. All in favor. Mr. Gelzerabstained.

The Recording Secretary read into the record the following Public Notice:

Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, July 12, 2021 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Camp Ruffit, LLC (owner), Jean F. Knowlton (life estate), for property located at 26 Highland Ave., Newbury, NH, will seek a variance from the requirements of Paragraph 5.7.9 of the Newbury Zoning Ordinance to permit the following: Alteration of the “bunk house” to an accessory apartment in a detached building as the primary use.Newbury Tax Map 018-308-083. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am to noon.

Board introductions.

Mr. Fichter appointed Mr. Thomas as a voting member for this meeting.

Mr. Walls presented to the Board.

Mr. Walls said the building was probably constructed in the 1920s and when our family took possession of the property in 1945 it was used as a sleeping bunkhouse. Mr. Walls continued that in 1987 a three-piece bath was added to the building. Mr. Walls said that in 2004 and 2007 applications were submitted for renovations to the building which the Town approved at that time. Mr. Walls continued that one was for a second floor which was approved and never built, and the other was for a 6’x8’ kitchen addition to the existing building which was never built. Mr. Walls said that the renovations were never proceeded with because of family discussions.

Mr. Walls said that his mother passed away in 2019 and his aunt who has a life estate is in assisted living and does not use the property. Mr. Walls said the property is now jointly owned by Mr. Walls, his sister and his brother under the Camp Ruffit, LLC, so at this point in time the applicant is requesting to put in, within the existing footprint of the building, a kitchenette.

Mr. Blohm asked if the water comes from the lake currently. Mr. Walls said they will be putting a well in. Mr. Walls continued that in 1987 a septic system was put in which handles all the property. Mr. Fichter asked how many bedrooms the septic system covers. Mr. Walls said he believes that covers three bedrooms.

Mr. Blohm asked about land disturbance. Mr. Walls said there is no land disturbance with the bunkhouse, it is within the walls of the bunk house.

Mr. Gelzer asked what prevents the applicant from just putting in a kitchenette now. Mr. Walls said that his understanding was that it was not allowed because it is a separate building and by putting in a kitchenette it would become an accessory dwelling. Mr. Gelzer asked if they had any intent on renting the “bunkhouse”. Mr. Walls said no. Mr. Gelzer said 5.7.3 states that the owner or one of the owners of the single-family lot upon which the accessory apartment is located shall occupy at least one of the dwelling units on the premises as their residence. Mr. Gelzer asked if anyone would be occupying any of this as anyone’s residence. Mr. Walls said no, you are unable to live there year-round. Mr. Gelzer said the Board has a box described by the zoning ordinance they are trying to figure out how to fit this through. Mr. Gelzer continued it is not clear to him how this fits through the box because the introductory paragraph talks about presently living in Newbury and 5.7.3 says that one of the family, if this is to be shared or primarily to add for family use, some element of the family has to be living there as their residence. Mr. Gelzer said the Town does not appear to differentiate, so does someone who is there three months out of the year,and they vote in Londonderry qualify as being able to apply for an accessory apartment. Mr. Fichter said that his interpretation has been that the residence is, do you register your car here, do you vote here. Mr. Gelzer asked here in Newbury. Mr. Fichter said yes. Mr. Fichter said if you meet all those criteria. Mr. Gelzer said which none of them do. Mr. Fichter said that it doesn’t matter if you spend a month here out of the year and the rest of the time you go to Florida, but your car is still registered here, you vote here, your driver’s license is issued here, then you meet the criteria for a residency. Mr. Fichter continued that in his mind it is not a time driven event but a situation. Mr. Gelzerasked Mr. Fichter if he would agree that by the current wording of 5.7.3, at least one member of the family would have to register a car here, register to vote here and establish residence here. Mr. Fichter said from the criteria he outlined, that he would agree. Ms. Holmes said it does not say establish residence, they live there it is a residence and they live there a few months a year. Mr. Gelzer said his point is if none of them are residents can they even apply for an accessory apartment, which Mr. Gelzer thinks is a problem because that is not our intent. Mr. Gelzercontinued that our intent is to facilitate something like what they are trying to do. Mr. Fichter said the Board should give credit to the applicant, they are trying to do what they have been told is the right and necessary thing to do to achieve their goal and satisfy all the criteria of the Town.

Mr. Gelzer asked if the Board could include in their ruling on the variance that the Board was also giving them a variance on the residency component. Mr. Fichter said that he thinks the Board would probably want to amend that, so the Board adds 5.7.3, so lets just play that out before we go too far with it. Mr. Gelzer said the other point and he thinks this is somewhat easier to dispose of is the language of 5.7.1 talks about construction, not taking an existing building, doing zero construction on it, or approaching zero, unless we define putting in a kitchenette as construction. Mr. Fichter said it requires a building permit so that is valid. Ms. Holmes said just because they are putting a kitchenette in a building, does that make it an accessory apartment. Ms. Favreau said it is in the definition of accessory apartment. Mr. Fichter said the Board has gone through this many times, people have a garage, and they have a bonus room upstairs, it may have a bathroom, a fireplace, a living room, but until it has a kitchen it is not an accessory dwelling unit. Mr. Gelzer said that brings him to 5.7.9 an accessory apartment in a detached accessory building must be a secondary use of the building and the interior floor area must be equal to but no larger than one half…so here there is a little bit of mental gymnastics Mr. Gelzer thinks the Board can do, which is what they are going to end up with is greater than 300 sf and less than 1000 sf and its current use is a bedroom, so when they change this from a bedroom to an accessory apartment  half of that will still be a bedroom. Mr. Walls said it is one open space except for the bathroom. Mr. Gelzer said he was trying to help the applicant.

Mr. Fichter asked Ms. Favreau if the Board could amend the request for variance to include 5.7.3 without having noticed it. Ms. Favreau said she doesn’t think so and the responses the applicant gave to the variance criteria do not speak to 5.7.3. Mr. Thomas said we do not have the word residence in our definitions, in the past the Board has fallen back to Webster’s definition. Ms. Lord read from her phone, right here it says you need to establish a physical presence in the state and an intent to stay there for financial independence, most states require you to have a residence for one year. Ms. Holmes asked the applicant if this was their second home and not their residence. Mr. Walls said correct, he lives in Concord. Ms. Holmes said she is not sure that the applicant should have even applied for an accessory apartment because, first of all they are not a resident, second of all it’s an expansion of their dwelling. Ms. Holmes said she does not know what it would fall under, once you put a kitchen in it becomes an apartment. Mr. Gelzer said that is why he pointed specifically to 5.7.3 because that is very straightforward. Mr. Fichter said he thinks Mr. Gelzer is correct, it is 5.7.3 that is the obstacle at this particular point and if we include that, can we amend it. Ms. Favreau said the applicant has answered to the primary use and not to the residency. Mr. Thomas said you said residency, that is an improper word, it’s residence and according to just the dictionary definition a person’s home is a place someone lives. Mr. Thomas said this is a home, a summer home. Mr. Thomas said he calls all of the second homes residences in Town. Ms.  Favreau said that under NH.gov when a person makes a town or ward in New Hampshire his or her principal place of physical presence to the exclusion of all other places that person has established a domicile/residence. Ms. Holmes said we do not have domicile as a word in there. Mr. Gelzer said this is exactly the problem, our own definition leaves that to interpretation. Ms. Holmes said she thinks that’s why we have a zoning board. Mr. Gelzer said the other thing that complicates it a bit is in the introductory section it makes reference to relatives of families presently living in Newbury, which to Mr. Gelzer sounds a little bit more definitive of domicile/residence. Mr. Fichter said we do not define residence/resident in our Ordinances, so with some guidance from the RSAs as far as definitions. Ms. Holmes said that in 5.7.3 it doesn’t say primary residence, it just says residence and so while they are living there that’s their residence in the summer. Ms. Holmes continued that she thinks it’s challenging because the whole document about accessory apartments, a lot of the applicant’s plan doesn’t fall into this at all. Mr. Fichter said that as he reads through this, the recurring identifier in all these things tends to be owner or owners so Mr. Fichter thinks that owner is a pretty compelling definition to describe what these gentlemen are talking about and would feel comfortable, kind of interpreting it that way and it is kind of consistent with what Mr. Thomas was saying about the Webster definition and since we don’t specifically address that Mr. Fichter is willing to be a little bit broader. Ms. Holmes said she thinks that is part of zoning, that it is the Board’s interpretation of the regulations. Mr. Gelzer said he is actually kind of going the other way but ending up at the same place, the Town will benefit by the Board calling out, that in this instance, because these are existing owners, these aren’t people whoare coming in, who parachuted in and bought it on spec, that gives them standing to make the request. 

Ms. Holmes asked if the applicants have had a septic inspection. Mr. Walls said not since it was constructed but it was pumped out a couple years ago.

Mr. Fichter said he thinks if he is reading the sense of the Board that the Board is feeling reasonably comfortable as far as definition of owners, residence and the applicant’s ability to apply for a variance under the ADU. Mr. Blohmsaid the problem is the way the Board is thinking about this, if the applicant was to sell this property in a year after doing this and the next owners might take a completely different approach to this property as far as renting out that space. Mr. Fichter said that is certainly true and a point of concern, but that is true for any property.

There being no further questions from the Board, Mr. Wallsaddressed Article 16.8 of the zoning ordinance:

16.8.1 The variance will not be contrary to the public interest because: Existing structure in use for 90+ years; no change in exterior, consistent with area properties. Abutting lot 18-309-96, 32 Highland Ave. has larger accessory apartment. Proposed use is in harmony with area uses. 

16.8.2 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship,

a) There are special conditions in the property that distinguish it from other properties in the area because: The use is similar to other uses in area. 21 Highland Ave. has a large two story 1344 sf circa 2019 accessory building that has no visual buffer and is an eye sore! For our project there is no exterior change in the building.

b) The property is different in a meaningful way from other properties in the area because: Property is similar to other uses in area and is only seasonal, it is not for year-round use as other abutting properties.

c) The property is burdened more severely by the zoning restrictions because: Historic use as a multi-generational use sleeping and sitting area with 3-piece bath. Addition of sink and two burner stovetop will provide relief and pressure on use of main dwelling.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:Consistent with historic use and abutting properties.

16.8.3 The variance is consistent with the spirit of the ordinance since: It allows an accessory dwelling use on a seasonal basis. It is already tied into the existing septic system.

16.8.4 Substantial justice is done because: It allows for continued use and enjoyment on a seasonal basis in the spirit with history of the area and property.

16.8.5 The value of surrounding properties will not be diminished because: The interior improvement is not visual from the outside or to abutters and will not impact abutting properties.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

There being no comment from the public, Mr. Fichterclosed the public portion of the meeting.

The Board went into deliberations.

Mr. Blohm made a motion to vote on the request fromCamp Ruffit, LLC (owner), Jean F. Knowlton (life estate), for property located at 26 Highland Ave., Newbury, NH, for a Variance from the requirements of Paragraph 5.7.9 of the Newbury Zoning Ordinance to permit the following:Alteration of the “bunk house” to an accessory apartment in a detached building as the primary use. Newbury Tax Map 018-308-083. Mr. Fichter seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variance from Paragraph5.7.9.

Reed Gelzer-voted to Grant the Variance from Paragraph5.7.9.

Dave Blohm-voted to Grant the Variance from Paragraph 5.7.9.

Katheryn Holmes-voted to Grant the Variance from Paragraph 5.7.9

Peter Fichter-voted to Grant the Variance from Paragraph 5.7.9.

Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision pursuant to RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based.

The Recording Secretary read into the record the following Public Notice:

Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, July 12, 2021, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:20 p.m.,Camp Ruffit, LLC (owner), Jean F. Knowlton (life estate),for property located at 26 Highland Ave., Newbury, NH, will seek a special exception as provided for in Article 5.7.1 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Shoreland Overlay District. Newbury Tax Map 018-308-083. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am to noon.

Mr. Fichter said he thinks the applicant has given the Board a pretty clear picture of what it is you are planning to do and why you are doing it, so I don’t think we need to go through that a second time but we do need to go through the criteria for the granting of a special exception.

There being no further questions from the Board, Mr. Wallsaddressed Article 16.7 of the zoning ordinance for a special exception to allow an accessory apartment in the Shoreland Overlay District.

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: The detached dwelling unit is currently used as a bedroom suite with bath. Addition of a kitchen will not increase use (seasonal only-May-Oct.) There will be no noticeable change in use by abutters.

16.7.2 The use will not be injurious, noxious or offensive and thus detrimental to the neighborhood because: The use and occupancy is similar to use for last 80 years and similar to neighborhood uses.

16.7.3 The use will not be contrary to public health, safetyor 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: No additional parking or traffic will be created. The kitchen sink will be tied into the existing septic system.

16.7.4 The size of the site in relation to the proposed use and the location of the site with respect to the existing and future street giving access to it shall be such that it will be in harmony with the neighborhood because: There will be no increase in the footprint of the current building which has been there for 80+ years.

16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, vibration than would be the operations of any permitted uses in this district which are not subject to special exception procedures because: Continued residential use, similar to last 80 years.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

There being no comment from the public, Mr. Fichterclosed the public portion of the meeting. 

The Board went into deliberations.

Mr. Blohm made a motion to vote on the request fromCamp Ruffit, LLC (owner), Jean F. Knowlton (life estate), for property located at 26 Highland Ave., Newbury, NH, for a Special Exception as provided for in Article 5.7.1 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Shoreland Overlay District. Newbury Tax Map 018-308-083. Mr. Fichter seconded the motion.

Roll Call Vote:

Hank Thomas- voted to Grant the Special Exception

Reed Gelzer- voted to Grant the Special Exception

Dave Blohm- voted to Grant the Special Exception

Katheryn Holmes- voted to Grant the Special Exception

Peter Fichter- voted to Grant the Special Exception

Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision pursuant to RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based. 

Ms. Holmes made a motion to adjourn. Mr. Fichterseconded the motion. All in favor.

The meeting adjourned at 8:29 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        July 12, 2021