Meeting Minutes

Zoning Board of Adjustment

July 26, 2021

Approved September 13, 2021

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

Public Present: Harry Snow; Paul Snow; Philip Hastings; Peter Blakeman; Doug DiCerbo; Jim Petteralli; Tanya McIntire; Larry Briggs; Dick Butterfield; Brad Pernaw; Kim & Tony LoPresti; Dan Wolf

Mr. Fichter called the meeting to order at 7:05 p.m.

Board introductions.

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

Continuance-Philip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 Sunlite Lane, Newbury, NH, will seek a variance from the requirements of Paragraphs 15.2.1 and 7.12.1 of the Newbury Zoning Ordinance to permit the following: Replacement of existing nonconforming building with a new building that increases the nonconformity and that will exceed the 30% impervious surface coverage limit. Newbury Tax Map 16A-358-003.

Mr. Fichter advised the applicant that a quorum of the Board is five members, but the applicant could choose to go forward with tonight’s hearing with the four Board members present or continue the hearing to a future date and time certain. Mr. Hastings said that he was okay with moving ahead with the hearing at this time.

Mr. Fichter said that at the last meeting on May 24th, one of the issues the Board asked the applicant to provide clarification on was the stormwater management plan. Mr. Fichter continued that there was also the indication that lots would be merged, and additional permits would be gotten and presented to the Board. Mr. Fichter asked if all that has happened.

Mr. Hastings introduced himself as an attorney for Cleveland Waters and Bass. Mr. Hastings continued that Peter Blakeman, the project engineer and the two principals of the owning entity, Doug DiCerbo and Jim Petteralli and Harry and Paul Snow were present for tonight’s meeting. Mr. Hastings said that at the last meeting there were three overall issues that were addressed, one was the stormwater management plan, there was also questions about the Shoreland Permit status as well as the tree cutting permit. Mr. Hastings said the Mr. Blakeman will cover the plans and describe the stormwater management system that is being proposed. Mr. Hastings continued that the tree cutting permit has not been applied for yet, but Mr. Blakeman has engaged with an arborist and there is some preliminary information. Mr. Hastings suggested that the Board could grant a variance subject to subsequent condition of tree permit approval. Mr. Hastings continued that the tree issue is somewhat independent of the variance. Mr. Hastings said the Shoreland Permit has been applied for with DES and they expect to get approval any day and it is reasonable for the applicant to expect conditional approval based on that permit. 

Mr. Fichter said that one of the considerations that the Board has is what will the whole project look like. Mr. Fichter said there is a proposal of which trees are to be cut, and it looks like a lot of tree cutting. Mr. Fichter asked the Board if they were willing to go further with this variance without that piece of information at this time. Mr. Thomas said he is willing to go forward because he thinks the trees are another issue and not really an issue for granting a variance. Mr. Gelzer said he thinks the Board should grant variances on the basis of all information being supplied that the Board deems relevant, and he would be opposed to going further. Mr. Hastings said his point of order on that is twofold, one is there is nothing in the State Statute or the Town’s Zoning Ordinance that gives this Board any discretion about when to hear an application. Mr. Hastings continued that if the applicant has submitted an application, the Board is required to hold a hearing within a certain period of time to let the application go forward. Mr. Hastings said that after the applicant has presented their hearing and the Board has heard all the evidence and the Board thinks there is something they do not have enough information on to grant the variance or the Board thinks the information that’s been presented doesn’t meet the variance standards the Board can deny the variance. Mr. Hastings continued that he doesn’t think the Board has authority to just not hear the applicant and if the Board hears the applicant tonight some of the facts might come clearer about how the trees are being handled. Mr. Hastings said the applicant could proceed with an alternative design within the same footprint that exists now without having to get a variance at all and you will still have the tree issue, that is why the tree issue is really independent of the variance.

Ms. Holmes asked the applicant if they were aware that she was the chair of conservation, and as she recalls at the last ZBA meeting, the Board said that all the permits had to be in place for tonight’s meeting and a tree application was never submitted that she could take to the SelectBoard to have it approved. Mr. Hastings asked where is the requirement that the applicant has to get a tree permit as a condition of having a hearing before the Zoning Board of Adjustment. Ms. Holmes said that all had agreed to that. Mr. Hastings said the applicant did not agree to it; the applicant heard the discussion and concerns about the trees; we are addressing the trees and will be applying for a tree permit at the appropriate time. Ms. Holmes asked Mr. Hastings what he meant about appropriate time. Mr. Hastings said if the applicant has the variance, and this project goes forward then a tree permit would be needed before a building permit could be issued. Ms. Holmes asked how the applicant filled out the Shoreland application without a tree inventory. Mr. Blakeman said the trees with the Shoreland Permit are only specifically dealing with the 50-foot buffer and whether you’re meeting the points in the buffer, and the project does. Ms. Holmes said the Town’s tree application is 250 feet. Mr. Hastings said he does not dispute that the applicant is subject to the tree permit requirement. Mr. Hastings continued that Ms. Holmes is sitting here tonight, not in her capacity as member of the Conservation Commission but in her capacity as a member of the Zoning Board and the rules say if the applicant has submitted an application to the Board they are entitled to a hearing within a certain period of time. Mr. Hastings said at the last hearing in May the applicant presented information to the Board, the Board expressed concerns about the trees and what was being cut down, as did some abutters, the applicant went back and revisited that, Mr. Blakeman has had extensive conversations with an arborist to discuss the condition of the trees. Ms. Holmes asked why not an application, she does not understand that. Mr. Hastings said because the applicant does not need to, to be before the Zoning Board. Mr. Blakeman said the plan is prepared which is part of the application that shows every tree and sapling the applicant would like to cut, and he does not understand why the Board needs more than that. Mr. Blakeman continued that the plan gives the full scope of the work being presented. Ms. Holmes said when Mr. Blakeman did the Deasy project he had the tree application in. Mr. Blakeman said not before zoning. Ms. Holmes saidshe wasn’t on the board then. Mr. Blakeman said this is the first time he has seen this required to have the tree permit before you go to zoning.

Mr. Hastings said the question before the Board is whether the applicant is entitled to a variance to build this particular building that is within certain setback requirements that require a variance and have a certain lot coverage ratio that is higher than what the Ordinance allows. Mr. Hastings continued that those are the two reasons the applicant is seeking a variance, the applicant is not seeking a variance from cutting any number of trees, so the trees are incidental to that entire process.

Mr. Fichter said he is okay with going forward at this particular point. Mr. Fichter continued that since the Board is split two to two, he thinks the applicant should go ahead and present their case.

Mr. Blakeman said essentially, we are looking at a tear down of the existing house, leaving the garage as it is, other than extending a second-floor deck from the house to the garage. Mr. Blakeman continued the house is essentially in the same footprint of the existing house and decks with a small expansion out front. Mr. Fichter asked if Mr. Blakeman was calling front Sunlite Lane. Mr. Blakeman clarified the small extension would be on the lakeside and on the Sunlite Lane side it stays essentially within the footprint of the existing house and decks. Mr. Fichter said to clarify, the applicant’s frontage is derived from SunliteLane. Mr. Blakeman said 10 Sunlite Lane is where the driveway is and so that’s the legal address. Mr. Fichter said the Town defines frontage pretty specifically as far as lot size etc. Mr. Fichter continued that it is a minor point, but he wants to make sure what the applicant is referring to as the front of the house. Mr. Blakeman said the lot has frontage on two Town roads. Mr. Fichter said that only one of them can be considered the true frontage for the house. Mr. Blakeman said 10 Sunlite Lane comes from the tax card. Mr. Fichter said section 6.2 talks about design guidelines in Blodgett Landing District, it talks about fronts of the house and sides of the house and Mr. Fichter would like to orient himself to what the applicant’s definition of front and side is so he can apply the design criteria in a meaningful fashion. Mr. Blakeman said there are entrancesoff the Lake Ave. side and the actual main entrance is on the Sunlite Lane side. Mr. Fichter said he is going to consider that Mr. Blakeman said Sunlite Lane is the front of the house.

Mr. Blakeman said there are two properties, there is the property with the house and the garage on it and the applicant purchased a separate .02-acre property which is at the corner of Sunlite Lane and Washington St. which will be used for the parking area for the rebuilt house. Mr. Blakeman continued the properties will be merged when the applicant gets their approvals which is standard for projects that have two properties; you don’t merge them until you have the approvals because if you don’t get the approvals there is no need to merge.

Mr. Blakeman said the existing site has no stormwater practices in place, there is a storm drainage system that runs from Washington St. along Sunlite Lane and then across Lake Avenue where it outlets and goes into the lake. Mr. Blakeman continued that the road agent is happy thatthe culvert that runs from one end of the lot to the small catch basin that’s at the corner of Sunlite Lane and Lake Ave. and then across Lake Ave. will be upgraded to a larger pipe with a larger catch basin. Ms. Holmes asked how large is the catch basin. Mr. Blakeman said it would be a standard four-foot diameter and it will have a two-to-three-foot sump so there is some capacity for any sands to settle out. Mr. Gelzer asked if the bottom of that will be open or closed. Mr. Blakeman said it is typically closed. Ms. Holmes asked if the homeowner would know that they will have to clean that every now and then. Mr. Blakeman said it is actually already in the Town road and it is making the structure better for the Town. Mr. Blakeman said they have also talked with the road agent about pushing the stone wall that is right on the road back a little bit so that the Town’s plow is not hitting it as much as it does right now because it is a tight corner. Mr. Blakeman continued as far as the new stormwater management for the new house all the water that drips off the house along the eaves will be captured in stone drip line trenches two feet wide and allowed to infiltrate in those trenches. Mr. Blakeman said this is a pretty simple practice that you are able to put in tight quarters and getting about 90% of the roof water going into the drip line trenches. Mr. Blakeman said there are no gutters on the new house, this is all from the eaves. Mr. Blakeman continued that they are also adding some stormwater management to the garage with the same drip line trenches in areas where it doesn’t currently have it. Mr. Blakeman said with this garage the roof drains toward Sunlite Lane and towards the rear so there will be a trench along the half of the garage that doesn’t have a driveway and there will be a short section of gutter added above the driveway to bring that water to an infiltration trench on the side of the garage. Ms. Holmes asked how deep the trenches were going to be. Mr. Blakeman said three feet.

Mr. Blakeman said adjacent to the garage and within the property that will be merged is a proposed parking area which is mostly pervious except for the driveway areas that come in off the road. Ms. Holmes asked how many cars can fit in that area. Mr. Blakeman said there is enough room to get probably six to eight cars in.

Mr. Blakeman said the erosion control for the construction phase, starting from the lake is a row of silt fence or silt socks along the top of the retaining wall, not that there is a whole lot of work proposed, there may or may not be a small path through the lawn area, but that’s the last line of upland before the lake, so it’s good to put some silt fence in there. Mr. Blakeman continued that the property is relatively flat so the silt fence will wrap right along the outskirts of the property itself and also in the back. Mr. Blakeman said that between the new culvert underneath the driveway and the existing culvert that is being replaced, stone will be added to that ditch and a temporary berm in front of the existing culvert for sediment control during construction.

Mr. Blakeman said that an arborist has looked at the trees and the arborist report will be submitted with the tree cutting application. 

Mr. Fichter said he is struck by the number of bedrooms that are being shown and proposed. Mr. Fichter asked how many bedrooms does the current structure have. Mr. P Snow said five bedrooms. Mr. Fichter asked how many bedrooms does the new house have. Mr. P Snow said six. Mr. Fichter said the number of bedrooms in the house is increasing. Mr. Fichter asked the applicant if they have reviewed the project with the Blodgett Landing Waste Disposal System Superintendent/Chief Operator and has that individual indicated that the system can sufficiently handle the added loading from the added bedroom. Mr. H Snow said that the applicant has not made an attempt yet, and if it is an issue some bedrooms could be eliminated. Mr. Fichter said a net increase of one bedroom at this time. 

Mr. Fichter asked what the height of the building will be. Mr. P Snow said 33’ 6”.

Mr. Fichter said the Zoning Board does not have any purview as far as dictating what type of a design can be constructed, other than if there are Ordinances that give some guidelines for a specific section of the Town where certain styles are encouraged to be followed. Mr. Fichtercontinued that by looking at the elevations and having established earlier where the front of the house is, which he is presuming is the north elevation, illustration 2 under section 6.2.1-Design Guidelines suggests that a more typical design for that area should be the use of gabled dormers and the design shows a pitched roof. Mr. P Snow said they were shed dormers. Mr. Fichter asked if there was room in the design to try to be closer to the guidelines that the Ordinance suggests. Mr. P Snow said that if you look around the lake, this is a typical design that you see within that neighborhood and the greater lake area. Mr. P Snow continued that the hard part about this one is it is only 26’ wide and we can’t make it any wider, so that was a hardship about the design, and that is why you see the shapes that were chosen to try to be as kind to the aesthetic as possibly could. Mr. Gelzer asked if the shed dormer could be configured differently. Mr. P Snow said he could certainly add gabled features to the north side. Mr. Blakeman said the dormer gables on the upper level, serves to concentrate the water coming off the roof. The shed dormers make it easier to handle the runoff from the roof area.

Ms. Holmes asked what the complete square footage was. Mr. Hastings said 3886 square feet. Mr. P Snow said that is all three levels including the ADU, the ADU is 998 square feet.

Mr. Hastings said that he has heard a lot of technical stuff tonight which he thinks is very important and he wants to try and take the plans and put them in the context of the five variance criteria and in the context of the entire situation because the situation is where you have an existing building that’s been there for many, many years and it does not conform in any way, shape or form with the current Zoning Ordinance. Mr. Hastings continued that the applicant has three choices about what to do with the property they own, 1) keep in existing condition, which it will continue to deteriorate, maybe do some maintenance on it to improve the structure but you will still be left with stormwater management issues, left with aging and decaying and over maturing trees that will present a hazard to the buildings, occupants and others, 2) take the building down and replace it in kind in it’s existing footprint, that probably could be done but that will not solve the stormwater drainage issue and could be done without a variance from the Board and, 3) is the current proposal in front of the Board tonight, rebuild the building almost on the same footprint, yes the building is bigger than existing but it is not inconsistent with the neighborhood. 

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

16.8.1 The variance will not be contrary to the public interest because: The Ordinance expressly recognizes the value of improving the homes within the Blodgett Landing Cottage District. See Ordinance 6.1. This variance will enable the Applicant to do precisely that. The Proposed Building will replace the existing House with a new, modern, aesthetically pleasing building in the same general footprint as the existing House with a few minimal exceptions. The aesthetic improvements of the Proposed Building will benefit the neighborhood and the Town. At the same time, the architectural style of the Proposed Building will be consistent with the surrounding are and will not alter the essential character of the neighborhood. Moreover, in connection with the impervious surface requirements and the setbacks on the northern side of the property, the Proposed Building will reduce the existing nonconformity. It is in the public interest for lots to be brought closer into conformity with the Ordinance. The Proposed Building will create a minor expansion of the nonconformity in some areas without any adverse impact and will otherwise reduce the nonconformity of the Property. Therefore, the Proposal supports the public interest, and is not contrary to it.

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 Property is unique. The Building Lot is long and narrow. In the Blodgett landing Cottage District, setback requirements are based on the amount of frontage a lot enjoys. Here, the frontage is on Sunlite Lane, along the Property’s longest edge. Accordingly, the Property is treated as though it has significant frontage subject to the full fifteen-foot setback requirements. See Ordinance 6.8. By comparison, the neighboring properties have substantially similar shapes and dimensions as the Property, but technically have much less frontage and therefore are subject to much more relaxed setback requirements. See Ordinance 6.8. See also map of the Property and neighboring lots, attached hereto as Exhibit 4. The fifteen-foot setback requirements make it difficult to build on the Building Lot in compliance with the setback requirements imposed on this Property. Exhibit 3 depicts the buildable area if the fifteen-foot setbacks were strictly applied. As depicted thereon, there is very little buildable area, and constructing a residence would be difficult, if not impossible. Separately, the lot is subject to significant amounts of impervious surface coverage because of the public highways that cut through both the Building Lot and, to a lesser extent, the Empty Lot. As a result, it would be difficult to keep the total impervious surface coverage to less than 30% of the Property. The existing condition, for example has over 45% of the Building Lot covered by impervious surfaces.

b) The property is different in a meaningful way from other properties in the area because: For the same reasons that the special conditions on the Property distinguish it from other properties in the area, the Property is also different in a meaningful way from other properties in the area. In particular, withoutlimitation, the measurement of the frontage of the Property; the applicable setback requirements, and the impervious surface area resulting from the public highway, make the Property materially different from other properties in the area.

c) The property is burdened more severely by the zoning restrictions because: As set forth above in condition with the unique conditions of the Property, those unique conditions result in more severe burden on the Property. For example, because the Property’s frontage is along it’s longest dimension, as opposed to other properties in the area where the frontage is along the shortest dimension, much more severe and burdensome setback requirements are imposed. Similarly, because the Property is a corner lot with public highways along three of the four sides, the impervious surface of those highways on the Property makes the limitations on impervious surface area more severely burdensome.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:Relating to Sections 16.8.2.1 and 16.8.2.2 of the Ordinance which are not included on the Town’s Variance Application Form. The Proposed Building is reasonable in light of the unique conditions of the Property and the intended associated changes to the landscaping and other improvements thereon. The use of the Property itself shall remain unchanged. The Property will continue to be used as a single-family property with an accessory structure (i.e the Garage which is a lawful nonconformity, see Exhibit 1). Uses that are permitted by the Ordinance or by existing variances are presumptively reasonable. See Vigeant v. Town of Hudson, 151 N.H 747, 753 (2005). Variances are only required due to the dimensional or area changes associated with the Proposed Building. In connection with the replacement of the Home and the setbacks, the Proposed Building is reasonable. The Proposed Building reduces the nonconformity on the northern boundary. The Proposed Building is generally no closer to the southern boundary than the existing House. See Exhibit 2, Exhibit 3. The variance is only necessary because the shape of the Proposed Building is different and because of the Enclosure. As a result, it is technically an expansion of the nonconformity requiring a variance. Nevertheless, the extent to which the Proposed Building expands the nonconformity is extremely minor and will have no impact on the neighbors. Enclosing the space between the two buildings on the Property, for example, will not encroach on the neighbors or contribute to the overcrowding of the area. In connection with the impervious lot coverage, the proposal is undeniably reasonable. As mentioned above, the Proposed Building and associated changes reduce the existing nonconformity. Bringing a property closer to compliance with the Ordinance cannot be considered an unreasonable use. Accordingly, the Proposed Building and associated alterations to the Property are reasonable. Moreover, there is no fair and substantial relationship between the general purposes of the Zoning Ordinance and restriction on the size or number of signs in light of the particular and unique characteristics of the Property and surrounding area.The general purposes of the Ordinance include to promote the health, safety, and general welfare of the inhabitants of the Town, to encourage the most appropriate use of land; and to allow individual landowners as great a degree of freedom in the use and enjoyment of their land as is consistent with the accomplishment of these purposes. Ordinance 1.2 The Blodgett Landing Cottage District is specifically intended to “allow and encourage property owners to improve their properties within the confines of their existing lots”. Ordinance 6.1. Buffer and setback requirements are generally enacted to prevent overcrowding of the land. Devaney v. Town of Windham, 132 N.H. 302, 307 (1989). Setback requirements are also typically enacted to ensure adequate emergency access and response. See 2 Young, Anderson’s American Law of Zoning (4th ed., 1996), 9.56, setback Regulations, at 293. The Proposed Building will not impact overcrowding or impair emergency access. The proposed expansion into the setback area is slightand mostly between the existing buildings. This will not further encroach on the neighbors or impair emergency access at all. Moreover, in connection with the northern side of he Property, the nonconformity with the setback will actually decrease as a result of the removal of the decks on the Property. This will put the structure farther away from Sunlite Lane, improving public safety and reducing the potential risk of overcrowding or emergency access. Similarly, it cannot reasonably be said that reducing the nonconformity of the impervious surface coverage on the Property is contrary to the purposes of the Ordinance. Every conceivable purpose for which the impervious surface restrictions were enacted are served, not contravened, by bringing the Property closer into conformity therewith. The purposes of the Blodgett Landing Cottage District, specifically allowing and encouraging property owners such as the Applicant to improve their properties, are directly in line with the Proposed Building and the variances sought. There will be no impact on the health, safety, or general welfare of the inhabitants of the Town, nor on any of the other harms the Ordinance seeks to prevent. Instead, the variances requested will allow the Applicant to put the Property to its most appropriate use and grant the Applicant a reasonable degree of freedom to use and enjoy the Property. Denying the Application would serve no rational purpose in these circumstances.

16.8.3 The variance is consistent with the spirit of the ordinance since: The Proposed Building will be consistent with the spirit and intent of the Ordinance as discussed above. In particular, granting the variances will allow and encourage the Applicant to improve the Property in a manner that will have no adverse effect on the health, safety, or general welfare of the inhabitants of the Town, nor result in any of the other harms the Ordinance seeks to prevent. Instead, approving this application will allow the Applicant to put the property to its most appropriate use and grant the Applicant a reasonable degree of freedom to use and enjoy the Property. Furthermore, in connection with the lot coverage and the northern setback area, the granting the variance will directly and undeniably support the spirit and intent of the Ordinance by reducing the nonconformity therewith.

16.8.4 Substantial justice is done because: The harm to the Applicant of strict enforcement of the Ordinance will far outweigh any benefit to the public in this case. There would be no benefit to the public by preventing the replacement of the existing House with a new, more modern and aesthetically pleasing residence. Nor is there any public benefit in preventing the Applicant from reducing the Property’s nonconformity with the Ordinance. At the same time, denying this application would harm the Applicant by preventing it from updating the Property and achieving its highest and best use. Balancing this loss against the little to no public benefit in strict enforcement of the Ordinance in this case clearly shows that granting the application will result in substantial justice.

16.8.5 The value of surrounding properties will not be diminished because: The Proposed Building will have little, if any, impact on the overall character of the area. The areas in which the Proposed Building is expanded are minimal and will have no impact on the neighboring properties. The Proposed Building will be no closer to the boundary than the existing House. Moreover, renewing and updating the aesthetic appearance of the Property will be beneficial to the neighborhood as a whole. Replacing the old, dated House with the modern, more visually appealing Proposed Building will, if anything, enhance rather than diminish the value of surrounding properties. 

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

Mr. Briggs said he has three concerns, trees, sewer and parking.

Mrs. LoPresti asked what the square footage of the existing garage is and will it remain a one car garage with living space over. Mr. Hastings said the garage will remain as is except for the apartment area will be converted to a non-dwelling space.

Mr. Fichter read a letter from the Kellsey Family Heritage, LLC from 7 Sunlite Lane into the record: July 26, 2021Regarding the request for variances by Lake Ave, LLC, owners of 10 Sunlite Lane. We have the following objections to the requested variances to 15.2.1 and 7.12.1:

1. We, object to tearing down a historic building, which does need modernization but is not derelict;

2. We object to replacing a 2 story, 3 bedroom, single family house with a 3 story, 8 bedroom two family duplex; the second floor of the current house could be reconfigured to 4 bedrooms (there is am extra den space next to a bedroom and the front bedroom is large and could be divided) and with two bedrooms over the garage could provide enough space for a large family.

3. The proposed style does not meet the design guidelines in article 6.2.1. The proposed style is generic new England shingle, which would be fine for a large shorefrong lot, but is not appropriate to the Victorian style of Blodgett’s Landing.

4. We object to the plan to remove all the trees from the vacant lot to create a parking lot; most of this lot is within the 250’ Shoreland Protection Area, so the trees are needed to absorb rain water and prevent additional runoff into the lake; removal of the trees will also destroy the woodland feel of the north end of Blodgett’s Landing and remove much needed shade in the hotter summers we are experiencing; the current parking can accommodate two cars next to the garage in tandem, one inside the garage and one in front of the garage; the space next to the garage could be widened slightly to fit an additional car; that should be plenty for a single family, and would not necessitate the removal of all the trees.

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

The Board went into deliberations.

Mr. Gelzer said in his opinion Section 21.1.3 is quite clear, reduce the velocity of stormwater flows throughout the watershed, and the stormwater management plan is inadequate and could be significantly improved by in some way or another interrupting or lessening the velocity of water that flows through the long run of the corrugated pipe, that is corrugated on the outside, smooth bore on the inside. 

Mr. Gelzer asked Mr. Fichter if the Board grants the variance, is the Board granting the variance for the inside structure as currently conveyed with two kitchens and all that kind of stuff. Mr. Fichter said the Board would be granting the variance for the dimensional problems the structure has on the outside, that is what is being asked for.

Ms. Holmes made a motion to vote on the request fromPhilip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 Sunlite Lane, Newbury, NH, for Variances from the requirements of Paragraphs 15.2.1 and 7.12.1 of the Newbury Zoning Ordinance to permit the following: Replacement of existing nonconforming building with a new building that increases the nonconformity and that will exceed the 30% impervious surface coverage limit. Newbury Tax Map 16A-358-003, with the following conditions:

• To submit and receive a tree permit

• A provision that a maintenance plan is submitted to homeowner

• Obtain a Shoreland Permit

Mr. Thomas seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variances from Paragraphs 15.2.1 and 7.12.1 with stated conditions.

Reed Gelzer-voted to Grant the Variances from Paragraphs 15.2.1 and 7.12.1 with stated conditions.

Katheryn Holmes-voted to Grant the Variances from Paragraphs 15.2.1 and 7.12.1 with stated conditions.

Peter Fichter-voted to Grant the Variances from Paragraphs 15.2.1 and 7.12.1 with stated conditions.

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.

Continuance-Philip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 Sunlite Lane, Newbury, NH, will seek a Special Exception as provided for in Article 6.12 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Blodgett Landing Cottage District and the Shoreland Overlay District. Newbury Tax Map 16A-358-003.

Mr. Hastings said that in 1987 there was a decision by the ZBA that granted a variance to allow the accessory apartment in the garage. Mr. Fichter said it wasn’t an accessory apartment. Mr. Hastings said an apartment, additional living space. Mr. Fichter said he’s sensitive to the fact that it’s not an ADU. Mr. Hastings said ADUs did not exist back then. Mr. Hastings said it was a full apartment as he understands it, with a kitchen, bathroom and sleeping facilities which qualified as a separate dwelling unit permitted under the Ordinance at the time. Mr. Hastings continued since that time the Town’s Ordinance has changed, State law has changed to permit what’s known as accessory dwelling units which has some limitations on certain sizes and types of occupancy that is allowed without waiving the applicant’s right to maintain that they do not need a special exception because they have the variance granted in 1987. Mr. Hastings continued that to the extent the applicant does need a special exception he believes the applicant meets the requirements outlined in Section 16.7 in so far as the applicant is essentially transferring the location of the apartment from the upstairs garage to the interior of the main building. Mr. Hastings said to grant a special exception you need to make certain findings of fact, one is that the use is specifically allowed as a special exception, which it is under Section 6.12.1, that appropriate and adequate facilities will be provided for the operation of the proposed use, since an apartment already exists on this site there is going to be no change in the facilities and the proposed use will comply with the applicable regulations of the district in which it is located, which it will. Mr. Hastings continued that the general conditions of 16.7 are fairly specific.

There being no further questions from the Board, Mr. Hastings addressed 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 Garage has existed since, approximately, the 1930s and the particular use for overflow living area has existed since 1987. There is no evidence that the overflow living area has had any detrimental effect on the character or enjoyment of the neighborhood. The use will remain unchanged, it is simply being relocated to the Proposed Building. This relocation of a non-detrimental use will have no material effect on the character or enjoyment of the neighborhood.

16.7.2 The use will not be injurious, noxious or offensive and thus detrimental to the neighborhood because: The Garage has existed since, approximately, the 1930s and the particular use as overflow living area has existed since 1987. There is no evidence or any reason to believe that its use has been injurious, noxious, or otherwise offensive. The relocation of certain functions, such as the kitchen, from the Garage to the Proposed Building will have no material impact on the neighborhood, and certainly would not be injurious, noxious, or offensive.

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:

As stated above, the overall use of the Property shall remain unchanged, only the configuration of the Property and the particular space dedicated to particular functions will be changed. The construction of the Proposed Building and relocation of certain living functions thereto from the Garage will not have any effect on traffic congestion or hazard. There is no risk to life or property, unsanitary or unhealthful emissions or waste disposal, or any other adverse causes or conditions that will be created by the Proposal.

16.7.4 The size of the site in relation to the proposed use and 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 because: The Garage already exists on the Property and has not been disharmonious therewith. Proposed Building is generally consistent in size and with the existing House. The replacement of the House with the Proposed Building and reconfiguration of certain functions within the Property will not create additional traffic or have any effect on anyone other than those individuals who are occupying the Property, i.e., the Applicant and guests or invitees.

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: The Garage and overflow living space therein is an existing use that has not created any objectionable noise, fumes, odor, or vibration. Relocating certain functions from the Garage to the Proposed House will not create any noise, fumes, odor, or vibration other than normal noise in connection with its construction which is ordinary and expected in a neighborhood setting. If anything, concentrating certain functions into a single building of modern construction, i.e., the Proposed House, will reduce the overall noise coming from the Property.

Mr. Fichter said he would like to draw the applicant’s attention to 5.7.3 in the Ordinance. Mr. Hastings said that was the same as 6.12.3. Mr. Fichter read, 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. Fichter continued that he noticed the owner of record is Lake Ave Realty, LLC and the address is in North Andover Massachusetts, so his interpretation is that the owner is not a resident of New Hampshire. Mr. Hastings said it begs the question what a residence; a resident is. Mr. Fichter said the State tried to address that under RSA Section 21:6, a resident or inhabitant or both of this State, ie New Hampshire, and of any city, town or other political division of this State shall be a person who is domiciled or has a place of abode or both in the State and in any city, town or other political subdivision of this State, and who has through all of his or her actions demonstrated a current intent to designate the place of abode as his or her principal place of physical residence to the exclusion of all others. Mr. Fichter said he would interpret residence, with the definition of the RSA, and it doesn’t seem as though the applicant qualifies under that. Mr. Hastings said the question he has is, the definitions in the RSA don’t really take into account a non-natural person as an owner, so under that interpretation, any kind of legal entity, whether a corporation, partnership or an LLC could never create an ADU under the Town Ordinance. Mr. Hastings continued that the reason this LLC was created was because there are two families that own the property so using an LLC structure serves two purposes, provides for better estate planning and management for the joint use as families and succession planning, as well as liability protection that the statute affords. Mr. Hastings said the intent is not to rent either of the units for profit purposes. Mr. Fichter said he understands what Mr. Hastings is saying and did research this with Town counsel, expecting that entity, even though it is an LLC, to have its residence in Newbury. Mr. Hastings asked if the Board could approve the special exception with the understanding that the applicant needs to figure out a way to comply with the residency requirement or would the Board prefer to table this until the applicant can figure this out.

Mr. Fichter suggested that this hearing be continued for a second time until August 9, 2021, at 7:20 pm. for the agent to clarify how Applicant could comply with the residency requirement.

Mr. Gelzer made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.

The meeting adjourned at 10:20 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        July 26, 2021