Meeting Minutes

Zoning Board of Adjustment

October 12, 2022

Approved April 6, 2023

Members Present: David Blohm, Chair; Henry Thomas, Vice-Chair; Larry Briggs, Steve Hurd, Member; Gary Budd, Member; Member; Katheryn Holmes, Alternate

Members Not Present: Alex Azodi, Alternate

Public Present:

Mr. Blohm called the meeting to order at 7:00 p.m.

Minutes

The Board reviewed the minutes of July 27, 2022. Mr. Budd made a motion to accept the minutes as presented. Mr. Briggs seconded the motion. All in favor.

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

The Newbury Zoning Board of Adjustment will hold a meeting on October 12, 2022, at 7:00 pm., at the Town Office Building at 937 Route 103 in Newbury, NH. At this meeting the Board will review a Motion for Rehearing before them and act to grant or deny the rehearing. No public input will be taken on the Motion for Rehearing.

Motion for Rehearing: Michael J. Webster & Ai Qunwei-Motion for Rehearing on the September 14, 2022 decision by the ZBA.

Mr. Blohm asked for a recap of the last ZBA meeting, what the decision was and why. Mr. Briggs said this is the fourth time the Board has reviewed the Webster treehouse case, he contends that the Board probably has looked at this harder, longer and more completely than any other Town Board. Mr. Briggs continued that each and every time the Board has met on this case, the Board has taken three votes, three votes were unanimous. Mr. Briggs said that the first two reviews, the Board continued the case hoping the two parties, the Town and the homeowner could find an equitable compromise of the interpretation of the Ordinances, for example, Article 5.4 the Private Recreational Facilities, a more liberal interpretation. Mr. Briggs continued that the more liberal interpretation would possibly allow the treehouse to remain. Mr. Briggs said the Board met on the first of August in a joint session with the Planning Board and recommended that the Planning Board consider a change to the Town Ordinances to allow treehouses. Mr. Briggs said he thinks it is fair to say that the Planning Board was sympathetic and wanted time to work on language to present to the Town for approval at a future Town meeting.

Mr. Briggs said to the best of his knowledge the facts in this case haven’t changed, he doesn’t think there is any new data for the Board to consider, nor does he believe that the Board erred in the previous decisions.

Mr. Briggs said he made a few comments at the third review, Mr. Webster before he built the treehouse, tried to do the right thing, he sought a building permit from Mr. Lacasse, the Code Enforcement Officer, was told that one was not needed. Mr. Briggs continued that given that assurance, Mr. Webster proceeded to build the treehouse. Mr. Briggs said that there is no question that Mr. Webster seriously erred when he offered the treehouse for rent, but he has assured the Board that error will never be repeated. Mr. Briggs continued that he submits that this error is long since behind the Board and it’s time to move forward, that is kind of how the Board felt when they looked at this at the third session. Mr. Briggs said the Board at the third session unanimously again felt Mr. Webster acted in good faith when he sought permission to build his treehouse and it would be unfair to now penalize him, to force him to take it down, only to have the Town potentially change its Ordinances at an upcoming Town meeting to allow a treehouse. Mr. Briggs said he urges his fellow Board members to stay the course and to affirm the decision the Board made at the last ZBA meeting and allow Mr. Webster’s treehouse to remain.

Mr. Thomas said he is agreeable that the treehouse should remain, but for different reasons. Mr. Thomas continued that the reasons he has is that under residential district the uses permitted are, agricultural uses, that’s very large, it doesn’t list cow barn, horse barn, sheep barn, a lot of things can be built. Mr. Thomas said then it says all residential uses including manufactured housing on individual lots and accessory uses, and then we have the ones by special exception, but any uses not listed in 5.3 or 5.4 are not permitted, that means an awful lot of stuff if it's not listed, sheep barn, cow barn, shed, treehouse, he-shed, she-shed, workshop, screenhouse, they are not permitted in this Town, so that is why he said that it is an accessory use of the property to have a treehouse.

Mr. Thomas said the issue of whether Mr. Webster asked Mr. Lacasse for a building permit, that burdens on the Town of how to figure out how to get into his old computer system to see if he ever had a visitation from Mr. Webster on that. Mr. Thomas continued that it is also up to Mr. Webster to somehow prove that he was told he didn’t need a permit. Mr. Thomas said that those are not the Board’s issues, we are Zoning Board, that is a use permitted in the Town on Newbury, a treehouse. Mr. Thomas said the Town Counsel, unless he is looking to make money, by taking this to court, advised the Board that if it is not mentioned in 5.3 and 5.4 it is not permitted, but he didn’t read the whole 5.3 and absorb it, uses permitted and that is why he went the way he went on his vote. Mr. Thomas continued that what is important to him is that it is a use permitted, if they think he should have gotten a permit, give him a permit, if he built it in current use land, that’s another issue and nothing to do with the Board, we are not going to punish him by tearing it down, it is up to the SelectBoard to penalize him, have him take that land out of current use, have him pay any fines and penalties, but not necessarily tear down the building.

Mr. Thomas said to him treehouses do not need to be mentioned in future zoning changes, it is a permitted thing in the Town of Newbury, there are numerous treehouses, good size ones up in trees that kids play in, it is a structure.

Ms. Holmes said where she thinks Mr. Webster really tripped up was advertising and using it for commercial use, that was an egregious situation, however, she thinks Mr. Webster should sign a Memorandum of Understanding, which is legal and binding, that he will not rent the treehouse. Ms. Holmes continued that she voted not to tear it down because she feels like the SelectBoard is trying to use this as an example of enforcing the regulations when there are many more egregious things in this Town that they can pick on, and she takes issue with that. Ms. Holmes continued that it is a beautiful structure, it’s a piece of art really and nothing will be achieved by making him tear it down, she thinks the message to the Town would backfire. Ms. Holmes said that she agrees with Mr. Briggs, that the Board has looked at this and looked at this and the SelectBoard wants to hold this up, hey we’re holding up the regs, but she begs to differ.

Mr. Blohm asked if in the last meeting anything was mentioned about the renting out of it. Ms. Holmes said Mr. Webster said he would not do that. Mr. Blohm said what if he does it. Mr. Thomas said that is something out of the Board’s control, that would be up to the policing type of department. Mr. Thomas continued that if Mr. Webster said he wasn’t going to the Board has to take his word for it, if he does and he gets caught, there’s trouble. Mr. Blohm said the issue of whether Mr. Webster goes back on his word is a whole separate subject, but he should be on notice that if he does that, he’s in trouble. Mr. Briggs said the probability of that happening is slim to none.

Ms. Holmes said that Mr. Webster was definitely wrong, we don’t have a clear rule to govern treehouses, in community spirit, which we are always trying to build community, she thinks it would not be prudent to ask Mr. Webster to tear that structure down. Ms. Holmes continued that she feels people will be angry and that the SelectBoard is like a dog with a bone on this, they are not looking at the big picture like the Board is. Ms. Holmes asked if Mr. Webster should be in some ways held accountable, if everybody started doing this, we’d be really in trouble.

Mr. Blohm said Mr. Thomas has the most persuasive argument. Mr. Blohm continued that the Town attorney said that the Town has a permissive Zoning Ordinance, which means if it’s permitted specifically then it’s permitted, but otherwise it’s not. Mr. Thomas said that he does not know how you can say that because nothing is permitted. Mr. Thomas asked if he was reading our zoning when he came up with that statement. Ms. Holmes said he also said if it isn’t in the zoning, it’s prohibited, so somebody did something new, maybe it is a very sustainable structure. Mr. Blohm said that is the problem with the way this Zoning Ordinance is drafted. Mr. Briggs said that is why it needs a change.

Mr. Blohm made a motion to vote on the request by the Newbury SelectBoard for a rehearing for the decision of the Zoning Board on September 14, 2022 granting Mr. Webster’s administrative appeal.

Mr. Briggs seconded the motion.

Roll Call Vote:

Henry Thomas voted to Deny the Motion for Rehearing based on his feeling from reading the Town’s Zoning and his feeling about what the Board’s job is, which is to interpret the Zoning Ordinance that under 5.3.2 a treehouse would be a residential use, which is a permitted use in the Town of Newbury.

Steven Hurd voted to Deny the Motion for Rehearing based on that under 5.3.2 a treehouse would be a residential use, which is a permitted use in the Town of Newbury.

Larry Briggs voted to Deny the Motion for Rehearing based on his disagreement that the Board erred, he thinks the Board has been consistent in the four times the Board has looked at this, under Article 5.3, 5.3.2 specifically, and also 5.4 Private Recreational Facilities.

David Blohm voted to Deny the Motion for Rehearing based on his disagreement that the Board erred and his reading of permitted residential uses under 5.3.2, he believes this is an accessory use under that definition.

Gary Budd abstained from the vote based on his finding that 5.3.2 is ambiguous.

Four votes to Deny the Motion for Rehearing.

Mr. Blohm advised that the aggrieved party could follow this through with the courts.

Mr. Budd made a motion to adjourn. Mr. Briggs seconded the motion. All in favor.

The meeting adjourned at 7:37 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary