Meeting Minutes

Zoning Board of Adjustment

April 6, 2023

Approved May 24, 2023

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

Members Not Present:

Public Present: Dan & Beverly Wolf; Nick Robart; Alison Kinsman; Jim & Joanne Lord; Howard Eaton; Martha Eaton; Elaine Eaton; April Messer; Sally Harris; Kevin Carr; Dick Wright; Wayne Seaholm; Darren Finneral; Scott & Angi Hill; Marion DeRoche; Stu & Judy Hale; Joe & Steph Spaulding; Joey Spaulding

Mr. Blohm called the meeting to order at 7:00 p.m. Mr. Blohm said that there will be no public input at the meeting. 

Mr. Blohm said that he is sitting here as chair, he was not at the previous meeting, but he has thoroughly read everything and is very familiar with what happened that night at the hearing and wanted to put that on the record.

Mr. Blohm said that there were five voting members of the Board present. Mr. Blohm continued that Mr. Azodi is an alternate and he was present at the last hearing so he will take part in the discussion.

Board Introductions

Minutes

The Board reviewed the minutes of August 10, 2022. Ms. Holmes made a motion to accept the minutes as amended. Mr. Briggs seconded the motion. All in favor. Mr. Thomas abstained.

The Board reviewed the minutes of September 14, 2022.Mr. Briggs made a motion to accept the minutes as amended. Mr. Thomas seconded the motion. All in favor. Mr. Blohm abstained.

The Board reviewed the minutes of October 12, 2022. Ms. Holmes made a motion to accept the minutes as presented. Mr. Briggs seconded the motion. All in favor.

The Board reviewed the minutes of November 9, 2022. Ms. Holmes made a motion to accept the minutes as amended. Mr. Briggs seconded the motion. All in favor.

The Board reviewed the minutes of February 8, 2023. Mr. Briggs made a motion to accept the minutes as amended. Ms. Holmes seconded the motion. All in favor. Mr. Blohmabstained.

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

The Newbury Zoning Board of Adjustment will hold a meeting on April 6, 2023, 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: Scott B. Hill-Motion for Rehearing on the February 8, 2023 decision by the ZBA.

Mr. Blohm suggested that the Board go down each one of these ten points and considers them thoroughly. 

Mr. Azodi said there are two reasons why the Board would allow a rehearing, one is if there is new evidence, and two is if the Board had made an error. Mr. Blohm said correct, so these ten points outline errors that were made, and Mr. Blohm wants the Board to address each one of them. Mr. Azodi said the Board is looking to find one of those two things. Mr. Blohm said errors or new information, that is correct.

Mr. Blohm asked the Board if they agree with that approach. The Board was in agreement.

Mr. Blohm brought the Board’s attention to the portion of the filing beginning with The decision is unlawful and unreasonable because, among other reasons, and said the Board will have discussion about each one. 

Mr. Briggs said before the Board gets started, and maybe the Board will cover it in the ten statements that are a part of the appeal, Mr. Briggs said he thinks it would be helpful to go through the five criteria again. Mr. Blohm said the Board will get there, by going down the points the Board will actually have to address the criteria. Mr. Briggs said okay.

Mr. Blohm read in the first point, Only a single member based his decision on the statutory criteria for a variance, and that member voted “no”. Mr. Blohm continued that the exhibit that is in front of that shows each of the Board members’ statements. Mr. Thomas said he thinks his saysthe criteria. Mr. Blohm said that is what the Board is going to do, was the criteria addressed and if the Board has tomake clarifications on that, they will.

Mr. Blohm asked the Board if they think this statement is true. Mr. Blohm continued that he sees in Mr. Briggs’ verbatim, that he did outline 16.8.1 and 16.8.5, the other ones, Mr. Blohm doesn’t necessarily see it. Mr. Blohm said Mr. Thomas said he did address the criteria. Mr. Thomas read …presented is meeting criteria to change that use of the property… Mr. Blohm said that Mr. Thomas did not specifically call out any criteria but identified them in general. Mr. Azodi said the same with him, he does not think the statement is accurate, because in his opinion, the Board member does not need to state if granting, it is when denying. Discussion followed. Mr. Azodi said the Ordinance requires that the Board only approve if everything is met, so by approving the Board is saying everything is met. Mr. Thomas said without listing them. Mr. Azodi said for the last meeting, that’s how he voted, when he said he approved this that’s because he looked at all those things and, in his view, they were all met.Discussion followed.

Mr. Briggs said that he felt pretty strongly particularly about 16.8.1 and 16.8.5. Mr. Briggs continued that 16.8.1 says the variance will not be contrary to the public interest because it does not conflict in a significant way with the Zoning Ordinances basic objectives, then when you read that Ordinance, particularly paragraph 1.2 that talks about what the purpose of the Zoning Ordinance is, which is, paraphrased, promote the health, safety, and general welfare of the inhabitants, two, preserve the value of land, buildings, and buildings is the key piece here, and three,allow individual homeowners as a greater degree of  freedom in the use and enjoyment of their land. Ms. Holmes said that goes both ways.  Mr. Briggs said there’s individual landowners, there is certainly Mr. Hill, and then certainly the other landowners who are in the immediate vicinity, who Mr. Briggs would argue, are going to be impacted. 

Mr. Azodi said that right now the Board is sitting here just to either approve or disapprove a rehearing, the Board is only trying to see whether there is new evidence, or the Board made a mistake. Mr. Azodi asked Mr. Briggs if he was trying to say that the Board made a mistake. Mr. Briggs said he thinks it is both, part of it says preserve the value of buildings, the Board has new evidence. Mr. Azodi said that the Board has not gotten to the new yet, we are only going through item number one. Mr. Blohm asked Mr. Briggs if he was talking about the abutters. Mr. Briggs said he is talking about the abutters in particular and saying, if that’s the criteria, there was evidence that was presented as part of the appeal from two realtors that there would be a negative impact. Mr. Azodi said that would be number six. Discussion followed. Mr. Blohm asked Mr. Briggs, was it his contention that in going through the criteria it was improperly considered. Mr. Briggs said that the Board didn’t consider the value of buildings. Mr. Blohm said that he thought that was kind of a stretch on that one, that there was another one. Ms. Favreau brought up a point of order that the realtor letters were submitted as part of the Motion for Rehearing, they were not submitted for the original hearing. Mr. Azodi asked Mr. Briggs if he was saying that he himself considered it, and now state that the rest of the Board did not consider it. Mr. Briggs said that he is respectfully asking his fellow Board members if they had considered preserving the value of buildings when they voted as they did, because he maintains that’s going to change the essential character of the neighborhood, and the Board that met back in November 2021 voted five to nothing that it would be adverse impact to the existing neighborhood. Mr. Azodi said he could answer for himself, at the time of the evidence submitted, he did.

Ms. Holmes said it seems like it had been a commercial area for a long time, probably each commercial business there impacted neighbors. Mr. Briggs said there are two lots there, a .59-acre piece which was commercial for a period of time and then the larger lot was always residential, never was commercial. Mr. Thomas said the Board is not talking about commercial land, not commercial land, we are talking about a variance that was granted over the criteria, a variance to allow storage buildings in that area.

Mr. Blohm asked Mr. Briggs if his point was that the abutter issue was not considered properly. Mr. Briggs said yes in essence. Mr. Blohm said the rest of the Board would say that it was considered, that it was part of your vote. The Board agreed.

Mr. Blohm read in number two, The decision was based on factors wholly unrelated to the criteria for a variance. Mr. Blohm said that he was not quite sure what that’s referring to, but he thinks it is referring to the sixteens were not properly considered when making the decision. Mr. Azodi said it is the same as number one. Mr. Blohm said the standard is that the Board has to go through those criteria, that is what the Board is supposed to do. Ms. Holmes said the Board did.

Mr. Blohm said the next one was The decision was predicated on mistakes of fact as to the history of the property and its zoning status. Mr. Blohm asked the Board if they took this into account when they made this decision. Mr. Azodi said there is a good history presented here that really wasn’t presented to the Board this well before, and some of the ones you read here makes you think that you probably would have asked some different questions at the time if you had all of this. Mr. Azodi continued, not thatwould necessarily mean he would’ve changed his mind but there is definitely a better history presented here. Mr. Blohm said he would consider this new information, and asked the Board if they would agree with that. Ms. Holmes said not really. Mr. Thomas said no. Mr. Thomas continued that his opinion is the history of property has nothing to do with the use of the property and it wasn't considered in his vote. Mr. Thomas said he was looking at the presentation of the criteria. Mr. Azodi said in his opinion his question to the Board would be, would the history make a difference inthe decision the Board made. Ms. Holmes said she thinks that the history was discussed quite a bit by the lawyer, not that it had any impact on what Mr. Thomas is saying, but it’s not like the Board didn’t discuss the fact that it had been a commercial place over and over. Mr. Thomas said there was a lot of discussion in the room of things that didn’t pertain to what the Board’s job was, to look at the criteria of whether to grant the variance or not. Ms. Holmes said they presented the hardship of the situation. Discussion followed.

Mr. Blohm read in number four, The decision ignored the evidence on the current character of the neighborhood, as well as the precedent findings by this same board that a commercial self-storage facility at this location would negatively alter the essential residential character of the neighborhood. Mr. Blohm said from his point of view, theinitial hearing on this in 2021, there was quite an outcry from the neighborhood against this and the Board was swayed by that, and he was influenced by that. Discussion followed. Mr. Blohm said that he noticed in this particular hearing, that didn’t seem to come up quite as strongly. Mr. Briggs said there were four to five people that spoke up that were neighbors, but there was a room out there, in excess of sixty people, the vast majority of them were in favor of a facility like this. Mr. Blohm said they weren’t abutters though. Mr. Briggs said they weren’t abutters, and so he said in his reason for denial, that he recognized both sides, but he said he gave more weight to the immediate abutters because it talks about the essential residential character of the neighborhood. Discussion followed.

Ms. Holmes said when the Board first heard the case, the applicant was not organized with what it was ultimately going to look like and the Board asked a lot of questions, so when the applicant presented it for the variance, they had come up with design factors, fencing, vegetation. Mr. Blohm said in this recent hearing. Ms. Holmes said yes. Ms. Holmes continued that Eckman, who is an engineer talked about a retaining pond for filtration, the difference between the previous hearings and that hearing, the applicant did quite an extensive effort to try and have a renewed business in that area and seemed to fulfill a lot of the things the Board talked about in the previous hearing which made it quite palatable.

Mr. Briggs said that he agreed with Ms. Holmes, there was night and day difference between the two, but the issue here is that it would negatively alter the essential residential character of the neighborhood putting in the storage units. 

Ms. Holmes said the gentleman that came from Wilmot talked about his storage and he dispelled some worries. Mr. Azodi said the Board may find that may not have been accurate or other evidence, at the time the Board was sitting, the Board did listen to what happens if there’s a storage facility, there are people that testified that it is very little impact, the Board did question all these, we did look at the effect on the neighborhood and compared it to what it was before, so if we are still looking at number four, it doesn’t apply to him, he did look at the neighborhood, he did ask questions of what happens. Discussion followed. Mr. Azodi said the Board members did look at things and they came up with their opinion, Mr. Briggs certainly came up with his opinion and he voted no, we looked at it and we saw something different, and we voted yes.

Mr. Blohm read in number five, The decision ignores the factual evidence in the record which shows that the application fails to satisfy any of the statutory criteria for a variance. Mr. Blohm said he thinks the Board has already covered that. The Board agreed.

Mr. Blohm read in number six, New evidence, in the form of a letter from two experienced and prominent local realtors, show that the proposed commercial self-storage facility would alter the essential character of the neighborhood and adversely impact the property values of the surrounding residences. Mr. Briggs said that he introduced this when he was speaking about 16.8.5, which was the second big thing that he was focusing on, and he said something to the effect that although he hadn’t seen any evidence presented on that night, his instinct was that there would be a negative impact. Mr. Briggs said that he thinks that most people that drive down 103A have a pretty good feel for what those two lots look like, and if there was a hypothetical question asked, if he were to introduce a storage facility in this area, would that affect the neighborhood property values, he thinks a realtor has that skill. Mr. Hurd asked if they had submitted any informationwhere it showed where a house was sold and then resold again between when a storage unit was built. Mr. Blohmsaid the answer is no, they didn’t do that kind of stuff. Mr. Thomas said that was a good point, that’s evidence. Mr. Blohm said the question of these letters, he thinks they are valid, they were introduced as part of the appeal. Mr. Azodi asked if they could have been presented before. Mr. Blohmsaid possibly. Mr. Azodi asked why they didn’t present them. Mr. Blohm said it’s new information and he thinks it’s relevant.

Mr. Blohm said let’s move on to seven and eight. Mr. Blohm said apparently there is new evidence on calamities at self-storage facilities. Mr. Blohm asked what that new evidence was, was that in here. Mr. Azodi said there’s a brief description. Mr. Thomas said of all the bodies they find and meth labs but that is nationwide, he doesn’t think that is in rural New Hampshire.

Mr. Briggs said that there was evidence presented that storage units are good neighbors, they are low traffic, so is this new evidence some contrary data, yes, it is, it’s not the most compelling.

Mr. Blohm said that number eight says that the exemplar facility mentioned several times at the meeting is actually completely inapposite, that it actually shows the opposite is what the appellant is saying. Mr. Blohm continued that he is not quite sure why that’s being said here in number eight. Discussion followed.

Mr. Blohm read number nine, The decision was influenced by misunderstanding and misapplication of the law of pre-existing, nonconforming uses. Ms. Holmes asked what did the Board misunderstand. Mr. Blohm said the only thing he can get out of this is the previous history is being referred to here, that the Board did not understand the real history and the Board didn’t really take that into account. Ms. Holmes said she didn’t think the lawyer actually understood the real history. Mr. Briggs said he agreed with that. Mr. Blohm said that is probably true. Mr. Thomas said he didn’t think the history would’ve affected him, that was not what he was looking at. Mr. Blohm asked Mr. Thomas if he was looking at what’s the best use of that property. Mr. Thomas said yes.

Mr. Blohm read number ten, The decision is unsupported by relevant evidence and based upon incorrect information and legal errors made by the Board. Mr. Blohm said that is the same point. Ms. Holmes said it is grappling at straws.

Mr. Blohm said the Board will review what they went through. Mr. Blohm asked the Board if anyone feels that there were errors made or that there was new information that would influence the case.

Mr. Azodi said that he does not know if at this time the Board has to establish that the new evidence or the mistake would’ve influenced the decision, at this time the Board has to decide whether there is new evidence. Mr. Blohm asked if there’s new evidence. Mr. Azodi said in his view six, seven and eight could potentially be new evidence the Board didn’t have. Mr. Azodi continued that the gentleman [Russ Jewell] presented a very calm situation with the storage area whereas briefly in here it looks completely different and then the testimony of the two realtors who have been dealing with this area, those may have made a difference at the time, there seem to be new evidence. 

Ms. Holmes said what sort of bothers her is this line that it alters the essential character of the neighborhood, that neighborhood had a garage there that was a mess, Ilnicki’sscene was a mess. Mr. Hurd asked if there were complaints about devaluing property then. Ms. Holmes said it was a neighborhood with a business in front. Discussion followed.

Ms. Holmes said she has difficulty making this a total rural neighborhood, this is a big impact with this change, she assumes the Planning Board will absolutely make sure that all the plans will happen. Ms. Holmes continued that she is not quite so sure of this new evidence. Discussion followed.

Mr. Briggs said if we grant the rehearing, the Board could allow dialog, bring in experts who could present rationale that the Board could listen to and weigh. Mr. Blohm said that’s correct. Ms. Holmes asked Mr. Briggs if he meansthe real estate people. Mr. Briggs said for example. Mr. Thomas said this information should have been presented, how is this new information, it was out there before, new information is something that just got discovered. Mr. Blohm said they could’ve presented it, but they didn’t. Mr. Thomas said the case was prepared to present the five criteria by Ms. Messer, then an attorney was hired to state a case of opposition to the presentation, so they were given the opportunity and at that time the Board listened to both sides. Discussion followed.

Mr. Hurd said he thinks the Board covered everything that night and everything is basically repeated again and just worded differently.

Mr. Thomas said he doesn’t think it is new evidence. Ms. Holmes said the two realtors are projecting that property values would go down. Mr. Thomas said you could get realtors that say the property values wouldn’t be affected. Ms. Holmes said she thinks the Board went over the criteria pretty heavily in the Board’s last meeting.

Mr. Blohm said the Board has covered those ten concerns, and he thinks there are two issues after hearing everybody, the history was not well known back then, whether that would’ve affected anybody is not clear. Mr. Blohmcontinued that there is new information from realtors, and he believes that the abutters were pretty clear about saying they don’t want it. 

Mr. Briggs said he would like to hear the argument by somebody with real estate/appraisal expertise on the valuation. Discussion followed. 

Mr. Blohm said the Hurd recusal was a big one for them. Mr. Blohm continued that he had a conversation with Mr. Hurd, and he is comfortable that Mr. Hurd’s point of view is not affected by the fact that his porta-potties are on it. Mr. Hurd said correct. Mr. Blohm said that in any case, it’s Mr. Hurd’s decision to make, not the Board’s decision on that. Mr. Thomas said it is a loss to Mr. Hurd, where is hegoing to put his stuff. Discussion followed.

Mr. Azodi said the Board looked at other issues that would affect that area, which is sound and traffic, and listened to various testimonies. Mr. Blohm said that he guessed what it comes down to is if it were in your neighborhood how you would feel about it, this goes to the essential character. Mr. Azodi said it is really not about him or that individual, the Board is sitting here looking at these facts and deciding whether the hearing applies according to law or does not apply according to law. Discussion followed.

Mr. Briggs made a motion to vote on the Motion for Rehearing from Nick Robart, Beverly Wolf, Greg Gage, Tad Truex and John Perry as an unincorporated association of individuals calling themselves “Residents Defending Their Homes” on Zoning Board of Adjustment’s February 8, 2023 Scott B. Hill Variance decision.

Mr. Thomas seconded the motion.

Roll Call Vote:

Henry Thomas voted to Deny the Motion for Rehearing, no new information and the criteria of the variance was covered at the previous hearing.

Steve Hurd voted to Deny the Motion for Rehearing, the criteria of the variance was well covered at the previous meeting.

Larry Briggs voted to Grant the Motion for Rehearing, some new information on real estate values, would like to hear more, and if there were errors of law the Board did not understand, both parties should be given the opportunity to present that case and expand a bit.

Katheryn Holmes voted to Deny the Motion for Rehearing and stick by her vote.

David Blohm voted to Grant the Motion for Hearing, not satisfied that the character of the neighborhood is completely explored and the new evidence supporting that comes from the letters from the realtors and the fact that the history of the property got mixed up, making it okay to treat this as a commercial property, when in fact it’s not, so this needs to be treated completely differently.

Three votes to Deny the Motion for Rehearing. Twovotes to Grant the Motion for Rehearing. The Motion for Rehearing is Denied.

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

The meeting was adjourned at 8:50 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

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