Meeting Minutes

Zoning Board of Adjustment

April 12, 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: Jim Bruss; Richard Alexander; Allen Costigliola; Chellis Kirkland; Scott & Nancy Hilton; Jim Lord; Peter Schiess; Lisa Madden; James & Elizabeth Kizis; Jared & Laura Raymond; Alison Kinsman; Darren Finneral

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

Mr. Blohm updated the Board on 129 Bay Point Road, the appeal the Town filed with the Supreme Court, the Supreme Court agreed to hear oral arguments.

Minutes

No minutes to review.

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 Wednesday, April 12, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m. Stephen & Chellis Kirkland (owners), for property located at 40 Washington Street, Newbury, NH, will seek after the fact Variances from the requirements of Paragraphs 6.8, 7.12 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Expansion of a deck on a non-conforming structure within the side and rear setbacks and exceeding impervious area allowed. Newbury Tax Map16A-343-479. 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-noon.

Board Introductions

Mr. Blohm asked the applicant to give the Board an overview of what she would like to accomplish. Mr. Blohmsaid that he understands that the applicant suggested that she wanted to withdraw the application but given that public notice had been given that is why the applicant is here.

Chellis Kirkland presented to the Board.

Mrs. Kirkland said since the initial submission of the variance application, the applicant has changed the plans for the deck. Mrs. Kirkland continued that they werecutting back five feet from the existing structure, and the applicant understands if the Board denies the existing structure. Mrs. Kirkland said they are taking impervious surfaces from the driveway, so there will be no net increase to the structure.

Mr. Blohm asked about the Shoreland permit. Mrs. Kirkland said that has been submitted and is currently under technical review.

Mr. Blohm asked what the plan to reduce the size of the deck was and when it was to occur. Mrs. Kirkland said the building permit application is all written up and ready to go to the building inspector, but it is essentially 22 feet across and only 14 feet deep, only seven more feet than the original structure.

Mr. Blohm said he thinks that the Board’s choice at this stage is just to deny the applicant’s request for the variance. Discussion followed.

There being no further questions from the Board Ms. Kirkland addressed Article 16.8 of the Ordinance:

16.8.1 The variance will not be contrary to the public interest because: The deck would increase the space we could utilize without compromising the integrity of our historical cottage. It bears no impact on public interest as it is on our property and not visible from the road.

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: Our backyard maintains a water view, even though we are on a back street. In order totake advantage of view while preserving the original structure of the cottage, we opted to increase our deck space.

b) The property is different in a meaningful way from other properties in the area because: As above, its location in relation to the lake and existing deck space, take advantage of this. We are just looking to increase that space.

c) The property is burdened more severely by the zoning restrictions because: Our cottage itself is small. This is a way for us to increase our useable space without changing the structure/aesthetic of the cottage.

d) Because of the special conditions of the property, the proposed use of the property is reasonablebecause: A deck is less impactful environmentally, historically and aesthetically than remodeling a historic cottage.

16.8.3 The variance is consistent with the spirit of the ordinance since: We are constructing the deck for our own use-we do not rent out our cottage. We also do not want to compromise the historical integrity of the actual cottage just to add space. We love the community/historical aspect of living in Blodgetts. It is not our intention to do anything to compromise that.

16.8.4 Substantial justice is done because: We are not making structural changes to the cottage itself in an effort to preserve the character of the cottage. The deck structure is only meant to maximize the space we do have without compromising historical integrity of the cottage/community.

16.8.5 The value of surrounding properties will not be diminished because: The quality/aesthetic of the deck will actually increase property value compared to what existed before.

Ms. Holmes asked if there was a building permit to build the deck. Mrs. Kirkland said no, that is why they are back tracking. Discussion followed.

Mr. Blohm opened the public portion of the meeting.

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

Mr. Briggs made a motion to vote on the request fromStephen & Chellis Kirkland (owners), for property located at 40 Washington Street, Newbury, NH for an after the fact Variances from the requirements of Paragraphs 6.8, 7.12 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Expansion of a deck on a non-conforming structure within the side and rear setbacks and exceeding impervious area allowed. Newbury Tax Map 16A-343-479.

Ms. Holmes seconded the motion.

Roll Call Vote:

Henry Thomas voted to Deny the Variances from Paragraphs 6.8, 7.12 and 15.2.1 on the grounds that the Board does not know what they are voting on, it says a 15-foot deck and the applicant is telling the Board seven-foot deck.

Katheryn Holmes voted to Deny the Variances from Paragraphs 6.8, 7.12 and 15.2.1 because the applicant does not have a DES permit and the applicant is struggling to correct their situation by making the deck smaller.

Larry Briggs voted to Deny the Variances from Paragraphs 6.8, 7.12 and 15.2.1, without prejudice, reason being to allow the applicant the opportunity to get back with the Code Enforcement Officer to reflect what the structure is going to look like, the current deck does not meet the pervious requirement, doesn’t meet the setbacks, not enough data in the application for the Board to review, not in compliance with 7.12, 7.13 and 15.2.1.

David Blohm voted to Deny the Variances from Paragraphs 6.8, 7.12 and 15.2.1 because the applicants still have not made the deck compliant and technically the applicant should be taking the deck down completely and going back to the way it was.

Steve Hurd voted to Deny the Variances from Paragraphs 6.8, 7.12 and 15.2.1 agreeing with Ms. Holmes and Mr. Thomas.

Five votes to Deny the Variances

Mr. Blohm 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 Wednesday, April 12, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m.,James Bruss (agent), Kenneth A. & Debra L. Nemcovich(owners), for property located at 276 Mountain Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance to permit the following: A commercial business to operate in the residential district. Newbury Tax Map 022-056-245. 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-noon.

Jim Bruss presented to the Board.

Mr. Bruss said they are running a business in the residential district on Mountain Road, and they are here for a variance to make that right and also to talk about how they can limit the impact they are having on the property. Mr. Bruss submitted to the Board a handout detailing a brief synopsisof who they are, what they do, and the way the property is currently used, number of employees, number of vehicles.

Mr. Briggs asked if the Town had notified Mr. Bruss that he’s in violation of operating a business out of a residential district. Mr. Bruss said yes, and the letter is included in the package. Mr. Blohm said this is something that came from the Planning Board. Mr. Bruss said originally, they went to the Planning Board for a Site Plan Review, the Planning Board said they couldn’t do anything until the applicant had a variance. Mr. Bruss continued that two building inspectors ago is when they had their first notice.

Mr. Blohm said the applicant was before the Board before with the idea to move most everything over by the mountain. Mr. Bruss said that unfortunately the lease fell apart. Discussion followed.

Ms. Holmes asked how long the business has been on Mountain Road. Laura Raymond said since January of 2020. Mr. Blohm asked the applicant what they want to do now. Mr. Bruss said they have spent the last 28-30 months looking for a place that they could locate everything, obviously the business being spread out in different locations isn’t ideal, but they couldn’t locate a place large enough in any of the Towns that they work in. Mr. Bruss continued that they are suggesting that to minimize the impact of the operation in the residential district and farm out the rest of it. Mr. Bruss said they were going to move the most intensive of their uses to Sunapee, which are the clean teams that make up the most traffic on the road, as well as the concierge and linen portion of the business. Mr. Bruss continued that if Bradford allows it, they will put the painting and handyman divisions there, we have to go through Site Plan Review there. Discussion followed.

Mr. Bruss said they are asking for the ability to keep the office, caretaking, landscaping and construction at 276 Mountain Road, so of the 50+ employees that they have, 32 of them will be off-site. 

Mr. Hurd asked if Mr. Bruss owned the property. Mr. Bruss said they do not own it yet, but they have a Purchase & Sales and will close on it within 90 days. Mr. Hurd asked if anyone lived there now. Mr. Bruss said yes. Discussion followed.

Mr. Bruss said they are asking that they be allowed to stay there through 2024 as they continue their search. Mr. Blohm asked what happens at the end of 2024 and have not accomplished this. Mr. Hurd asked if the Board grants this to stay there, does that stay commercial property or does the commercial property end once he moves all the stuff out. Mr. Blohm said it’s not really commercial, it’s giving him a variance to operate a commercial business in a residential zone. Mr. Bruss said he would ask the Board tothink about where they can operate by right in the Towns of Newbury, Sunapee and New London. Mr. Briggs said the Board can’t help him there. Mr. Bruss said there is no place, and this isn’t for a lack of effort, we are probably the largest employer in Newbury, and is the Board really going to force them to close their doors because there is no place that they work. Mr. Blohm said no one wants to force anyone to do anything like that, there is a zoning law, and the zoning law says you can operate a home handyman out of your house, but this is very different. Mr. Bruss said the Board has looked at variances for commercial uses in residential zones and seen the unique qualities of the property and has allowed it as well. Mr. Blohm said yes, but the Board looks at it case by case. Discussion followed.

Mr. Briggs said that in looking at the response to 16.8.1, which the Board will get to in a minute, it talks about a multi-phase move out, so it sounds like you are looking for a temporary variance. Ms. Holmes said there is no such thing. Mr. Briggs said he understands, a temporary whatever you call it in the interim. Mr. Bruss said they are trying to ask for the very least they can ask for.

Mr. Blohm asked what the property was before it became their business. Mr. Bruss said a horse farm. Discussion followed.

Mr. Blohm said that Mr. Bruss wants a variance to allow him… Mr. Hurd said to operate until the 2024 date, but then after that. Mr. Briggs said to operate a small portion. Mr. Briggs said he thinks Mr. Hurd raises a good point, does the permission lapse, goes back to purely residential. Mr. Bruss said that he had a conversation with the real estate attorney and his words were, the Board can put conditions on anything it chooses to.

Ms. Holmes said it is hard for the Board to have a wish list and base a decision on a wish that you are hoping to move, you are still looking. Ms. Holmes continued that when Mr. Bruss went to the Planning Board, they stressed this was a residential area, is this why you are moving. Mr. Bruss said yes. Ms. Holmes asked Mr. Bruss if they would stay there if this was deemed a commercial area. Mr. Bruss said absolutely, but that is not reality.

There being no further questions from the Board Mr. Bruss addressed Article 16.8 of the Ordinance:

16.8.1 The variance will not be contrary to the public interest because: We are currently operating our full business from the property, we would like a variance to allow us to operate our business in full here until May of 2023 when we will move our cleaning staff to a property in Sunapee, July 2023 when we will move our office staff and concierge department to another property in Newbury NH in the business zone, January 1 of 2024 when we will move out construction and Handyman division to a commercial property in Sunapee, finally leaving our landscape division to operate from this property permanently. Our landscape division is made up of 5-10 people who will be loading and unloading at the property daily and working off site full time. In addition, we would like to be able to utilize the existing green shop building as storage for the business long term. We believe the approximately 15 trips per day to and from the property will not in anyway hurt the neighborhood, the location of the landscape storage building, and laydown area is very well screened from the roadway and abutters and the size and nature of the equipment used is not one that will be noticeable on the roadway,

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: This property was used previously for the purpose of an agricultural business and a consulting business and this continued use is no more intense than that was. There are no similar properties available in any commercial zone within the town or surrounding towns that would allow our business to operate from it. We require significant outside storage and laydown space. This property with 26 plus acres of open land and the number of buildings existing on the property remaining unchanged we believe the character and usage of the place will not be dissimilar to when it was used as a horse farm. Trucks and trailers in and out were then part of the daily occurrences as it will be now.

b) The property is different in a meaningful way from other properties in the area because: This property is different from others for three reasons: First, its location near to a highway connecting the property to the areas around lake Sunapee make it ideal for operating a business of the type ours is. Where connection to the properties surrounding the lake is of utmost importance. Second, its overall size allows our business to operate from this site without overloading the site, with the remaining landscape portion of our business operating from here long term we can be here and blend in the rural character without damaging it. Third, the fact that a business operated from here before and that there is an abundance of open land we can use for storage of our equipment and landscape materials is a huge benefit. We are not having to alter the rural agricultural character of the land or neighborhood.

c) The property is burdened more severely by the zoning restrictions because: In a community where there are no other similar properties for a maintenance and contracting business to operate from by rite, the use of this agricultural building in a manner that is likely most in keeping with the former use makes it sustainable to keep the property open and undeveloped. Prohibiting this use may result in the further subdivision and construction of numerous homes on this site. This property is a home, a farm and a business like it has been in the past and we would like to continue to be so in the future.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The location and size of this property allow for us to both operate our business from here and not damage the character of the area. By moving 80% of our business elsewhere we are removing the vast majority of traffic from the road and use from the property. The difference between horse trailers and tractors and the equipment we use is negligible. If the goal is maintaining the character of the community and the opportunity for rural agriculture to exist this use can make that a reality.

16.8.3 The variance is consistent with the spirit of the ordinance since: The ordinance has been put in place to maintain the rural and agricultural character of the area, while landscaping operations are not completelyagricultural in nature our operations are very similar and a reasonable use of the property while preserving it as one large open piece of land. The noise and traffic levels will not be dissimilar to that of an ongoing farming operation.

16.8.4 Substantial justice is done because: Due to the incredibly small amount of land that is zoned as commercial and the full development of most of this property we believe it is in the best interest of the town to allow businesses like ours to exist in a residential community so long as it us on a piece of property that can sustain it and screen it from the neighbors and abutters. This large 26 acre property allows us to do this. We have searched exhaustively for other options to house our business for the past three years. We have come to the unfortunate realization that we have to operate our business from 4 different locations to exist in the Lake Sunapee Region. As you can imagine this is not ideal for ours or any business. We believe what we are asking for here is the least intrusive option with the smallest impact possible that allows us to continue to exist and serve our community.

16.8.5 The value of surrounding properties will not be diminished because: Due to the size of this property and the small portion of our business we are asking to be housed here we believe this can be accomplished without diminishing the value of properties in the area. The portion of the property that will be impacted is less than 2 acres of the total lot size of 26 acres. The uses placement on the property is well screened from roadway and abutters and will remain so. These factors combined make it a use that can be accomplished without negatively impacting the surrounding property values.

Ms. Holmes asked Mr. Bruss if he was thinking that the business was too big and the Board would deny it, so he wants to make it smaller. Mr. Bruss said no, he thinks it is the right thing to do for the community, the Board will grant or deny based on their own criteria, but we are here to ask for the minimum we can ask for and survive. Discussion followed.

Mr. Thomas received a fire call and had to leave the meeting. Mr. Thomas did return to the meeting about 15 minutes later.

Mr. Blohm said he wants to support the business and he has heard that people like the services that Mr. Bruss’s business provides, all that means is that the business is going to grow. Mr. Blohm continued that the issue he has is the business is going to grow and add more employees. Mr. Bruss said the Board can control that through conditions. Mr. Bruss continued that the moves that are proposed allow them to grow the business reasonably and still be out of there by 2024. Mr. Hurd said but not fully. Mr. Bruss said he is willing to say fully out of there by end of 2024. Mr. Blohm asked what would happen if the Board did grant this by the end of 2024 and it hasn’t moved. Mr. Bruss said then the Town can take enforcement action, but the Board has given him the opportunity to survive and do everything he can to move the property.

Mr. Briggs asked Mr. Bruss that he is saying he will try to be out of there completely by the end of 2024. Mr. Bruss said he is willing to say completely, using it as a residence and a farm, we will own it. Mr. Bruss continued that was not what the application says, but the Board can amend it to that, or I can ask for a continuance and come back next month. Discussion followed.

Mr. Blohm said that Mr. Bruss is technically not in compliance at all, so theoretically the code enforcement officer should be issuing a notice of violation, that is the next option, and he is trying to avoid that. Discussion followed.

Ms. Holmes said because Mr. Bruss is in violation, if the Board gave him through 2024 to have the business gone. Mr. Briggs said under what authority does the Board grant him a temporary disposition. Discussion followed.

Mr. Blohm opened the public portion of the meeting.

Mr. Bruss asked if he should withdraw this application and ask for a stay until 2024 from the SelectBoard. Ms. Holmes said maybe that is the route to go.

Mr. Blohm read in the record the following: To whom it may concern: with concern to the property located at 276 Mountain Rd. We abut it from across the road. Our driveway is directly across from theirs. We have not seen anything that would be a problem. We have no objections or concerns with this application. Thank you. 

Richard and Susan Alexander 

265 Mountain Rd.

Newbury NH 03255

Mr. Blohm read in the record the following:

Town of Newbury

Zoning Board of Adjustment

Newbury, NH 03255

Sent via email to Tiffany Favreau, landuse@newburynh.org

April 10, 2023

Dear Board Members,

My wife, Emily, and I are the owners of 306 Mountain Road in Newbury (“306”) and an abutter of 276 Mountain Road (“276”). We are writing to explain our opposition to the variance requests of the owners and renters of 276, which we learned about from your letter delivered to us via Certified Mail.

We purchased 306 from Dexter Burley’s estate in 2015 with a vision of preserving the wilderness at scale that he wisely assembled, such that our young family could enjoy the property and preserve its undeveloped character amid similarly situated residential homes and tracts. The fact that there were no commercial interests or developments abutting was a major consideration in our purchase. We know and like the Nemcoviches and have spent time with them, including hosting them at our home in Newbury. We believe in neighborly concord and want to be good neighbors.

Over the last few years since the Nemcoviches moved their permanent residence to Florida, their renters have been busy. I inquired of Ken about the activities at his property, asking about the large amount of machinery and truck traffic wondering if, as a remote owner, perhaps he was not aware. He said he would inquire with his renter.

From the early days that the Nemcovich’s renter “moved in,” it was clear this was not a typical renter. As weekend and summer residents of Newbury, we were not as impacted as other neighbors who reside in the area full-time, and we did not appeal to the Town of Newbury to intervene.

Now that there is a request for a permanent variance from residential to business zoning for this property, we must object. Mountain Road bisects beautiful wilderness with Andrew Brook running along the west and forests in all directions for the entirety of its journey in Newbury.

We believe that legalizing a business (or 4 businesses?) that were operating illegally from this site for multiple years only emboldens the applicant and others who might seek to take advantage of neighborly relations in contravention of the zoning ordinances of Newbury.

In addition, the Application for a Variance was clearly completed by the renter and not the owner. Note the fact that the Nemcovich’s agent in this application is also the owner of the business operating at 276 and that the responses to 16.8.1 through 16.8.5 are written from the perspective of the business owner not the property owner.

The conversion of a residential property and its buildings from personal use is not merely a question of whether the buildings could be re-purposed for commercial, but rather, “is it lawful to do so?”, and “should the Newbury Zoning Board of Adjustment bend the law to permit such a request?”.

Most importantly, we believe that permanently establishing a business that adds significant, constant truck/trailer traffic to a narrow, two-lane road already clogged with weekend hiking traffic visiting Andrew Brook trail detracts from the aesthetic of the area, diminishes the value of the residential properties’ values and disturbs domestic tranquility.

I would like to address a few of the claims made in the application:

-The applicant’s comparison of Ken working from his home as a sole-practitioner consultant to what is happening at 276 currently is absurd. How many employees are there every day? How many trash dumpsters are there? How many trucks are moving in and out? It’s hard to count them all, but one can see them from the road, hear them constantly, and one can feel their effect on up and down traffic on Mountain Road. To claim in 16.8.2 that the “continued use is no more intense than [agricultural and consulting] was” is just false.

-The applicant’s claims in 16.8.2 that the property was used for agricultural purposes is certainly not true at least since 2015. We’ve owned 306 since 2015 and there has not been any agricultural operations at 276 since then. There were horses at 276 early in our ownership of 306 but that’s not agricultural and, in any case, keeping horses is not a commercial enterprise. The traffic in and out of 276 is multiples more than any other property on Mountain Road.

-The applicant mixes concepts by using the 26 acres of 276 as justification that his proposed business operations have plenty of room (16.8.2a) while also stating that his business only needs 2 acres to operate (16.8.5). Which is it? He further claims that it’s impossible to find suitable locations for his landscaping business elsewhere in Newbury. That claim seems implausible. Why must the 2 acres for his business be located on residential property, negatively impacting the day-to-day-lives of neighbors? Why shouldn’t it be situated in a commercial district like any other business where the needs of a commercial operation can be accommodated and traffic, noise and general busy-ness is to be expected? If 2 acres today, why not 20 tomorrow?

We appreciate the opportunity for the Zoning Board to hear our concerns and objections to the proposed variance, and we hope that you all agree that such a variance is neither in the public interest, nor in the interest of our neighbors on Mountain Road.

Respectfully yours,

Roy Burns

Alison Kinsman said the business keeps getting larger and has a large amount of traffic.

Allan Costigliola said he knew something changed, they only come up once in a while and in the summer, there is definitely more traffic and noise.

James Kizis said there is a lot of motion, people in and out and moving between buildings.

There being no further comment from the public, Mr. Blohm closed the public portion of the meeting.

Mr. Thomas said if the Board is looking at a time frame, this would more fall under granting a temporary use which is 5.6, like the Board grants offices to go into developments until all the houses are sold, the Board could grant a temporary use under 5.6 for Mr. Bruss to run the business until a certain date. Ms. Favreau said temporary use permits are approved by the SelectBoard. Mr. Thomas said the Board shouldn’t even be hearing this if it is a temporary use it should go to the SelectBoard. Mr. Blohm said he isthinking that is what this needs to be because he doesn’t think the Board has a right to grant this kind of a variance.Mr. Thomas said grant something for short term.

Mr. Blohm said the choices are to continue this, have Mr. Bruss withdraw it, or deny it, or approve it. Mr. Bruss said he could request a continuance and have a conversation with his attorney to understand whether the SelectBoardcan actually grant a temporary use for them to be there, so he may be back in front of the Board, but with the attorney’s counsel. Discussion followed.

Mr. Bruss asked the Board for a continuance. Discussion followed.

Mr. Thomas made a motion to grant a continuance until May 10, 2023 at 7:05 p.m. to James Bruss (agent), Kenneth A. & Debra L. Nemcovich (owners), for property located at 276 Mountain Road, Newbury, NH, to seek a Variancefrom the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance.

Mr. Briggs seconded the motion. All in favor.

Mr. Blohm made a motion to adjourn. Ms. Holmesseconded the motion. All in favor.

The meeting adjourned at 9:24 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

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