Meeting Minutes

Zoning Board of Adjustment

May 10, 2023

Approved July 26, 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: Alison Kinsman; Kristen Schulz; Christopher Kessler

Mr. Blohm called the meeting to order at 7:01 p.m.

Minutes

No minutes to review.

Mr. Blohm made a motion to appoint Alex Azodi as an alternate for three years.

Mr. Thomas seconded the motion. All in favor.

Board Introductions

Continuance- 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.

Mr. Blohm read Mr. Bruss’s email into the record: 

I apologize but I have been home with a stomach bug and fever since mid morning Tuesday. I do not think it would be in anyone’s best interest for me to attend tonight. To date we have moved cleaning department, concierge department and handyman services off site. I have made arrangementsto move the landscape team off site to a space I rented by June 15th. We will be moving construction storage at the same time. This means that offices will be all that is left there. We have found a place to go where all departments can be under one roof that should be ready for us by the end of August or shortly thereafter. Please pass this information on to the board. I hope they can see I have been working to make no variance necessary. If they would still like me to come in for a variance for just the office I would be glad to do so at any time. If that is the case I would ask to withdraw this variance request and I will submit a new one as soon as possible.

Sincerely, James Bruss

Mr. Blohm said he takes this to mean the applicant wishes to withdraw and asked the Board if they read it that way as well. Ms. Holmes said that if the applicant has business offices still on the property, he needs a variance. Mr. Briggs said that the Board continued this case because the Board said there was no way the Board knew how to grant a temporary or short-term variance. Mr. Blohm and Ms. Holmes said there is no such thing.

Mr. Briggs said the Board suggested that the applicant go to the SelectBoard to see if they could work something out. Discussion followed. 

Mr. Blohm said he doesn’t think there is anything the Board can do here other than to allow the applicant to withdraw from this request. Discussion followed.

Ms. Holmes made a motion to withdraw the variance application. Mr. Briggs seconded the motion.

Mr. Blohm opened the public portion of the meeting.

Ms. Holmes said there is a motion on the floor.

Mr. Blohm read the following into the record:

May 4, 2023

FROM: Alison Kinsman

578 Mountain Road

Newbury, NH 03255

TO: The Zoning Board of Adjustment

Town of Newbury

Newbury, NH 03255

RE: The Relax and Company. 276 Mountain Road, Newbury- Request for a Variance to Continue Operating its Commercial Business in a Residential Zone

I am in Opposition to the Relax & Company’s request to continue operating a commercial businesses in a residential zone in Newbury. Mountain Road is a quiet residential area and the added traffic plus the noise of this company takes away from the peaceful atmosphere.

Request for Temporary Variance through December 31, 2024: At the April 12, 2023, hearing of the ZBA, Mr. Bruss, Relax & Co, requested a temporary variance through December 31, 2024. That is 20 months. Almost two years. Which would add to the three years he has already been operating his business in a residential zoned area. It was not completely clear to me to why he requested the additional two years as he described his current efforts to move components of his business to various locations. I think that a 3 month, 6 at the very most, variance would be more than sufficient to accommodate his moving from Mountain Road.

Request to maintain Landscaping component on Mountain Road; Mr. Bruss requested to maintain his landscaping component on Mountain Road with 22 employees. Of all the components of his business, the Landscaping is the most intrusive to the residential area as it not only has vehicles coming and going but those vehicles are trucks towing trailers with equipment and machines.

On April 12, 2023, Mr. Bruss stated that he currently has 52 employees working at the Mountain Road location. That is 52 employees commuting to and from work each day. The Planning Board minutes of December 2021, which Mr. Bruss attended, reflect his statement that at that time he had 28 employees.

Allowing the Landscaping component to remain on Mountain Road with 22 employees is still 22 employees commuting to and from work. What is to say that in a year he wouldn’t have 42 or 52 employees in his landscaping component.

Young Families on Mountain Road: I stated on April 12ththat there are 5 young families who have purchased homes on Mountain Road over the past 4-5 years. Two live just below the Relax Co, 1 just above and the other 2 further up Mountain Road. Collectively these 5 young families have 11 children ranging in age from newborns to kindergarten. They have all expressed to me that the reason they bought homes on Mountain Road is for the quiet residential area surrounded by woods and brooks.

There is a fair amount of pedestrian traffic on Mountain Road and with the additional vehicle traffic, especially trucks towing trailers, the Relax Company adds, increases safety concerns.

The Andrew Brook hiking Trail: I request that you Please consider this trail head and hiking population as you make your decision on Mr. Bruss’s request to maintain his business on Mountain Road.

The trailhead is diagonally across the street from the Relax Co. There are hikers year-round with the peak season being Summer through Fall. It is not uncommon to find 20 to 45 cars parked along the side of Mountain Road as hikers enjoy the trail along the brook in the woods.

Reference to precedence being established: On April 12, 2023, Mr. Bruss referred to the dog training business, located a short way below the Relax Co. He stated precedence has been established by allowing the dog trainers a variance to operate a business in a residential zone.

These 2 businesses are not at all similar. The dog training business is a cottage industry much like a hairdresser operating a shop in his/her home or an in-home child day care with 3-4 children.

The dog training is a home-based business operated by the 2 residents of the home. They have never hired outside employees who commute to and from work each day.

They recently closed the dog day care portion of their business as they are semi-retired and currently offer dog training only. When their day care was operating there were perhaps 8 to 10 dogs at one time that were dropped off in the morning and picked up in the afternoon. A much different traffic impact than 52 employees commuting to and from work each day.

I thank you for considering these concerns as you make your decision on granting a variance or not, to the Relax & Co.

Mr. Blohm closed the public portion of the meeting.

Mr. Azodi said that he wanted to make sure about the language here, the applicant doesn’t directly withdraw. Mr. Blohm said he understands that. Mr. Azodi asked if the Board could withdraw for him, is that what the Board wasdoing. Ms. Holmes said no. Mr. Thomas said the applicant’s time is up, the Board has to hold the continuance by a certain date, if not it goes away. Mr. Blohm said if the continuance goes away, the Board can vote on the variance request tonight and just deny the variance. Mr. Briggs said then the applicant can’t come back. Mr. Blohm read If they would still like me to come in for a variance for just the office I would be glad to do so at any time. If that is the case I would ask to withdraw this variance request and I will submit a new one as soon as possible. Mr. Azodi said the applicant has an “if” in there, “only if you want me to”. Mr. Blohm said the Board doesn’t care; it is up to the applicant. Mr. Briggs said he thinks Mr. Azodi has a point. Discussion followed.

Ms. Holmes withdrew her motion.

Mr. Blohm said he thinks the Board should just deny the variance request. Discussion followed.

Mr. Blohm made a motion to vote on the request fromJames Bruss (agent), Kenneth A. & Debra L. Nemcovich(owners), for property located at 276 Mountain Road, Newbury, NH for 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.

Mr. Briggs seconded the motion.

Roll Call Vote:

Henry Thomas voted to Deny the Variance from Paragraph 5.5.2 based on the business the applicant is proposing does not meet the Zoning and it will have a  heavy impact on the neighborhood.

Larry Briggs voted to Deny the Variance from Paragraph 5.5.2 because in this case, what the applicant is asking for, the Board does not have the authority to issue.

David Blohm voted to Deny the Variance from Paragraph 5.5.2 because the Board is not able to grant temporary variances.

Katheryn Holmes voted to Deny the Variance from Paragraph 5.5.2 based on the fact that the Board can’t deliver a variance under these circumstances; the applicant is breaking the Ordinance that is a business in a residential area.

Steve Hurd voted to Deny the Variance from Paragraph 5.5.2, in agreement with the other Board members.

Five votes to Deny the Variance

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, May 10, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m.,Gradient, PLLC & Moser Engineering (agents), John Worrall & Cynthia Bakon (owners), for property located at 110 Route 103A, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2 of the Newbury Zoning Ordinance to permit the following: A new septic tank and pump chamber to be located within 75 feet of the reference line of Lake Sunapee. Newbury Tax Map 019-170-084. 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.

Discussion followed.

Christopher Kessler from Gradient, PLLC presented to the Board.

Mr. Kessler said this is a unique property, for just discussion purposes, 100 feet wide for shore frontage and what would be considered road frontage, even though there isn’t any, and it is about 100 feet deep on either side, so let’s call it 100 by 100 square. Mr. Kessler continued it is completely landlocked, this used to be a boat house for theneighboring property and at some point, it was subdivided and sold off to a different owner. Mr. Kessler said there is an easement from 103A down the long driveway to the property.

Mr. Kessler said that from what they know, this property has a septic tank which is somewhere below the concrete steps and under the patio to some capacity, it is about 10 or so feet off the reference line, built in about the 50s; it will probably get collapsed. Mr. Kessler continued that it currently pumps up to a cesspool below the tennis court on the neighbor’s property, which there is an easement for.

Mr. Kessler said there are improvements that have beenproposed on this property, Gradient, PLLC inherited this plan that had already gone through shoreland permitting. Ms. Holmes asked the date of the shoreland permit. Mr. Kessler said around the end of summer of 2021. Mr. Kessler said the shoreland application didn’t cover all of the disturbance that is going to be needed to put in the new septic system, so there is a shoreland component with this that will have to be addressed, but coming before the Board is the first wheel in the cog because if the septic tank can’t be put where proposed then it changes a whole bunch of things statewide.

Mr. Kessler said the proposal is to take the septic tank and move it behind the 50 foot reference line, the goal for the new tank location is to have it continue being a gravity fed system, rather than having to have an injector pump out of the house, because this is a boathouse and most of the structure is over the water, the proposal will keep another mechanical system being that close to the water in an area very hard to winterize; as a result it will be fairly deep where the tank needs to be, they are going in the opposite direction of what the hill is. Mr. Kessler continued that is the first factor the applicant is working against, the closer to the lake the less deep the tank needs to be, the less digging that needs to occur, the less impact to the site. Mr. Briggs asked how far below the ground surface the tank will be. Mr. Kessler said to get to the top of the tank is going to be approximately 8 feet from surface to top of tank and then you have to go 5 feet to get to the bottom of the tank, so you are talking somewhere in the 10-to-15-footrange. Mr. Blohm asked the way you would access something that deep. Mr. Kessler said there would be a riser on it. Mr. Kessler continued that this is just to get effluent from the house to the tank, to get from the tank up to essentially the tennis court, that’s where there will be an effluent pump that will be on a chain. Mr. Blohm asked how big is the tank. Mr. Kessler said whatever the State requires, it is a 1600-gallon tank with a 500-gallon offset. Ms. Holmes asked if the applicants are going to live there year-round. Mr. Kessler said no, this is just to bring it up to minimum standards. Mr. Kessler continued from this point then it is pumped up and outside of the 250-foot zone on to the neighboring property. Discussion followed.

Mr. Kessler said there are a whole bunch of setbacks, not least of which is the Town’s 75-foot lake setback that the applicant is working against. Mr. Kessler said there is a well which is supposed to have a 75-foot setback from it, there is another well which has a 75-foot setback from it, there is a culvert which has 35 foot open drainage setback and 10-foot underground setback. Mr. Kessler continued that when you start overlapping all of these, there is no place to put a septic tank on this property, hence the variance. Mr. Kessler said the main reason for the Town variance is if the applicant were to bring it back behind the 75 feet, we would have to go an additional 5 to 6 feet in depth on this tank in order to get a gravity fed system. Mr. Kessler said being 75 feet back with there only being maybe 20-25 feet to the property line, all of sudden now we are going 15 to 20 feet into the ground which is a bigger hole and excavation to get into and would be getting into the wooded hillside that will then extend over onto the neighboring property. Mr. Kessler said the lesser of all evils from the three options 1) leave the tank, let it fail and do an emergency replacement, 2) meet state standards and get it behind the 50 foot setback, to reduce the excavation as much as possible by keeping it as low on the hillside as possible and keeping it in an area where there has been more disturbance historically, 3) is to meet the Town’s 75 feet setback, push it back, excavate the big hillside, cut down a lot more trees getting into an area that is currently undisturbed, and figure out a drainage easement because of the proximity to an open ditch for the state. Mr. Kessler continued that the lesser of evils is to have it just behind the 50-foot setback. Discussion followed.

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

16.8.1 The variance will not be contrary to the public interest because: The proposal is to replace an existing,nonconforming septic tank, which is between 60 to 70 years old, with a new state-of-the-art system that will meet current state standards and will be set back approximately 51’ from Lake Sunapee. The proposed septic system will be a sealed, multi-chamber, H20 rated tank that is designed to be buried at a significant depth. This proposed tank will be of a condition and in a location that poses less of a threat to the public’s safety/health and to the water quality of Lake Sunapee than the existing tank.

In addition to replacing the septic tank on the Subject Parcel, the applicant will make improvements to the tank’s effluent disposal area. Currently, the existing septic tank pumps to a dry well/cesspool on the adjacent property at 112 Route 103A. The applicant will abandon the existing dry well/cesspool and replace it with a new leach field, which will be outside of the 250’ Shoreland Overlay District.

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 0.25-acre Subject Parcel is the smallest lot within a 350’ radius, except for an undeveloped/land-locked 0.07-acre parcel off Shore Road (Tax Map 19, Lot 163-50). Surrounding lots range in size from 0.5 to 2.53 acres and have more land area to accommodate development. The existing dwelling/boathouse on the Subject Parcel was built circa 1900 and is the oldest building within a 350’ radius (according to information contained on the Town’s property record cards). Unlike surrounding structures, this building is located partially over the water. The Subject Parcel is located entirely within the Town of Newbury’s Shoreland Overlay District and the jurisdictional area of the New Hampshire Surface Water Quality Protection Act (RSA 483-B), both of which extend 250 feet from the reference line of Lake Sunapee. At its longest point, the Parcel is 94’. At its widest point, the Parcel is 102’. Unlike surrounding developed lots, the Subject Parcel is land-locked and has easements on the adjacent property at 112 Route 103A for site access and utilities. The Parcel’s existing effluent disposal area, which is a drywell/cesspool, is located on this neighboring lot.

b) The property is different in a meaningful way from other properties in the area because: The unique size and configuration of the 0.25-acre Subject Parcel, and its location entirely within the Shoreland District, significantly limit where a new septic system can be located on the Site in conformance with state and local regulations. As noted in the response to Section 16.8.2.a above, the Subject Parcel is the smallest of developed parcels in the surrounding area and is only 94’ long and 102’ wide. As such, the entirety of the lot is subject to the Town’s Shoreland Overlay District regulations and the state’s Shoreland Water Quality Protection (RSA 483-B). It is not possible to locate a new septic tank on the Subject Parcel outside of the 75’ setback required in Section 7.4.2 of the Zoning Ordinance without disturbing/removing trees from the area of the Natural Woodland Buffer that is required to remain in an unaltered state in accordance with Section 7.8.2.1 of the Zoning Ordinance, or the 75’ protective well radius in Section 3.3.2.1 of the Zoning Ordinance. Furthermore, if the proposed tank were to be located outside of the 75-foot shoreline setback, an additional 6’ to 8’ of depth would be required to bury the tank, which will increase the amount of disturbed area needed to install the new tank and could create issues with accessing the tank for maintenance.

c) The property is burdened more severely by the zoning restrictions because: The Subject Parcel is an existing, non-conforming lot that is located entirely within the Town’s Shoreland Overlay District. The parcel does not have enough unrestricted land area to allow for an alternative location for the proposed septic tank that would conform with the Town’s 75’ setback in Section 7.4.2 of the Zoning Ordinance. Compliance with this 75’ setback would require impacts (e.g. tree removal, ground disturbance, further cut into slope) to portions of the Natural Woodland Buffer that are required to remain in an unaltered condition (See Section 7.8.2.1 of the Zoning Ordinance). In addition, it would impact the 75’protective well radius of the neighboring property at 112 Route 103A, which is required in Section 3.3.2.1 of the Zoning Ordinance. Any change to the location of the existing septic tank will impact the 75’ protective well radius of the existing well on the Subject Parcel. As such, a waiver will be required from the NH Department of Environmental Services Subsurface Bureau. In addition to local regulations, the Subject Parcel is subject to state regulations and environmental rules that further restrict the location of new septic systems. NH Department of Environmental Services Administrative Rule Env-wq 1008.04 regarding design requirements for all subsurface disposal systems requires that septic tanks are located a minimum of 35’ away from open drainage swales and 10’ from underground drainage systems. On the southeast side of the Subject Parcel there is an existing culvert and cement drainage swale, which will bereconfigured in order to meet these setback requirements. If the proposed septic tank were required to be located outside of the 75’ shoreline setback in Section 7.2.4 of the Zoning Ordinance, this drainage system would need to be reconstructed on the neighboring property to the south, and an easement will need to be obtained/recorded in order to meet the setbacks between drainage structures and septic tanks required by the state.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed septic tank will be an improvement to existing conditions. The existing, aging concrete septic tank will be replaced with a new sealed H20 rated septic tank and pump chamber that will be set approximately 40’ further back from the shoreline of Lake Sunapee and will be outside of the 50-foot Waterfront Buffer. All work will be done in compliance with state environmental regulations and will require approval from the NH Department of Environmental Services Shoreland Program and Subsurface Bureau.

16.8.3 The variance is consistent with the spirit of the ordinance since: The purpose of the Zoning Ordinance is to: “to promote the health, safety, and general welfare of the inhabitants of the Town of Newbury, New Hampshire, to enhance and preserve the value and natural beauty of our lakes, ponds, and natural environment; to conserve the value of buildings and encourage the most appropriate use of land; and to carry out the purpose defined in RSA 672:1 and 674:17 and the Overall Vision of the Newbury Master Plan. It is the intent of the ordinance 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.” (See Section 1.2 of the Zoning Ordinance) Furthermore, a goal of the Residential Zoning District is to: “…balance individual property rights with the protection of the Town’s community assets and rural character through appropriate and sensitive land use.” (See Section 5.1 of the Zoning Ordinance) Finally, Section 7.1 of the Zoning Ordinance includes the following purpose statement for the Shoreland Overlay District: “In order to protect Newbury lakes, actual use of lake side lots is limited through the establishment of the Shoreland Overlay District.” Granting the variance would be in keeping with the aforementioned goals of the Town’s Zoning Ordinance. This variance would permit the Owner/Applicant to replace an existing nonconforming septic tank with a more nearly conforming system that is less susceptible to failure. This approval would allow the Owner/Applicant to continue use of their property in a manner that ensures greater protection of natural resources, such as Lake Sunapee, and site features, such as the Natural Woodland Buffer, than the existing site condition or an alternative design.

16.8.4 Substantial justice is done because: Granting the variance would not negatively impact the general publicand the surrounding neighborhood and would provide the Owner/Applicant with the opportunity to improve existing site conditions. Conversely, denial of the variance would adversely affect the landowner and, potentially, the publicif the existing/aging tank were to fail, without any commensurate benefit to the surrounding area or greater community.

16.8.5 The value of surrounding properties will not be diminished because: No impacts are proposed to the Subject Parcel that will adversely affect adjacent properties. The proposed septic tank will improve existing site conditions and will reduce an existing threat to water quality and public health. Moreover, there will be no perceptible impact on surrounding properties as a result ofthis proposal. The proposed septic tank will be buried at least 10’ beneath the ground surface and the land area disturbed during construction will be planted with native trees, shrubs and vegetation. The Owner/Applicant will obtain all required state and local permits for the installation of the proposed septic system and will install erosion control measures during construction to prevent against erosion and sedimentation onto adjacent properties or into the Lake. The proposed leach field will be on the abutting property at 112 Route 103A. The Owner/Applicant holds an easement on this property for the septic system (See Book 939, Page 5 of the Merrimack County Registry of Deeds) and recent legal review has determined that the proposed work is within the parameters of the existing easement/deed.

Mr. Blohm opened the public portion of the meeting.

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

Mr. Briggs made a motion to vote on the request fromGradient, PLLC & Moser Engineering (agents), John Worrall & Cynthia Bakon (owners), for property located at 110 Route 103A, Newbury, NH for a Variance from the requirements of Paragraph 7.4.2 of the Newbury Zoning Ordinance to permit the following: A new septic tank and pump chamber to be located within 75 feet of the reference line of Lake Sunapee. Newbury Tax Map 019-170-084.

Mr. Thomas seconded the motion.

Roll Call Vote:

Henry Thomas voted to Grant the Variance from Paragraph 7.4.2, believe it’s the only alternative in where to put this septic tank, it’s going to be better for the lake, will be further away from the lake, it meets the spirit of the Ordinance for what the ultimate goal is by moving the septic tank and improving the septic system.

Larry Briggs voted to Grant the Variance from Paragraph 7.4.2, wants to be precise that his vote is restricted to just the septic tank, the only thing the Board is reviewing at this meeting, appreciation of the owners, this is the right thing for Lake Sunapee, right thing for public safety and health, answers to the five criteria were extremely well written and addressed the questions completely.

David Blohm voted to Grant the Variance from Paragraph 7.4.2, believes this is a dramatic improvement for the property and protection of Lake Sunapee with this particular new system that will be installed, the placement is appropriate for the type of system and what the applicant wants to accomplish.

Katheryn Holmes voted to Grant the Variance from Paragraph 7.4.2, applaud knowledge of Zoning Regulations, backs up her decision with 16.8, substantial justice is done from granting the variance will not negatively impact the general public and the surrounding neighborhood and if this septic failed it would be a terrible thing for the lake.

Steve Hurd voted to Grant the Variance from Paragraph 7.4.2, with the information the agent has given the Board and outlining of the available scenarios, that this is the best solution for this property.

Five votes to Grant the Variance

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.

Board discussed amendments to the Rules of Procedure.

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

The meeting was adjourned at 9:02 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        May 10, 2023