Meeting Minutes

Zoning Board of Adjustment

May 24, 2023

Approved July 26, 2023

Members Present: Henry Thomas, Vice-Chair; Larry Briggs, Member; Steve Hurd, Member; Katheryn Holmes, Member

Members Not Present: David Blohm, Chair; Alex Azodi, Alternate

Public: Charles Miller; Doug Gamsby; Robert Stewart; Tony & Kim LoPresti; Brad Pernaw; David Rhodes: Susan Rogers; Mary Schott; Dave Smith; Josh Perkins; Doug & Jane Paradis; Ted Valley; Kathleen Chambers; Angela Murphy; Thomas Grover; Tanya McIntire

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

Board Introductions

Minutes

The Board reviewed the minutes of April 6, 2023. Mr. Briggs made a motion to approve the minutes as amended. Ms. Holmes seconded the motion. All in favor.

The Board reviewed the minutes of April 12, 2023. Ms. Holmes made a motion to approve the minutes as presented. Mr. Briggs seconded the motion. All in favor.

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 24, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m.,RCS Designs & Josh Perkins (agents), Town of Newbury (owner), for property located at 20 Sutton Road, Newbury, NH, will seek a Special Exception as provided for in Article 4.3.2 of the Newbury Zoning Ordinance to permit the following: A contractor’s yard as a permitted use in the Business District. Newbury Tax Map 043-348-244. 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.

Mr. Thomas recused himself from this hearing, he believes it is a conflict of interest for him. Mr. Thomas took a seat in the audience.

Ms. Holmes made a motion that Mr. Briggs serve as acting Chair for this meeting. Mr. Hurd seconded the motion. 

Ms. Favreau asked for an amended motion for Mr. Briggs to serve as acting Chair for this hearing only, not for the meeting. Ms. Holmes amended her motion for this hearing only and for Mr. Thomas to chair the second hearing. Mr. Hurd seconded the motion.

All in favor.

Mr. Briggs advised the applicant that a full Board has five members, business could be conducted with the three members present, however a minimum of three affirmative votes are needed to grant the special exception. Mr. Briggs continued that the applicant could choose to go forward with tonight’s hearing or continue the hearing to a future date and time certain.

The applicant chose to proceed with the hearing at this time.

Robert Stewart of RCS Designs presented to the Board.

Mr. Stewart said that he is representing Katherine and Joshua Perkins for a property at 20 Sutton Road, owned by the Town of Newbury for a special exception as required for the type of use being proposed, which is a contractor’s yard. Mr. Stewart continued that the applicant would like to continue the use of the contractor’s yard for their business, Stoneface Excavating, they are not moving the business from the location of Route 103, but merely proposing this site for additional storage. Mr. Stewart said this property has a shed that will be used for equipment storage and alsosome temporary storage for materials normally associated with earthworks. Mr. Stewart continued that a site plan has not been done yet, the applicant wanted to get through this process first.

Mr. Stewart said that nothing is being sold from the property, the material is stuff that will be used on different sites, there are no customers coming to and from the property. Mr. Stewart continued that the applicant sometimes has part time workers, but for the most part it is a one-man operation, so activity will be minimal.Discussion followed.

Ms. Holmes asked if the applicant was buying this property from the Town. Mr. Stewart said yes, the applicant has a purchase and sales agreement with the Town subject to approvals. Mr. Stewart continued because of the type of use, contractor’s yard requires a special exception, that is quite different than if the applicant wanted to put a McDonald’s in there, the applicant wouldn’t need a special exception.

Mr. Briggs said a municipality isn’t required to follow zoning, but if a private party owns the property, they do need to follow zoning, right or wrong. Mr. Stewart said if a vet clinic was on the property there would be so much more traffic than the applicant will have with the occasional truck.

Mr. Briggs asked if there will be outside storage of vehicles as well. Mr. Stewart said he can’t be certain of that; the site plan has not been done. Discussion followed.

Ms. Holmes asked how big the lot is. Mr. Briggs said 1.1 acre.

Mr. Briggs asked if anything else will be done to the gravel surface. Mr. Stewart said the applicant is not expanding or doing anything with that, that would be subject to Shoreland.

There being no further questions from the Board Mr. Stewart addressed Article 16.7 of the Zoning Ordinance:

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: This lot has historically been used as a contractor’s yard. Currently the Town of Newbury uses it as storage of equipment as well as road sand for the use of Newbury residences. Prior to that, circa 2006, it was used as the Newbury Highway Department office and equipment storage. The proposed use is the same. The proposed use is a commercial operation in a commercial zone. This commercial operation has less impact to the neighborhood than other commercial uses allowed in this zone that do not require Zoning Board approval such as but not limited to retail services, motels, hotels, banks, restaurants, etc.

16.7.2 The use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: There is nothing being produced on the property as a result of this use. All rules and laws are to be followed with regard tonormal equipment maintenance and repair of equipment owned by Mr. Perkins. The main use however is for storage of construction equipment and temporary storage of materials normally associated with an excavation company that will be properly stored according to local and state regulations.

16.7.3 The use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal, or similar adverse causes or conditions because: The entrance to the site is 120’+- to the east of NH Route 103 therefore traffic conditions will not be an issue. Considering similar and existing uses in the past, there have been no traffic issues identified. There are no hazardous materials being produced as a result of this business. All rules and laws relating to ordinary maintenance of construction equipment will be followed as it is as the current site that Stoneface Excavating currently operates on. The operator of the business has a clean environmental record at his current site which has been in use for the past 17 years.

16.7.4 The size of the site in relation to the proposed use and the location of the site with respect to the existing or future street giving access to it shall be such that it will be in harmony with the neighborhood because: The same ingress and egress to the site off Sutton Road approximately 120’ east of NH Route 103 will not change and there have not been any issues in the past with respect to ingress or egress to the site with similar uses. The sole traffic generated is the result of the operation of the business. This is not a retail business site therefore little to no public traffic is generated as a result of this business use proposed.

16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operations of any permitted use in this district which are not subject to special exception procedures because: The location of this operation fronts on NH Route 103. Noise, fumes, odor or vibration will not be above any currently existing from what is produced as resulting from highway traffic. This commercial use has less impact to the neighborhood than other commercial uses allowed in this zone that do not require Zoning Board approval such as but not limited to retail services, motels, hotels, banks, restaurants, nursing homes, hospitals etc.

Mr. Briggs opened the public portion of the meeting.

Kathleen Chambers said she is worried about debris up against Andrew Brook and property values.

Thomas Grover said the building is in very bad shape. Mr. Grover continued that there were concerns about soil contamination. Ms. Favreau said the Town had remediations done and the information was in the property record file.

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

Mr. Briggs asked about hours of operation. Mr. Stewart said the applicant does not have hours of operation yet, that is something that will be addressed with the Planning Board, as well as lighting. Discussion followed.

Mr. Briggs asked what type of equipment will be stored on the property. Mr. Stewart said dump trucks, maybe an excavator, flatbed trailer, not a tractor trailer and construction equipment normally associated with a contractor. Discussion followed.

Ms. Holmes made a motion to vote on the request fromRCS Designs & Josh Perkins (agents), Town of Newbury(owner), for property located at 20 Sutton Road, Newbury, NH for a Special Exception as provided for in Article 4.3.2of the Newbury Zoning Ordinance to permit the following: A contractor’s yard as a permitted use in the Business District. Newbury Tax Map 043-348-244.

Mr. Hurd seconded the motion.

Roll Call Vote:

Steve Hurd voted to Grant the Special Exception as provided for in Article 4.3.2, no more impact on area as is right now with Route 103, a one-man show, better option than having a Dunkin Donuts or McDonald’s go in there.

Katheryn Holmes voted to Grant the Special Exception as provided for in Article 4.3.2, based on it’s a business district, it’s a contractor’s yard and the applicant will be seeking more parameters of the business when before the Planning Board.

Larry Briggs voted to Grant the Special Exception as provided for in Article 4.3.2, applicant did a good job with the responses of the criteria questions, note that it is in commercial zone, and this is but one step.

Three votes to Grant the Special Exception

Mr. Briggs 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.

Mr. Thomas returned to the table with the Board.

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 24, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m.,Doug Gamsby (agent), Alwin Charles Elliott Miller(owner), for property located at 10 Lake Ave., Newbury, NH, will seek Variances from the requirements of Paragraphs 6.8 and 7.4.2 of the Newbury Zoning Ordinance to permit the following: Construction of a house within the side setbacks and within the 75-foot lake setback.Newbury Tax Map 16A-357-532. 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.

Mr. Thomas advised the applicant that a full Board has five members, business could be conducted with the four members present, however a minimum of three affirmative votes are needed to grant the special exception. Mr. Thomas continued that the applicant could choose to go forward with tonight’s hearing or continue the hearing to a future date and time certain.

The applicant chose to proceed with the hearing at this time.

Doug Gamsby from Greenline Property Services presented to the Board.

Mr. Gamsby said the applicant recently purchased the property and wants to tear down the existing building and build a new one. Mr. Gamsby continued that one of the big features on this property is the existing building goes over the boundary line by about a foot, so the applicant will be taking care of that, putting the new building within the property line, but the applicant is asking for side setback relief and also front setback relief.

Mr. Gamsby said the existing building is 1,230 square feet, the new building will be approximately 1,530 square feet and in the Town of Newbury the building footprint is defined by the exterior of the roof line. Mr. Briggs said the drip edge. Mr. Gamsby said the drip line of the roof edge, so those are the dimensions existing and proposed. Mr. Gamsby continued that the building is going to get moved onto the property, on the north side it will be 7 inches on itsown side of the property line to the drip edge. Discussion followed. Mr. Gamsby said the existing condition to the edge of the drip edge is approximately 18 inches over the property line. Mr. Briggs said that in the applicant’s response to 16.8.1, says over the property line approximately a foot. Mr. Gamsby said that he was correcting that because when he did that six weeks ago, he hadn’t thought about the edge of the drip edge. Mr. Gamsby continued that there is a similar situation on the south side of the building, the applicant is asking for relief from the three-foot setback because of the drip edge. Mr. Gamsby said the existing building sits right on the four foot contour, the building face sits four feet from the property line, that so that is going to stay the same, the south side will be in the same footprint as is now there, the only difference is, it is going to come out another 4 inches to the edge of the drip edge, the building wall will remain in the same footprint. 

Ms. Holmes said that usually when there is a drip edge, there is maybe 3 feet of crushed stone for the run-off to hit, so then it will be over the property line. Mr. Gamsby said no, the applicant is going with gutters and collecting it into a dry well. Discussion followed.

Mr. Briggs said on the south side of the building, what is the distance from the property line to the existing drip edge. Mr. Gamsby said that would be about 3 feet 6 inches from the property line to the drip edge. Discussion followed.

Mr. Gamsby said the applicant is going to improve the driveway in the back of the property with a pervious driveway. Mr. Gamsby continued that the house is going to be guttered on both sides and a dry well installed. Mr. Gamsby said that right now all the water falls right off the roof onto the grass and flows down towards the lake, so that is another improvement. Mr. Gamsby continued that the applicant is going to install a well someplace in the back, so water is not being taken out of the lake anymore.Ms. Holmes asked if the existing house is hooked into Blodgett’s sewer. Mr. Gamsby said yes. Mr. Gamsby said that a new, narrower stair set will be constructed starting at the south and going towards the middle. Mr. Gamsby said there will be landscaping on the lakeside in front of the house.

Mr. Briggs said the roof pitch looks a little shallower than the Blodgett’s style that’s in the guidelines. Mr. Briggs read from the Zoning Ordinance, No roof that is the primary roof of the building should have less than a 6/12 pitch. Mr. Briggs said that if built with double dormers then it goes to 20 on 12. Mr. Gamsby said that he believes it is probably 12 on 12, the architect is not here tonight. Mr. Briggs asked what the elevation of the house is, because he is worried about snow and ice sliding off the roof and only 4 feet away are the neighbors. Discussion followed.

Mr. Briggs asked what the existing versus proposed impervious calculation is. Mr. Gamsby said he does not have the calculation for existing. Discussion followed.

Mr. Briggs asked if the applicant has applied for the shoreland permit. Mr. Gamsby said no, the applicant wanted to get through the variance hearing first, but that is the next step. Discussion followed.

Mr. Hurd said he thinks it is huge that the applicant is moving the house off the neighbor’s property. Mr. Briggs said that on the west side no closer to the lake reference line than existing today, south side no closer than it is today, north side moving back approximately 3 feet, such that there’s no longer an encroachment into the neighbor’s property and expansion on the east side. Mr. Gamsby said approximately 13 feet up to the mud room and then a 10 x 14 mudroom. Mr. Thomas said the mudroom is conforming.

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

16.8.1 The variance will not be contrary to the public interest because: The existing house is over the property line approximately 1 foot. The proposed building will correct this encroachment. The proposed house will be no closer to the Lake reference line than the existing house and the existing porch stairs will be relocated and slightly closer to the building.

Mr. Briggs said that the 1 foot is amended to 18 inches. Mr. Gamsby said yes.

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 proposed house will be along the same footprint as the existing house on the south side. The house will be narrower by about 3 feet to correct the encroachment.

b) The property is different in a meaningful way from other properties in the area because: The lot is 33’ wide at the lakeside end, one of the narrowest lots in the area.

c) The property is burdened more severely by the zoning restrictions because:  The lot is very narrow, being approx. 33’ wide on the lake side and approx. 21’ wide on the Washington St. side. Because of the narrowness, the proposed well location, drywell location and not wanting to take down trees on the Washington St. side, there is very little room for a garage or storage on the back side of the lot so the house needs to be expanded to allow for more storage.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because: We are correcting a property line encroachment and making for a more attractive road frontage by adding landscaping features and constructing a dwelling with a more attractive façade than what currently exists.

16.8.3 The variance is consistent with the spirit of the ordinance since: The existing structure had a minor fire a few years back in an upstairs bedroom. While the structure was not too badly damaged from the fire, the existing house is in fairly poor condition. It was built in 1892 and has gone thru utility upgrades but there is little in the house up to current fire, life & safety codes. A new house will be up to current codes and have a more appealing look in the neighborhood.

16.8.4 Substantial justice is done because: The proposed structure will be within the property lines, stormwater management controls are being proposed thru roof gutters and a drywell behind the house and a pervious parking section is proposed to assist in preventing detrimental effects to the Lake.

16.8.5 The value of surrounding properties will not be diminished because: The property values of other properties in the area will be enhanced with a newer looking dwelling, up to current safety codes and having less of a storm water impact on the Lake and neighborhood, in general.

Discussion followed.

Mr. Thomas opened the public portion of the meeting.

Kim LoPresti asked the Board that the 4-foot setback abutting her property be upheld.

Mr. Thomas asked what the existing roof overhang on the south side is. Mr. Gamsby said he didn’t measure; from the pictures he would say 6 inches. Mr. Thomas said the roof overhang will be increased.

Mr. Briggs asked if the applicant planned to get a registered surveyor to come in. Mr. Gamsby said what he based his plan on is off of a licensed land surveyor’s 2014 plan. Mr. Briggs said he is after one that actually shows dimensions on the drawing, from the existing house drip edge to the property line. Discussion followed.

Tanya McIntire said her concern was the whole project. Ms. McIntire continued that when a foundation is dug in the soil, it is building a dam, so the problem in Blodgett’s Landing with the water everywhere is part and parcel because people are damming groundwater flow. 

Susan Rogers said she has some questions on the slope of the roof, she thinks it is a functional reason and not an aesthetic reason.

Ms. Holmes said she would like to suggest a continuance because the applicant needs to sharpen this up, the Board does not know how high the building is, there are various problems that can’t be answered, unless the Board wants to make a lot of conditions. Mr. Briggs said he wants to hear more. Discussion followed.

Mr. Thomas read the following into the record:

We were notified of the variance request for the construction at 10 Lake Ave. and have concerns related to the south side setback in reference to 12 Lake Ave. The documentation indicates that the setback will be reduced from the current 4 feet to 3 feet. Below please find our justification to retain the current town of Newbury zoning setback requirements (4 feet) for Blodgett Landing with lot sizes less than 65 feet. We believe that these zoning requirements are for the safety and preservation of the Lake Sunapee Watershed and for those of us that are privileged enough to live in this neighborhood.

16.8.1. The variance will be contrary to public interest because the new plan is to replace the existing non-conforming property with another more non-conforming property, with a new south side drip edge that is over a foot beyond the Newbury zoning setback. The existing structure is at the setback and when snow slides off, it hits our home; especially when the snow fall totals are high (concerns for safety). Our concern here is that the proposed plan shows a one-foot overhang plus gutters, which will then move the new house drip line over at least a foot into the south setback. The expanded footprint in length (an additional 12’ to the east) and height increases our drainage and safety concerns related to this area. To paraphrase the Newbury Zoning Ordinance Section 15.2.1: a non-conforming building may be replaced if it is not made more non-conforming.

16.8.2. Special conditions that do not result in unnecessary hardship.

a) According to the plans submitted to the town, the proposed house footprint on the south side will be at least1’ over the 4’ setback. In addition, the overall plans do not significantly reduce the width of the house.

b) The property is not different in a meaningful way from others in the area as there are many 33’ wide lots in the neighborhood. Many of these lots are only half the length.

c) The property is not burdened more severely by the zoning restriction because many of the 33’ wide lots have been redeveloped according to the Newbury Zoning ordinances, some with even less acreage than the property at 10 Lake Ave.

d) The proposed use of the property is unreasonable because the new plan is for a 28’ wide foundation, not including eves/drip edge on a 32.74’ lot (plan appears to add an additional 2’ beyond the 28’).

16.8.3 The variance is not consistent with the spirit of the ordinance since the new owner bought the property in its existing state. The fire was not minor as it rendered the house uninhabitable, while we agree that it should be replaced, the replacement should be rebuilt taking into consideration the Town Ordinances as they are in place to ensure the safety and wellbeing of the residences of Blodgett Landing and the Lake Sunapee Watershed.

16.8.4 Substantial justice will not be done by granting this side setback variance. By allowing new construction to encroach on the side setbacks, the town will create even more non-conforming structures. Narrower side setbacks can negatively impact the safety of the residences (fire) and would make it difficult to maintain properties during and after construction. Under normal circumstances 4’ setbacks are a considerable burden, but to decrease this further is of grave concern when the overall footprint is significantly enlarged. This enlarged footprint could possibly create drainage issues that did not previously exist.

16.8.5 The value of our property will be diminished if this setback between 10 and 12 Lake is reduced, therefore setting precedent to allow future setback adjustments to our south.

We are appealing to the Town of Newbury Zoning board to take into consideration the concerns we have raised with respect to the south side setback and the spirit of the Town of Newbury Zoning Ordinances to preserve the quality of life, safety, and Lake Sunapee Watershed to disapprove the variance application as it currently stands with respect to the south side setback.

Respectfully, 

Anthony E. LoPresti

Kimberly E. LoPresti

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

Mr. Briggs said he was sympathetic and understands the difficulties of building in Blodgett, he now lives there full-time. Mr. Briggs continued that he would have a much different view if there was a drawing that had dimensions to the key pieces like drip edges and gutters and if the footprint of the house was 4 feet to drip edge. Mr. Briggs said he is concerned if the Board votes on this without making all kinds of conditions. Mr. Briggs asked if the applicant would be willing to return with a registered surveyor’s plan with the proposed and existing outlines on it and pull that south wall back; his gut tells him that the applicant might have a more receptive audience. 

Mr. Thomas asked if the Board could continue and have the applicant come back and show the Board a plan that’s 4 feet on the south side.

Ms. Holmes said she can think of at least 4 people in Blodgett’s that got a variance to encroach on their neighbor. Ms. Holmes said she thinks the applicant has the right to be able to use his property, but there are too many stumbling blocks, so she would rather see a little more clarification on the drawings; she does not feel comfortable voting tonight.

Mr. Hurd said the applicant can tear down and build in the same exact footprint and not have to come to the Board.

Mr. Thomas said he thinks the applicant needs to come back to the Board with a better drawing stating the distance, get the exact footage from the drip edge to the foundation and show the Board not encroaching on the neighborhood anymore. Discussion followed.

Mr. Gamsby asked the Board for a continuance.

Mr. Thomas said the Board is going to allow the applicant to come back with better measurements of existing and proposed to see that the house is 4 feet from the dripline to the property line. Mr. Briggs asked if the applicant could also tell the Board the existing impervious calculation, show the elevations and what protection will be taken to protect from snow and ice.

Mr. Briggs made a motion to grant a continuance until July 12, 2023 at 7:05 p.m. to

Doug Gamsby (agent), and Alwin Charles Elliot Miller (owner). Ms. Holmes seconded. All in favor.

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

The meeting adjourned at 9:48 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        May 24, 2023