Meeting Minutes

Zoning Board of Adjustment June 14, 2023 Approved August 9, 2023
Members Present: David Blohm, Chair; Henry Thomas, Vice-Chair; Larry Briggs, Member; Alex Azodi, Alternate
Members Not Present: Steve Hurd, Member; Katheryn Holmes, Member
Public: Mark & Leslie Manzella; John Polgrean; Nick Loring; Ray Cline; Kathy Raymond; Ted & Diane Jones
Mr. Blohm called the meeting to order at 7:00 p.m.
Mr. Blohm advised both applicants 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. Blohm continued that the applicant could choose to go forward with tonight’s hearing or continue the hearing to a future date and time certain.
Board Introductions
Mr. Blohm appointed Mr. Azodi as a voting member of the Board for this meeting.
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, June 14, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Mark Benjamin & Leslie Ann Manzella (owners), for property located at 140 South Road, Newbury, NH, will seek a Special Exception as provided for in Article 5.4.1 of the Newbury Zoning Ordinance to permit the following: A Cottage Industry as a permitted use in the Residential District. Newbury Tax Map 044-567-439. 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.
The applicant chose to proceed with the hearing at this time.
Mark Manzella presented to the Board.
Mr. Manzella said he was applying for a special exception for what he was already doing at his home but the reason for the cottage industry permit is so that customers could come to the property. Mr. Manzella continued that he is already doing small engine repair and service and gunsmithing and sales but can’t have customers come to the house without the special exception.
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There being no further questions from the Board Mr. Manzella 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: The work being done will not be visible to the public or unsightly to the neighbors and noise will not exceed current conditions which have never caused any complaints.
Mr. Azodi asked how customers coming to the property would not be visible to neighbors. Mr. Manzella said it is a pretty private driveway and they are quite spread out on the property, if somebody turns into the driveway neighbors will not know if they are customers or guests. Mr. Azodi asked how many customers the applicant expects. Mr. Manzella said he would think four a day would be an exaggeration, one or two a day he would be busier than he would want to be. Mr. Manzella continued that what he is trying to do is supplement his retirement, not start a big retail operation, he has been running a power equipment business for the last 21 years, just recently closing it down. Mr. Manzella said that for 21 years he was married to a schedule of the front door, he doesn’t want that.
Mr. Blohm asked since gunsmithing is part of it, will there be any discharge of firearms. Mr. Manzella said that he occasionally shoots in his yard on a personal level anywhere from 20 to 40 rounds, but on average for gunsmithing 3 to 4 shots a day would need to be fired. Discussion followed.
16.7.2 The use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: Nothing out of the ordinary will be noticeable to the public. There will be no sounds or smells different from existing conditions both on this property currently or on most any property in the neighborhood.
Mr. Azodi asked if the applicant has already been doing this business, why would you want to see the customer. Mr. Manzella said that he wouldn’t have to go pick up the customer’s equipment.
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: Due to the fact that there will be no regular business hours and all business will be by appointment only, traffic will be minimal. Deliveries will be no more than that of many normal households with deliveries from UPS, FEDEX and Amazon. There will be no unusual hazards or emissions. No work with any sort of safety concerns will be performed with customers present. I ran a small engine repair shop for twenty plus years without incident. I have been actively involved with machine shop practices and firearms all of my adult life without any issues regarding injuries or hazards.
Mr. Azodi asked if the business was limited to the daytime. Mr. Manzella said absolutely. Zoning Board of Adjustment Page 2 of 8 June 14, 2023

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: None of the proposed use exceeds the area I already use for the same purposes on a personal basis. There is no growth planned and the current proposal will not affect roadways, traffic or access. It is expected that outside of abutters being notified and customers on a “by-appointment” basis only that there will be any awareness of the business activities 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 proposed operations are already in practice on a regular basis personally. There have never been any noise complaints. There is no reason to expect fumes, odors or vibration. As stated previously, aside from being notified as an abutter, nearby properties are not likely to even be aware of operations. Discussion followed.
Mr. Blohm opened the public portion of the meeting.
Leslie Manzella said that she and her husband are getting older, and this is not something they are going to build on to make bigger.
Kathy Raymond said she lives directly across the street from the applicant, less than 100 yards and sound travels, everything can be heard from across the street. Ms. Raymond asked if there are provisions where there will be no business on weekends, what are the parameters around hours of operation. Mr. Blohm said they can be set by the Board. Mr. Briggs suggested that the Board could put a condition that business noise producing activities be restricted to 9 a.m. to 5 p.m. Monday through Friday
There being no more comment from the public, Mr. Blohm closed the public portion of the meeting.
Mr. Manzella said he can understand the 9 to 5 Monday through Friday, he would like to think there would be room for a window 10 to 4 on Saturday. Mr. Blohm said that is exactly what the abutters don’t want. Mr. Manzella said that the business-related noise is going to be less than his personal noise. Mr. Blohm said that the point is it is more noise, and he wants to point to the applicant’s answer to 16.7.1, the question was the use will not be detrimental to the character and enjoyment of the neighborhood because, and based on the abutter’s comments, the applicant has not satisfied that requirement completely, unless there are certain constraints put on the business operation. Mr. Manzella said that he was not aware of any complaints about the noise, that is why 16.7.1 was answered the way it was. Discussion followed.
Deliberations
Mr. Thomas said he feels there is no problem if the Board sets 9 to 5 during the week and it is by appointment only.
Mr. Briggs said he was on board with the restriction.
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Mr. Briggs made a motion to vote on the request from Mark Benjamin & Leslie Ann Manzella (owners), for property located at 140 South Road, Newbury, NH for a Special Exception as provided for in Article 5.4.1 of the Newbury Zoning Ordinance to permit the following: A Cottage Industry as a permitted use in the Residential District. Newbury Tax Map 044-567-439 with the following condition:
• Noise producing activities that are business related shall be restricted to 9 a.m. to 5 p.m. Monday through Friday.
Mr. Thomas seconded the motion.
Roll Call Vote:
Henry Thomas voted to Grant the Special Exception as provided for in Article 5.4.1 with condition.
Alex Azodi voted to Grant the Special Exception as provided for in Article 5.4.1 with condition.
Larry Briggs voted to Grant the Special Exception as provided for in Article 5.4.1 with condition.
David Blohm voted to Grant the Special Exception as provided for in Article 5.4.1 with condition.
Four votes to Grant the Special Exception
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, June 14, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m., Benchmark LLC (agent), Rachel & John Polgrean (owners), for property located at Chapin Way, Newbury, NH, will seek an After the Fact Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Fill that was placed in an area of steep slopes to remain. Newbury Tax Map 048-599-103. 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.
The applicant chose to proceed with the hearing at this time.
Nick Loring from Bechmark LLC presented to the Board.
Mr. Loring said the property is 7.9 acres located on Chapin Way and the applicant is here tonight for a variance request from Article 9.4 of the Zoning Ordinance to allow fill that was placed in an area of steep slopes to remain. Mr. Loring continued that the subdivision of Chapin Way was approved by the Planning Board in 2005, the applicants purchased the lot in 2021 and in January of this year the septic design was approved. Mr. Loring said in reviewing the subdivision plan, deed and septic plan there was no mention of or defining of any area of steep slopes that the applicants would have known to avoid. Mr. Loring
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continued that there was a note on the cover sheet of the subdivision plan, not the sheet that showed the applicant’s lot, that briefly mentioned steep slopes.
Mr. Loring said the area of steep slopes was inadvertently filled during the construction of the new home, leveling and preparation for the foundation, all work was stopped once the issue was identified, and a surveyor was hired to do an as built of the site conditions. Mr. Loring continued that the area in yellow is the area of steep slopes that was disturbed, 4,800 square feet, which equates to about 1% of the total lot area. Mr. Loring said the area is currently stabilized and removal of the fill will re-disturb this area and require re- stabilization once the fill is removed. Mr. Loring continued that it would also require more clearing of the lot so the fill would have somewhere else to be placed. Mr. Briggs said the applicant could truck the fill away. Mr. Blohm asked if the fill was basically all rock. Mr. Loring said yes. Mr. Azodi asked if the fill came out of the excavation of the basement. Mr. Loring said the fill is from the site. Mr. Briggs asked if there was any gravel underneath, it is big chunky sharp stone, it’s not going to move very easily. Mr. Loring said that it was all stabilized now. Mr. Briggs asked how deep the rock goes. Mr. Loring said the fill material is the blasted ledge rock. Mr. Briggs asked what the distance was in elevation between the level where the backyard is going to be and the natural soil at the base of the slope. Mr. Loring said it is about 30 feet. Discussion followed.
Mr. Loring said the area that was filled is not visible to the public and is behind the proposed house, it is about 400 feet from the end of the fill to the rear property line. Mr. Loring continued that the proposed house does fall within the building envelope that was approved on the subdivision plan. Mr. Loring said that this is one of the larger lots in the neighborhood, but it is fragmented by the steep slopes. Discussion followed.
Mr. Azodi asked the applicant to clarify their main argument for not removing the fill and bringing it back to the way it was is that it would be more detrimental to do that. Mr. Loring said the fill that was placed is stabilized now, to move it you would have to clear somewhere else on the lot and once the material is removed and down to the original grade re-stabilization of that steep slope would need to take place. Mr. Blohm asked if the fill had not been dumped, the area would have been stable. Mr. Loring said the original ground there was stable. Mr. Blohm asked how does the presence of the material that was put there de-stabilize the area. Mr. Loring said it doesn’t de-stabilize it but removing it will. Discussion followed.
There being no further questions from the Board Mr. Loring addressed Article 16.8 of the Zoning Ordinance:
16.8.1 The variance will not be contrary to the public interest because: The area was inadvertently filled as part of the construction of a new home. The location is not visible to the public as it is on the back side of the lot adjacent to the rear of the new home. The area disturbed is about 4,800 sq ft and is currently stabilized. Removal of this fill material would be more detrimental as it would re-disturb this area.
16.8.2 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.
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a) There are special conditions in the property that distinguish it from other properties in the area because: This lot is over 7 acres in size and the area of steep slopes, that are impacted by the material, is about 100 square feet from the closest abutting building which is over 130 feet from the edge of Chapin Way and over 400 feet from the rear property line. Overall this area is about 1% of the total lot area.
b) The property is different in a meaningful way from other properties in the area because: Lot is much larger than the neighboring properties. The developable land area on this lot is also fragmented by different areas of steep slopes. The current proposal places the new home up adjacent to the street. This option, overall, minimizes the disturbance on the property. Allowing the fill that was inadvertently placed in an area of steep slopes does a few things 1) The area is now stabilized and removing this material would disrupt this area and would require restabilization once the material is removed. 2) It allows for a back yard behind the proposed new home. 3) Leaving this material will keep the current treeline where it is now. If the fill were to be removed we would need a place for this material which would mean cutting more vegetation and making a new place for this material.
c) The property is burdened more severely by the zoning restrictions because: This is a 7 acre property approved in 2005. The lot is one of the largest ones in the subdivision. There are multiple flat areas with the main building area, that has least amount of impacts, is up near the road. The area where the home is proposed has about 25,000 sq ft of area outside of steep slopes. This area is wide but narrow and limits yard area behind the new home.
d) Because of the special conditions of the property, the proposed use of the property is reasonable because: Lot is over 7 acres in size. Although the steep slope ordinance was in effect at the time of this subdivision there is one note about this on the record plans but there is no indication where these slopes are. For this lot the building area near the road is wide but narrow. Material from the proposed homes location was inadvertently placed in an area that would be considered a steep slope. This material has been in place for awhile now and is stabilized. Requiring this material to be removed will disturb this area and would require additional stabilization once the material is removed.
16.8.3 The variance is consistent with the spirit of the ordinance because: is to limit the intensity of development on steep slopes in order to manage the intensity of use which can be harmoniously, appropriately and safely located on steep slopes; protect surface waters from sedimentation, turbidity, runoff of storm water and effluent from sewage disposal systems; and maintain ecological balance. The ordinance specifies “limiting” the disturbance of steep slopes. This proposal is to leave an area of approximately 4800 sq ft in area on a 7 acre property where fill was placed on a steep slope. The area is currently stabilized and removing this material will destabilize the slope where the fill currently is. The area where this fill is located on the property is over 400 feet from the downhill lot
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line and is not close to any septic systems. Overall this is a small disturbance of approx. 1% of the total lot area.
16.8.4 Substantial justice is done because: Allowing this material to remain will greatly help the property owner. In addition to the cost of removing this material and restabilizing the disturbed area the property owner would need to clear more of their lot so the fill could be placed in another location on the property. The area where this material currently sits is not near any abutting homes and this material does not affect any of the neighbors or residents in this area.
16.8.5 The value of surrounding properties will not be diminished because: This request is to leave material that was placed in an area of steep slopes. The work is not close to any abutters and is not visible to the general public. Granting this request should not have any effect on neighboring property values.
Mr. Blohm said the one thing the Board is going to take exception to is the answer where the applicant said they would need to cut down a bunch of stuff to move it somewhere else on the property because you could always take it away. Mr. Loring said the most economical way is to keep the material on site, so there are areas outside of steep slopes that material could be moved.
Mr. Blohm opened the public portion of the meeting.
Ted Jones said he sold the lot to the applicant. Mr. Jones continued that to get a truck down to load up the material they would have to clear an area with a lot of trees, it would be wise of the Board to allow to leave as is.
The applicant said that they took the minimalist approach to what was done.
There being no further comment from the public, Mr. Blohm closed the public portion of the meeting.
Mr. Briggs made a motion to vote on the request from Benchmark LLC (agent), Rachel & John Polgrean (owners), for property located at Chapin Way, Newbury, NH for an After the Fact Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Fill that was placed in an area of steep slopes to remain. Newbury Tax Map 048-599-103.
Mr. Thomas seconded the motion.
Roll Call Vote:
Henry Thomas voted to Grant the After the Fact Variance from Paragraph 9.4
Alex Azodi voted to Grant the After the Fact Variance from Paragraph 9.4, there was a partial answer that was not satisfactory, but the rest of the answer was satisfactory.
Larry Briggs voted to Grant the After the Fact Variance from Paragraph 9.4, comfortable with the responses to the five questions in general, and with the discussion of the meeting; do not agree with 16.8.2 part b, answer number three, leaving the material will keep the current tree line where it is, they need a place for the material on site; 16.8.4, the
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need to clear more of the lot so the fill could be placed in another location; disagree but understand the rest of the answer and satisfied with it.
David Blohm voted to Grant the After the Fact Variance from Paragraph 9.4, with the exact same reasoning as Mr. Briggs.
Four votes to Grant the After the Fact 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.
Discussion of Zoning Ordinance amendments. Mr. Briggs said he would like to suggest tightening up stormwater management rules and in particular, Article 21.3.4 to make it a more stringent requirement. Mr. Briggs said 6.8 lists a number of exceptions to the setback rules, can reference be made to fire codes mentioned in Article. Mr. Briggs said in Article 7.4.3.1 on tree cutting, the Town is only looking for the Conservation Commission to sign off and not the CEO as stated in Ordinance.
Mr. Blohm made a motion to adjourn. Mr. Briggs seconded the motion. All in favor. The meeting adjourned at 8:43 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
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