Meeting Minutes

Zoning Board of Adjustment

January 12, 2022

Approved February 9, 2022

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Henry Thomas, Alternate. Members Not Present: Gary Budd, Member; Reed Gelzer, Member; Katheryn Holmes, Member; Alex Azodi, Alternate

Public Present: Jeffrey Christiansen, Rick Neville, Douglas Grenier, Paul Bourbeau, Aaron Thibeault, Scott Messenger, Larry Briggs, Maria Dolder, Aaron Wechsler

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

Board introductions.

Mr. Fichter appointed Mr. Thomas as a voting member.

Minutes

The Board reviewed the minutes of November 8, 2021, November 22, 2021 and December 13, 2021. Mr. Fichter made a motion to accept the November 8, 2021 minutes as amended. Mr. Blohm seconded the motion. All in favor.

Mr. Fichter made a motion to accept the November 22, 2021 and December 13, 2021 minutes as presented. Mr. Blohm seconded the motion. All in favor.

Mr. Fichter noted that there was only three members of the Board present for the meeting. Mr. Fichter advised the applicant that a full Board is five members, business could be conducted with three members however a minimum of three affirmative votes was needed to grant the variance. Mr. Fichter 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.

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, January 12, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Cleveland Waters & Bass, P.A. and Horizons Engineering, Inc. (agents), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, will seek Variances from the requirements of Paragraphs 5.9.1 & 5.11 of the Newbury Zoning Ordinance to permit the following: Construction of a 46’ 6” garage within the side setbacks. Newbury Tax Map 007-120-111. 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.

Jeffrey Christiansen and Rick Neville presented to the Board. Mr. Christiansen said that the various experts of the proposed project are present for this meeting and available to the Board for any questions that Mr. Christiansen can’t answer. Mr. Christiansen continued that Paul Bourbeau is the architect, Doug Grenier is the landscape architect, the engineer is Aaron Thibeault and Scott Messenger is the builder.

Mr. Christiansen said what they are looking to do is redesign the garage that was proposed as part of an earlier redevelopment plan. Mr. Christiansen continued that 9 Edgemont Landing has a single-family residence on it now that is being redeveloped and that redevelopment includes a garage with access to Edgemont Landing. Mr. Christiansen said that since starting that redevelopment Mr. Neville determined that having access from Route 103, especially in the winter, was going to be preferable and the redesign of the garage was to allow for that access.

Mr. Neville said that Edgemont Landing road is very difficult in winter, and when the initial garage permit was applied for, they had not experienced a winter season yet. Mr. Neville continued that Edgemont Landing road is steep and narrow and difficult to plow and sand and when it storms inhabitants are unable to leave for periods of time without jeopardy. Mr. Neville said that the solution to this issue is to add another floor to the garage giving access to 103 as well as the previously approved garage down below. Mr. Neville continued that he now realizes that all the garages on Edgemont Landing off 103 face 103 for a reason.

Mr. Fichter noted that there were two plans that virtually show the same design however on one of the plans the building is higher. Mr. Fichter continued that it appears to him that the storage area which was 7’ 4” on one plan is 10’ and a fraction of an inch on the other plan. Mr. Fichter asked why the applicant wanted more ceiling height in that storage area. Mr. Neville said it was just to have head room to walk up and down. Mr. Christiansen said that part of it was because of the slope of the property right there. Discussion followed. Mr. Christiansen said he thinks the Board is looking at an earlier draft plan and a more recent plan of the proposed project. Mr. Fichter said one of the plans is dated November 12, 2021 and that has the lower storage area roofline. Mr. Fichter continued the other plan is dated October 28, 2021. Mr. Fichter asked why there was a discrepancy in what the applicant was presenting. Mr. Bourbeau verified that the plan that the applicant intended to use was dated November 2021. Mr. Fichter confirmed with the applicant that they were going with the 7-foot ceiling on the very top floor and not a 10-foot ceiling. Mr. Christiansen said that the older plan was submitted before the height issue came into question and then the second plan was submitted to address the height issue.

Mr. Christiansen said the original design that was submitted for which variances were already granted was only a garage with access from Edgemont Landing and not from Route 103, so the new proposal raises the height of the garage to make a multi-story garage that has access from Route 103, an interior stairwell that is not exposed to the weather and then access out to Edgemont Landing. Mr. Christiansen continued that there is space in between that would be used just as additional living space or storage space and also an attic area above the garage. Mr. Blohm asked if there was a septic for the garage. Mr. Christiansen said no, there is no additional bedrooms, it’s spare space. Mr. Fichter asked if there was a kitchen. Mr. Christiansen said no, it is not an accessory dwelling unit, he thinks the plan describes it as a rec room. Mr. Christiansen said the footprint of the garage has to be expanded to accommodate the additional height. Mr. Christiansen continued for what the applicant already had variances for that was approved for 8.6 feet for the side setbacks, that has to be reduced for the new design to 8.08 feet, so a change of about half a foot in either direction.

Mr. Christiansen said the other application the applicant had to submit with the revised plan was for the height. Mr. Christiansen continued that Section 5.11 sets forth various height requirements, the first being that the building height may be no more than 34 feet and based on how the Town measures building height under the Zoning Ordinance this building does comply with that. Mr. Christiansen said the Town of Newbury Zoning Ordinance defines the building height as the difference between the peak of the roof and the highest point of the grade where it’s adjacent to the foundation, in this case it is about 28 feet, well below the 34 feet. Mr. Christiansen said the second requirement of 5.11 and this is why the height had to be reduced a little bit, is that the building cannot be more than twenty-five feet higher than the primary structure on the property, so even though it’s 28 feet, well below the maximum height, because of the comparison height a couple feet had to be shaved off the top. Mr. Christiansen continued that also in 5.11 there is a requirement that the eaves and windowsills of an occupied space cannot be more than 30 feet above grade. Mr. Christiansen said this is where the variance application comes in because this is somewhat ambiguous under the Zoning Ordinance, what qualifies as an occupied space is not defined under the Zoning Ordinance. Mr. Christiansen continued that if the garage is an occupied space, then this design may need a height variance, if a garage does not qualify as occupied space, then this is compliant, so all the windows that face Edgemont Landing are within that 30-foot minimum. Mr. Fichter asked Mr. Thomas if he had any insight into the discussion of occupied space and what the intent was. Mr. Fichter continued that he knew that it all goes back to what the fire department can get to. Mr. Thomas said he didn’t think a garage area would be considered an occupied space. Mr. Fichter asked Mr. Thomas if a storage area would also be in that category of unoccupied space. Mr. Thomas said right. Mr. Christiansen said that it is the eaves next to the top level garage and the storage space that are higher than 30 feet, so if the Board considers the garage and storage space to be occupied space, the associated eaves are higher than 30 feet, if the garage is not occupied space it doesn’t matter, no variance is necessary.

Mr. Fichter made a motion that the garage is not considered occupied space and does not need a variance from 5.11. Mr. Blohm seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the motion.

Peter Fichter-voted to Grant the motion.

David Blohm-voted to Grant the motion.

Three votes to Grant the motion that a Variance is not needed from Article 5.11.

Mr. Christiansen said that narrows the applicant down to the side setback issue which is expansion into the side setback instead of being 8.64 feet as previously approved it is now going to be 8.08 feet. Mr. Blohm asked who the side setback was impacting. Mr. Christiansen said it would be impacting on both sides. Discussion followed.

There being no further questions from the Board, Mr. Christiansen addressed Article 16.8 of the zoning ordinance:

16.8.1 The variance will not be contrary to the public interest because: The Board has already recognized that the garage, in its previous design, will not be contrary to the public interest. The minor expansion of the footprint into the side setbacks of 6.6 inches will be immaterial and will have no noticeable impact on the public. Moreover, while not requiring a variance, providing direct access to the Property from Route 103 will not be contrary to the public interest either. The majority of the lots in the area already have garages accessible from Route 103. The Proposal will incorporate landscaping designed to accommodate the slope of the Property and mitigate any potential harmful effects like erosion. Finally, reducing the use of the steep, single-lane road of Edgemont Landing will have a beneficial impact on safety and traffic, not only to the Applicants but also to their neighbors and other members of the public using Edgemont Landing.

16.8.2 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship

1. There are special conditions in the property that distinguish it from other properties in the area because: The Property is unique, as recognized by the Board in granting the prior variances on October 19, 2020. In particular, the Property is steeply sloped and is currently only accessible by Edgemont Landing, a single-lane road that itself is steeply sloped. As a result, access to the Property in the winter is difficult and unsafe. A garage with access from Route 103 would be an important improvement for safety and traffic. The adjacent lots and most of the lots in the area already have such garages, but the Property does not. The nonconforming size of the Property and the fact that it is bisected by Edgemont Landing dramatically reduce the buildable area, making it difficult to build such a garage in strict compliance with the Ordinance. The side-setbacks required by the Ordinance, for example, leave only a twenty-foot wide strip upon which the Applicants could build.
2. The property is different in a meaningful way from other properties in the area because: For the same reasons that the special conditions on the Property distinguish it from other properties in the area, the Property is also different in a meaningful way from other properties in the area. In particular, without limitation, shape and slope of the Property make it difficult to access without the sort of garage already enjoyed by the other lots in the area.
3. The property is burdened more severely by the zoning restrictions because: As set forth above in conection with the unique conditions of the Property, those unique conditions result in more severe burden on the Property. The slope and shape of the Property, as well as the configuration of Edgemont Landing, make it difficult and unsafe to access the Property, particularly in the winter, without a garage with access from Route 103. The other properties in the area enjoy such a garage, but the Ordinance would prevent the Property from building the proposed garage with access from Route 103.
4. Because of the special conditions of the property, the proposed use of the property is reasonable because: A garage is a permitted use on the Property and is therefore presumptively reasonable. See Vigeant v. Town of Hudson, 151 N.H. 747, 753 (2005) (uses that are permitted by the Ordinance or by existing variances are presumptively reasonable). A variance is only required due to the dimensional requirements of the proposed garage and the nonconforming width of the lot. The extent to which the Proposal expands the footprint of the garage, 6.6 inches into the side setbacks, is extremely minor and will have no impact on the neighbors or the public. It is likely that the difference would be entirely unnoticed. None of the general purposes of the Ordinance, set forth in Section 1.2, would be impaired by this variance. In fact, many of those purposes would be supported by the Proposal, such as promoting the health, safety, and general welfare of the inhabitants of the Town, encouraging the most appropriate use of land; allowing 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 Ordinance, §1.2. As discussed above, the variance is necessary to allow access to the Property from Route 103, rather than exclusively through the unsafe and narrow road of Edgemont Landing. More specifically, setback requirements are generally enacted to prevent overcrowding of the land. Devaney v. Town of Windham, 132 N.H. 302, 307 (1989). The Proposal will not have any material impact on overcrowding. The difference of 6.6 inches will likely be unnoticed by any of the abutters. Moreover, the uses of the adjacent land and corresponding portions of most of the lots in the area is already for garages with access from Route 103. The proposed area is steeply sloped. The 6.6-inch encroachment would not, for example, impose on the privacy of any neighbor’s yard or recreational area. This location is particularly suited for a garage. Setback requirements are also typically enacted to ensure adequate emergency access and response. See 2 Young, Anderson’s American Law of Zoning (4^th ed., 1996). §9.56. Setback Regulations, at 293. The 6.6-inch additional encroachment would not impair emergency access or response. If anything, by providing vehicle access directly from Route 103, the Proposal would improve emergency access and response. There will be no impact on the health, safety, or general welfare of the inhabitants of the Town, nor on any of the other harms the Ordinance seeks to prevent. Instead, the variance will allow the Applicants to put the Property to its most appropriate use and allow for safer access thereto. Denying the Applicant would serve no rational purpose in these circumstances.

16.8.3 The variance is consistent with the spirit of the ordinance since: The Proposal will be consistent with the spirit and intent of the Ordinance as discussed above. The Proposal is consistent with the character of the area, as almost all of the abutting properties already enjoy garages with access from Route 103 similar to the Proposal. The essential character of the neighborhood will remain unchanged. In addition, granting the variances will improve access to the Property by providing a safe alternative in the winter. The Proposal will have no adverse effect on the health, safety, or general welfare of the inhabitants of the Town, nor result in any of the other harms the ordinance seeks to prevent. Instead, approving this application will allow the Applicants to put the Property to its most appropriate use and grant the Applicants a reasonable degree of freedom to use and enjoy the Property.

16.8.4 Substantial justice is done because: The “substantial justice” element of a variance is guided by two rules: that any loss to the individual that is not outweighed by a gain to the general public is an injustice, and whether the proposed development is consistent with the area’s present use. Malachy Glen Assocs., Inc. v. Town of Chichester, 155 N.H. 102, 109 (2007). The harm to the Applicants of strict enforcement of the Ordinance will far outweigh any benefit to the public in this case. The Proposal only requires an additional 6.6 inches into the side setbacks. Denying the Applicants such a minor and insignificant adjustment would have no material or practical benefit to the public that would outweigh the harm to the Applicants. Denial of the variance will prevent the Applicants from constructing a garage that will provide safe, alternative access to the Property from Route 103. Similarly, denying this application would harm the Applicant by preventing it from updating the Property and achieving its highest and best use. Balancing this loss against the little to no public benefit in strict enforcement of the Ordinance in this case clearly shows that granting the application will result in substantial justice.

16.8.5 The value of surrounding properties will not be diminished because: The Proposal will have little, if any, impact on the overall character of the area. Most of the other lots in the area already enjoy garages with access to Route 103. The Proposal will be consistent with the character of the area. There is no reason to believe that it would have any impact on the value of surrounding properties.

Mr. Fichter opened the public portion of the meeting.

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

meeting.

Discussion followed.

Mr. Blohm made a motion to vote on the request from Cleveland Waters & Bass, P.A. and Horizons Engineering, Inc. (agents), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a garage within the side setbacks. Newbury Tax Map 007-120-111. Mr. Fichter seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Grant the Variance from Paragraph 5.9.1.

David Blohm-voted to Grant the Variance from Paragraph 5.9.1.

Hank Thomas-voted to Grant the Variance from Paragraph 5.9.1.

Three votes to Grant the Variance.

Mr. Fichter 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, January 12, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:20 p.m., Maria T. Dolder, Esq. & Aaron Wechsler (agents), Stuart H. Michie Trust (owner), for property located at 69 Lakewood Manor Road, Newbury, NH, will seek Variances from the requirements of Paragraphs 15.2.1 and 5.9.1 of the Newbury Zoning Ordinance to permit the following: Expansion of a non-conforming residential structure which will be located in an area that was previously disturbed and in the 30’ right of way setback. Newbury Tax Map 019-709-468. 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. Fichter advised the applicant that a full Board is five members, business could be conducted with the three members however a minimum of three affirmative votes was needed to grant the variance. Mr. Fichter 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 continue the hearing until February 9, 2022 at 7:20pm.

Mr. Fichter made a motion to adjourn. Mr. Blohm seconded the motion. All in favor.

The meeting adjourned at 7:48 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary