Meeting Minutes

Zoning Board of Adjustment

February 9, 2022

Approved March 16, 2022

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

Public Present: Larry Briggs, Maria Dolder, Aaron Wechsler, Will Davis, Philip Hastings, Paul Larocque

Mr. Fichter called the meeting to order at 7:02 p.m.

Minutes

The Board reviewed the minutes of January 12, 2022. Mr. Fichter made a motion to accept the January 12, 2022minutes as presented. Mr. Blohm seconded the motion. All in favor.

Mr. Fichter said the Board had a continuance of the Hill request for a variance scheduled for this meeting, however the agent has asked for a withdrawal of the variance application without prejudice, so that the applicant could come back to the Board at another time, but the process would have to start all over again.

Board introductions.

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

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 February 9, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Cleveland Waters & Bass, P.A., Horizons Engineering, Inc. & Bonin Architects & Associates, PLLC (agents), Thomas W. Feller, Sr. (owner), for property located at 13 Edgemont Landing, Newbury, NH, will seek Variances from the requirements of Paragraphs 5.9.1, 7.4.2 and 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a single-family dwelling within the 30’ right of way setback, the 75’ lake setback and within the Steep Slopes Conservation Overlay District. Newbury Tax Map 007-092-096. 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.

Will Davis from Horizons Engineering presented to the Board. Mr. Davis introduced Paul Larocque from Bonin Architects and Philip Hastings from Cleveland Waters & Bass as members of the project team. Mr. Davis said he would give a brief overview of the site plan, Mr. Larocque would go through the architectural aspects and Mr. Hastings would cover the variance criteria.

Mr. Davis covered the existing conditions site plan. Mr. Davis said the existing house is positioned encroaching on the side setback, the front setback and the lake setback as well. Mr. Davis continued that on smaller sites the buildable area is very constrained. Mr. Davis showed the new proposed residence on the proposed and drainage plan. Mr. Davis continued that the square deck area is a covered pavilion with an open deck on top and there was a terrace/patio area. Mr. Davis said there is also a cantilevered deck proposed. Mr. Davis pointed out the retaining wall on the plan that will help provide a flat outdoor space and to reduce the amount of impact to the slope area and maintain as much existing vegetation as possible in that area. Mr. Davis said another point is thatthe plan is showing a replacement leach field area that is part of the steep slope variance application. Mr. Davis continued that this is the most suitable spot with the best soils and terrain and setbacks to the lake as well as the existing well, but it does encroach slightly on some of the steep slope area. Mr. Davis said that the existing house will be demolished and in addition to the improvements to the house the project is proposing more space for parking vehicles off the road. Mr. Davis pointed out a retaining wall on the plan that will be eight feet tall at its highest point that allows a flat area for proposed parking area.

Mr. Davis said they are proposing a pretty robuststormwater management plan. Mr. Davis continued that the parking area pitches back towards the wall where there is a stone collection trench with a perforated pipe in it that goes to a catch basin that will also be able to catch surface runoff. Mr. Davis said there is a structure to receive the gutter leaders for a quarter of the roof, another quarter of the roof is also guttered that heads into a pipe before it goes into a 500-gallon drywell down below the retaining wall. Mr. Davis continued that up above the offsite runoff is collected by a small trench up above a retaining wall to a swale to a catch basin to another 500-gallon dry well. Mr. Davis said there is a third dry well that is centered on the property. Discussion followed.

Mr. Larocque said the applicant wants something that’s fairly traditional and in keeping with the area. Discussion followed. Mr. Larocque continued that because it is such a steep slope the applicant wanted to try and maximize the outdoor spaces, that is one reason for the cantilevered deck and the deck above the pavilion. Mr. Larocque said that from an elevation standpoint on Edgemont Landing the proposal is to keep the scale down with a broken-up roofwith different pitches and materials. Mr. Larocque continued that on the lake side there is the steep slope which exposes the lower floor, the cantilevered deck helps break up the scale of the building, so it doesn’t appear so tall. Ms. Holmes asked how tall the building is. Mr. Larocque said on the Edgemont Landing side it is 25’ 8” and on the lake side it is 36’ 8”. Discussion followed. Mr. Blohm asked what the footprint of the existing versus theproposed was. Mr. Davis said the existing is 1,274 square feet with deck and the proposed is 2,470 square feet with deck.

Mr. Hastings said there is an existing building that is non-conforming, in the steep slope district and encroaching on the west side and lake front setbacks. Mr. Hastings continued that the proposed structure tried to respect boundaries and is reasonable. Mr. Hastings said the applicant is still out of compliance with the Zoning Ordinance because of construction in the steep slopes. Mr. Hasting continued that the building will be drawn away from the westerly setback so that it will comply with the side setback requirement. Mr. Hastings said the proposed building does not comply with the front setback requirement and the lake setback. Discussion followed.

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

16.8.1 The variance will not be contrary to the public interest because: The Town of Newbury Zoning Ordinance (the “Ordinance”) is expressly intended 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 [the Ordinance’s] purposes.” The Property already houses a single-family home; replacing that single-family home with a newer building of modern construction would be a benefit to the public. Likewise, the associated drainage and erosion controls will be a public benefit by protecting not only the area and surrounding land but also the environment of Lake Sunapee.

The expanded footprint of the Proposal, compared to the existing dwelling, will not be contrary to the public interest either. The Proposal is no closer to Edgemont Landing than the existing building. While the Proposal expands the footprint laterally, parallel to Edgemont Landing, the Proposal is compliant with both side setbacks. There should be no material impact from the lateral expansion of the residence.

The encroachment into the shorefront setback is similarly benign. The encroachment consists of a cantilevered deck that extends into the setback area. It is not constructed on land in the setback area. Moreover, the deck is designed in such a way to allow precipitation to drain through to the pervious area below; it will have little to no impact on stormwater management or drainage. There is no abutter on that side of the property who would be crowded by the deck. The only impact would be aesthetic and, in that category, having a deck to break up what would otherwise be a sheer, imposing building face is aesthetically preferable.

Additionally, the Proposal decreases the nonconformity on the Property in certain respects. The building that currently exists encroaches on the side setback to the northwest. The Proposal moves the building away from the boundary and into conformity. This increases the separation between buildings and, as a result, decreases overcrowding and fire risk and improves emergency access. Similarly, the Proposal, in some respects, reduces the encroachment into the shoreline setback. The current building is built within the shoreline setback. While the Proposal encroaches approximately two feet further into the setback, the nature of that encroachment is much less significant. Instead of a primary residence actually built within the setback, the encroachment is only a cantilevered deck that overhangs the setback without any structure actually built within the setback.

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 Property is unique. It is bisected by Edgemont Landing, steeply sloped, and subject to a pre-existing non-conforming use. While other lots in the area share these characteristics generally, the specific nature of the slope, the location of Edgemont Landing on the lot, and the configuration of the shoreline impact the Property in particular ways. Given the slope of the Property and the importance of controlling for drainage and erosion, alternative locations may be more harmful to the environment and the public interest. At the same time, the width of the Property makes it suitable for the sort of expansion contemplated by the Proposal. There is enough area to the southeast of the existing building to expand without encroaching on the side setbacks while maintaining a similar distance from Edgemont Landing and having a minimal impact on the shoreland setback.

b) 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.

c) The property is burdened more severely by the zoning restrictions because: As set forth above in connection with the unique conditions of the Property, those unique conditions result in a more severe burden on the Property. The configuration of the Property and the setbacks of the Ordinance leave such little buildable area that strict compliance with the Ordinance would be impossible. Moving the Proposal farther from Edgemont Landing would move it closer to the shoreline. While the width of the Property makes it suitable for expansion, it cannot be done without a variance. While the Applicant could choose to rebuild the residence on the Property in the existing footprint. This possibility, however, is immaterial to whether a hardship exists under New Hampshire law. See Simplex Techs., Inc. v. Town of Newington, 145 N.H. 727, 731 (2001).While under prior, superseded law, an applicant was required to establish that the variance was necessary to have any reasonable use of the land, that standard has since been overturned. Id.Whether the zoning interferes with the applicant’s reasonable use of the property “is the critical inquiry for determining whether unnecessary hardship has been established.” Harrington v. Town of Warner, 152 N.H. 74, 80 (2005). “This factor, however, does not require the landowner to show that he or she has been deprived of all beneficial use of the land.” Id at 80-81 (emphasis added). The question of whether the property can possibly be used differently from what the applicant has proposed is not a material consideration. Malachy Glen Assocs., Inc. v. Town of Chichester, 155 N.H. 102, 108 (2007).

d) Because of the special conditions of the property, the proposed use of the property is reasonablebecause [and no fair and substantial relationship exists between the general purposes of the Ordinance provision and the specific application of that provision to the Property, Relating to Sections 16.8.2.1 of the Ordinance which is not included on the Town’s Variance Application Form]: The Proposal is reasonable in light of the unique conditions of the Property. The use of the Property will remain unchanged. See Vigeant v. Town of Hudson, 151N.H. 747, 753 (2005) (uses that are permitted under the existing zoning ordinance are presumptively reasonable). Given the configuration of the Property, the expansion of the footprint is also reasonable. The expansion takes advantage of the width of the Property without encroaching into the side setbacks. The encroachment into the setback from Edgemont Landing is no greater than present conditions and, given the fact that Edgemont Landing bisects the Property, unavoidable. Edgemont Landing is a private road with limited traffic, used by those who are familiar with its particular characteristics. Encroaching on the Edgemont Landing setback is far preferable to encroaching on the shoreline setback. The encroachment over the shoreline setback is also reasonable. It is the least intrusive setback conceivable. There is no construction built on land in the setback, which is less impactful than the current conditions. The only encroachment in the Proposal is a cantilevered deck that extends over the setback area. Moreover, the deck is designed to have little to no impact on drainage and erosion. From an environmental standpoint, the deck will have no adverse impact. At the same time, as discussed above, having the deck will be far preferable from an aesthetics standpoint than having a large, unbroken building façade facing the Lake. Section 7.6 of the Ordinance recognizes that the encroachment into the setback is reasonable. Section 7.6 allows the addition of decks to existing nonconforming buildings in the shorefront setback, reducing the required setback to 50 feet in connection therewith. In other words, if the proposed deck were to be built on an existing building, the proposed deck would be compliant with the ordinance, and could in fact be built almost an additional 20 feet towards the Lake. The Proposal, without the deck, fully complies with the shoreline setback. The Ordinance recognizes that constructing decks in the shoreline setback may be reasonable. The fact that the deck is attached to a new building instead of an older one does not have any material impact when the building itself is outside the setback. 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 encouraging the most appropriate use of land; and 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. SeeOrdinance, §1.2. 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 encroachment towards Edgemont Landing only encroaches on the Applicant’s land on the other side of Edgemont Landing. The public highway bounding the Property, Route 103, and any property on the other side, will not be impacted at all. The slight encroachment towards the Lake will also not crowd any neighbor. The only impact to the neighbors will be an improvement, as the Proposal is farther away from the boundary and reduces the nonconformity with the side setback. Setback requirements are also typically enacted to ensure adequate emergency access and response. See 2 Young, Anderson’s American Law of Zoning (4th ed., 1996), §9.56, Setback Regulations, at 293. The encroachment towards Edgemont Landing is no closer than the existing building and should have no material impact on emergency access or response. Similarly, the construction of a deck with a small extension over the shorefront setback should have no relevance to emergency access. Moreover, as noted above, the Proposal is farther away from the neighboring building than the existing home on the Property. By increasing the separationbetween buildings, the Proposal improves emergency access. 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 Applicant to put the Property to its most appropriate use and allow for a reasonable expansion of the Property. Denying the Application 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; all ofthe lots in the area are impacted in one manner or another by Edgemont Landing, and all of the buildings are necessarily built closely thereto. It is a private road, and the proximity to Edgemont Landing will only impact those landowners whose homes are also in close proximity toEdgemont Landing. The essential character of the neighborhood will remain unchanged. 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 Applicant to put the Property to its most appropriate use and grant the Applicant 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 Applicant of strict enforcement of the Ordinance will far outweigh any benefit to the public in this case. The Proposal’s expansion into the setbacks is minimal. Denying the Applicant the ability to expand his property with minimal increases in the existing nonconformity would not protect any public benefit that would outweigh the harm to the Applicant. There would be no benefit to the public by preventing the replacement of the existing House with a new, more modern and aesthetically pleasing residence with improved drainage and erosion controls. Denial of the variance, however, will prevent the Applicant from reasonably improving his 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. The expansions into the setbacks are minimal. The Proposal will be consistent with the rest of the neighborhood. Moreover, replacing an older, dated building with the modern, more visually appealing Proposal, will, if anything, improve the appearance of the neighborhood and therefore the value of surrounding properties. Having drainage and erosion controls will similarly only improve the area. There is no reason to believe that the Proposal would have any impact on the value of surrounding properties. 

Discussion followed.

Mr. Fichter opened the public portion of the meeting.

Mr. Briggs questioned the erosion control measures during construction. Mr. Davis said the primary erosion control is a double row of sediment fence or an alternative option of a mulch berm at the base of the slope so essentially that is the last line of defense. Discussion followed.

Mr. Fichter read into the record an email from Jane Clutterbuck: Good afternoon Tiffany, I received an email from Tom Feller back on January 25 with his plans for his property at 13 Edgemont Landing. My husband and I are in full support of the improvements Tom would like to do with this property. Please feel free to reach out if there is anything else we could help with. We give our approval. Jane Clutterbuck 11 Edgemont Landing

Mr. Fichter read into the record an email from Melissa Thompson: Tiffany This is Melissa Thompson from 14 edgemont landing rd. I have no objection to the Fellers plans for development of the 13 edgemont property. Sincerely Melissa

Discussion followed.

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

Deliberations

Mr. Blohm said he liked the stormwater management approach. Mr. Blohm continued that the building is large compared to what is there now so it will take up a whole lot more space and that has an impact but, in this case, not sure what other choice the applicant has to build.

Mr. Thomas said he agrees with Mr. Blohm on the stormwater management, and he thinks it is a marked improvement of what is there now. Mr. Thomas continued that by moving the house over and centering it on the lot away from the neighbor it is a great asset for fire suppression.

Mr. Fichter agreed with what Mr. Blohm and Mr. Thomas said.

Mr. Budd said he concurred with what Mr. Blohm and Mr. Thomas said. Mr. Budd continued that if you look at the layout and architectural drawings, the house appears to be reasonable.

Mr. Blohm made a motion to vote on the request fromCleveland Waters & Bass, P.A., Horizons Engineering, Inc.& Bonin Architects & Associates, PLLC (agents), Thomas W. Feller, Sr. (owner), for property located at 13 Edgemont Landing, Newbury, NH, for Variances from the requirements of Paragraphs 5.9.1, 7.4.2 and 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a single-family dwelling within the 30’ right of way setback, the 75’ lake setback and within the Steep Slopes Conservation Overlay District. Newbury Tax Map 007-092-096. Mr. Budd seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variances from Paragraphs 5.9.1, 7.4.2 and 9.4.

Kathryn Holmes- voted to Grant the Variances from Paragraphs 5.9.1, 7.4.2 and 9.4.

David Blohm-voted to Grant the Variances from Paragraphs 5.9.1, 7.4.2 and 9.4.

Gary Budd- voted to Grant the Variances from Paragraphs 5.9.1, 7.4.2 and 9.4.

Peter Fichter- voted to Grant the Variances from Paragraphs 5.9.1, 7.4.2 and 9.4.

Five votes to Grant the Variances.

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.

Continuance-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.

Mr. Wechsler and Ms. Dolder presented to the Board.

Mr. Wechsler pointed out on the plan the existing cottage, concrete patio and shed. Mr. Wechsler continued that the proposal is to replace the structure in the original footprint, encompass the square footage of the shed as a bump out to allow for some stairs and have a three-season porch within the same footprint of the existing concrete patio. Mr. Wechsler said the deck will be in the same footprint as it is now, and the applicant is proposing to put a driveway on the lot. Discussion followed. 

Ms. Dolder said the applicant could replace the residence in its location without any relief and the only relief needed was for the enclosed patio as opposed to an outside patio.Ms. Dolder continued that the applicant was asking for the two variances, one for the front setback and one for the addition of the three-season porch.

Mr. Wechsler said the proposal infiltrates 50% of the rainwater that comes off through an underground retention and the other side of the structure in the drip edge infiltration, so right now there is no infiltration on site, so everything is just running off, so this is a pretty significantimprovement.

Mr. Blohm said it is pretty steep in the area the driveway is going in. Mr. Wechsler said the applicant is proposing to fill in the area so the driveway will be level with the road and that also lines up with the first floor of the house so the applicant can have access from the road to the driveway to the house without dealing with any stairs. Discussion followed.

Ms. Dolder said that for the front setback 30’ is required and the addition will be held at 16.8’ and to put it into perspective the house is 12.8’ setback from the right of way so the addition will not be any closer than the house.

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

16.8.1 The variance will not be contrary to the public interest because: To be contrary to the public interest, the variance must unduly, and in a marked degree conflict with the ordinance such that it violates the ordinance’s basic zoning objectives. To ascertain whether granting the variance would violate basic zoning objectives you must examine whether it would alter the essential characteristics of the neighborhood or would threaten the public health, safety or welfare of the public. The Applicant’s requested variance does neither. The primary use already exists on the property in the same location as what is being proposed. The Applicant is simply requesting to use a previously disturbed area, which is currently a patio to add a three season porch onto the residential structure. In doing so, it shall not create any further impervious areas, nor shall it encroach further into the front setback than the existing residence. In constructing the three season porch, the Applicant is able to provide a drip edge infiltration trench to provide for stormwater treatment, where no stormwater treatment currently exists. Such an improvement is in the public interest. Accordingly, the granting of the relief requested herein shall have no impact on public safety, health or general welfare of the public and will not be contrary to public interest. Instead, granting the variance will allow the Applicant to continue to utilize this property in a reasonable manner and in a manner permitted under the terms of the Zoning Ordinance.

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 property is unique in several ways. As stated above, it currently houses residential structures that are pre-existing, non-conforming in nature. Given the location and configuration of the lot itself, it is not possible for any improvements to the property to meet the current setbacks. In fact, if the 30 foot front setback was required on this lot, there would not be any reasonable building envelope to utilize. Even with the proposal, the use will not further disturb any natural area on the property, but instead will utilize a location that currently houses an impervious surface. The addition will maintain a 16.8 foot front setback, which is greater than the existing setback of the residence. Accordingly, the proposal shall not have any greater impact on the area and its denial would result in an unnecessary hardship to the property owner. The Applicant has made a concerted effort to utilize the existing improvement area and therefore requires only minimum relief.

b. The property is different in a meaningful way from other properties in the area because: Given the location and configuration of the lot itself, it is not possible for any proposed improvement to meet the current setbacks. The property is in need of significant reconstruction and cannot reasonably be accomplished in compliance with the requirements of the Zoning Ordinance. As stated above, imposing the 30 foot front setback, along with the side and rear setbacks on this particular lot essentially encompasses the entire lot area. The Applicant is able to utilize the existing improved area without creating any further impervious surfaces or a new disturbance of natural area and therefore requires only minimum relief.

c. The property is burdened more severely by the zoning restrictions because: As stated above, given the location and configuration of the lot itself, it is not possible for any proposed improvement to meet the current setbacks. This is a unique circumstance in the fact that although the three season porch is considered an addition, it shall be located in a disturbed area that currently houses an impervious concrete patio and shall not encroach on the front setback any further than the residential structure.

d. Because of the special conditions of the property, the proposed use of the property is reasonable because:Once again, given the location and configuration of the lot itself, it is not possible for any proposed improvements to meet the current setbacks. Although the footprint of the residential structure itself is being change, as the three season porch is considered an addition, it shall be located in a disturbed area that currently houses an impervious concrete patio and shall not encroach on the front setback any further than the residential structure, therefore, the use of the property is reasonable. As stated above, the use of the property, even as proposed, will remain residential.

16.8.3 The variance is consistent with the spirit of the ordinance since: The general purposes of the Zoning Ordinance include promoting the health, safety, and general welfare of the inhabitants of the Town, enhancing and preserving the value and natural beauty of the lakes, ponds and natural environment and conserving the value of buildings and encouraging the most appropriate use of land. The purpose goes on to state that 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 these purposes. Similarly, the stated goal of the Residential 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. Article 15.2.1 permits the alteration or expansion of an existing nonconforming building which does not conform with setback requirements as long as the alteration or expansion does not make the building more non-conforming. Although the addition being proposed does not meet the front setback requirement of 30 feet, it does maintain a greater front setback than the residence. Specifically, the proposed addition shall have a 16.8 footsetback, where the residence has a 12.8 setback. Given that the requested variance will not create a further increase of the existing non-conformity, the proposal will not be contrary to the spirit or intent of the Zoning Ordinance. In fact, granting the variance will allow the rights of the individual property owner to be obtained without any adverse effect to the community assets or rural character.

16.8.4 Substantial justice is done because: One of the guiding rules in evaluating substantial justice is that any loss to the individual that is not outweighed by a gain to the general public is an injustice. Under this standard, the Applicant clearly satisfies this requirement. As stated above, the three season porch being proposed by the Applicant shall utilize the same disturbed area where an impervious concrete patio exists today and will be consistent with those uses which are typical for a property in the area. The use will remain residential in nature and will not have any adverse impact on the neighborhood. By granting the variance, substantial justice will be done since a denial would be a significant loss to the Applicant without any justified gain to the public. Substantial justice is also achieved by granting variances which do not adversely impact on nearby property owners, and which allow a property to be used reasonably. As stated above, even with the requested relief, the difference between that required under the Ordinance and that being proposed shall not create any adverse effect on the adjoining neighborhood. Since the Applicant is utilizing the same area that is currently developed, the proposed use will not adversely impact on nearby property owners, but alternatively, will allow the property to be used reasonably, therefore resulting in substantial justice. In constructing the three season porch, the Applicant will also be able to establish stormwater mitigation, where none currently exists.

16.8.5 The value of surrounding properties will not be diminished because: Once again, the three season porch being proposed by the Applicant will be constructed on the same footprint of the impervious concrete patio that currently exist. The proposed structure shall not be located any closer to the abutting properties than the improvements that exist today. The new improvement shall be constructed in a manner that will improve the overall value of the property and shall provide some stormwater mitigation in an area that currently has none. In fact, in its current state, the concrete patio allows stormwater to simply run off unmanaged. Accordingly, there will be no adverse impact on the neighborhood nor cause the surrounding property values to be diminished.

Mr. Fichter opened the public portion of the meeting.

Discussion followed.

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

Mr. Budd made a motion to vote on the request from Maria T. Dolder, Esq. & Aaron Wechsler (agents), Stuart H. Michie Trust(owner), for property located at 69 Lakewood Manor Road, Newbury, NH, to 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. Mr. Thomas seconded the motion.

Roll Call Vote:

Peter Fichter voted to Grant the Variances from Paragraphs 15.2.1 and 5.9.1.

Gary Budd voted to Grant the Variances from Paragraphs 15.2.1 and 5.9.1.

David Blohm voted to Grant the Variances from Paragraphs 15.2.1 and 5.9.1.

Kathryn Holmes voted to Grant the Variances from Paragraphs 15.2.1 and 5.9.1.

Hank Thomas voted to Grant the Variances from Paragraphs 15.2.1 and 5.9.1.

Five votes to Grant the Variances.

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.

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

The meeting adjourned at 8:51 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        February 9, 2022