Meeting Minutes

Zoning Board of Adjustment

July 13, 2022

Approved September 14, 2022

Members Present: David Blohm, Chair; Henry Thomas, Vice-Chair; Larry Briggs, Member; Gary Budd, Member Katheryn Holmes, Alternate

Members Not Present: Steve Hurd, Member; Alex Azodi, Alternate

Public Present: John & Mary Recinito; Barry Schuster; Tyler Toohey; Ronnie Mac; Scott Wheeler

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

Minutes

The Board reviewed the minutes of May 11, 2022 and May 25, 2022. Mr. Briggs made a motion to accept the minutes as presented. Mr. Budd seconded the motion. All in favor.

Board introductions.

Mr. Thomas recused himself from the first hearing of the meeting as he was representing the Recinitos as their agent.

Mr. Blohm appointed Ms. Holmes as a voting member.

Mr. Blohm advised the applicant that a full Board is five members, business could be conducted with the four members present, with the recusal of Mr. Thomas, however a minimum of three affirmative votes are needed to grant the variance. 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.

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, July 13, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m.,Henry E. Thomas (agent), Recinito Family Rev Trust (owner), for property located at 6 Shore Drive, 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 2-floor garage with foundation within the side and rear setbacks. Newbury Tax Map 020-143-517. 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.

Henry Thomas presented to the Board.

Mr. Thomas said the applicant is asking for a variance to expand the size of a non-conforming building in accordance with 5.9.1. Since the original submission of the variance application, it was determined that it would be better with less earth disturbance to downsize the building to allow a slab and not a frost wall foundation. Mr. Thomas submitted to the Board a revised variance application and plan reflecting the building’s downsized measurements.

Mr. Blohm said the measurement of the original proposed building was 26’ x 27’6”. Mr. Thomas said the building footprint is down to 26’ x 26’. Mr. Blohm said the existing building is 28’ x 24’. Mr. Briggs said the original application said there was going to be a foundation three feet from the property line, this is now going to be fifteen inches. Mr. Thomas said right now the footprint is on the property line. Discussion followed. Mr. Thomas said that the applicant is gaining a little bit off the line and will be able to do the excavation work for the foundation without encroaching on abutter property.

Mr. Blohm asked if this was going to be a two-story garage. Mr. Thomas said a story and three quarters. Mr. Blohmasked if that was going to be for storage. Mr. Thomas said it is going to be a game room. Mr. Blohm asked if it would be insulated. Mr. Thomas said yes, insulated and will have electric. Mr. Blohm asked if there was a bathroom. Mr. Thomas said no. Ms. Holmes asked if it was going to be an accessory apartment. Mr. Thomas said no. Mr. Blohmasked if it was going to be heated. Mr. Thomas said currently not but maybe in the future. Discussion followed.

Mr. Briggs noted that there would be a silt fence during construction and asked if there was any surface water when it rains. Mrs. Recinito said there was none last night. (There was heavy rain the night before.) Ms. Holmes asked about a drip edge or what will catch the water. Mr. Thomas said on the west side there is going to be a gutter to a dry well because of the proximity to the property line. Mr. Thomas continued that on the east side there would be a 2-foot-wide stone drip edge. Mr. Thomas said to take care of the fact that the building is getting larger, the roof overhangs have been cut down to eight inches and the rake down to six inches. Discussion followed.

Mr. Blohm opened the public portion of the meeting.

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

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

16.8.1 The variance will not be contrary to the public interest because:  The proposed building is in a neighborhood of smaller lots and existing sheds and garages and homes are 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 buildings on the property were constructed prior to zoning on small lots which caused difficulty to expand the homeownersbuilding needs.

b) The property is different in a meaningful way from other properties in the area because: The property is a vacation property constructed on a small lot.

c) The property is burdened more severely by the zoning restrictions because: With the smaller lot and the location of septic system, well, and off street parking the only location for a larger garage is within the side and rear setback.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The other buildings in the area have the same problems that buildings were constructed within the current setback.

16.8.3 The variance is consistent with the spirit of the ordinance since: The spirit of the ordinance is to allow homeowners to be able to expand buildings on smaller lots. This is consistent with the area.

16.8.4 Substantial justice is done because: There is no benefit to the Public by preventing the replacement of the garage with a greater property line setback.

16.8.5 The value of surrounding properties will not be diminished because: Replacement of the deteriorating garage will increase property values in the area.

Ms. Holmes asked what kind of a hardship it would cause if the applicant didn’t have the garage. Mr. Thomas said the existing garage currently stores a boat, tools, lawn mower and stuff like that the applicant uses on the property. Mr. Thomas continued that if the variance is not granted the applicant would rebuild on the existing footprint and the boat would remain hanging out the front door. Discussion followed.

Mr. Briggs made a motion to vote on the request fromHenry E. Thomas (agent) for Recinito Family Trust(Owner) for property located at 6 Shore Drive, Newbury, NH for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a garage with a slab foundationwithin the side and rear setbacks, with a building footprint of 26’x 26’ with the second floor of the garage to be used as a game room. Tax Map 020-143-517.

Mr. Budd seconded the motion.

Roll Call Vote:

Gary Budd voted to Grant the Variance from Paragraph 5.9.1.

David Blohm voted to Grant the Variance from Paragraph 5.9.1.

Larry Briggs voted to Grant the Variance from Paragraph 5.9.1.

Katheryn Holmes voted to Grant the Variance from Paragraph 5.9.1.

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.

Mr. Thomas joined 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, July 13, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m.,Brookes & Hill Custom Builders (agent), MarjolynCamilleri Revoc Trust (owner), for property located at 269 Bay Point Road, Newbury, NH, will seek an After the Fact Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a generator within the right of way setback. Newbury Tax Map 006-108-349. 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.

Tyler Toohey, from Brookes & Hill Custom Builders presented to the Board.

Mr. Blohm asked why this became an after the fact variance. Mr. Toohey said essentially the generator permit was put in showing the generator in a certain location and as the project went on it became necessary to move the generator to another location. Mr. Toohey continued that this was also during the time there was a change in inspectors so when the current inspector came to the site for a pre-final inspection, he noticed that the generator was not where it was shown on the permit application plan. Mr. Blohm asked if there was, what it was and what it is now drawings. Mr. Toohey said the original, original location on the civil engineer’s plan, was near the propane tank and about 25 feet from the road. Mr. Toohey continued that when it was closer to the time for the generator to be installed the generator was going to be located on the other side of the driveway on the top of a very steep hill so the logistics of it became clear that it would not work for a stable pad, so at that time it was moved to the other side of the leach field about 16 feet from the street. Mr. Blohmasked from the center line of the street or the edge of the street. Mr. Toohey said the edge. Discussion followed.

Ms. Holmes asked if the applicant was worried about the very sharp corner at all. Mr. Toohey said there is actually atelephone pole right in front of the generator which was another reason for the revised generator location.Discussion followed.

Ms. Holmes asked if there was no other place to place the generator. Ronnie Mac, the project supervisor, said logistically no, without causing more digging and blasting. Ms. Holmes said it seems so unsafe. Mr. Blohm said not to him, it doesn’t. Mr. Mac said there are trees on the road that stick out further, the generator is not a driving hazard. Mr. Mac said the owner wants to hide the generator with landscaping. Discussion followed.

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

16.8.1 The variance will not be contrary to the public interest because: There are other residences throughouttown with permanent equipment such as electrical transformers, propane tanks and generators in close proximity to the road. Fencing and vegetation can be added if requested by neighbors. The noise from the generator is very infrequent.

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 originally proposed location of the generator was at the start/top of a steep hill and in tight proximity to the garage structure making it difficult/impossible to install proper infrastructure. To relocate the generator from where it is currently installed to the original location to the leach would cause hardship and potentially result in damage to the leach field and garage.

b) The property is different in a meaningful way from other properties in the area because: Although it is close to the street it is not close to abutters. The abutter across the street is set back from the street. The lot is extremely steep and to install the generator near the electrical feed and propane feed is logical given the site’s circumstances.

c) The property is burdened more severely by the zoning restrictions because: The zoning restrictions do not take the slope and ledge of the site into consideration. The locations for equipment like propane, stormwater management, electrical transformers/disconnects and generators needed to be revaluated during construction.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The generator is critical infrastructure considering the violent weather and overhead powerlines.

16.8.3 The variance is consistent with the spirit of the ordinance since: The location of the generator is adjacent to the existing utility pole and new electrical service equipment.

16.8.4 Substantial justice is done because: The generator location is consistent with other properties and if needed the homeowner/rep is willing to talk to neighbors regarding the current generator location.

16.8.5 The value of surrounding properties will not be diminished because: The newly constructed residence raises the value of the surrounding properties. The generator location has no impact on the value of surrounding properties and as mentioned above fencing/vegetation can be added if requested.

Mr. Blohm opened the public portion of the meeting.

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

Deliberations

Mr. Budd said a logical location, 10 feet up, he has no worries.

Mr. Blohm said he thinks this is a reasonable solution, given the property.

Mr. Briggs said he thinks the applicant has done a good job answering the Board’s questions.

Mr. Thomas said he sees no issues with this.

Mr. Briggs made a motion to vote on the request fromBrookes & Hill Custom Builders (agent) for MarjolynCamilleri Revoc Trust (Owner) for property located at 269 Bay Point Road, Newbury, NH for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a generator within the right of way setback. Newbury Tax Map 006-108-349.

Ms. Holmes seconded the motion.

Roll Call Vote:

Gary Budd voted to Grant the Variance from Paragraph 5.9.1.

David Blohm voted to Grant the Variance from Paragraph 5.9.1.

Larry Briggs voted to Grant the Variance from Paragraph 5.9.1.

Katheryn Holmes voted to Grant the Variance from Paragraph 5.9.1.

Hank Thomas voted to Grant the Variance from Paragraph 5.9.1.

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.

Mr. Thomas had to leave the meeting due to a fire call.

The Recording Secretary read into the record the following Public Notice:

The Newbury Zoning Board of Adjustment will hold a meeting on July 13, 2022 at 7:00 pm., at the Town Office Building at 937 Route 103 in Newbury, NH. At this meeting the Board will review a Motion for Rehearing before them and act to grant or deny the rehearing. No public input will be taken on the Motion for Rehearing. Motion for Rehearing: Peter G. Reynolds Trust-Motion for Rehearing on the May 25, 2022 decision by the ZBA.

Mr. Blohm said the process for the Board will be to review the applicant’s letter, discuss and vote, there will not be any public input taken. Mr. Blohm asked the Board if they had read the Motion for Rehearing. The Board said yes, they had. 

Mr. Blohm said the request before the Board is for a rehearing, and the Board needs to discuss if there is a basis for a rehearing. Mr. Blohm asked if there was any new information that had not already been before the Board. Ms. Holmes said she did not find any. 

Mr. Briggs said there was a lot of concern the last time the Board met about what was written on the building permit which was a 20’ by 28 foot shed with a total square footage of 560+- square feet and whether or not drawings were submitted as part of the application, and he is still troubled by this. Mr. Briggs continued that he read with interest the letter from the former code enforcement officer and the builder that was submitted as part of the Motion for Rehearing. Mr. Briggs said he went to the DES office to look at the Shoreland file for this property to try to find something from an independent source, but there were no additional drawings available in the file, it showed only the plan view which shows the 560 square foot shed. Mr. Briggs continued there was nothing showing elevations or interior footprints.

Mr. Briggs said it sounds as though some things have changed since the last time Mr. Schuster met with the Board, previously it was stated that there would be a stove in the structure, now there’s not. Mr. Blohm said Mr. Schuster writes the stove is gone. Mr. Briggs read from the Motion for Rehearing, The building will not have a kitchen, stove or other cooking facilities. The building will not have any sleeping quarters or facilities. Mr. Briggs said this building has got three full bathrooms to include tub and showers and even if it does not have a kitchen it looks like a bunkhouse. Mr. Briggs continued that it looks to him like a set up of sleeping quarters with bathrooms on each floor. Mr. Briggs said this structure goes far beyond what a workshop is.

Ms. Holmes said it troublesome when you have he said/she said evidence. Ms. Holmes said there was an impervious surface question in the previous meeting and the applicant recently paved the driveway and she was not sure if it was pervious. Mr. Blohm said it was not pervious. Ms. Holmes said she also noticed a large deck on the other side of the building. Ms. Holmes continued that when people drive by, they see a house not a shed. Ms. Holmes said she does not see any new information that would cause her to want a rehearing. Ms. Holmes continued that some balance has tobe made, the applicant has a house that is completely finished and yet the procedure wasn’t followed correctly.

Mr. Briggs said he has a comment on the subject of thesquare footage, his understanding is that when you apply for a building permit there is a cost to the building permit. Mr. Briggs continued that he is looking for some evidence of what was known at the time. Mr. Briggs continued that if you take the square footage of 560, for a building permit the flat fee of $50 at the time and 15 cents a square foot, so if you multiply all those numbers out and compare it to what was actually paid, it is nowhere close to something that’s well over 1000 square feet. Mr. Briggs said this is another piece of conflicting data.

Mr. Budd said he does not see enough evidence or new evidence in the submitted information that would make him believe the Board should reassess this.

Mr. Blohm said the letter seems to be a re-iteration of what was presented to the Board at the last hearing, so based on that there is nothing new. Mr. Blohm continued that the other inconsistencies that he keeps coming back to is first of all, the building permit is quite clear, it is 560 total square feet and that is as clear as day. Mr. Blohm continued that the other issue that he keeps running across is the Towns procedure for filing building plans is once a project is approved, those plans are stored in a vault downstairs, there is nothing downstairs that represents the current state of this building. Mr. Blohm said that one of the rationales of why there are bathrooms all over the place in this building is because the owner has physical problems and has a daughter with physical problems, if it were himhaving physical problems and couldn’t climb stairs, he wouldn’t build a house with stairs but build a workshop that was nice and open easy to get around, even with a bathroom. Mr. Blohm continued that the building permit application estimated that the original building would cost around $60,000, you can’t build a building like this for $60,000 even back then. Mr. Blohm said that there are just so many inconsistencies. Mr. Blohm said building a building of that type, there would need to be other variances, a stormwater management plan, and dealing with the pervious issue, there is just so many things that I do not find creditable here.

Mr. Briggs made a motion to vote on the request by Peter G. Reynolds Trust for a rehearing for the decision of the Zoning Board on May 25, 2022 denying Mr. Reynold’s administrative appeal.

Mr. Budd seconded the motion.

Roll Call Vote:

Gary Budd-voted to Deny the Motion for Rehearing based on no new information before the Board. 

Dave Blohm-voted to Deny the Motion for Rehearingbased on no new information presented to the Board from the previous hearing and the inconsistencies of what was built and proposed are too glaring.

Larry Briggs-voted to Deny the Motion for Rehearingbased on no new information presented to the Board from the previous hearing and the inconsistencies of what was built and proposed are too glaring.

Katheryn Holmes-voted to Deny the Motion for Rehearingbased on no new information in the Rehearing letter, duplexes are not allowed, and Shoreland Ordinances needed several variances to conduct this project.

Four votes to Deny the Motion for Rehearing. 

Mr. Blohm advised that the aggrieved party can follow this through with the courts.

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

The meeting adjourned at 8:19 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        July 13, 2022