Meeting Minutes

Zoning Board of Adjustment

February 8, 2023

Approved April 6, 2023

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

Members Not Present: David Blohm, Chair

Public Present included but not limited to: Dan & Beverly Wolf; Nick Robart; James Bruss; Daniel Monette; Doug Kinsman; Scott & Lynn Wallace; Keira Rand; Dave Sullivan; Lindsay Hisler; Denny Hisler; Sally Hisler; Jim & Joanne Lord; Howard Eaton; Martha Eaton; Elaine Eaton; Joe Messer; April Messer; Sally Harris; Kevin Carr; Mark & Anne Hilton; Dave Eckman; Tom Hildreth; Greg Gage; Jay Tucker; Al Cretella; Dick Wright; Wayne Seaholm; John Perry; Darren Finneral; Toni Fantasia; Eddie Wesoja; Alan & Susan Nadeau; Cooper Nadeau; Bob Stewart; John Witemeyer; Patty Miedico; Lory Bennett; Marty Newell; Tim Gove; Mark Moran; Russ Jewell; Durham Jones; Scott & Angi Hill; Marion DeRoche; Keith Haraburda; Cassandra Hall; Stu & Judy Hale; Dave & Jen Smith; Peter Fichter; Kim Bragg; Heather LaBelle; Rick Wright; Shaun Haraburda; Armen Tarbassian; Dan Bruzga; James Bishop; Brenda Balassone; Mike Plunkett; Joe & Steph Spaulding; Joey Spaulding; Eric Nadeau; Ray Waring

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

Minutes

Mr. Thomas said his suggestion is to hold the draft minutes for the next meeting and start hearings later to give the Board enough time. The Board was in agreement.

Board Introductions

Mr. Thomas appointed Ms. Holmes and Mr. Azodi as voting members for the meeting.

Mr. Thomas said there will be five voting members.

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 8, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Fuss & O’Neill (agent), Virginia C. Mars Rev Trust (owner), for property located at 49 Lakewood Manor Road, Newbury, NH, will seek Variances from the requirements of Paragraphs 7.4.2 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Construction of a new non-conforming structure outside of the existing footprint and within the 75’ lake setback.. Newbury Tax Map 019-634-452. 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.

Dan Monette from Fuss & O’Neill presented to the Board.

Mr. Monette said the applicant is seeking two variances, that go hand in hand. Mr. Monette continued that the applicant is doing work on an existing structure that is non-conforming, it is almost entirely within the 75 foot lake setback. Mr. Monette said the applicant is proposing to take the structure and move it back away from the lake and try to make it more nearly conforming to the Ordinance. Mr. Monette continued that in doing so there is a small sliver of the house that is not entirely within the 75 foot setback, so by moving it back the applicant is now outside the existing footprint of that original grandfathered house, and the other piece of it is, there will still be work being done in the 75 foot setback in order to construct a new house and demo the old one.

Mr. Thomas said the 15-foot setbacks are met, it’s just the 75-foot setback from the lake. Mr. Monette said the only expansion is in the buildable area and the applicant is here for that little sliver, 10.5 square feet in the 75-foot setback.

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

16.8.1 The variance will not be contrary to the public interest because: The existing dwelling encompasses more area inside the 75’ building setback than the proposed structure would. The proposed location allows for a more separation from the lake and is more nearly conforming to the primary building setback. This proposal does not alter the residential characteristic of the neighborhood, nor does it threaten public health, safety, or welfare. Therefore, we submit that this proposal is not contrary to the public interest.

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 lot is limited with minimal buildable area. The need for a private septic system and constraints such as avoiding natural woodland buffer impacts further encumber the lot. The alternatives for building a structure that is more nearly conforming to the zoning regulations is highly difficult. Literal enforcement would deny access for a more nearly conforming structure on a lot that is already limited for modernization.
2. The property is different in a meaningful way from other properties in the area because: The subject property is unique in that it is narrow and contains steep slopes. This lot is also not on municipal sewer and will require an onsite modern septic system. The only location on the lot suitable for an effluent disposal area, meeting State criteria, is within 75’-150’ of the Lake. This drastically limits the ability to construct a new home within the buildable area. The existing footprint of the current building is almost entirely within the 75’ building setback for this reason. To make the property more nearly meet the setback requirements the Owner requests to move the new structure back away from the lake. By voluntarily demolishing the existing structure, zoning approval is now required to reconstruct per Article 15.2.2. In this case Zoning is prohibitive of improvement. There is no reasonable alternative that still maintains access to the lot parking, allows for a septic system and meets the Town’s requirements.
3. The property is burdened more severely by the zoning restrictions because: The subject property is burdened more severely by the zoning restrictions than other properties due to its narrow nature and limited building envelope. Steep slopes and the requirement for an effluent disposal area further limit the ability to build. Literal enforcement would limit the property to the grandfathered footprint of the existing building and not allow for betterment of the lot.
4. Because of the special conditions of the property, the proposed use of the property is reasonable because: The request will permit the construction of a single-family residence in the Residential District, single family homes are permitted by right in the Zoning Ordinance. Uses that are permitted by right are per se reasonable.

16.8.3 The variance is consistent with the spirit of the ordinance since: The existing dwelling is almost entirely within the 75’ building setback with approximately 26.5’ of setback from the Lake reference line. The proposed structure would be located in a more nearly conforming location approximately 35’ from the neighborhood. Granting the variance will not alter the essential character of the neighborhood. The impacts to the waterfront are only temporary and the permanent result of the project will be a net benefit to water quality. The stormwater management improvements will maintain the spirit and purpose of the ordinance to protect the lake.

16.8.4 Substantial justice is done because: There is no injury to the public if the variance were to be granted because it will all the applicant to construct a moderately sized home while increasing stormwater treatment and conveyance. This is a residential lot within the residential zone, the use is allowed by right and will result in a more nearly conforming property. The proposal does not harm abutters interests and will provide a more aesthetic shoreline view with a larger shoreland waterfront buffer. There is no gain to the public if the variance were to be denied, therefore substantial justice is done by granting the variance.

16.8.5 The value of surrounding properties will not be diminished because: The residence will fit in nicely with the other neighborhood residential homes. Lot density requirements and the proposed building height conform to the zoning regulations. A new modern home in the neighborhood is expected to be assesses at a higher value which in comparison to other homes in the area could raise the value of surrounding property sales. So, by granting the variance there is no known adverse change to the values of surrounding properties.

Ms. Holmes asked if the applicant had a new septic design. Mr. Monette said yes, it is currently under technical review at the State.

Ms. Holmes asked if the existing house was a year-round house. Mr. Monette said it was.

Ms. Holmes asked if the proposed house will also be year-round. Mr. Monette said that is the intent.

Ms. Holmes asked if the applicant had a stormwater management plan. Mr. Monette yes, they do, it will be submitted with the building permit application. The current stormwater design is to install stone drip edges along all the foundation walls to capture roof run-off, the target is to capture all the increased impervious areas and try to treat those with the soil on site. Mr. Monette continued that there is also a proposed garage which will have its roof treated which wasn’t the case before.

Ms. Holmes asked what happens to the water that comes down the driveway. Mr. Monette said the driveway will remain unaltered, but the conveyance to an existing catch basin in the center of the driveway will be improved and a stone pad is proposed at the end of the culvert. Discussion followed.

Mr. Briggs asked how high the rock retaining wall was going to be. Mr. Monette said they try to keep them under 4 feet, anything over that someone would have to look into the stability of the wall. Mr. Monette showed Mr. Briggs on the plan where the walls will be.

Mr. Thomas said he thinks the applicant is doing justice to follow the Ordinance as closely as they can and septic systems sort of tell where to build the house, that is a feasible place for the septic system, so the house can’t go any further back. Mr. Thomas said he didn’t see any problems with the presentation.

Mr. Thomas opened the public portion of the meeting.

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

Deliberations

Mr. Briggs said this is pretty straight forward, Ms. Holmes agreed.

Mr. Briggs made a motion to vote on the request from Fuss & O’Neill (agent) for Virginia C. Mars Rev Trust (owner), for property located at 49 Lakewood Manor Road, Newbury, NH for Variances from the requirements of Paragraphs 7.4.2 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Construction of a new non-conforming structure outside of the existing footprint and within the 75’ lake setback. Tax Map 019-634-452.

Mr. Thomas seconded the motion.

Roll Call Vote:

Katheryn Holmes voted to Grant the Variances from Paragraphs 7.4.2 and 15.2.2 given the limitations of the property the applicant has fulfilled the criteria.

Alex Azodi voted to Grant the Variances from Paragraphs 7.4.2 and 15.2.2.

Larry Briggs voted to Grant the Variances from Paragraphs 7.4.2 and 15.2.2, the presentation was complete, and the criteria was convincing.

Steve Hurd voted to Grant the Variances from Paragraphs 7.4.2 and 15.2.2 agreeing with Mr. Briggs.

Henry Thomas voted to Grant the Variances from Paragraphs 7.4.2 and 15.2.2, the presentation the location of the proposed dwelling unit was well done and the criteria has been met.

Five votes to Grant the Variance

Mr. Thomas 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 called a break.

Mr. Wolf approached the Board table and asked Mr. Hurd if he was going to sit in on this hearing. Mr. Hurd said yes. Mr. Wolf said that he has some questions as to whether Mr. Hurd should recuse himself or not. Mr. Hurd said nobody has said anything. Mr. Wolf said he is saying something now. Mr. Wolf continued that it is up to Mr. Hurd. [Recording secretary not able to make out the remainder of the conversation from the audio]

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 8, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:10 p.m., April Messer (agent), Scott B. Hill (owner), for property located at Route 103A and 705 Route 103A, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance to permit the following: Commercial self-storage facility as a permitted use in the Residential District. Newbury Tax Map 016-003-127 & 016-036-132. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am-noon.

Mr. Thomas said there’s been some talk around Town and he overheard a conversation at the front table on conflict of interest. Mr. Thomas continued that there is a state court decision on it, and he will read this, “However, the basic rule is that a conflict of interest requiring recusal will be found when an official has a personal or pecuniary (financial) interest in the outcome of a matter. That interest must be immediate, definite and capable of demonstration, not remote, uncertain, contingent or speculative.” Mr. Thomas asked the Board at this point in time if anyone needs to recuse themselves from this case. Mr. Briggs said he does not. Ms. Holmes asked does she understand what Mr. Thomas just read is a financial interest in this case. Mr. Thomas said that’s the main thing. Ms. Holmes said she does not have a financial interest. Mr. Azodi said he has none. Mr. Hurd said no. Mr. Thomas said he has no financial gain on his decision on this case.

Mr. Hildreth said he would like to make a point of order; he is an attorney representing Dan & Beverly Wolf who are opposing this. Mr. Thomas said public input. Mr. Hildreth said this is a point of order on the recusal subject. Mr. Hildreth said Mr. Thomas read the generic standard, he did not give any factual basis for the particular member to make a personal consideration or for his other Board members to know. Mr. Hildreth continued that their understanding is that Mr. Hurd has a personal financial interest in this property, he is storing porta-potties on it today, which is not a permitted use. Mr. Hildreth continued that if the variance application is denied he won’t be allowed to continue to store those porta-potties there, those are somehow intimately involved in his business; if that is not a direct pecuniary interest in the result of the case, he doesn’t know what is. Mr. Hildreth said if the Board was unaware of those facts or he is wrong about those facts, he hopes Mr. Hurd will correct him, but that is the best knowledge of information that he has and, on that basis, Mr. Hurd should certainly recuse himself. Mr. Hildreth continued as an opponent and the party requesting the recusal, he can’t compel, the Board member has to decide on his own, if he should recuse himself, but if he doesn’t raise it by putting the factual predicate on the record now, he can’t raise that issue on appeal, so he is obliged to tell the Board why Mr. Hurd should recuse himself; he thinks it is a very clear case. Mr. Thomas said that Mr. Hildreth brought it up that the final decision is left to the member with the alleged conflict or bias.

Mr. Thomas asked April Messer, the agent for property owner Scott Hill to give the Board an overview before going through the variance criteria.

April Messer presented to the Board with the assistance of attorney Kevin Carr, from Baker & Hayes.

Ms. Messer said they were here today to propose a change of use based on this current facility, the front lot has always been used as a commercial building. It was a garage for many years and then it was a landscaping business.

Ms. Messer said she would like to start the criteria; the slides were in line with the application. Mr. Thomas said that’s fine, Ms. Messer could go through the criteria points as she was doing the slide presentation.

16.8.1 The variance will not be contrary to the public interest because: Mr. Hill is proposing to convert the existing property at 705 Route 103A from an existing garage, which had previously had businesses operating on and off for over 30 years, (Auto Garage and more recently a Landscaping Business) by cleaning up both lots (lot A & B) and having a storage facility built. This is less impactful to the community of Newbury and the neighbors, than the property’s previous state. It appeared to be a junk yard with items scattered over both lots as seen in arial photo-see photo for visual-Labeled ARIAL PHOTO VIEW #1. (page 16)

Mr. Briggs said that he doesn’t disagree the property was used for an auto body or garage or what have you, and it was also used for landscaping, but that was sometime in the past. Ms. Messer said 2020 is when it sold and stopped being used as landscaping business/contractor yard. Mr. Briggs said before he came tonight, he pulled the property record card for both properties, both property cards are showing those lots are zoned as residential. Ms. Holmes said they got a variance. Ms. Messer said they got a special exception to run a business on the front lot. Mr. Briggs said his understanding of our Ordinance, 15.1.1 called Resumption after Discontinuance: When a non-conforming use of land, structures, or buildings has been discontinued for one year, then the land, structures and buildings shall be used thereafter only in conformity with this Ordinance. Ms. Messer said Article 15.1.1 does state that, however, when Mr. Hill purchased the property, it was still being used as a contractor’s yard and landscaping business; eight months later Mr. Hill came to the Board to ask to use this property as a commercial use, it was turned down, but Mr. Hill never abandoned the idea of using this. Ms. Holmes said the Board did not turn it down. Ms. Messer said Mr. Hill withdrew it. Mr. Carr said he thinks the fact the property has a history of being a commercial use in the residential zone is definitely relevant to the application, but the applicant is not arguing for a grandfathered use, the applicant is asking for a variance for a different business. Ms. Holmes said she was the chair of the Zoning Board when Mr. Ilnicki got the variance. Mr. Briggs said that when the applicant answered the question to 16.8.1, will not be contrary to the public interest, to him he thinks the public’s position would be as residential use. Mr. Briggs continued that he doesn’t disagree that the applicant probably spent a lot of money to clean it up, good for the applicant. Mr. Briggs said the Board reviewed this back on August 9, 2021, and secondly on November 8, 2021 the Board wasn’t convinced then that it was continuous use and the one year period, the Board saw no evidence that it was in use for 15.1.1 to apply. Mr. Carr said again that is not the argument the applicant is making and as far as the public interest argument, that is why the variance process exists, the applicant would not be here if he was asking for residential use but the Zoning Ordinance includes this process for a variance to be granted in cases where the applicant meets the criteria and in that case the applicant’s argument is that it’s not contrary to the public interest, it’s actually a lesser intrusive use of that property than has been approved and used in the past. Mr. Carr continued for that reason, what has been proposed is in the public interest, that is the applicant’s argument, but he does not think the applicant is foreclosed because it may have been sixteen months, two years, that would be a grandfathered use argument the applicant is not making. where the applicant does think it’s relevant to this criteria and the to the other criteria going forward, is that this Board has approved commercial applications on that property.H

Ms. Holmes said a variance is forever so Ilnicki got a variance for the yard there. Ms. Messer said in 2002 there was a landscaping business/contractor’s yard and that was given to Ilnicki. Ms. Holmes said the Board required a fence on the road which he didn’t really keep up very well. Mr. Carr said that his understanding is that it’s been used as an auto repair shop with the permission of the Board. Mr. Briggs said that he agreed. Mr. Carr said a boat repair storage type place at one point and this landscaping business most recently.

Mr. Thomas said at the previous hearing, the applicant came in for a special exception to change from landscaping to storage facility. Mr. Thomas continued that in that meeting the Board came up with the factor that there was no proof that the entire plot, there’s two lots there, was granted the special exception. Mr. Thomas said that if the Board had granted the special exception at the last one, it would have been only for the front, to change the non-conforming use. Mr. Thomas said the back is residential, has to come for a variance to change that back lot, so the applicant is coming in to change the entire lot, because the lots will be married together into one parcel. Mr. Thomas continued that the applicant is asking this Board for a variance of a use not permitted in the residential district, the applicant is asking for a variance to make that one property, not the entire road, a use of a storage facility if granted. Mr. Thomas said the past history of the Board’s other meeting, the Board acted and denied for certain reasons, but the Board is addressing a different meeting right now of a variance.

Elaine Eaton asked if she could say something. Mr. Thomas asked her to remember what she wanted to say for when public could comment.

Mr. Carr said he had one more point of order, the applicant approached the Planning Board for this, they directed him to the ZBA; right now there is two separate lots, but the goal would be to get the variance to allow the applicant to merge the lots.

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: 705 Route 103A Lot B has had a business operating on and off for over 40 years in this location and therefore Mr. Holl would like to expand the commercial property to extend to the lot behind, lot A, to allow him to utilize all of his land for a self storage facility. Mr. Hill has spent a significant amount of money and time to do this property clean-up and to make the property less impactful for the neighbors and the community of Newbury. See photo for visual-Labeled Street View #1-after clean up. (page 17)

Mr. Azodi asked if that was a proposed building. Ms. Messer said that it was the same building that was there just a refreshed building that the applicant repainted and put a new roof on.

1. The property is different in a meaningful way from other properties in the area because:  The subject parcels, lot A & B, to be merged into one, are in the location where a business has been operating on and off for over 40 years, therefore this property is different. The intent is to convert this property to a less obtrusive, yet commercial self storage facility. Back on September 28, 1998 a previous owner applied for a lot line adjustment-special exception-to increase the commercial property piece and it was approved. See Town of Newbury letter dated September 28, 1998. (page 18) Mr. Hill is looking to merge these lots and the property is a good fit for the proposed storage facility. Property History dates are not exact-Rainbow Garage-early 1980’s; Lakeside Autobody-1997; Matt Ilnicki-Landscaping business-2002; 2023-Proposed Self Storage Facility for Both Lots

Mr. Azodi asked if he could go back to the previous question, he asked the applicant to explain why there is a hardship. Ms. Messer said this property has always had a business operating on it and the applicant wants to continue to operate a business and the hardship is that the applicant put a lot of time and money into this and cleaned up the entire neighborhood, it is much better looking for the entire community. Mr. Carr said the front lot, the small lot, is barely over half an acre, it is a non-conforming lot, even to use it as a residential use, a variance would be needed, it doesn’t have lot size, it doesn’t have enough frontage. Mr. Carr said it would be very difficult even merged to use both lots residentially because of the restrictions on setbacks, he believes there is a stream. Mr. Carr continued that he thought it would be impossible to put two houses on the lots, Mr. Carr said he does not think there is enough room on the front lot to do a well radius, a septic, house within the buildable footprint. Mr. Carr continued even combining the two lots, it would still be very difficult to do even if utilizing the septic and well that is there. Mr. Carr said if the Board’s decision is denied because it’s a commercial use on a residential lot, the decision would essentially be a taking of the front lot from the applicant, he would not be able to use that lot residentially and that presents a hardship.

Mr. Azodi asked if the applicant is combining the two lots. Mr. Carr said the idea is to combine them and put the proposed storage facilities on the combined lots. Mr. Carr said the phrase is unnecessary hardship, not that there is any hardship, but is it an unnecessary hardship and the argument all dovetails together; the historical use, the fact that what is being proposed is a lesser obtrusive use than what has been there before, given what the applicant is proposing, it is a reasonable use of the property, given its history, given it is really a low impact use. Ms. Messer said the septic system for the front lot is in the far-right corner of the back lot and the well for the front lot is also on the back lot. Ms. Messer continued that the hardship here is that if used as a residential lot, you would not want the house right on 103 so if you put the house on the back lot, there would be 2 septics and two wells, and the building envelope becomes this tiny, small area.

1. The property is burdened more severely by the zoning restrictions because:  Commercial operations are not typical in a residential zone, HOWEVER Lot B has had a business in operation for over 40 years. To allow Lot A to be used as commercial property is the best use for this land-given the location off 103A, ease of access, front entry from 103A and not having to pass by any neighbors to enter or exit proposed self-storage facility. Mr. Hill has spent a significant amount of money cleaning up the debris associated with the approved use of the property by the town of Newbury. The last business prior to Mr. Scott B. Hill was a landscaping business which had the appearance of a junk yard which spread onto both lots. The clean-up was expensive and time consuming and Mr. Hill is proposing a much less impactful use of this land than previous businesses.

Mr. Carr said he thinks that part of more severely burdened for this property is that it really is a non-conforming lot for residential purposes and the applicant’s argument is that the Board has recognized this historically by allowing commercial applications on that property.

1. Because of the special conditions of the property, the proposed use of the property is reasonable because: Again, MANY BUSINESSES have operated on and off for over 40 years at this location. To merge these two lots and make commercial makes sense for the properties use. This proposed use-Commercial Self Storage Facility-is also a much needed service in the community.

1 in every 10 households have items at an off-site storage facility within their community. About 1 in 3 Americans respond saying they keep a piece of furniture in storage-Cited from storagecafe.com

Newbury does not have one, however a neighboring town, such as Sunapee (population is around 3,547 found in World Population Review) have 3 all in which as of Jan. 11, 2023 only 1 of the facilities had availability- and there was a wait list.

Newbury’s population is around 2,260 (found in world population review) and we have none.

Bradford’s storage-Breezy Hill is full as of Jan 11 2023 per Owner

Bradford’s Battles Farm-Doug Jackson’s Storage is full per Owner

Space Place in Sunapee has 3 units and a wait list-Per an employee

Sunapee Self Storage is full-Per Employee

Simplified Storage Sunapee is full-Per owner

Mr. Azodi asked how many units. Ms. Messer said 131. Mr. Azodi asked what the applicant thinks about the increase in driving activity. Ms. Messer said she had that, but it would be jumping ahead.

Ms. Holmes asked if she could have a point of order; Ms. Messer is trying to read the criteria and the last gentleman got to read all the criteria before the Board started asking questions and we keep getting in the weeds by doing that. Ms. Holmes continued that she thinks Ms. Messer should read the whole list of the criteria and the applicant’s argument. Mr. Hurd said that is how Ms. Messer got started then she got interrupted. Mr. Azodi said he thinks generally that is what the Board does, at every question the Board asks questions. Ms. Holmes said she would prefer Ms. Messer to read the criteria and then the Board asks questions, because we are kinda like getting all displaced. Mr. Thomas said he would get a consensus of the Board because in the past hearings the Board has interjected part way through numerous times for other presenters. Mr. Thomas asked the Board if they would like to go the way Ms. Holmes has suggested and let the applicant read through the whole thing. Mr. Azodi said the tradition, and he is not sure if the tradition has been part of the written rules, but the tradition has been at every question the Board asks their questions, we don’t wait until the end. Mr. Briggs said he agreed with Mr. Azodi and Mr. Thomas on the precedent, but we are almost done, and he will let the applicant finish and then the Board can ask some questions. Mr. Thomas said the Board will let Ms. Messer finish without interrupting her and then open it up to the Board for questions on the presentation.

16.8.3 The variance is consistent with the spirit of the ordinance since: Mr. Hill is proposing the lots be merged and used for a low impact self-storage facility which targets those living in residential area. The addition of planted wintergreen buffers will enhance the existing wooded buffers and will create more privacy than all neighbors currently have. This storage facility will blend well into the neighborhood. This use is less impactful than the last business that appeared to be a junk yard.

16.8.4 Substantial justice is done because: The way the property was previously being used and maintained-OR LACK THEREOF-was unsightly. With the proposed storage facility, it will be quiet, clean and landscaped, have privacy buffers, look professional and have curb appeal.

16.8.5 The value of surrounding properties will not be diminished because: The proposed self storage facility will be less obstructive than the way the landscape business with junk yard appearance was. The facility will have a gated entrance, lights during operational hrs only-Spring/Summer 6am-8pm, Fall/winter 6am-6pm. Their will be security cameras and evergreen buffers that will create a nice look.

Info from Investment Real Estate, LLC irellc.com

Self Storage facilities are actually great neighbors. They are the second lowest traffic generators after cell towers. Buffers create minimal noise and almost no light pollution. No impact on infrastructure-no additional school, roads, services.

Generates tax revenue without increasing expenses to the community. A quiet neighbor due to operating hrs and that 90% of people using facility use their own vehicles to transport items to and from not large trucks.

Mr. Carr said that he wanted to add to the spirit of the ordinance, reading 1.2 of the Newbury Zoning Ordinance that the intent of the Newbury Ordinance is to encourage the most appropriate use of their land and the intent to allow individual landowners a great deal of freedom in the use and enjoyment of their land as is consistent with the accomplishment of the purposes of the Ordinance. Mr. Carr continued that is the express intent under 1.2 of the Newbury Zoning Ordinance. Mr. Briggs said the neighbors would agree.

Mr. Briggs said talk to him about fences. Ms. Messer said there will be a wrought iron fence in the front of the building that runs all the way over. Ms. Messer said there won’t be a fence in the back, the applicant is proposing to blend in with the environment by using New Hampshire native plants. DB Landscaping has done a very preliminary design; more finite details will be provided to the Planning Board.

Mr. Briggs asked if the proposed use was for inside storage only. Ms. Messer said yes, inside storage only.

Mr. Azodi asked if any of the storage facilities would be seen from the road. Ms. Messer said that there is not finite details at this time until the applicant gets the zoning approval, but there will be much greater curb appeal than the front view now. Ms. Holmes said the goal is to hide the facility. Ms. Messer said it is to just pretty it up, make it look nice.

Ms. Holmes asked if the storage units were pre-fab. Ms. Messer said the cement pad would be poured in advance and then they are built on site.

Mr. Briggs asked if all the structures are single story. Ms. Messer said yes, they are.

Mr. Briggs asked if the lighting was up on poles. Ms. Messer said the plan for the lighting is; the applicant will need to do a photometric analysis first of all to verify the light spread but, ultimately downward facing, dark sky lighting will be used. Ms. Messer continued the lighting will only be on during hours of operation.

Ms. Holmes said when she walked the back lot, there’s a lot of wetlands back there. Ms. Messer brought the Board’s attention to a septic plan. (pages 20A & 20B) Ms. Messer said that this plan is the current septic that is on the back lot. Ms. Messer continued that on the plan you can see where the definite wetland is. Ms. Messer brought the Board’s attention to a dredge and fill application (pages 19A-19B) in order to put the septic in, so the septic system has been approved by the state. Ms. Messer said that Bob Stewart was here and he would answer any questions that came up. Bob Stewart, from RCS Design, said that he has been to the property but has not done any further delineation as of yet, he needs to see open ground and currently there is snow on the ground. Mr. Stewart said he presumes that long before the applicant goes to the Planning Board for the very site specific site plan, he will have the wetlands work done.

Ms. Holmes said that in this construction, even though it’s not a dwelling, she thinks it’s important to have some kind of stormwater management from the roof. Ms. Messer said that has been discussed and ultimately instead of doing solid concrete between the buildings there will be an area in between where there’s a drainage system to take care of some of the water coming off the roof. Discussion followed.

Mr. Briggs said that he has a question for his fellow Board members; he knows it’s the applicant’s intent to seek a variance here and then show details to the Planning Board. Mr. Briggs continued that normally when the Board review applicants for variances, the Board does look at stormwater management, the applicant is asking the Board for permission to go forward and yet we can’t see any details, the Board has concepts, but we don’t have anything that is binding for approval. Ms. Holmes said the Board can always give conditions. Discussion followed.

Mr. Thomas opened the public portion of the meeting.

Elaine Eaton said that she wanted to make a note that she believes the previous variance was not denied because the applicant pulled it back. Mr. Thomas said that she was correct, the special exception was denied, the variance was not denied.

Michael Plunkett said he appreciates the Board’s concern with conservation. Mr. Plunkett continued that he was here a couple months ago with something that is somewhat relevant to tonight. Mr. Plunkett said the Town got a purchase and sales agreement for the Town shed down in South Newbury, there is a field between that and Mr. Plunkett’s house, there was concern about the brook. Mr. Plunkett continued that the applicant’s wanted to improve the lot, they wanted to store trucks there, they wanted to store equipment and inventory there and in fact Mr. Wolf spoke very highly of the sale and the approval of that permit and unfortunately the people didn’t follow through with their purchase. Mr. Plunkett said now that this is across from Mr. Wolf’s field and there’s a lawyer fighting it and Mr. Hill is trying to do the same thing, he is trying to improve the lot, clean up the buildings, put up new cleaner buildings. Mr. Plunkett continued that he thinks the best point that was made tonight is that every storage facility between Newport and Warner is full and have a waiting list and the townspeople need a storage facility in the area, the Town can’t get a better deal, so he speaks in favor of Mr. Hill’s proposal.

Eric Nadeau said he just found out about this meeting two hours ago and he is here. Mr. Nadeau continued that he had just looked at storage sheds in Sunapee five days ago, they only had one available and it was not the size he could use, they said they could put Mr. Nadeau on a list. Mr. Nadeau continued that he is a drywall contractor, owns his own business since 1996, his garage is full and he wished he had more storage and the fact that someone is offering something in our Town, where he can actually go rent a storage unit, he thinks that is awesome. Mr. Nadeau said that he does not understand what the problem is because he hears these things, like we’ve got to put this fence around and all that and okay, well the fence is probably just going to keep the deer out. Mr. Nadeau continued that he hears about the wetlands, he lives at 910 Route 103, he is surrounded by swamps and wetland, and nobody had a problem with putting a 55 and older hotel behind his house that has septic tank systems and all that with all the wetlands there. Mr. Nadeau said what is a bunch of storage sheds going to have to effect a bunch of wetlands, there is no sewage, there is no nothing, people show up, drop stuff off , they pick it up, very quiet. Mr. Nadeau continued that this Town needs this.

Lynn Wallace, from South Road, said it seems to her that with all the stuff that has been dumped in this property for the last 40 or more years, from being an auto shop, from being a landscaping place, who knows what kind of toxic waste are in that, who would want to build a house there. Ms. Wallace continued that it is not a place to build a house, it would be much better sited as a storage facility, where people are not actually living there and playing in the yard where there might be chemicals you don’t want your kids to play with. Ms. Wallace said as a storage facility it would be much less of an impact on the land and the surrounding residences than even a home, and the storage facility seems like the wisest, safest use at this time and a significant improvement over the past 40 years.

Dick Wright said much of everything that needs to be said, has been said and it’s all in the positive in his mind. Mr. Wright continued that he speaks highly in favor of this, he thinks there is a real need in the Town for something like this and as has been said before every Town around is loaded, you cannot get any space. They are trying to put these things in all over, Newbury doesn’t have one, he would say with all of the people that come up here for the summer and go back, there is probably as much or more need in our Town.

Nick Robart said he actually happens to be an abutter, he lives at 11 Steves Road, he has two children, two and four, and another one on the way, due in May. Mr. Robart continued that he wants this area to remain a residential area, he is 100 percent against any type of commercial operation, it is a residential area and should remain that way.

John Perry said he lives on Steves Road, and he abuts the property. Mr. Perry continued that he purchased the property maybe thirteen years ago, believing that it was a residential area. Mr. Perry said there are all young families on this street all with kids, and that’s what attracted him to it, with his grandkids, they can go out there and play and you wouldn’t have to worry, cause the neighbors knew when they came in, they slowed down, they knew the kids might be out on the road, the Board can’t guarantee them the people that are going to be driving and dropping stuff off don’t take a wrong turn and have to go up Steves Road, you can’t get out so they are going to have to turn around in our property. Mr. Perry said he understands that there are people here in favor for it, but they don’t live there and like he said last time, if this is something you want in your back yard, do that, but this is in my front yard, and not only that, the contractor made a great point, he was happy to hear him say it, this is what these storage units turn into, contractors, they put their stuff in there, there is trucks in and out all week long. Mr. Perry continued that if you live there with kids, this is not what you want, this is a residential neighborhood, and the last hearing, it was unanimous, denied and it was denied on some language, which paragraph 5.5.2 and it said the abutters have to approve it, so he would ask the Board to look at that before they make their decision.

Tom Hildreth said he represents the Wolf’s, who are opposed to the application. Mr. Hildreth said he has been involved in projects like this, number one, the city of Nashua, where many of the storage units were used by contractors, who stored equipment there, for overflow capacity and their workers would drive there every day, in the mornings to pick stuff up, return at the end of the day and it was not the low traffic that has been represented.

Mr. Hildreth submitted a handout (page 24) to the Board. Mr. Hildreth said this is a Google Earth image of the property from July 2019, he presents it to the Board for purposes of establishing the character of the neighborhood, so you didn’t see a picture that has Steves Road and all of the residences that surround it. Mr. Hildreth continued that the only use that is not residential is this one, that was then a legacy commercial operation. Mr. Hildreth submitted another image (page 25) to the Board. Mr. Hildreth said this image is from 2021, this is after the site had been cleaned up. Mr. Hildreth wanted the Board to compare the two. Mr. Hildreth continued that you can see all the trees that were removed, and you can see all the fill that was brought in and at the last hearing, one of the neighbors, Greg Gage, said that he observed 30 to 40 truckloads of fill and there was some discussion, at that meeting in 2021, that some wetlands had been filled. Mr. Hildreth said that one of the previous zoning board members had said he was going to take that up with the DES, he has lost the trail of that, but he is interested to hear that the wetland scientist hasn’t yet done any survey to see where the wetlands are, he understands that wetland scientists are generally able to tell when wetlands have been filled historic, so hopefully if that is the case, that can be discovered.

Mr. Hildreth said that two things can be true at the same time, Newbury could have a need for self-storage facilities, but this might not be the right place for it. Mr. Hildreth continued that the Town has the Business District, the Mount Sunapee Recreation Overlay District, both of those permit commercial uses with the right kind of relief, this is a residentially zoned property, and it doesn’t belong here.

Mr. Hildreth said he has two themes to suggest, one of them, there’s been a misleading history of the use of the property, it has been very casually bandied about as to what happened and when, it is interesting to him that the applicant submitted a single letter from the Zoning Board from 1998 that says a special exception was granted to allow a non-conforming use to convert from one to another. Mr. Hildreth continued that in 2021, he told the Board then, and he guesses he needs to go over it again now, he did a complete history of this property, he did a 91-A request, he got every record the Town had on this property and the reason that the applicant only submitted a single letter from the Zoning Board, because that is the one and only time this property has been before the Zoning Board for any kind of relief, and when you see the relief that it got, he doesn’t think they included the attachment to the letter, this was the September 28, 1998 letter saying you get a special exception under 13.0.2, the applicant didn’t submit what 13.0.2 was, when you look at that, it says this, it is a provision that allows for the change of an existing non-conforming use from one type of use to another and that was what this person got, he doesn’t know if he is related to Scott Hill, this was Mr. Peter Hill who got this. Angi Hill said not related. Mr. Hildreth said it says that the Zoning Board has decided that the above proposal was a change in use from the previous use of the property, which was a non-conforming use and if you go back in time, he doesn’t think Mr. Thomas was correct, he doesn’t thing 103A was ever formally zoned commercial, there is no record in the Town’s history that says that. Mr. Hildreth continued that if everyone says that he welcomes you to show him the documents. Mr. Hildreth said he asked for every single record. Mr. Hildreth said let him tell you what this record shows, the first record is from 1988, this goes back to Mr. Richard Smith, and this was a Selectman’s enforcement action against the property, it says on August 31 we visited your place of business following a complaint we received at our office. At that time, you were cautioned not to expand your business beyond what was grandfathered to you at the time of zoning. Mr. Hildreth continued that that property was being operated for some purpose that was not consistent with zoning when zoning was enacted, that’s how it got the right to exist. Mr. Hildreth said in 1998 when Peter Hill came before this Board for a special exception, it was just to change a non-conforming use from one thing to another, it didn’t make the property commercial, it didn’t make the use conforming, it just allowed that one change to be made, every change that occurred after that was done without the benefit of any zoning review and there was never a completed site plan on this property, if you read the record of this property there was letter after letter after letter from the Planning Board to the Selectman saying please enforce the Ordinance, the owner is violating the terms and so the history that has been presented has been incomplete in this meeting and there is no basis for the fact that this property has been misused in the past to allow it to be a commercial use today, that is not the way the law works. Mr. Hildreth said that someone early on read the relevant provision in the Ordinance, so the Ordinance says 15.1.1 when a non-conforming use of land, structure or building has been discontinued for one year, that the land, structure and buildings shall be used thereafter only in conformity with the Ordinance. Mr. Hildreth continued that he knows that Mr. Carr said this is not the case the applicant is making, but if you read the application it is replete with reference to this was previously used as, this has been continuously used as, this has been used on and off as, as if that is some justification to allow it to be a commercial use today, it is not, it doesn’t work that way and there was testimony in 2021 from an abutter who said the landscaping business, which never had a right to exist, it never got a special exception to change its use, it never came before this Board for any kind of relief, it just established itself there, much like the porta-potties just showed up there, there is no permission to do that. Ms. Holmes said she remembers that Mr. Ilnicki come in front of the Board. Mr. Hildreth said there is no evidence of that in the Town records, he got every single page. Ms. Holmes said the record could be wrong. Mr. Hildreth said why wasn’t it submitted, all the applicant submitted was the 1998 letter for special exception, Ilnicki got nothing. Ms. Holmes said she was the chair of zoning when Mr. Ilnicki came before the Board. Mr. Hildreth said your staff produced nothing; he got every single record. Ms. Holmes said she was there. Mr. Hildreth said show him the evidence, because that is not what the record shows. Mr. Hildreth continued there was testimony from an abutter that said Mr. Ilnicki’s use, it hadn’t been permitted, ceased operations in November 2018, it was no longer operating, and if he left crap on his property that looked like a junkyard, it was not permitted to operate as a junkyard, it wasn’t approved as a junkyard, its not fair to compare what the applicant is proposing now with some use that was unlawful, so the history has been incomplete in this meeting. Mr. Hildreth said the comparisons are not accurate, the comparisons not with what the applicant is proposing here compared to some unlawful use in the past, the comparison should be what the applicant is proposing here compared to what the applicant could do if this was a permitted use, and this is a residential zone. Ms. Holmes said this is why people go for variances. Mr. Wolf said let Mr. Hildreth finish. Mr. Hildreth said he understands that. Ms. Holmes said Mr. Hildreth is hammering the Board.

Mr. Thomas asked for quiet in the room.

Mr. Thomas said that he would like to correct Mr. Hildreth, if he goes and researches all of the zoning records of the Town, Route 103A, Route 103B and Route 103 in its entirety were commercial. Mr. Hildreth said the letter from 1998 that came from the Town’s records said that whoever is then operating a garage was doing it before zoning came into being, so if that road was commercial, why wasn’t the use permitted. Mr. Thomas said he thought things were getting carried away.

Dick Wright said he had a point of order, Mr. Hildreth is making reference that the zoning came in at that time, a zoning change may have come in at that time, but the Town had zoning long before that.

Mr. Carr said he thinks it is confusing the issues, he thinks what the action the Board took, which was referenced by the chair was that it was expanding onto a lot that it was not approved for. Mr. Hildreth said that is not what the record shows and he doesn’t know, Mr. French, whether you’re a civil engineer or not. Mr. Carr corrected his name and said he is just a lawyer. Mr. Hildreth apologized.

Ms. Favreau submitted Planning Board minutes from April 16, 2002 to the Board. (page 26A-26B) Mr. Thomas said he had another correction for Mr. Hildreth, and read from the minutes, Mr. Weiler made a motion to approve the site plan as presented and discussed. Mrs. Freeman seconded it. All were in favor. Mr. Thomas said this is site plan review for Rainbow Garage, so you are stating stuff without doing your homework sir. Discussion followed. Mr. Hildreth said he doesn’t know why your staff didn’t give him this when he asked for all the records. Ms. Favreau said she did not remember Mr. Hildreth coming in and asking for records, but she will look back through her information. Mr. Hildreth said he would go back through his requests too.

Mr. Hildreth said there is a letter from July of 2016, this he did get, from the Planning Board to Ilnicki stating, you’re not complying with the terms of the site plan from earlier, so that’s Planning Board, that’s not Zoning Board, Ilnicki never came before the Zoning Board. Mr. Carr said he would like to establish that if Mr. Hildreth didn’t have that record, he doesn’t know if he missed other records too.

Marty Newell said all the stuff Mr. Hildreth is talking about has nothing to do with the variance the applicant is asking for, the applicant is legally going before the Board to ask for a variance, all of the other stuff Mr. Hildreth is speaking about means nothing. Discussion followed.

Mr. Hildreth said let’s talk about the standards for a variance. Mr. Hildreth continued that this is the same application that was presented in 2021 and at that meeting it was a unanimous denial of the application and here is what every single Board member said, same exact application, except it was 155 units then instead of 131, whatever the applicant is proposing now. Mr. Hildreth continued that every Board member said this would significantly alter the character of the neighborhood, Mr. Fichter, Gary Budd, this would alter the character of the neighborhood, Mr. Blohm, this would significantly impact the neighborhood, Mr. Gelzer, extensive testimony shows this would be detrimental to the character of the neighborhood, Ms. Holmes, this would adversely impact the neighborhood, the brook and the lake. Mr. Hildreth said the standard for a variance is essentially, will the proposal adversely impact the character of the neighborhood, the Supreme Court has said that two of the different standards are exactly that way, contrary to the public interest translates into, does it alter the character of the neighborhood, five Board members found that it did. Mr. Hildreth continued the spirit of the ordinance also the Supreme Court has said translates into does it alter the character of the neighborhood, but even more than that, the zoning members handbook says, one of the ways to consider whether a proposal is consistent with the spirit of the ordinance is to look at the Master Plan, to see what it does and if you look at the Master Plan, Mr. Carr mentioned the Master Plan about emphasizing people have property rights. Mr. Carr said he referenced 1.2 of the Zoning Ordinance not the Plan. Mr. Hildreth said he was going to reference article 5, which is the Residential District, the purpose of this article is to reinforce the goals of the Town of Newbury Master Plan to preserve its rural character, it's open rural landscape. Mr. Hildreth said the Town's Master Plan is inconsistent, this application at this location is inconsistent with the Master Plan. Ms. Holmes said it also has economic development. Mr. Hildreth said let’s talk about that, the applicant spends half a page of text talking about all of the needs for a self-storage facility, that is not a basis to get zoning and like he said, if there is a business need or an opportunity then put it in Newbury, but put it where it goes, put it in the Business District, put it in the Recreational Overlay District, don't put it in the Residential District, or rezone the property but don't give them a variance because they don't qualify for it just because a bunch of people say they would like to have a storage facility. Discussion followed.

Mr. Hildreth said this is the misleading nature of the history, these are not permitted uses, the applicant mentioned junkyard about half a dozen times in his application and maybe the property did look like a junkyard, it wasn't permitted to be a junkyard and if it was allowed to be a junkyard then that's a shame on the enforcement authorities of the Town of Newbury, they let it happen without taking action, but if you look at the record they did try to take a bunch of action but if it’s a junkyard, shame on us, it doesn’t mean that the applicant can do anything less than a junkyard and the applicant is entitled to a variance to do that.  Mr. Hildreth said that Mr. Carr, who is not a civil engineer, made some allegations that the property can't be used residentially and so therefore the applicant should get this variance to have this commercial use, that was not in the applicant’s application, we didn't research the lot to see if it could or couldn’t support a residential use, he believes it could, you would have to have a civil engineer look at that, they have no civil engineering evidence to support that claim, that is just an allegation by a lawyer, there is no evidence to support that. Mr. Hildreth said that Mr. Carr also made the claim that because the Board had previously granted a special exception, again only zoning board action that there is evidence of is the special exception from 1998.

A question was asked from the audience to the Chair, if this was going to go on forever or are other people going to get to talk. Mr. Thomas said one more point sir, everyone is going to have a chance to make a point, he has hands up.

Mr. Hildreth said that Mr. Carr said that the fact that the Board granted that relief was evidence that the property can’t be used residentially, there is no record that says that. Mr. Thomas said that’s Mr. Carr’s opinion and your opinion is different, we are listening to your opinion. Mr. Hildreth said he’ll submit the letter to the record, it’s already in there, the applicant submitted it, the 1998 letter that granted a special exception is part of the application, it doesn’t say, we have found you can’t use this property for residential purposes and therefore you can do this, in fact if you add that to the letter we have from 1988, the Selectmen said, you can’t expand what you are doing from the time zoning was enacted, you have a grandfathered use. Mr. Hildreth continued that no one in Town had ever made a determination that this property can’t be used for residential purposes. Discussion followed.

Russ Jewell, owner of Jewell Box Storage, also a ZBA member in Wilmot, said if the Board needs to put provisions in granting the variance, put them in and then a traffic study, he understands that the neighbors are complaining but it says right in the applicant’s plan, they don’t plan on using that driveway. Mr. Jewell continued that nobody plays in his facility, it’s gated, it’s locked. Mr. Jewell said he has contractors come to his place, they come in the morning, get their stuff.

John Witemeyer, lives at 667 Route 103A, this is 705 Route 103A, he lives pretty close on 103A, he doesn’t live on Steves Road, yet he heard a wonderful presentation from the abutters that live near that facility and he lives right close to it, and he also knows about the traffic on 103A, and if anybody is familiar with it, like he is, there’s two down slopes that runs right across that road where this property is, and if you think people are only going at 40 miles an hour on 103A in that area, you have a lot to learn, believe him, that’s a race track. Mr. Witemeyer said he has not heard anything from the presenters about what type of traffic flow they expect in and out of that facility. Mr. Witemeyer said this is an expansive commercial facility, not just a garage or so, or just because it was a landscape business, this is expansive.

Joe Spaulding said he would like to thank Scott Hill for cleaning up that area. Mr. Spaulding continued that if you lived in Newbury and drove by there every day, it was a complete disaster, Mr. Hill took his own money, his own time, cleaned it up, bought the land legally, Mr. Hill is a business man who is trying to open a business to serve the community of Newbury. Mr. Spaulding said he doesn’t have a garage and he has been trying to get into one in Sunapee for three months, this Town needs storage.

Eric Nadeau said he understands for the people who live around the property and their concerns, we are all scared of change, something new that is going to be in our backyard. Mr. Nadeau continued that this Town allowed a 55 and older hotel size building to be built right behind his house, he is the closest house to this building, he voted it out, no way because they are going to have spotlights in the parking lot, he is not going to see the stars no more, going to hear noise and traffic, everything is going to be an issue. Mr. Nadeau said the Town voted it in and it happened, and he was so wrong, the people are wonderful, they are quiet, never had a problem with them.

Cassie Hall said she lives on Steves Road, and she was not for this to begin with, however, she took the time to talk with Mr. Hill and find out exactly what he wanted to do with it, Mr. Hill asked her what she wanted because she lives there. Ms. Hall said she doesn’t think anyone has taken the time to learn about it, but it is not a bad idea. Ms. Hall said that she has a son in high school, but you slow down to go to a business, it’s not a shopping mall, there is not going to be traffic in and out of there all day every day, there may be some days when nobody goes there, it’s not going to bring high traffic.

Durham Jones, 842 Route 103A, said he lives in a residential district, he thinks that Newbury needs a storage facility, but it shouldn’t be in a residential district, it should be in a commercial district, what does it do to real estate values, who wants to live right next door to a storage facility.

Mr. Azodi said there have been several questions about the traffic impact and he thinks that Ms. Messer mentioned impact from other storage facilities. Ms. Messer said the traffic going to and from a storage facility is similar to that of going to a cell tower, it is the least traffic of any retail business or any business you could have, even an in-home business where people are selling maple syrup, it is the least impactful from a traffic standpoint. Mr. Azodi asked where Ms. Messer got that statement. Ms. Messer said Investmentrealestatellc.com.

Russ Jewell said that over half of his building, are people that put stuff in in November and don’t come back until Spring. Discussion followed.

Mr. Thomas read into the record the following from the Newbury Chief of Police (page 23):

To whom it may concern,

 I am writing this letter in regard to the land on Route 103 A in the Town of Newbury in which Scott Hill wishes to have storage units. I do not see any police issues regarding storage units in this area. The roadway in that area is straight and free from obstructions and thus I do not believe there would be any hindrance to daily traffic nor any influx in motor vehicle accidents if storage units were allowed to be placed here. The Police Department has no objection to this.

Respectfully,

Chief Bradley Wheeler

Newbury Police Department

Brenda Balassone said she lives at the end of Steves Road, so if you get to that road and you get to the last property, you are turning around right in front of her driveway. Ms. Balassone said she would like the Board to consider, that most of the folks sitting in the front, have been the people that have been here for all the hearings previously, we’ve been fighting this, we are the people that will be directly affected from this, and we don’t want this in our neighborhood. Ms. Balassone said we’ve watched them rip apart the whole watershed, rip up whatever the so-called septic system that was in there, she would like to see if it is even in there anymore because we saw it all up in pieces up in the yard and it was very concerning to somebody’s who’s into where the water goes. Ms. Balassone continued that she doesn’t think that most of these folks, why don’t we bring it down to South Newbury, why don’t we bring it down to where other folks live that are representing the need so badly, why is there not other spaces in the actual commercially zoned spots, that’s where we are supposed to put this stuff, we don’t need it in our area, this is not the area where it’s supposed to be, just because the applicant got a deal on the property and thought he was going to clean it up, great, she is glad that maybe he cleaned it up, maybe not, we don’t know because no one has done any research. Ms. Balassone said they can hear the boats from the lake now because all the trees have been taken down. Discussion followed.

Mr. Thomas read into the record the following from Newbury resident June Fichter (page 22):

To the Newbury Zoning Board Chair and Members,

RE:

7:10 pm April Messer (agent), Scott B Hill (owner), for property located at Route 103A 705 Route 103A Newbury NH will seek a Variance from the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance to permit the following: Commercial self-storage facility as a permitted use in the Residential District Newbury Tax Map 016-003-127 & 016-036-132.

I recommend denying the request for a variance on the property at Newbury Tax Map 016-003-127 & 016-036-132 for a self-storage facility.

Article 5 of the Newbury Zoning Regulations defines the purposes and uses of Residential District. It includes reinforcing the town's Master Plan goals to preserve its rural character, to promote housing which maintains and strengthens traditional New England settlement, to preserve the natural, scenic, and historic resources, etc.

As this property is in the Residential District, with residences around, it would be totally unfair to that area to allow a variance for a self-storage facility. Even now, there are port-a-potties on the said property that certainly do not promote the rural character, nor belong in a residential setting.

I urge you to deny this request for a variance and keep the area truly residential.

Thank you for your consideration,

Sincerely, June Fichter

Resident of Newbury, NH

Mr. Thomas said that he is also putting into the record a support petition with an estimated 140 signatures (pages 27A-H)

John Witemeyer said that he had submitted a letter for the special exception hearing so he would respectfully ask that that letter be added into these proceedings. Mr. Thomas said that it would have to be submitted beforehand. Ms. Holmes said that was for a previous hearing. Mr. Thomas said that he does not have the letter to read into the record and the Board can’t remember what was in that letter to affect any decisions made here.

John Perry asked if 5.5.2 could be read into the record and where it says that in order for this to be passed that the residents have to approve it. Mr. Thomas said that says any use not listed in section 5.3 or section 5.4 is not permitted. Mr. Thomas said that is why we are here, it is not permitted, the Board is hear to listen to a variance. Mr. Perry said it also says something in there that it has to be approved by the abutters or the residents. Mr. Thomas said he is not seeing that. Discussion followed.

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

Mr. Carr said he would like an opportunity to respond to some of the concerns raised by the public comment.

Mr. Thomas said okay, for a short period.

Mr. Carr said with respect to the abutters, Mr. Hill’s actions already and the presentation, the proposal as far as working with the abutters, he definitely is trying to have this property end up in a condition better than it was before. Mr. Carr said he understands concerns about traffic, but the applicant is willing to work with the abutters. Mr. Carr said the other thing the attorney represented was the nature of granting a variance, the Board’s consideration is that does this adversely affect the character of the neighborhood and that’s where you have to consider the use, the history of this lot and it has not been a residential lot, it’s always been used commercial, there’s more record in the Zoning Board’s history than was presented by the attorney, but this has always been used commercially, it would be difficult, if not impossible, to use that non-conforming lot residentially, he doesn’t have to be an engineer to say a half-acre lot with 140 feet of frontage doesn’t meet the requirements of the Zoning Ordinance, that one does not, so what the applicant is asking for is in keeping with the character of this lot and that neighborhood, to use it as a commercial use which is far less impactful than what’s been there before.

Mr. Thomas again closed the public portion of the meeting.

Deliberations

Ms. Holmes said at the last hearing, she feels the Board was very overwhelmed by the history of it and it seems to her that some of the Board’s concerns, the lighting, trees, vegetation, trying to make it more private so that it wouldn’t affect the neighbors, it seems the applicant has really addressed that in this presentation. Ms. Holmes continued that she thinks the Board should be mindful of that. Ms. Holmes said when the applicant came before the Board before, it was kind of by the seat of their pants, but they got it together, to have an engineer look at the water, a wetland scientist to see what the land is really about, the applicant is talking about downward lighting. Ms. Holmes said that one of the Board’s big concerns was people could come and go all the time and now the applicant has put constraints on that, six to six and six to eight. Ms. Holmes said she thinks the Board should vastly consider the effort the applicant has made to make it more pleasing, and it is an aesthetic situation, aesthetics means a lot to people.

Mr. Thomas said the applicant will need to make a presentation to the Planning Board for Site Plan Review, which is going to even further address what Ms. Holmes just spoke about, the lighting, tree screening, parking lot, impervious grounds, water retention, this will have to go through another public hearing. Mr. Thomas said the applicant has come a long way from the original special exception hearing on finding out more of what is going to happen to this piece of land.

Ms. Holmes said she was wondering why the applicant didn’t go to the Planning Board first. Ms. Favreau said the applicant did.

Dan Wolf said he had a point of order. Mr. Hill said he can’t talk. Mr. Wolf said that the Board allowed Mr. Carr to go. Mr. Thomas said Mr. Carr went, and he closed it again, Mr. Thomas continued that he was looking away when he said no more public comment and Mr. Carr’s hand was up when Mr. Thomas looked over. Mr. Wolf said he was going to make it easy for Mr. Thomas, that he would say to him, he can support this, but he asks the Board to put these things into conditions of the approval, which Mr. Hill has offered to do, the lighting, the landscaping, etc. Mr. Wolf said they should be in writing on the plans. Mr. Thomas thanked Mr. Wolf for the comment, even though Mr. Thomas took him out of order. Mr. Thomas said that he thinks to cover that, if the Board grants it pending the approval of Planning Board, Site Plan Review, which is going to cover lighting, tree planting, things to make it look appealing and protect the views of the neighborhood. Mr. Wolf said that Mr. Jewell had done one in Wilmot, all of his thing went through the Zoning Board and its conditions that went in there. Mr. Carr said the applicant was open to that. Mr. Jewell said the Board can put these conditions forward so when it gets to the Planning Board. Mr. Thomas said thank you, he is breaking his own rules of no more public input. Mr. Thomas said when the Board does the motion, they can add conditions to the motion.

Mr. Briggs said before the Board gets to the motion, they should talk about the conditions, he will start the list. Mr. Briggs said he thinks the Board ought to have it. Discussion followed.

Mr. Briggs made a motion that the Board add conditions if the Board decides to give a variance.

Ms. Holmes seconded the motion. All in favor.

Discussion followed on conditions.

Dan Wolf said he had a point of order and suggested to the Board that Ms. Favreau put this altogether in writing and then the Board comes back, reviews it at the final meeting because the Board is going to try to do this on different scraps of paper and some people may have different opinions. Mr. Thomas said that it is going to be done on the recorder, what is read is the motion, the Board has a recorder going, so it will not be scratches on pieces of paper. Mr. Thomas said that Ms. Favreau takes notes, and she plays the recording back.

Mr. Briggs made a motion to vote on the application of Scott B. Hill owner of the property located on Route 103A and 705 Route 103A, Newbury, NH who is seeking a Variance from the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance to permit the following: A commercial self-storage facility as a permitted use in the Residential District, reference Newbury Tax Map 016-003-127 & 016-036-132, to add the following conditions:

1. Outdoor down lighting, only during the hours of operation.
2. Attractive fencing.
3. All storage must be inside the buildings, no on-site storage of vehicles, trailers, boats or structures outdoors.
4. The structures shall be single story only.
5. The only access to the business will be from Route 103A.
6. Signage on Steves Road to advise drivers this is not an entrance to the storage facility or something similar.
7. Attractive vegetation screening for the neighbors.
8. A robust stormwater management plan to protect Lake Sunapee, to include things like a retention pond.
9. Hours of operation to be 6 to 8 in the summer and 6 to 6 in the winter.

Mr. Hurd seconded the motion.

Roll Call Vote:

Katheryn Holmes voted to Grant the Variance from Paragraph 5.2.2 because the history of this area has been commercial and she thinks the applicant has really attempted to make it in compliance with a nice commercial area, vegetation etc.

Alex Azodi voted to Grant the Variance from Paragraph 5.2.2, he believes substantial effort has been made to make it much better than what it is, it has been very unsightly. Mr. Azodi said the alternative is that the applicant could continue with what was there before, he thinks this is an improvement to what was there.

Larry Briggs voted to Deny the Variance from Paragraph 5.2.2, he is not persuaded by the responses to the five questions, 16.8.1 through 16.8.5 and in particular several stood out to him, 16.8.1, which is not contrary to the public interest. Mr. Briggs continued that he thinks this is a profound change to the character of the neighborhood and secondly on 16.8.5, that it won’t have an adverse effect on property values, he saw no evidence that it wouldn’t, but his instinct tells him that it will, specially for the abutters. Mr. Briggs said although there was a large number of people speaking tonight in favor, his heart goes out to those that live next to the facility.

Steve Hurd voted to Grant the Variance from Paragraph 5.2.2, it kind of goes to the saying when the Town was doing the fire station, he really wasn’t in favor for that, he knew we needed a fire station, he wasn’t keen on the spot, but everybody told me, you won’t even notice it six months to a year, it will blend right in, so that is how I feel about this, he thinks it goes good.

Henry Thomas voted to Grant the Variance from Paragraph 5.2.2, he feels that this isn’t 1880, it’s 2023 and times have changed, needs have changed, there is a rural character to this Town and the Town has done good keeping it rural, and he believes that this will blend in just like every other change in this Town. Mr. Thomas continued that he feels what the applicant presented is meeting criteria to change that use of the property, to better that property.

Four votes to Grant the Variance. One vote to Deny the Variance

Mr. Thomas said the applicant needed three yes votes.

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

The meeting adjourned at 10:01 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secreta