Zoning Board Minutes
Zoning Board of Adjustment
February 11, 2019
Approved April 8, 2019
Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Nancy Marashio, Gary Budd, Members.
Mr. Fichter called the meeting to order at 7:00 p.m.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of January 14, 2019 and made corrections. Mr. Fichter made a motion to accept the minutes as corrected. Mr. Blohm seconded the motion. All in favor.
Stormwater Management Plan Work Session
Mr. Fichter informed the Board that he spoke with the Code Enforcement Officer (CEO) about setting up a work session to discuss stormwater management plans. Mr. Fichter noted that he and the CEO agreed that a number of additional individuals should be included in the work session. Mr. Fichter added that a date for the meeting will be forthcoming.
Rules of Procedure
The Board reviewed the ZBA Rules of Procedure. Ms. Marashio suggested adding to Section V Appeal Procedure, Item # 3 Applications, under section a), subsection 9) the following edit so the copy reads as follows: “Stormwater Management Plan (10 copies) when applicable. (See Article 21.3 of the Newbury Zoning Ordinance.)” The Board concurred.
There being no further discussion, Mr. Fichter called for a Motion to Vote.
Mr. Fichter made a motion to adopt the ZBA Rules of Procedure as amended. Mr. Budd seconded the motion. All in favor.
At 7:15 p.m., Mr. Fichter introduced the Board and reviewed the hearing process with the applicant and members of the public.
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 Monday, February 11, 2019 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:15 p.m., Eric K. Scholl Trust (owner), Dan Monette from Fuss & O’Neill (agent), for property located at 42 Highland Ave., Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2, 9.4 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Construction of an addition to the existing non-conforming building within the 75’ lake and permanent stream setback and on steep slopes. Newbury Tax Map 018-318-129.
Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 am-noon.
Mr. Fichter noted that there are three Variances for this hearing. He suggested that the Board consider all three variances concurrently since the information contained in Article 16.8 of each Variance application is similar. He noted that where said information differs, the applicant will read that information into the record. Mr. Fichter added that the Board will vote on each of the Variance applications separately. The Board agreed.
Dan Monette, Fuss & O’Neill, agent, presented to the Board.
Mr. Fichter notified Mr. Monette of the limited number of Board members present and asked him if he wanted to proceed or continue the hearing until there is a full Board present. Mr. Monette stated that he wished to proceed.
Mr. Monette described the proposed plan as including a 360 square foot addition to the existing single-family dwelling footprint. The existing dwelling is a modest one-story cabin with a partial lower level constructed circa 1940 on a 0.7-acre parcel entirely within the Steep Slope Conservation District. He added that in 1985 some modernization was done on the interior of the cabin which added a 60 square foot addition for a kitchen eating area on the south side of the building.
The plan calls for the demolition of the 60 square foot kitchen eating area. Mr. Monette said that results in a net proposed expansion of 300 square feet. He added that of the 300 square feet, approximately 150 square feet of the addition is within the 75-foot primary building setback.
Mr. Monette stated that, after reviewing the requirements of Section 7,4.2 of the Newbury Zoning Ordinance, he determined that he was unable to confirm that a variance to the 75-foot primary building setback was required. He added that the CEO requested that a variance application for 7.4.2 be submitted.
Mr. Monette stated that this variance application does not make the property less conforming due to the fact that the addition is not closer to the lake than the existing non-conforming cabin and attached decks.
Mr. Monette said that there is an existing conditions report containing an engineer’s stamp. He added that a slope analysis was run. The property is one of the smallest properties in the neighborhood and the house is one of the smallest (700 square feet), as well.
Mr. Fichter asked if the plot plan includes the proposed footprint setbacks. Mr. Monette said yes and indicated that the side setbacks are within the applicable requirements. He added that all existing roof lines will continue out with the proposed addition.
Mr. Monette described the components of the proposed addition as including a new kitchen, living area and a master bedroom on the lower level. Also, there will be a large wraparound deck and replacing the current stone patio area with a pervious surface to improve drainage. He noted that plans call for improved stormwater management that include added infiltration areas, a bio retention basin, increased landscaping, and pervious surfaces where applicable.
Mr. Fichter informed Mr. Monette that the latter’s assertion that the proposed plans will make this non-conforming building less non-conforming is incorrect. Mr. Fichter pointed out that Mr. Monette is increasing the existing building floorplan. Discussion followed regarding what constitutes making a building more non-conforming – square footage or the floorplan.
Mr. Fichter reviews the town regulations regarding the 75-foot primary building setback, noting that Mr. Monette is increasing the size of the dwelling unit. Mr. Fichter reads into the record Article 15, Section 15.2 Non-conforming Building, Paragraph 15.2.1 Alterations and/or Expansions as follows: “Alteration and/or expansion of an existing non-conforming building which does not conform with the dimensional controls for building height, setback requirement, or building separation requirements is permitted as long as the alteration and/or expansion does not make the building more non-conforming; i.e., the alteration and/or expansion must be constructed within the approved height limitations, setbacks and building separation requirements of the district in which it is constructed, including the overlay district requirements which may apply to that location.”
Discussion followed regarding which measurement to use – a linear foot measurement or square footage measurement. Mr. Fichter reiterated the statement that Mr. Monette’s proposed plan is, indeed, making this building more non-conforming, not less. Mr. Monette concedes the point.
Mr. Blohm asked about the proposed stormwater management components. Mr. Monette said the proposed drip edges are 24-inches wide and the stormwater drain goes into the ground. Mr. Monette shares photos of the site and indicates the existing rainwater garden landscaping, where pervious surface will replace the current impervious patio area, and the proposed bio-retention basin.
It was noted that the options for expansion are very limited, given the existing conditions of the property. He added that erosion control includes straw waddles and silt fences during construction. He added that proposed plantings include native and shade species, low bush blueberries, and hay-scented fern.
There being no further questions from the Board, Mr. Monette addressed Article 16.8 of the zoning ordinance regarding Variance from the requirements of Paragraph 7.4.2 as follows:
16.8.1 The variance will not be contrary to the public interest because: The addition on the 0.7-acre property is minor and represents a reasonable expansion of the single-story cabin. Design elements will be implemented during and after construction that will minimize impacts to the environment and lake. The owner has proposed to compensate for impervious area of the addition by converting an existing 200 square foot impervious stone patio area into the bio-retention basin. 150 square feet of the addition is within the 75-foot primary building setback compared to the approximately 200 square foot bio-retention basin. The addition and bio-retention basin are on private property, not visible from the public ROW and there are no known unfavorable impacts to the public interest.
Ms. Marashio asked if the new addition will be visible from the lake. Mr. Monette said it will be barely visible.
16.8.2 Special conditions exist such that literal enforcement of the ordinance
results in unnecessary hardship,
There are special conditions in the property that distinguish it from other properties in the area because: The property is steeply contoured and there are no other potential areas in which the property can be expanded in a modest and reasonable way. The property is restricted by the existing driveway configuration, lack of space to the landward side of the house due to the placement of a septic pump chamber, tall retaining walls, and zoning ordinances which have limits on height and buildable area due to steep slopes. Access in the winter months is very difficult and hazardous. Very few lake front homes are as restricted as this property.
Mr. Fichter noted that all the houses on that side of the avenue are situated on steep slopes, which negates using the steepness of the property as a special condition. Mr. Monette stated that the Scholl property is a lot steeper than the neighboring lots.
The property is different in a meaningful way from other properties in the area because: The existing dwelling is rustic and modest. Many homes on the lake have been converted to modern largescale homes which maximize the lot coverage allowed. This home footprint is considerably more reasonable and environmentally conscious. The home has historically been seasonally occupied, and the owner has desired increased utilization without major redevelopment. A small addition will be a great improvement on current living conditions by allowing better maneuverability and providing needed storage space for longer term occupation while maintaining this modest character.
The property is burdened more severely by the zoning restrictions because: This property is uniquely compromised because the existing dwelling already straddles the 75-foot building setback line and any reasonable expansion would require a variance. Because of the topography of the lot, expansion upwards would trigger height violations and would also be more costly to the owner and not meet the intended need. Very few other properties have existing topography consistent with 42 Highland Avenue. There are no potential alternative expansion opportunities without creating additional zoning violations or increased disturbance and cost. The requested addition is a reasonable use of the property. The original dwelling has functioned for many years without harming surface waters. The addition is expected to function harmoniously, appropriately within the 75-foot building setback as the current structure does.
Because of the special conditions of the property, the proposed use of the property is reasonable because: The property provides no other potential area in which the property can be expanded in a modest and reasonable way. The owner would like to be able to spend more time at the property and the current seasonal nature of the home is cramped/crowded. The proposed addition would greatly improve living, storage, maneuverability, and aesthetics of the structure while also not resulting in any negative impacts for which the shoreland overlay district setback was written to prevent/reduce.
Mr. Monette added that all neighboring houses are much larger than the Scholl house and all neighboring houses have maximized lot coverage.
16.8.3 The variance is consistent with the spirit of the ordinance since: The ordinance is written to provide a buffer between buildings and the lake to allow stormwater filtration. The ordinance is a setback which is described as a linear foot measurement from the building or attached structures to the lake reference line. The existing house and attached structures are already straddling the 75-foot buffer. The proposed addition does not increase the nonconformity of the structure because it is no closer than the existing house and there is no increase in impervious area within this 75-foot buffer due to the removal of the stone patio area. Therefore, the spirit of the ordinance is consistent with the proposed work. The proposed work is designed to protect surface water from sedimentation, turbidity, and runoff of stormwater. Drip edges are proposed along roof edges to promote infiltration and prevent erosion, a rain garden or bioretention area is proposed to help manage existing flows sourced from the existing driveway and main house. These stormwater management features will manage runoff from an area larger than the proposed development resulting in a net benefit to water quality. Temporary siltation fencing will be required down slope of all disturbance areas. The addition is proposed to be constructed on piers which will limit the disturbance to the existing stable ground surface. The overall area is minor in comparison to many lakeside projects. There will be no foreseen impact to surface water or abutters. The lot is currently developed and could adequately accommodate this minor addition.
Mr. Fichter stated that a property owner can maintain what he/she has and do what he/she wants to do as long as the result is not more non-conforming. Mr. Monette said the application is looking at the entire lot, including the enhanced stormwater management, not just the building.
Mr. Fichter stated that it is notable that the owner is including stormwater management in his plans. However, the argument that this proposed plan is less non-conforming is not supported by the Newbury Zoning Ordinance. Mr. Monette concedes the point.
16.8.4 Substantial justice is done because: What the owner has requested is reasonable and modest. The design is not only focused on the addition area but is intended to reduce the overall environmental impacts from the whole property. If this same level of engineering and stormwater management was implemented at every property around the lake it would result in a noticeable benefit, as the environmental benefit of the proposed stormwater infrastructure largely outweighs the modest proposed increase in development. This variance request meets all of the criteria and is a betterment to the lot and lake.
16.8.5 The value of surrounding properties will not be diminished because: The addition is within side setbacks and does not increase the height of the structure. The addition is to the side only and is no closer to the road or lake than the existing structure. The addition will increase the value of the subject property which, in turn, improves the neighborhood.
Re: Variance from the requirements of Paragraph 9.4
Mr. Monette addressed Article 16.8 of the zoning ordinance as follows:
16.8.1 The variance will not be contrary to the public interest because: The addition on the 0.7-acre property is minor and represents a reasonable expansion of the single-story cabin. Design elements will be implemented during and after construction that will minimize impacts to the environment and lake. The owner has proposed to compensate for impervious area of the addition by converting an existing 200 square foot impervious stone patio area into the bio-retention basin. The bio-retention garden shall catch storm drainage to (i) slow its erosive velocity, (ii) allow infiltration, and (iii) reduce impervious coverage within the 75-foot Newbury building setback. The proposed work is on private property and there are no known unfavorable impacts to the public interest by allowing this addition. The requested stormwater management shall be beneficial to the environment, the lake and the public interest.
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 0.7-acre property is entirely within the Steep Slope Conservation District. There are no other potential areas in which the property can be expanded in a modest and reasonable way. The property is restricted by the existing driveway configuration, lack of space to the front side of the house due to the placement of a septic pump chamber, tall retaining walls, and restrictive zoning ordinances which have limits on height and buildable area due to steep slopes and shoreland protection. Access in the winter months is very difficult and hazardous. Very few lake front homes are as restricted as this property.
b. The property is different in a meaningful way from other properties in the area because: The existing 1940s cabin is modest for the 0.7-acre property. The dwelling is rustic and modest. A modern, largescale conversion similar to many current lakefront properties is not desired. This home is considerably more reasonable and environmentally conscious. Historically, the cabin has been seasonally occupied. However, the owner is retired and desires all-year utilization of the cabin. Therefore, the modest addition to the single-story cabin will improve circulation, livability and storage for longer occupation. The addition will be a great improvement on current living conditions.
c. The property is burdened more severely by the zoning restrictions because: The property is entirely within the Steep Slope Conservation area and is therefore any development on the property is restricted by Section 9.4. There is no alternative location for the addition as outlined in (a) above. This property is uniquely compromised and very few other properties have existing topography consistent with 42 Highland Avenue. The addition as designed is intended to limit additional zoning violations or increased disturbance and cost. The requested addition is a reasonable use of the property. The original dwelling functioned for many years without harming surface waters. The addition is expected to function harmoniously, appropriately and safely on these steep slopes.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: Considering the modest size of the cabin for the 0.7-acre property, the small addition is a reasonable expansion of the existing residential use. It is reasonable to allow the opportunity for comfortable all-year living. The proposed addition would greatly improve living, storage, maneuverability, and aesthetics of the structure while also not resulting in any negative impacts for which the steep slopes ordinance was written to prevent/reduce.
16.8.3 The variance is consistent with the spirit of the ordinance since: The spirit of the Steep Slope Conservation area ordinance is balance, the ecological balance between the pristine natural and man’s attraction to enjoy it…especially in the steep slope areas surrounding the lake. The ordinance severely limits development on the steep slopes in both the intensity of the use and the scale of the development because of the potential erosion and sedimentation from the stormwater runoff on steep slopes. Therefore, best practices for erosion and siltation prevention and control will be used for the construction of the addition. Super silt fence (standard 24-inch tall silt fence fabric) shall be installed prior to any disturbance on the lower perimeter of the proposed disturbed area. The addition will be constructed on concrete piers to avoid blasting and minimize disturbance of the existing table ground surface within the footprint of the addition. Drip edges are also proposed along roof edges to promote infiltration and prevent erosion. The overall area is minor in comparison to many lakeside projects. There will be no foreseen impact to surface water or abutters. The lot is currently developed and could adequately accommodate this minor addition. Finally, the bio-retention basin described above more than compensates for the additional impervious area of the addition, and therefore this variance request encompasses the spirit of the ordinance and shall be beneficial to ecological balance of the environment, the lake and the public interest.
16.8.4 Substantial justice is done because: What the owner has requested is reasonable and modest. The design is not focused on the addition area but is intended to reduce the overall environmental impacts from the whole property. If this same level of engineering and stormwater management was implemented at every new project around the lake it would result in a noticeable benefit. The addition is both reasonable and modest for the 0.7-acre property. The proposed bio-retention basin provides the unique opportunity to reduce the overall environmental impact within the Steep Slope Conservation area.
16.8.5 The value of surrounding properties will not be diminished because: The addition is within the 15-foot side setback on the south side and is no closer to the lake than the existing cabin. The addition does not increase the height of the structure. The addition will increase the value of the property which in turn improves the value of the overall neighborhood.
Re: Variance from the requirements of Paragraph 15.2.1
Mr. Monette addressed Article 16.8 of the zoning ordinance as follows:
16.8.1 The variance will not be contrary to the public interest because: The addition on the 0.7-acre property is minor and represents a reasonable expansion of the single-story cabin. Design elements will be implemented during and after construction that will minimize impacts to the environment and lake. The owner has proposed to compensate for impervious area of the addition by converting an existing 200 square foot impervious stone patio area into the bio-retention basin. 150 square feet of the addition is within the 75-foot primary building setback compared to the approximately 200 square foot bio-retention basin. The addition and bio-retention basin are on private property, not visible from the public ROW and there are no known unfavorable impacts to the public interest.
16.8.2 Special conditions exist such that literal enforcement of the ordinance
results in unnecessary hardship,
a. There are special conditions in the property that distinguish it from other properties in the area because: The property is steeply contoured and there are no other potential areas in which the property can be expanded in a modest and reasonable way. The property is restricted by the existing driveway configuration, lack of space to the landward side of the house due to the placement of a septic pump chamber, tall retaining walls, and zoning ordinances which have limits on height and buildable area due to steep slopes. Access in the winter months is very difficult and hazardous. Very few lake front homes are as restricted as this property.
b. The property is different in a meaningful way from other properties in the area because: The existing dwelling is rustic and modest. Many homes on the lake have been converted to modern largescale homes which maximize the lot coverage allowed. This home footprint is considerably more reasonable and environmentally conscious. The home has historically been seasonally occupied, and the owner has desired increased utilization without major redevelopment. A small addition will be a great improvement on current living conditions by allowing better maneuverability and providing needed storage space for longer term occupation while maintaining this modest character.
c. The property is burdened more severely by the zoning restrictions because: This property is uniquely compromised because the existing dwelling already straddles the 75-foot building setback line and any reasonable expansion would require a variance. Because of the topography of the lot, expansion upwards would trigger height violations and would also be more costly to the owner and not meet the intended need. Very few other properties have existing topography consistent with 42 Highland Avenue. There are no potential alternative expansion opportunities without creating additional zoning violations or increased disturbance and cost. The requested addition is a reasonable use of the property. The original dwelling has functioned for many years without harming surface waters. The addition is expected to function harmoniously, appropriately within the 75-foot building setback as the current structure does.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The property provides no other potential area in which the property can be expanded in a modest and reasonable way. The owner would like to be able to spend more time at the property and the current seasonal nature of the home is cramped/crowded. The proposed addition would greatly improve living, storage, maneuverability, and aesthetics of the structure while also not resulting in any negative impacts for which the shoreland overlay district setback was written to prevent/reduce.
16.8.3 The variance is consistent with the spirit of the ordinance since: The ordinance is written to prevent increasing a current non-conformity. The proposed design incorporates methods for achieving greater conformity such as reducing overall square footage of impervious within 75-feet of the lake, enhancing stormwater management, adding infiltration areas and landscaping to provide better environmental resource protection. Therefore, the spirit of the ordinance is consistent with the proposed work. The proposed work is designed to protect surface water from sedimentation, turbidity, and runoff of stormwater. Drip edges are proposed along roof edges to promote infiltration and prevent erosion, a rain garden or bioretention area is proposed to help manage existing flows sourced from the existing driveway and main house. These stormwater management features will manage runoff from an area larger than the proposed development resulting in a net benefit to water quality. Temporary siltation fencing will be required down slope of all disturbance areas. The addition is proposed to be constructed on piers which will limit the disturbance to the existing stable ground surface. The overall area is minor in comparison to many lakeside projects. There will be no foreseen impact to surface water or abutters. The lot is currently developed and could adequately accommodate this minor addition.
16.8.4 Substantial justice is done because: What the owner has requested is reasonable and modest. The design is not only focused on the addition area but is intended to reduce the overall environmental impacts from the whole property. If this same level of engineering and stormwater management was implemented at every property around the lake it would result in a noticeable benefit, as the environmental benefit of the proposed stormwater infrastructure largely outweighs the modest proposed increase in development. This variance request meets all of the criteria and is a betterment to the lot and lake.
16.8.5 The value of surrounding properties will not be diminished because: The addition is within side setbacks and does not increase the height of the structure. The addition is to the side only and is no closer to the road or lake than the existing structure. The addition will increase the value of the subject property which, in turn, improves the neighborhood.
Mr. Blum asked if Mr. Monette intends to cut trees. Mr. Monette said yes, a dead 14-inch hemlock will be removed along with several smaller trees – enough to get a small excavator down into the site.
Mr. Fichter refers to paragraph 4 in the executive summary materials of the Variance application for 15.2.1 which states: “From our interpretation, this Variance Application does not make the Property less conforming due to the fact that the Addition is not closer to the lake than the existing non-conforming Cabin and attached structures (the Deck).”
Mr. Fichter noted the double negative in this statement.
Mr. Monette added that he has a certified boundary plan and a DES Shoreland permit.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
Kimberly Sobel, 26 Cloverfield Road, Newbury, an abutter, said she supports the plan. She said this will help her in her access to her property. Mr. Blohm asked what is impeding her access. She said there is a lot of debris that has been placed there by another neighbor. She added that if Mr. Scholl is living on site full time, it will help minimize the accumulation of debris and help with the ongoing care of the lake.
There being no further comment from the Public, Mr. Fichter closed the public portion of the hearing and the Board went into deliberations.
Mr. Blohm noted that, other than the steep slope considerations, the plan calls for significant improvements to stormwater management. He added that this is a modest change to the existing house, and it represents a reasonable use of the property.
Ms. Marashio stated that the cabin was built in the 1940s before setback regulations were put in place. She stated that she is inclined to be OK with the setback concerns. She noted that the entire property will be more conforming as a whole, and the improved stormwater management is a plus.
Mr. Budd said this is a modest project and stormwater management is improved. He added that he agrees with the points made by Mr. Blohm.
Mr. Fichter stated that he is not in favor of a “trade-off” approach that presents improved stormwater management as a reason to overlook other concerning elements to the application. He added that the stormwater management plans offer a net benefit to the lake and offsets some of the setback questions.
There being no further discussion from the Board, Mr. Fichter called for a Motion to Vote on all three Variances.
Mr. Blohm made a motion to vote on the request from Eric K. Scholl Trust for property located at 42 Highland Avenue, Newbury, NH 03255 Newbury Tax Map 18-318-129
for a Variance from the requirements of Paragraphs 7.4.2, 9.4, and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Construction of an addition to the existing non-conforming building within the 75-foot lake and permanent stream setback and on steep slopes. Newbury Tax Map 18-318-129. Mr. Fichter seconded the motion.
Ms. Marashio voted to Grant the Variance from Paragraphs 7.4.2, 9.4, and 15.2.1.
Mr. Blohm voted to Grant the Variance from Paragraphs 7.4.2, 9.4, and 15.2.1.
Mr. Budd voted to Grant the Variance from Paragraphs 7.4.2, 9.4, and 15.2.1.
Mr. Fichter voted to Grant the Variance from Paragraphs 7.4.2, 9.4, and 15.2.1.
Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision as per RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based.
Mr. Fichter called for a break at 8:30 p.m.
The meeting resumed at 8:34 p.m.
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 Monday, February 11, 2019 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:30 p.m., Joan & Arthur Burritt (owners), Robert Stewart of RCS Designs (agent), for property located at 26 Birch Grove Rd., 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 3-bedroom dwelling within the 30’ right-of-way setback. Newbury Tax Map 019-425-193.
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.
Bob Stewart, RCS Designs, agent, presented to the Board.
Mr. Fichter asked Mr. Stewart if he wanted to proceed with the hearing, given the four-member Board. Mr. Stewart said yes.
Mr. Stewart said the parcel in question originally had two houses on it, which is why the town tax map has two lot listings instead of one. He said the property is located on what used to be the old Route 103.
Ms. Marashio stated that the old route 103 is noted for varying setbacks. Mr. Stewart agreed, adding that the parcel’s ROW is 66 feet, or 4-rods. He said the applicant wants a 23-foot setback and is looking for 8 feet of relief.
Mr. Fichter asked if the parcel was located on a regular road in Newbury, would the setback be OK. Mr. Stewart said yes.
Mr. Stewart added that this is the only property on this side of the road. He said there has been a voluntary merger of lots and that the current house on the property will be demolished along with the garage. He noted that a state approved septic design is in place. He added that the proposed house is 59-feet from the centerline of the road.
There being no more questions from the Board, Mr. Stewart addressed Article 16.8 of the zoning ordinance:
16.8.1 The variance will not be contrary to the public interest because: This is a lot of record located on Birch Grove Road. The ROW for this road is 4 rods or 66-feet. Typical road ROWs in Newbury are 49.5 to 50-feet wide. Setbacks for most roads in the Residential District require a setback that is 55-feet from the centerline of the road. Variance request for this property 22-feet from the ROW or 59-feet from the centerline of the road. The relief sought is a setback of 22-feet from the ROW. The result of the requested setback is a greater setback distance than most homes complying to a 30-foot setback on a road with a 50-foot ROW.
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 fact that the property is adjacent to a state highway and said highway’s constructed slope is part of this lot which has resulted in an artificial obstruction. The property fronts on a town road with a 66-foot ROW whereas most town road ROWs are 5-feet or less.
b. The property is different in a meaningful way from other properties in the area because: This is the only property on Birch Grove Road that is affected by the constructed side slopes of NH Route 103.
c. The property is burdened more severely by the zoning restrictions because: Most town roads in Newbury have a ROW of 50-feet. This property is located on a 66-foot wide ROW.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: It allows for the construction of a reasonable-sized home on the lot without the use of extreme retaining walls. The result of a 22-foot setback with a 66-foot ROW results in an offset of 60-feet from centerline versus a typical of 55-feet from centerline of a 50-foot ROW with the same 30-foot setback.
16.8.3 The variance is consistent with the spirit of the ordinance since: The overall setback of the proposed building from the edge of the road and centerline of the road is the same or greater than most lots throughout the residential district.
16.8.4 Substantial justice is done because: In granting the variance, the intent of the zoning article is preserved with respect to setback from the actual road travel way and, as a result, extraordinary measures are not necessary to build on this lot.
16.8.5 The value of surrounding properties will not be diminished because: The overall setback of the proposed building from the edge of the road and centerline of the road is the same or greater than most lots throughout the residential district.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
There being no public present, Mr. Fichter closed the public portion of the hearing and the Board went into deliberations.
Mr. Blohm noted that erosion control measures are in place and Ms. Marashio agreed.
There being no further discussion from the Board, Mr. Fichter called for a Motion to Vote.
Ms. Marashio made a motion to vote on the request from Joan & Arthur Burritt for property located at 26 Birch Grove Road, Newbury, NH, Newbury Tax Map 19-430-207 & 19-425-193, for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a 3-bedroom dwelling within the 30-foot right-of-way setback. Newbury Tax Map 19-430-207 & 19-425-193.
Mr. Fichter voted to Grant the Variance from Paragraph 5.9.1.
Mr. Budd voted to Grant the Variance from Paragraph 5.9.1.
Mr. Blohm voted to Grant the Variance from Paragraph 5.9.1.
Ms. Marashio voted to Grant the Variance from Paragraph 5.9.1.
Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision as per RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based.
There being no further business to discuss, Mr. Fichter called for a Motion to Adjourn.
Mr. Blohm made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.
The meeting adjourned at 8:53 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary