Zoning Board Minutes

Meeting date:

Monday, May 13, 2019

Zoning Board of Adjustment

May 13, 2019

Approved June 10, 2019

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Nancy Marashio, Reed Gelzer, Members.

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

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of April 8, 2019 and made corrections. Ms. Marashio made a motion to accept the minutes as corrected. Mr. Fichter seconded the motion. All in favor.

Website

Ms. Marashio noted that there has been interest expressed from town residents regarding posting the ZBA agenda and public notices on the town website in advance of scheduled meetings. Mr. Fichter said he will speak to the Land Use Coordinator and Wayne Whitford regarding this.

OEP Conference

Mr. Fichter reminded ZBA members of the June 1 OEP Conference and encouraged all to attend if interested.

Election of Officers

Mr. Fichter turned over the meeting to the Recording Secretary. The Recording Secretary called for a motion to nominate the ZBA Chair for the upcoming year. Mr. Blohm made a motion to nominate Mr. Fichter as ZBA Chair for the upcoming year. Ms. Marashio seconded the motion. All in favor.

The Recording Secretary turned over the meeting to Mr. Fichter, the newly elected ZBA chair. Mr. Fichter called for a motion to nominate the ZBA Vice-chair for the upcoming year. Mr. Gelzer made a motion to nominate Mr. Blohm as ZBA Vice-chair for the upcoming year. Mr. Fichter 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. Mr. Fichter informed the applicant that the Board consists of four members – not five - for tonight’s hearing and asked if the applicant wished to proceed. The applicant said yes.

Craig Hricz presented to the Board. Mr. Hricz stated that when the property was purchased, the intent was to preserve the foundation but there was rot and structural dry rot present. So, an engineer was hired and the result was a slightly larger footprint with plans for a full tear-down and re-build. Plans call for a 4-foot cross wall slab for the new structure.

Mr. Fichter asked about the septic system and leach field. Mr. Hricz said the leach field is across the street on common community land and he would like to keep it that way. He added that they have a state approval for the septic system. He added that the state-approved septic system is on file for five years. If the existing leach field fails, then the approved new plan will be implemented. He added that an inspection of the septic system was done when he purchased the property and the report was that it was functioning properly.

Mr. Blohm asked about the proposed stormwater management plan. Mr. Hricz said the plan calls for a single shed style roof so water will run off towards the road. Shrubs will be planted, weed barrier placed under river rock which will be placed on top of the dirt. Louvered guttering will be used to direct water about 4-feet from the house. Discussion followed.

Mr. Blohm noted that usually, a French drain and holding tank is proposed. Mr. Hricz said he would be willing to do that.

Ms. Marashio raised additional considerations for Mr. Hricz to consider namely, silt buildup, runoff from the road, leaves accumulation and sand from winter plowing.

There was discussion about the placement of the proposed deck steps to minimize runoff. Also discussed was the question of whether this plan makes the property more non-conforming. Points made included the addition of a deck, which adds to the structural dimensions.

Mr. Hricz noted that the existing square footage is 1,084 and the proposed square footage is 1,253.25, which includes the roof line. The interior square footage of the existing building is 1,264 and the proposed building is 1,336.

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

16.8.1 The variance will not be contrary to the public interest because: A dwelling already exists in the same location, but it is not structurally sound and may collapse if left as is.

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: Positioning of a new structure is very limited sue to lot size and the proximity of water on one side and roadway on the other.

b. The property is different in a meaningful way from other properties in the area because: Current structure is not structurally sound and is not composed of modern materials and should be replaced.

c. The property is burdened more severely by the zoning restrictions because: The water on one side and the road on the other side of the property makes compliance with existing zoning regulations impossible.

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The use will remain as a 2-bedroom house.

16.8.3 The variance is consistent with the spirit of the ordinance since: The proposed footprint of the new structure will not be closer to the water than the existing one.

16.8.4 Substantial justice is done because: New structure will account for modern building codes and materials which will result in a safer and more environmentally sound structure. Moving the location of the septic holding tank and upgrading to new materials is also improving the safety and environmental impact of the current, aged materials.

16.8.5 The value of surrounding properties will not be diminished because: Values should increase due to a modern and more aesthetically pleasing structure.

Ms. Marashio questioned the answer given in 16.8.2 b. Mr. Hricz added that all the surrounding properties are non-conforming and built with similar materials.

Mr. Gelzer asked if a deck is considered a permanent structure. Mr. Fichter said yes, because it is anchored to the ground. Mr. Blohm commented that the deck is too close to the water.

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. Fichter noted that there is a question of increasing the non-conformance but added that the safety of the existing building is concerning.

Mr. Blohm said the stormwater runoff plans need significant upgrades on both sides of the house. He added that the deck shouldn’t be permitted since it increases the non-conformance of the property.

Mr. Gelzer stated that the engineer did not inform the client thoroughly and that he saw no hardship in keeping the existing footprint. The new footprint makes the building more non-conforming. He noted that he like the proposed roof line since it takes the water as far away from the lake as possible. He recommended that the plan be re-submitted to address the footprint issues.

Mr. Fichter noted that the corner of the existing and new structure is at the 30-foot setback from the road so it cannot be moved.

Discussion followed regarding changing the deck to a permeable patio. Mr. Hricz was in agreement.

Mr. Blohm noted that the septic upgrade is good, but the stormwater management efforts need strengthening.

There being no further discussion from the Board, Mr. Fichter called for a Motion to Vote.

Mr. Blohm made a motion to vote on a request from Craig & Saskia Hricz, for property located at 8 Gerald Dr., Newbury, NH, for a Variance from the requirements of Paragraphs 7.4.2 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Construction and replacement, of a non-conforming building within the 75’ lake and permanent stream setback. Newbury Tax Map 028-168-015, with the following conditions: (1) Submission of a stormwater management plan containing a Best Practices design and approved by the Code Enforcement Officer; and, (2) Replacing the proposed deck with a pervious patio of the same dimensions and approved by the Code Enforcement Officer. Mr. Gelzer seconded the motion.

Ms. Marashio voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2 with the stated conditions.

Mr. Gelzer voted to Deny the Variance from Paragraphs 7.4.2 and 15.2.2 with the stated conditions because the applicant did not adequately address the issue of non-compliance.

Mr. Blohm voted to grant the Variance from Paragraphs 7.4.2 and 15.2.2 with the stated conditions.

Mr. Fichter voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2 with the stated conditions.

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.

At 8:11 p.m., Mr. Fichter introduced the Board and reviewed the hearing process with the applicant and members of the public. Mr. Fichter informed the applicant that the Board consists of four members – not five - for tonight’s hearing and asked if the applicant wished to proceed. The applicant said yes.

Jeremy Bonin and Greg Rusnica, Bonin Architects, agents, presented to the Board. Mr. Bonin and Mr. Rusnica described the house as being within the setbacks so there is no buildable space within the setbacks. There will be interior changes made and the entrance will be moved to the side of the building and will be made smaller than the existing entrance. The DES Shoreland permit is approved, and the septic permit is pending.

Mr. Rusnica noted that the footprint is decreased by 60 square feet – from 33.7% coverage of the lot to 28.4% coverage. Pervious pavers will be installed. A deck will be placed on the second level.

There was discussion regarding replacing the existing wall and extending it to the common-owned land.

Mr. Gelzer asked about the width of the drip edge on the side of the building. Mr. Rusnica said it is the 6-inch minimum beyond the eave. He added that the drip edge will be crushed stone and will be maintained by digging out the material and cleaning it.

Discussion followed about possible strategies to improve the stormwater management and direct it away from the lake. Installing holding tanks was discussed. Mr. Bonin noted that digging in that area results in hitting water quickly so placing holding tanks in that kind of soil structure is not feasible.

Mr. Blohm asked if this property is in the floodplain. Mr. Bonin said no.

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

16.8.1 The variance will not be contrary to the public interest because: The renovations proposed will make the property more nearly conforming with town regulations by decreasing the non-conformity in regard to both the ROW setback and the Reference Line Setback. The proposed project also yields a net decrease in impervious surfaces by decreasing the house size and converting the driveway to a pervious surface. Integrated stormwater management will reduce run-off benefitting lake water quality.

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 residence is 100% within setbacks, thus no change to the footprint is permitted without the granting of a Variance. A typical lot in this district would have a reasonable building envelope where expansions or improvements could be made.

b. The property is different in a meaningful way from other properties in the area because: The 75-foot Reference Line Buffer along with other setbacks of the district, including the 30-foot ROW setback on this private, narrow road, eliminate any potential building envelope for this property.

c. The property is burdened more severely by the zoning restrictions because: Existing undersized lots such as this lot are more severely restricted by setbacks than lots of conforming size, proportionally. The zoning restrictions of this particular lot eliminate any buildable area outside of the existing footprint.

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The use of the property will remain residential, a permitted use in the district. Changes to the footprint of the building are modest and consistent with other surrounding residential properties. No trees, natural groundcover or vegetation are to be removed or adversely affected by this proposed project as nearly the entire site exists in an altered condition.

16.8.3 The variance is consistent with the spirit of the ordinance since: The proposed design seeks to make the property more nearly conforming with town regulations by increasing distance from the ROW on the southern side of the property and increasing the distance from the reference line on the eastern side of the building. Additional stormwater management features improve and protect the environmental quality of the lake and surrounding area, consistent with the goals of the overlay district.

16.8.4 Substantial justice is done because: The property owner can modestly renovate and improve the property without detriment to abutters. The project as a whole will be of benefit to the owner, the community, and the environment.

16.8.5 The value of surrounding properties will not be diminished because: Renovating this property will positively impact the values of neighboring properties. The more nearly conforming conditions and renovations will increase the property value. The proposed alterations will not adversely impact views, traffic, access to the lake, or environmental character of the area.

Ms. Marashio asked if the proposed building measurements – height and width – are the same as the existing measurements. Mr. Rusnica said yes.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

Patricia Light, abutter, asked if the entrance on her side of the building will be smaller. Mr. Rusnica said yes, the entrance will be about 18-inches narrower and is shorter by 5-feet.

Mary Lombard, abutter, expressed concern about potential runoff due to the leach field positioning and noted that her water line will have to be relocated to accommodate the Sullivan’s septic. Mr. Rusnica said the line will be relocated as part of this project.

Ms. Light noted that her property is in the floodplain and questioned whether this project will affect her flood insurance rates. Tom Sullivan, property owner, noted that he can re-petition regarding the need to buy flood insurance.

Ruth Talbot, 6 Old Mill Road, Newbury, expressed concern regarding the road condition as it pertains to all the heavy equipment going in and out for this project. Mr. Sullivan noted that all abutters will have an opportunity to surface their concerns regarding this so they can be addressed.

There being no further comment from the Public, Mr. Fichter closed the public portion of the hearing and the Board went into deliberations.

Mr. Fichter noted that this plan offers an overall improvement to the existing property.

Mr. Gelzer offered his appreciation to the abutters who expressed their concerns.

Mr. Blohm and Ms. Marashio agreed with the comments made by Mr. Fichter and Mr. Gelzer.

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 Thomas P. Sullivan, for property located at 10 Old Mill Rd., Newbury, NH, for a Variance from the requirements of Paragraph 7.6.1 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Alteration and/or expansion of a non-conforming building within the 75’ lake and permanent stream setback. Newbury Tax Map 007-226-321. Mr. Gelzer seconded the motion.

Mr. Fichter voted to Grant the Variance from Paragraphs 7.6.1 and 15.2.1.

Mr. Blohm voted to Grant the Variance from Paragraphs 7.6.1 and 15.2.1.

Mr. Gelzer voted to Grant the Variance from Paragraphs 7.6.1 and 15.2.1.

Ms. Marashio voted to Grant the Variance from Paragraphs 7.6.1 and 15.2.1.

Mr. Fichter called for a break at 8:43 p.m.

The meeting resumed at 8:48 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 May 13, 2019 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:45 p.m., Mark & Anne Hilton (owner), Eckman Engineering, LLC (agent), for property located at 274 South Rd., Newbury, NH, will seek a Special Exception as provided for in article 5.4.8 of the Newbury Zoning Ordinances to permit the following: Reclamation work to bring the existing gravel pit back into compliance with the rules & regulations specified by NHDES AOT Bureau. Newbury Tax Map 045-382-409. At 7:45 p.m., Mark & Anne Hilton (owner), Eckman Engineering, LLC (agent), for property located at 274 South Rd., Newbury, NH, will seek a Variance from the requirements of Paragraph 20.3.10 of the Newbury Zoning Ordinance to permit the following: Mining of land and Excavation of sand or gravel. Newbury Tax Map 045-382-409. 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.

Dave Eckman, Eckman Engineering, LLC, agent, presented to the Board. Mr. Eckman described the property as an un-reclaimed gravel pit. He added that Mr. Hilton, property owner, has a horse farm and wants to reclaim the area for a hay field and horse paddocks.

Mr. Blohm asked if Mr. Hilton intends to take out more gravel from the site. Mr. Eckman said yes.

Mr. Eckman reviewed the site with the Board, referring to printed plans. There was discussion regarding the proposed rock check dam, placement of brush and tree line, the stockpile, and the proposed grassed reclamation area. Mr. Eckman noted that the project is split into two phases.

Mr. Blohm asked how much of the proposed excavated gravel can be sold. Mr. Hilton would know. Mr. Hilton said that once the gravel is “out of there, we’re done.” He added that the gravel removal efforts could take a while.

Mr. Blohm asked if the gravel removal could take 10 years. Mr. Hilton said, “maybe”.

Mr. Blohm asked about gravel excavation over an aquifer and the fact that the Newbury zoning Ordinance does not permit that. Mr. Eckman said the excavation is temporary in order to clean up the area for a field.

Mr. Hilton stated that he will use the existing boulders for the paddock and will bury them. He added that eventually, the terrain will be a hay field with slopes up to the tree line.

Mr. Blohm reiterated that this excavation is proposed within the Aquifer Protection Overlay District. Mr. Eckman agreed, adding that the optimum part is that the proposal is to reclaim it. He noted that it had been used as a forest road in the past.

Mr. Gelzer questioned whether a future owner of the property could revitalize the gravel pit, reversing the proposed hay field and paddock plan. Mr. Eckman said the Alteration of Terrain (AOT) permit is based on the proposed plan. Mr. Hilton added that if a future owner wanted a gravel pit, they could not use the Hilton’s.

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

16.8.1 The variance will not be contrary to the public interest because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations. The area is being reclaimed into a positive use. Cannot use the land now for hay. The property owner will be a good steward.

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: It is an already existing gravel pit which is in need of being brought back into compliance with NHDES AOT regulations.

Mr. Blohm asked why an AOT permit is needed. Mr. Eckman said because the proposed excavation work is adjacent and near Gillingham Pond.

b. The property is different in a meaningful way from other properties in the area because: It is an already existing gravel pit which is in need of being brought back into compliance with NHDES AOT regulations and needs to be reclaimed.

c. The property is burdened more severely by the zoning restrictions because: It is an existing gravel pit which received a Letter of Deficiency from NHDES AOT and needs to be brought into compliance with AOT.

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: It proposed reclamation of the existing gravel pit to bring the pit back into compliance with NHDES AOT regulations. It cleans it up and turns it into a hayfield.

16.8.3 The variance is consistent with the spirit of the ordinance since: The proposed work is only reclamation of the existing pit to bring the pit back into compliance with NHDES AOT regulations.

16.8.4 Substantial justice is done because: The proposed reclamation of the existing gravel pit will bring the pit back into compliance with NHDES AOT regulations.

16.8.5 The value of surrounding properties will not be diminished because: The project only proposes reclamation activities to bring the existing gravel pit back into compliance. The project includes cleaning up the boulders and mess on the land.

Mr. Blohm, referring to the letter from the Planning Board to the Hiltons, asked if the requested retention pond will be permanent. Mr. Eckman said yes, the PB requested it, the AOT required it, and the Hiltons agreed to make the retention pond a permanent addition to the property.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

David Kinsman, 578 Mountain Road, Newbury, noted that if Mr. Hilton intends to sell gravel – any amount over 1,000 yards – he will need to file an Intent to Excavate, per state law. Mr. Eckman agreed, adding that a town permit and approval from the Planning Board will be needed. He added that the watershed does not affect the Kinsman property.

Henk & Mary Oolders, abutters, noted that when they purchased their property adjacent to Gillingham Pond, they did their due diligence regarding ensuring the ongoing health of the pond. Ms. Oolders noted that if the pit is turned into a hay field/horse paddocks the fertilizer and horse manure runoff into the pond will affect the water quality adversely. She said that last summer, the machinery noise from the Hilton property was hours on end.

Mr. Kinsman pointed out that there is noise coming from the Willow Pond Sand & Gravel and questioned if that was the source of the noise. Discussion followed.

Mr. Oolders stated that a definitive time frame for the excavation noise would be acceptable but not for the next 10 years. He state that they bought their property in 2010 and built their house in 2012. Mr. Eckman noted that the Hiltons have been working their land for 14 years.

There being no further comment from the Public, Mr. Fichter closed the public portion of the hearing and the Board addressed the Special Exception application.

Special Exception

Mr. Eckman read into the record the following:

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations. The end result will be a hay field and a horse farm.

16.7.2 The use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations. Noise reduction during the excavation is a possibility.

16.7.3 The use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal, or similar adverse causes or conditions because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations. The end result will be a hay field with horse paddocks.

16.7.4 The size of the site in relation to the proposed use and the location of the site with respect to the existing or future street giving access to it shall be such that it will be in harmony with the neighborhood because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations.

16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operations of any permitted uses in this district which are not subject to special exception procedures because: The only work proposed for this project is reclamation activities of an existing gravel pit to bring the pit back into compliance with NHDES AOT regulations.

Mr. Fichter noted that 16.7.5 pertains to the concerns raised by the Oolders. Mr. Eckman said the first phases of excavation are within 200-feet of the pond and that yes, there would be noise.

There was discussion regarding the zoning of this location. Ms. Marashio pointed out that the Willow Pond Sand & Gravel is located down the street. There was discussion regarding residential zone/commercial zone/combination of both. Also, it was noted that if the Hiltons intend to sell gravel then it becomes a semi-commercial enterprise.

Mr. Gelzer asked if the excavation could be scheduled from October to April when the Oolders are not in residence. Mr. Hilton said if that restriction was put in place it would take 10 years to complete the job. Discussion followed.

Mr. Blohm noted that reclamation of the pit is a good proposal. Ms. Oolders added that it may be but only if it is accomplished within a finite time schedule. Mr. Hilton stated that he can’t commit to a finite time schedule. Discussion followed.

Mr. Blohm noted that some accommodation must be made for the Oolders regarding the noise. Ms. Marashio stated that that cannot be determined until the project gets underway. Mr. Gelzer added that the project cannot get underway until a permit is issued.

Mr. Blohm referred the Board to Article 20 Aquifer Protection Overlay District Paragraph 20.3 Prohibited Uses Section 20.3.10, which reads as follows: “Mining of land and Excavation of sand or gravel…”. Discussion followed.

There was Board consensus that there was insufficient information provided in the Special Exception application and the Variance application and recommended that the hearing be continued to give the applicant the opportunity to provide further information. The applicant agreed.

Mr. Blohm made a motion for a continuance until June 10, 2019 at 7:15 p.m. Mr. Gelzer seconded the motion. All in favor.

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

The meeting adjourned at 10:20 p.m.

Respectfully submitted,

Meg Whittemore

Recording Secretary

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