Zoning Board Minutes

Zoning Board of Adjustment

June 15, 2020

Approved July 13, 2020

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Alex Azodi, Alternate.

Public Present: David and Mary Benson

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

Mr. Fichter read into the minutes the following meeting preamble due to the current Covid-19 emergency to be in compliance with RSA 91-a: Good Evening, as Chair of the Town of Newbury Zoning Board of Adjustment, I am declaring that an emergency exists and I am invoking the provisions of RSA 91-A:2, III (b).  Federal, state, and local officials have determined that gatherings of 10 or more people pose a substantial risk to our community in its continuing efforts to combat the spread of COVID-19. In concurring with their determination, I also find that this meeting is imperative to the continued operation of Town government and services, which are vital to public safety and confidence during this emergency. As such, this meeting will be conducted without a quorum of this Board physically present in the same location. We are utilizing Microsoft Teams for this electronic meeting. We previously gave notice to the Board members and public of the necessary information for accessing this meeting.

At this time, I welcome members of the Board and public accessing this meeting remotely. Even though this meeting is being conducted in a unique manner under unusual circumstances, the usual rules of conduct and decorum apply. I ask that each Board member or public who wishes to speak, please state your name each time prior to speaking.  Further, any person found to be disrupting this meeting will be asked to cease the disruption. Should the disruptive behavior continue thereafter, that person will be removed from this meeting. Please note, this meeting is being recorded and that all votes that are taken by the Board during this meeting shall be done by Roll Call vote. Let’s start the meeting by taking a Roll Call attendance of Board & Board Support members.  When each Board member announces their presences, also please state whether there is anyone in the room with you during this meeting, which is required under the Right-to-Know law. I will announce the Board member & Board support names:

Members:        Peter Fichter

                        Dave Blohm

                        Alex Azodi

Support            Tiffany Favreau, Meeting Coordinator/Recording Secretary

ADMINISTRATIVE BUSINESS

Minutes

Mr. Fichter said that due to the technical difficulties of the June 8, 2020 meeting a roll call vote was not taken. Mr. Fichter made a motion to accept the minutes as presented. Mr. Blohm seconded the motion.

Roll Call Vote:

                        Peter Fichter-Aye

                        Dave Blohm-Aye

                        Alex Azodi- Aye

All in Favor

Mr. Fichter suggested to hold off on the election of officers until a full Board was present. The Board agreed.

Mr. Fichter informed the applicant and agent that there are three members on the Board this evening to hear the application and that all three members must vote Yay to grant the requested variance. Since the Board is usually comprised of five members, Mr. Fichter offered the applicant the option to continue the hearing to a date when five Board members are present. The applicant chose to proceed.

Mr. Fichter appointed Mr. Azodi as a voting member for this meeting.

At 7:05 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, June 8, 2020 by utilizing teleconferencing. Directions to enter the teleconference will be available on the Zoning Board of Adjustment page of the Town’s website: At 7:05 p.m., David Benson (agent), Mary E. Benson (owner), for property located at 93 Lakewood Manor Rd., Newbury, NH, will seek a Variance from the requirements of Paragraph 7.6.1 of the Newbury Zoning Ordinance to permit the following: Addition/extension of a deck to a non-conforming building within the 50’ waterfront buffer. Newbury Tax Map 019-791-499.       

Copies of the application are available on the Zoning Board of Adjustment page on the Town of Newbury website, newburynh.org.

Mr. Fichter reviewed the hearing process with the applicant.

Mr. and Mrs. Benson presented to the Board.

Mrs. Benson said they were requesting a variance to extend their deck from an enclosed breezeway 12 feet toward the water.

Mr. Fichter stated that the reason the variance is needed is because the Bensons are closer to the water than the Ordinances allow for a deck.

Mrs. Benson said that is correct. Mr. Fichter asked what the closest measurement would be from the proposed deck to the water. Mr. Benson said the foundation is approximately 32/33 feet from the reference line, so the deck would be around 21 feet back from the reference line.

Mr. Azodi noted that the proposed deck is wider than the existing deck. Mr. Azodi asked what type of foundation. Mrs. Benson said two posts would be placed in the ground from the deck. Mr. Fichter clarified that the application stated that no equipment would be used, and the holes would be dug by hand. Mrs. Benson said that was correct. Mr. Azodi asked if they were using sonotubes. Mrs. Benson stated that was correct.

Mr. Blohm asked why they chose not to match the existing deck line all the way across. Mrs. Benson said so they could place furniture, such as a table to sit at. Mrs. Benson continued that the existing deck was pretty narrow.

Mr. Blohm asked what the deck would be made of. Mrs. Benson said cedar wood. Mr. Blohm asked if the spacing between the decking would be the usual quarter inch. Mrs. Benson said correct.

There being no more questions from the Board, Mrs. Benson addressed Article 16.8 of the zoning ordinance.

16.8.1 The variance will not be contrary to the public interest because: This single-family dwelling is nestled within a cove on Lake Sunapee with a shore land of 364’. Trees along the banks provide isolation from neighboring property and a restrictive view of the property from the lake. The proposed extension of the deck resides on a private, non-public property.

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: This single-family dwelling was built in 1984, prior to many of the state and local regulations that have been adopted since 1984. The dwelling resides within the 50-foot buffer zone to the shoreline. Just like all properties, a property requires upkeep, maintenance, remodeling to bring up to date, and the property owner being able to enjoy the beauty of nature from their outdoor living space.
2. The property is different in a meaningful way from other properties in the area because: This single-family dwelling resides within the 50-foot buffer zone, and it was built in 1984 prior to many of the state and local regulations that have been adopted since that time. There are NH Statutes that contain provisions in a new statute or zoning ordinance that exempts certain previously existing business, enterprise, or class of persons from the new rules or regulations. These help to resolve the unnecessary hardships due to the “literal enforcement of the ordinance.” Following is an excerpt from the New Hampshire Statute: Title L-Water Management and Protection-Chapter 483-B-Shoreland Water Quality Protection Act-Section 483-B:11/ 483-B:11 Nonconforming Structures/Paragraph V: Notwithstanding paragraphs I and IV, between the primary building line and the reference line, no alteration shall extend the structure closer to the public water, except that a deck or open porch extending a maximum of 12 feet towards the reference line may be added to nonconforming structures erected prior to July 1, 1994.

Mr. Fichter said that Town regulations can be and most often are more stringent than state regulations.

Mr. Azodi said that the response to this property being different than other properties in this area was that it was built in 1984 and built within the 50 foot setback. Mr. Azodi asked how is that different with the other houses in the neighborhood. Mrs. Benson said there were other homes near them that are also in the 50-foot buffer zone. Mr. Azodi said the question was how you are different than the properties around you. Mrs. Benson said she wasn’t sure that they were different from all the properties. Mr. Fichter said that the Board looks at the individual articles for a variance fairly literally.

1. The property is burdened more severely by the zoning restrictions because: This single-family dwelling resides within the 50-foot buffer zone, and it was built in 1984 prior to many of the state and local regulations that have been adopted since 1984. The foundation setback is approximately 32 feet from the shoreline, which makes this parcel of land very unique compared to today’s building regulations. We are blessed to own this property and to be able to enjoy the lake. Yet burdened at times due to its proximity and state/local zoning restrictions. However, the Town of Newbury Offices have been very helpful and supportive with providing guidance in locating, downloading, completing and submitting permits and other supporting documentation to expedite the process.

Mr. Azodi asked when the property was purchased. Mrs. Benson said 2011.

1. Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed use is a reasonable one. It will provide the occupants with additional freedom of enjoying the beauty of nature from their outdoor living space while blocking the road noise from Route 103. It will also allow for the replacement of windows and door with energy efficient windows and a wider door, which will add beauty and charm to the property.

Mr. Fichter noted that the existing deck is 6 or 8 feet from the house. Mrs. Benson said it is 6 feet. Mr. Fichter asked if the Benson’s had considered making the deck extension 6 feet as opposed to 12 feet. Mrs. Benson said it would be nicer to put a table out there with chairs. Mrs. Benson continued that with the 6 feet width you can’t put very much out, it is too narrow.

16.8.3 The variance is consistent with the spirit of the ordinance since: We want to extend the deck to enhance the enjoyment of the property and to enjoy outdoor living. The proposed expansion stipulates “up to 12-feet towards the reference line” nothing more, which is within the essence of both NH State Statute and local ordinance.

16.8.4 Substantial justice is done because: The proposed deck extension/addition is an improvement to the property. It will provide beauty and charm, peacefulness, muffled road noise from the sound of trucks downshifting, roaring motorcycles and automobiles, and enjoyment of birdwatching from this view.

16.8.5 The value of surrounding properties will not be diminished because: The proposed deck extension/addition is to be constructed by an established, reputable carpentry business. The building materials will match the existing decking- matching the rail system, cedar wood decking-and be constructed in accordance with the Town of Newbury NH building codes.

Mr. Fichter said that one of the things the Board takes very seriously is the impact on the lake from run off water and various things. Mr. Fichter said that he had visited the property and noted that it is fairly level from the house to the lake. Mr. Fichter clarified that during construction hay bales will be used as part of erosion control and the permanent water management plan is to let the water drip down onto the ground and because of the slope, the assertion was the water would be absorbed and not flow into the water. Mr. Benson said that plants would be planted that would absorb the water. Mr. Benson continued that they respect the lake and do not want any kind of run off.

Mr. Fichter said a deck is an impervious surface so the water that lands on the deck will drip down and be absorbed reasonably well in the months that the ground is not frozen, but the months of the year that the ground is frozen there is a concern that the water would sheet into the lake. Mr. Fichter urged the Benson’s to consider a crushed stone or gravel surface underneath the deck to help break up the flow of water and give the soil a little more porosity to the soil around that. Mrs. Benson said that would be easily accomplished and they would be happy to do that.

Mr. Blohm said that if the Board allows the Benson’s to do this the Board is diverging significantly from what Newbury normally allows to build something that close to the lake so we need to make sure there is no effect to the lake at all. Mr. Blohm continued that he understands the reasons the Benson’s want to build a deck so big and so close. Mr. Blohm said that normally when this type of thing occurs, the Board requests significant adjustments on water control, for example: for dripping coming off the deck generally needs to be designed in by someone that knows what they’re doing  to prevent any further run off. Mr. Blohm asked if there was a gutter system on the house. Mrs. Benson said yes, there is. Mr. Blohm said that the gutter system catches everything from the roof, so now the deck would not be catching run off water and it is coming off a cedar deck which chances are that some kind of material will be used to finish the deck and then there will be that run off.

Mr. Azodi asked where the water goes now without the deck. Mrs. Benson said the water goes into the ground. Mr. Azodi asked how it would be different with the deck. Mrs. Benson said she doesn’t think it would be substantially different. Mr. Blohm said that he was concerned with the material on the deck. Mr. Azodi said that the amount of water is about the same with an open deck. Mr. Fichter said he thinks it would still be valuable to have something on the ground surface that would serve to absorb the runoff water more than just hard pack or frozen soil so there would be some added opportunity for some infiltration and the Benson’s seem amenable to that. Mr. Azodi said it is a good opportunity to improve what is there.

Mr. Blohm asked Mr. Fichter how the Board would make sure that it gets done in an appropriate way. Mr. Fichter said that the logistics would be that the Board could pass the variance with a condition that a plan for handling the water under the deck be presented to the Code Enforcement Officer before the building permit is granted.

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

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

Mr. Blohm said the Board has already heard his point of view and if there is a way to mitigate the runoff from a deck that has material on it, he can see his way to supporting this. Mr. Azodi said he feels the same way. Mr. Fichter said he is essentially at the same place.

Mr. Fichter clarified to the Benson’s that what the Board is asking is for them to provide some documentation of a plan to the Code Enforcement Officer saying what would be done underneath the deck to mitigate water runoff and this plan should be prepared by somebody that understands what should be done and submitted at the time the building permit is requested. Mr. Fichter continued that would mean the Board would potentially grant the variance with the condition of the stormwater mitigation plan. Mrs. Benson said very good. Mr. Fichter said the Board tries to strike a balance between a homeowner’s enjoyment of the property and protection of the environment.

Mr. Blohm made a motion to vote on the request from David and Mary Benson for property located at 93 Lakewood Manor Road, Newbury, NH, for a Variance from the requirements of Paragraph 7.6.1 of the Newbury Zoning Ordinance to permit the following: Addition/extension of a deck, not to exceed 12’, to a non-conforming building within the 50’ waterfront buffer, Newbury Tax Map 019-791-499, with the following condition:

• That a Stormwater Mitigation Plan for water capture under the deck be designed and approved by the Code Enforcement Officer.

Mr. Fichter seconded the motion.

Roll Call Vote:

David Blohm-voted to Grant the Variance from Paragraph 7.6.1 with the stated condition.

Alex Azodi-voted to Grant the Variance from Paragraph 7.6.1 with the stated condition.

Peter Fichter-voted to Grant the Variance from Paragraph 7.6.1 with the stated condition.

Mr. Fichter advised that the applicant or any party directly affected by this decision may appeal to the ZBA within thirty (30) days of the decision pursuant to RSA 677:2. Said motion must set forth, in detail, all grounds on which the appeal is based.

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

The meeting adjourned at 7:56 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary