Zoning Board Minutes

Zoning Board of Adjustment

September 14, 2020

Approved October 19, 2020

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Gary Budd, Member; Reed Gelzer, Member; Alex Azodi, Alternate; Hank Thomas, Alternate.

Public Present: Harry Seidel, Jason Saghir

Mr. Fichter called the meeting to order at 7:02 p.m.

ADMINISTRATIVE BUSINESS

Board member introductions.

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

Minutes

The Board reviewed the minutes of August 10, 2020. Mr. Fichter made a motion to accept the minutes as amended. Mr. Blohm seconded the motion. Mr. Azodi abstained. All in favor.

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, September 14, 2020 at the Veteran’s Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Jason T. & Heidi K. Saghir (owners), for property located at 115 Bay Point 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 24’ X 32’ detached garage within the 15’ side setback. Newbury Tax Map 007-127-417. 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. Seidel and Mr. Saghir presented to the Board.

Mr. Saghir said they are seeking a 5 foot variance to move the garage from where it would be conforming to within 10 feet of the property line. Mr. Saghir continued the movement is consistent with the neighborhood and the many narrow lots that characterize Bay Point Rd. Mr. Saghir said some of his neighbor’s structures were within setbacks. Mr. Saghir said when he purchased the property in 2007 there was a garage sited closer to the property line, if not on it, which was taken down in 2011 when they sited the new house. Mr. Saghir continued that the intention was to place a detached garage, which they are now doing. Mr. Saghir said there are a great number of trees and bushes in between the proposed garage and the neighbor as well as the proposed garage and the road. Mr. Saghir said that he would guess that every other or every third house has a garage actually located on the road, facing the road. Mr. Saghir continued the proposed garage will face the property.

Mr. Saghir said they have the ability to set the garage where a variance would not be needed, but the problem is that it would really abut next to the existing driveway. Mr. Saghir  continued the placement next to the driveway would prohibit the proposed installation of the underground gutter on each side of the driveway to manage stormwater runoff, the driveway has the potential to be icy with the runoff from the garage roof and less room for snow removal. Mr. Saghir said another consideration was the safety going on to Bay Point Rd. because the placement of the garage allows for a turn around so that cars can enter the street forward facing.

Mr. Seidel said the garage footprint has been permitted by DES but falls too close to the existing driveway so to facilitate drainage and better erosion control, grading and personal architectural reasons the applicant has asked to reduce the side yard setback to 10 feet. Mr. Seidel said if the garage adhered to the setbacks the garage would be 2 feet from the driveway on the north end 3 feet from the driveway on the south end. Mr. Seidel continued that they are really trying to do a robust capture of water and bring all the water to the subsurface.

Mr. Fichter said that the DES permit was issued 9 years ago and wondered about the expiration. Mr. Seidel said the garage was re-permitted in August. Discussion followed.

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

16.8.1 The variance will not be contrary to the public interest because: This detached garage is set back beyond the 30-ft setback within a forested area of the property and will not create conditions that cause congestion or loss of safety to the public. The applicant understands that shoreline properties share a burden of protecting the lake shore environment and the applicant has directed his architect and engineer to detail strong temporary erosion control measures to be implemented before construction activities begin and to provide robust stormwater and erosion control measures that will ensure both roof runoff and ground water are infiltrated below grade. Additionally, an indirect result of this proposal will be that Bay Point Rd’s traffic safety will be enhanced. (described in more detail below)

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: Design of this non-conforming property was approved for construction by DES (9) plus years ago. At that time an existing detached garage located right on the property’s west line was removed and a new garage of the same size was located 15-ft from the property line in the general area the applicant proposes to build. The lot is very narrow and the topography of the site requires the garage to be in this general area, however at the time (9) years ago the best size and most advantageous location of the garage was not apparent and now, to build the garage, the applicant needs to make a correction.
2. The property is different in a meaningful way from other properties in the area because: Properties along Bay Point Rd. generally fall into (2) types. The first type is the rarer of the two, these are the flat or relatively modestly sloped sites. The second type is the more common type. These sometimes descend gracefully, but most often hastily towards the lake. This lot is unlike either of those. This lot descends precipitously from the road, down to a roughly level area in the middle of the lot and then rises again to a bluff before dropping steeply to the shoreline. Calling this lot a roller coaster would only be a slight exaggeration. The width of the lot is little more than 110-ft, and while there are narrower lots, this lot is narrow.
3. The property is burdened more severely by the zoning restrictions because: The side yard setback restriction and the combination of the lots modest size, it’s challenging terrain, the existing infrastructure and the existing driveway create compression alongside the western property line. All of these factors together inform this request for relief. If the 15-ft side yard setback was to be enforced the garage would be right at the edge of the driveway and the roof would deliver storm water onto the asphalt driveway creating both runoff and icing liabilities.
4. Because of the special conditions of the property, the proposed use of the property is reasonable because: The property has a very limited area where the previously permitted detached garage can be sited. The applicant wishes to construct the garage in a manner that allows for as much open area as possible to maneuver within the lot and to increase the turn around space in the driveway. This is not a driveway anyone can safely back out from onto Bay Point Rd. and once you enter and descend around the curve, unless you can effect a 180 turn, you are committed to backing out. Truth is, a safe exit from this property requires that you be facing the traffic on Bay Point Rd. The local traffic on Bay Point Rd include cars, joggers, walkers and cyclists of all ages. This proposed garage location is reasonable because it will deliver safer and convenient use of the property and enhance safety for the public.

16.8.3 The variance is consistent with the spirit of the ordinance since: The purpose of Newbury’s Zoning Ordinance is to promote the health, safety and general welfare, to preserve the natural beauty of our environment and to allow owners freedom in the use of their land, if such use is consistent with the above purposes. The applicant’s proposed garage will provide increased stormwater management and erosion control, both of which are generally beneficial to shore front properties but very advantageous on this small lot. Bay Point Rd. serves a long stretch of Lake Sunapee’s shoreline, resulting in higher than normal residential, recreational and contractor traffic. Furthermore, Bay Point Rd. twists, turns and rolls with local terrain, and together these factors restrict safe sight lines. In short, navigating Bay Point Rd. can be hazardous. A proposal that can benefit both of these public aspirations while allowing the property owner a more convenient use of his property, is arguably in the spirit of the ordinance.

16.8.4 Substantial justice is done because: Approval will enhance the safety of Bay Point Rd., it will improve the stormwater management of a small lot and a conscientious property owner will benefit from building a desirable structure permitted (9) years ago by DES and recently re-permitted for the size and location modifications proposed.

16.8.5 The value of surrounding properties will not be diminished because: There will only be an increase in the value of the surrounding properties. Every attempt will be made to create a garage that is contextually consistent with the architecture of the existing home. Color and material selection will reinforce the natural tones of the land and there will be a 30 ft plus natural buffer between the garage’s closest face and Bay Point Rd. The structure will be largely built into a slope so it will have a small public profile and there will not be harsh lighting that might glare towards Bay Point Rd. The applicant has informed his neighbors of the variance request and two abutters have pledged support. Their communications are included.

Mr. Blohm said there’s some tree cutting in advance of this project and how does that fit into the whole permitting process. Mr. Saghir said the tree cutting application was approved several months ago. Mr. Fichter said that when he did a site visit that Mr. Saghir pointed out that even if the garage was built in compliance with the setbacks, the trees would have to be removed anyway. Discussion followed.

Mr. Blohm asked if the pervious asphalt was part of this project and where is it going. Mr. Seidel said yes, it is, and it is going in the area right outside the front of the garage. Mr. Seidel continued that this is a non-conforming lot, and as such, he feels there is a greater burden to make a proposal that was worthy and would drink the water. Mr. Seidel said that this is the most robust, small, but robust plan for drinking water. Mr. Seidel said the total material is 2 feet, 5 inches that will drink water, it is not large, but it will handle all the water this building could ever generate. Mr. Seidel said that this is a strong permanent erosion control feature that is great for a small lot.

Mr. Fichter asked Mr. Seidel to elaborate on the other elements of erosion control. Mr. Seidel explained that the 8in culvert at the top was put into the plan in the event there was a pathway at a future date. Mr. Saghir said that the prior version of the plan had a formal walkway, but it will be only some steppingstones if anything. Mr. Seidel said there is a little bit of culvert and then an open swale that comes down and the water is directed toward the infiltration area, right outside the garage doors. Mr. Gelzer asked if that was intended to be permeable pavement. Mr. Seidel said yes, it was porous pavement. Mr. Seidel continued what they were using for rain water off  the roof is a ground gutter which is basically a shallow trench that receives the water and a pipe in the trench will bring the water down to the infiltration area. Discussion followed.

Mr. Gelzer asked if they found a way to maintain the permeable pavement. Mr. Seidel said that the porous paving people said even when there is sand on it and you think it’s choking, it still drains. Mr. Blohm said it doesn’t drain as well, and the question is what happens over time. Discussion followed.

Mr. Gelzer said the impervious area calculation does not include the existing pervious driveway and parking as impervious surface. Mr. Saghir said he believes strongly the calculations accurately take into account what is pervious and not pervious. Mr. Saghir continued there is a paver pervious driveway in the lower part of the property, the patio is pervious. Discussion followed pertaining to the site plan.  Mr. Saghir said there is about 40% of the property behind the 250’ protected shoreland line. Mr. Saghir continued the pervious calculation is using the land up to the 250’ line but the entire footprint of the garage, so there is a large part of the garage being included in the calculation but is outside of the 250’ protected shoreland. Discussion followed.

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

Mr. Fichter read into the record a letter addressed to the applicant and submitted to the Zoning Board:

Jason I am totally fine with the garage being placed with a ten foot set back to my property. Bruce Hall 111 Bay Point Rd. Newbury. NH.

Mr. Fichter read into the record a letter addressed to the Zoning Board from Frank Lemay of Lemay Real Estate Trust, 233 Horse Corner Rd. Chichester NH:

We are in receipt of the notice of the Zoning Hearing on September 14, 2020 regarding the detached garage construction for the property at 115 Bay Point Road owned by Jason & Heidi Saghir and the requested variance for the side lot setback. Lemay Real Estate Trust is the owner of Parcel 0007-0143-0452 located directly across the street, and our property at 3 Bay Point Landing. We have discussed the proposed variance with Jason Saghir, and support granting the variance. The properties in our neighborhood all have narrow widths and numerous structures which precede the zoning ordinance, including our own house, which encroach on the zoning setback, and the granting of this variance is in keeping of the spirit of the zoning ordinance Frank Lemay, Trustee.

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

The Board went into deliberations.

Mr. Blohm made a motion to vote on the request from Jason T. & Heidi K. Saghir (owners), for property located at 115 Bay Point Rd., Newbury, NH, for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a 24’ X 32’ detached garage within the 15’ side setback, Newbury Tax Map 007-127-417.

Mr. Gelzer seconded the motion.

Roll Call Vote:

Alex Azodi-voted to Grant the Variance from Paragraph 5.9.1

Reed Gelzer-voted to Grant the Variance from Paragraph 5.9.1

David Blohm-voted to Grant the Variance from Paragraph 5.9.1

Gary Budd-voted to Grant the Variance from Paragraph 5.9.1

Peter Fichter-voted to Grant the Variance from Paragraph 5.9.1

All in favor

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 asked the Board if they wanted to move ahead with an amendment to give to the Planning Board in regard to “fortress walls” that was brought forward at the Joint Board meeting. Discussion followed. Mr. Fichter said his attempt is to put a limitation on altering of the topography within the buffer zone. Discussion followed. Mr. Gelzer said he agreed it would be helpful to have something in the Ordinance regarding retaining walls whether they are in the Shoreland or not, but he would like to find if there is an engineering rule once the wall gets above a certain height if it has to have an engineering design. Discussion followed. Mr. Fichter said this is not necessarily an engineering problem. Mr. Blohm said even if it is engineered properly, the Board can’t say they don’t like the way it looks.

The Board could not come to a consensus for an Article to address “fortress walls”.

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

The meeting adjourned at 8:14 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary