Zoning Board Minutes

Zoning Board of Adjustment

October 19, 2020

Approved November 9, 2020

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

Public Present: Patricia Sherman; Richard & Amy Neville; Doug Greiner; Will Davis.

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

ADMINISTRATIVE BUSINESS

Mr. Fichter informed the applicants that they needed to make a decision since there were only four Board members present. Mr. Fichter continued that a full Zoning Board was five members, but they can operate with a quorum of three. Mr. Fichter informed the applicants that in order for a variance to be granted they would need a minimum of three affirmative votes. Mr. Fichter said the applicants have the choice to present to the four Board members present or ask for a continuance to the next meeting with a full Zoning Board.

Minutes

The Board reviewed the minutes of September 14, 2020. Mr. Blohm made a motion to accept the minutes as amended. Mr. Gelzer seconded the motion. All in favor.

Board member introductions.

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

Mr. Neville said they would like to present to the Board tonight.

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, October 19, 2020 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Patricia Sherman (agent), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.9.1  and Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a single family dwelling with an accessory apartment within the 15’ side setback and the 30’ right of way setback; Construction of a garage within the 15’ side setback and 30’ right of way setback and in steep slope; Replacement of retaining wall and stairs in steep slope.  Newbury Tax Map 007-120-111.

At 7:05 p.m., Patricia Sherman (agent), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, will seek a Special Exception as provided for in Article 5.7.1 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Shoreland Overlay District. Newbury Tax Map 007-120-111. 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 said that because there were two variance requests, they would be treated differently. Mr. Fichter continued that it is not the most efficient thing but there is always the possibility that one gets approved and one doesn’t and if the requests are together they would both follow whatever fate the Board decided.

Ms. Sherman presented to the Board.

Ms. Sherman said the lot is in the residential, Shoreland and Steep Slopes Overlay zones and runs from Route 103 to Lake Sunapee and is divided by a 20’ right of way called Edgemont Landing. Ms. Sherman continued that the lot is non-conforming, .28 acres, 50’ wide by 250’ deep. Ms. Sherman said the project consists of tearing down the existing non-conforming residence on the north side (lake side) of the right of way and replacing with a one bedroom house with a 580 sf ADU and a new 2 car garage on the south side of the right of way with an additional guest bedroom and bath, but no kitchen on the upper level of the garage.

Ms. Sherman said the house is quite small by today’s standards, less than 1,000 square feet on the main living level with the impervious footprint, including the deck, of less than 1,700 square feet. Ms. Sherman continued, the existing structure with attached and unattached decks has an impervious footprint of over 2,100 square feet. Ms. Sherman continued that there are an existing well and septic on the property. Ms. Sherman said the four-bedroom septic system is primarily on DOT land on Route 103 and the owners have an encroachment agreement from DOT allowing for its continued use. Mr. Fichter said his understanding of the DOT permitted use of the land for the septic system was that they can use it, but it can’t be rebuilt in the future. Ms. Sherman said yes that the applicants understand that. Mr. Fichter said there is a potential problem there for the future. Ms. Sherman said that in normal circumstances they would have to designate an alternate area for septic and asked if the Board would like the applicants to do that. Mr. Fichter said that the applicants would have to come back for a new permit anyway on that. Ms. Sherman said the septic was inspected in August of this year and is good working order. Ms. Sherman continued that in the future if the ADU is no longer needed the property could contain as many a four bedrooms (three in the main house and one in the garage) consistent with the capacity of the septic system.

Ms. Sherman said the proposed two car garage is to be sited south of the right of way on the section between the right of way and 103 which is a steep slope. Ms. Sherman continued that the house site has a 20% slope so is not a steep slope by the Town’s definition. Ms. Sherman said the proposed house will have a walk out on the lower level which will contain the ADU. Ms. Sherman continued that the existing retaining wall will be rebuilt in approximately the same location with similar grades. Mr. Fichter asked if the replacement wall would be approximately the same height as the existing wall. Ms. Sherman said yes, but it would have a guardrail on top, most likely a metal frame with a vertical cable to maximize the view. Ms. Sherman continued, the project requires a variance from 5.9.1 for side yard and right of way setbacks, a variance from 9.4 for building the garage and rebuilding the retaining wall in a Steep Slope Overlay District and a special exception required by 7.2 for an ADU in the main house which is in the Shoreland Overlay District. Discussion followed.

Mr. Gelzer asked what the current total living space is. Ms. Sherman said she doesn’t think they calculated the gross square footage of the entire structure; they were dealing primarily with footprint and impervious surface.

Mr. Blohm asked what the marked trees meant. Mr. Neville said that the arborist marked all the trees that were on the property to differentiate from the abutter’s property. Mr. Neville continued that they were requesting four trees to come down; a white pine near the shore, a birch tree, a dead hemlock and an oak tree that will be disturbed by the excavation. Discussion followed. Mr. Fichter noted that per the plan, there does not appear to be sufficient points in any of the grids to meet the 25-point requirement in each 25x50 foot section. Mr. Fichter said this is not an issue for the Board, but it will be an issue for the Conservation Commission. Mr. Davis, engineer from Horizons Engineering said that on the plan the Board is looking at the tree cells were done starting at the wrong side of the property, so the tree cells have more trees in them and will be reflected in the future tree cutting application to be submitted. Ms. Sherman gave the Board the arborist report (attached to these minutes). Mr. Fichter said he thought it was good for the Board to have an understanding, but Conservation is going to look at this and make the determination as to the merits or demerits of cutting the trees. Mr. Blohm asked if Conservation said no to cutting the trees, then what. Mr. Fichter said that one of the things he thinks is if the Board does grant the variance it would come with conditions and one of the conditions he believes would be an approved tree cutting permit is received before a building permit is issued. Mr. Gelzer asked as a point of order could the Board include additional stipulations regardless of the tree cutting. Mr. Gelzer continued that he has been working with Conservation Commission on a number of questions which have surfaced because of anomalies along Bay Point Road and in the course of the questioning it has come up that the Conservation Commission has only an advisory role, they have no weight in the decision. Mr. Fichter said the Conservation Commission plays an advisory role to the SelectBoard. Discussion followed. Mr. Gelzer said he does plan to bring up the question later whether or not it would be in scope for the Board to stipulate that the applicants can’t cut the trees. Mr. Fichter said that he does not know that the Board has that authority.

Ms. Sherman said that in her opening remarks she made it clear that if the Board did approve this project it would be pending the tree cut application and the Shoreland Permit, so the applicants are very aware of that. Ms. Sherman continued that she hopes that the discussion of the tree cutting does not prejudice the Board in terms of what the applicants are going to present. Ms. Sherman said that when you represent a client, they may ask for many things, they may not get them all, but they have the right to ask.

Mr. Blohm said that when he sees a project like this his concern is do the owners have a good stewardship concept for the lake and what are they doing to prove that they care. Mr. Blohm continued that the first thing he sees for this project is the trees being taken down. Mr. Blohm said he has many trees in front of his house and he doesn’t cut them down for view. Mr. Blohm stated you’ve got to live with what you got as opposed to take down trees. Ms. Sherman said she appreciates the comment, being a lake lover herself, but the applicants hired a well-respected forester in the area, there is a complete landscape plan and when the tree cutting is reviewed, there are some mitigation issues that are being brought forward. Ms. Sherman continued that they have done their best to balance a difficult site with some difficult issues, but the clients have a right to ask for certain things and that doesn’t mean that they are not stewards of the lake and they are going through the process that they have to. Mr. Fichter addressed Mr. Gelzer about the Board not having input on the tree cutting and said that he could attend the SelectBoard meeting that the tree cut application would be discussed and state his opinions. Mr. Gelzer said that he would like to point out that the language for granting variances gives the Board the charge of protection of the Town’s community assets and rural character through appropriate and sensitive land use. Mr. Gelzer said he believes that is broad enough that the Board can at least entertain the notion that it is in scope. Discussion followed.

Mr. Gelzer said that one of the statements of negative impact on this particular property is that the side setback rules are constraining to the point that it is injurious, and he would contend that is not well supported. Ms. Sherman said the lot is 50’ wide, with the 15’ side setbacks is 30’ that leaves 20’. Ms. Sherman continued that the rule is that it is not just the building it’s the drip edge; a drip edge in New England is usually a minimum of a foot, which is what is being used for this project. Ms. Sherman said that you now have an 18’wide house, which is not really a viable house under these circumstances and then there is a second constraint of the 30’ right of way setback in the front. Mr. Gelzer asked why it needs to expand outside the existing footprint and more toward the side. Ms. Sherman said for a couple of reasons, right now you are not able to walk around the property which is a fairly dangerous situation in terms of the ability to maintain the property and for emergency services. Ms. Sherman continued the building envelope is actually about 18’x28’ including setbacks and that is not a viable house in this location, this lot is assessed at $525,000 because of the view, so when you try to design a house and allow the owner to enjoy the view, the narrowness of the footprint is very difficult. Discussion followed. Mr. Fichter said the existing house has a measurement from a boundary line of 12.35’ on the other side is 6.9. Mr. Fichter said if we take the 12.35’ and 7’ that leaves 19’ total and if we take 19’ from 50’ that leaves 31’. Mr. Fichter asked if they could use the 31’ of dimension to make that the width of the house and then additional decking. Discussion followed.

Ms. Sherman read Article 5.1.5 of the Zoning Ordinance: The goal of these regulations is to balance individual property rights with the protection of the Town’s community assets and rural character through appropriate and sensitive land use. Rather than designating multiple zoning districts within the designated Rural Residential District, minimum lot size and maximum density for a site shall be based upon the unique characteristics of the parcel to the presence of Steep Slopes, Aquifiers, Wet Lands, Flood Plains and Deer Wintering Areas as well as road access and proximity to protected open space. Ms. Sherman continued that this property is assessed at $525,000 and she thinks that there needs to be a balance of the rights of the town and the owners who have a right to be able to design a house  and this house footprint is less than 1,000 square feet. Ms. Sherman said the reason the house is wide is that there is a certain amount of use in the front yard for stair access to the house and the backyard is 10’-15’ maximum which gives the owners a grass area. Ms. Sherman said that once you start to compress the land in the front and back to give it any sort of aspect the house is obviously wider. Ms. Sherman continued; the house is 26’x34’. Discussion followed.

Mr. Davis said that stormwater makes it way down to the lake and there are no current stormwater management features on the property. Mr. Davis continued that it is stable and there is no erosion, but they are looking to improve that. Mr. Davis said the project implements a combination of stone drip edges and pervious pavers and a drywell to infiltrate some of the roof run off.  Mr. Davis continued the system is designed to knock down the peak rate of run off for the 50-year event. Mr. Blohm asked how the system will work in the winter when the ground is frozen. Mr. Davis said that when the ground is frozen stormwater will still make its way into the catch basin which will be directed to the drywells. Mr. Davis continued that stormwater features don’t work really great in the winter and when the ground is frozen you will have some run off. Mr. Davis said in the spring, as everything melts is when things start infiltrating again. Discussion followed.

Mr. Gelzer asked if the apron in front of the garage spills out onto Edgemont. Mr. Davis said no that it is pitched back to the low points then run off makes it way to the catch basin through spread elevations. Discussion followed.

There being no further questions from the Board, Ms. Sherman addressed Article 16.8 of the zoning ordinance for the variance from Paragraph 5.9.1:

16.8.1 The variance will not be contrary to the public interest because: HOUSE REQUEST: Reduction of 15 ft side yards to 6.53 ft on the west side and 4.02 ft on the east side and reduction of a 30’ front setback to 17.15 ft. Most of the lots on Edgemont are non-conforming as they predated Newbury’s Zoning. The existing house and many of its neighboring houses are also non-conforming as they too predate the zoning. This variance cannot be contrary to public interest because it allows the town and the owner reasonable use of this property that is compromised by the existing zoning requirement of 15 ft side setbacks. 15 ft side setbacks on a 50 ft wide lot only allow 20’ for a building envelope which including its 12-15 inch eaves resulting in a 17-18 ft wide house creating an unnecessary hardship that prevents reasonable use of this valuable land. The existing house is built on a legal slope created by an existing retaining wall. The 30’ front yard setback would force the house well beyond the existing retaining wall and into steeper slopes. The reduced setback is also not inconsistent with other houses in this area. Newbury has a precedent in its Zoning that allows setback in a dense neighborhood to be consistent with the average setback of neighboring houses. GARAGE REQUEST: Reduction of 15 ft side yards to 8.63 ft on the west side and 8.63 ft on the east side and a reduction of the front yard from 30’ to 9.47 ft. Zoning requires 3 parking spaces (5.7.6) for this project as it includes an Additional Dwelling Unit in the lower level of the home. The proposed house site on the north side does not allow for a garage or adequate parking because of the terrain and access restrictions. The proposed garage will be built across Edgemont Landing (a private road) on property that is part of the owner’s lot. This garage provides 2 parking spaces plus 1 space in front of the garage and a pull out space in front of the house for a total of 4 spaces. The 15 ft side yards on this 50’ wide lot create a hardship that precludes the construction of a functional garage on the owner’s property. Edgemont road has only a 20 ROW but only10-14’ is graded as a roadbed which makes street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements.

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: HOUSE REQUEST: This property has an existing retaining wall which creates a reasonable sloped site on which to build. This site is then 50’ wide by 60’ deep, excluding setbacks. A 30’ setback from the road and 15’ side yards reduces the building envelope to 30’x20’ or less than 600sf an unreasonable area for a home. The site also suggests the house to be wider and less deep to provide reasonable access at the front and some yard space in the rear. The house has a basic ground contact footprint of 884 sq. ft which is quite modest yet maximizes views for the owners and still allows for access to all parts of the house by emergency personnel. GARAGE REQUEST: Edgemont splits the property into a parcel on each side of the ROW. This situation repeats on other properties on Edgemont but not with other Newbury residential areas. The proposed house site on the north side does not allow for a garage or adequate parking because of the terrain and access restrictions. The road width at 10-14’ reduces of street parking so a garage on the South side of the property can solve the parking requirement. 15 ft side yard setbacks only allow a 20’ building footprint including eaves, it prevents the construction of a viable 2-car garage.
2. The property is different in a meaningful way from other properties in the area because: HOUSE REQUEST: This property, because it predates zoning, is distinguished from most of the other properties in Newbury Residential Zones because the side yard setbacks create a hardship which prevents reasonable use of the land. It also is different from other residential areas because of the terrain. The existing house sits on a legal sloped section created by an existing retaining wall. A 30 ft front yard setback would push the house beyond the existing retaining wall and into preexisting steep slopes. We propose to rebuild this retaining wall but only with similar location and grading. GARAGE REQUEST: This property’s existing septic system is on 103, 120 ft from the existing septic tank. This 4-bedrooms complete system has been inspected and is reported to be in excellent condition and will serve the proposed new house. The existing force main runs an average of 110 ft from the southern property line. This line will be relocated to allow the garage to be centered in the 50 ft wide lot to minimize the needed relief from the 15’ side yards as these side yards do not allow for a viable garage.
3. The property is burdened more severely by the zoning restrictions because: HOUSE REQUEST: This property predated zoning and created non-conforming lots that force the use of variance procedures to allow for a reasonable use of valuable land. i.e 20 ft building envelops that must include eave overhangs which reduce building widths to17-18’ which are not viable for residential use on such valuable property. The 30’ front yard setbacks force the building into steep slopes when a reduce frontage requirement would allow it to be built on an existing legal slope. GARAGE REQUEST: This property predated zoning and created non-conforming lots that force the use of variance procedures to allow for a reasonable use of valuable land. i.e 20 ft building envelope that must include eave overhangs which reduce building widths to 17-18’ which is not viable for such use as a 2-car garage which provides the required parking. 30 ft front yard setbacks which force a building deeper into steep slopes when a reduced frontage requirement would allow it to be built on less of an encroachment on the steep slope.
4. Because of the special conditions of the property, the proposed use of the property is reasonable because: The property is in a Residential Zone and is bordered by other residential uses. The proposed use is to tear down a non-conforming house in very poor condition and replace it with a new home with a discrete footprint. GARAGE REQUEST: The property is in a Residential Zone and is bordered by other residential uses. The proposed use is to build a 2-car garage for residential use to comply with the parking requirements and to relieve the intense parking pressure on this narrow private road.

16.8.3 The variance is consistent with the spirit of the ordinance since: HOUSE REQUEST: It allows the property to be used as a residential use for which it is zoned. Article 5.1.5. states, “The goal (of these regulations) is to balance individual property rights with the protection of the Towns community assets and rural character through appropriate and sensitive land use. Rather than designating multiple zoning districts within the designated Rural Residential District, minimum lot size and maximum density for a site shall be based on the unique characteristics of the parcel relative to the presence of steep slope, Aquifers, Wet Lands, Flood Plains and Deer Wintering Areas as well as road access and proximity to protected open space.” GARAGE REQUEST: It allows the property to be used as a residential use for which it is zoned. Article 5.1.5. states, “The goal (of these regulations) is to balance individual property rights with the protection of the Towns community assets and rural character through appropriate and sensitive land use. Rather than designating multiple zoning districts within the designated Rural Residential District, minimum lot size and maximum density for a site shall be based on the unique characteristics of the parcel relative to the presence of steep slope, Aquifers, Wet Lands, flood Plains and Deer Wintering Areas as well as road access and proximity to protected open space.”

16.8.4 Substantial justice is done because: HOUSE REQUEST: RE: GARAGE REQUEST: It limits the hardship placed on the owner of this nonconforming lot by zoning which was put into effect after the lots were created. Article 5.1.5 also applies as a way to remediate such hardships. Newbury also has set a precedent in another part of town by creating special zoning requirements that acknowledge narrow lots. In that situation a lot under a 65 ft width can have a 4’ side yard and frontage similar to its neighbors.

16.8.5 The value of surrounding properties will not be diminished because: The new structures will be more valuable than the existing ones and will ADD to the value of the surrounding properties. Best practices will be added to the protection of the steep slopes reducing erosion and storm management systems will protect this and neighboring properties.

Mr. Gelzer asked if the special exception for the ADU is not granted how many parking spaces would be required. Ms. Sherman said two.

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 Zoning Board dated September 15, 2020: Dear Members of the Newbury, NH Zoning Board, Please be advised that we are direct neighbors of the property at 9 Edgemont Landing in Newbury, NH and have been informed that Amy and Richard Neville, owners of the property, are planning to rebuild on that site. We understand that they are asking for variances as follows: 1. Variance to rebuild a retaining wall and stairs in a steep slope area; 2. Side and front yard setbacks for both a new house and a new garage; 3. Variance to build the garage in a steep slope area; 4. Special exception to build an ADU, (in-law suite), in the Shoreland Protection area. We are writing to inform you that we do not object to the Neville’s requests to improve their property. We actually look forward to the upgrades. Should you have any questions, please let us know. Sincerely, Nancy Ydoate and Charlie Ydoate.

Mr. Fichter read into the record a letter addressed to the Zoning Board dated September 15, 2020: Dear Members of the Newbury, NH Zoning Board, Please be advised that we are direct neighbors of the property at 9 Edgemont Landing in Newbury, NH and have been informed that Amy and Richard Neville, owners of the property, are planning to rebuild on that site. We understand that they are asking for variances as follows: 1. Variance to rebuild a retaining wall and stairs in a steep slope area; 2. Side and front yard setbacks for both a new house and a new garage; 3. Variance to build the garage in a steep slope area; 4. Special exception to build an ADU, (in-law suite), in the Shoreland Protection area. We are writing to inform you that we do not object to the Neville’s requests to improve their property. We actually look forward to the upgrades. Should you have any questions, please let us know. Sincerely, Liz Moult and Bill Moult

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

The Board went into deliberations.

Mr. Blohm said this is a tough site and Ms. Sherman is doing the best for her clients

Mr. Blohm continued that what he likes about this plan is the added stormwater management where there was none before and that tends to outweigh just about anything else that he thinks about with new construction along the lake. Mr. Blohm said the stormwater management will make it considerably better for the lake. Mr. Blohm said what would not make it better is having any lawn on the lake side and there is no way you can take care of this particular piece of lawn without fertilizing it and having it wash into the lake. Mr. Blohm continued that if he was doing this project personally, he would make a pervious patio. Ms. Sherman said it was basically outdoor space. Mr. Blohm said if you got rid of the grass it would be another plus. Mr. Neville said consider it done.

Mr. Blohm said another thing on the list of don’t likes is the side setbacks and encroaching on the trees that will have to be removed because it affects the roots. Ms. Sherman said it was one tree. Mr. Blohm said he sees two trees. Mr. Neville said he believes that one of the trees is dying. Mr. Blohm said then removal of trees down near the lake and the birch stand is really nice just to get a view seems a shame to him. Mr. Blohm said that with all the stuff coming down you will have a pretty naked looking site. Mr. Neville said that he understands there is a point system, and they are planning on replacing with other vegetation on the lot and on the slopes to be able to counter act what was being taken down. Mr. Neville continued there is a lot of new vegetation being proposed. Discussion followed.

Mr. Gelzer said it is a credit to the proposed plan where there is no existing stormwater mitigation on the property. Mr. Gelzer said he was troubled by the request to make the non-conforming side setbacks worse for purposes that are not well argued in his opinion. Discussion followed. Mr. Gelzer said he disagrees with the concept that this property is more burdened by the zoning restrictions that would constrain you not to 15’ but as a first step to the existing footprint as being a step wise increment towards less non-conforming. Mr. Gelzer continued, the description of the property being different in a meaningful way from other properties in the area is interesting because when he thinks about area he thinks about the neighborhood and not the entire Newbury zone area and the house as it’s currently configured is in the character of wider setbacks than your aspiring to achieve with this building plan. Discussion followed. Mr. Gelzer said his particular material concerns are with the arguments for 16.8.2 b and c.

Mr. Thomas said Board members have said that the stormwater management plan is better than what is on the lot now and will be containing the water and doing what the wishes of the Town was when they came up with this zoning ordinance. Mr. Thomas continued that it is an unusual lot, and we allow in other sections of the Town 4’, 5’ 6’ setbacks from a property line and he doesn’t think it will affect the lake.

Mr. Fichter said he appreciates the robust stormwater management plan, and it benefits this lot and everyone on the lake as well. Mr. Fichter said he wished the side setbacks were a little more like the existing side setbacks. Mr. Fichter continued that the Board has been seeing a tendency of trying to use every square inch of a lot that someone has and he  understands that this lot is valued at a considerable amount of money and probably a considerable amount of money was paid for it. Mr. Fichter said those are considerations that are made at the individual level; if what you think is value that is what it is worth to you. Mr. Fichter said he thinks the right of way setback is adequate and is essentially better than many of the homes in that neighborhood. Mr. Fichter continued, the width is at least as bad as anything he saw when he was down there, and he still finds the side setbacks a little troubling. Mr. Fichter said he was also concerned about the talk of re-vegetating. Mr. Fichter continued that you take down a 12” tree and replace it with a 1” or 2” sapling; that is not an equivalency and the Board is seeing cases where that’s being done as a mitigation for taking down a valuable tree and there could have been a couple of things done a little bit more thoughtful in this project.

Mr. Blohm said he could be in favor of this project provided certain things got changed. Mr. Blohm continued that he didn’t know if the Board wanted to do it that way or just say come back to us. Mr. Fichter said right now the Board is just voting on the variance for the side and right of way setbacks on the house and garage. Mr. Blohm said this project given stormwater management the applicants are handling the water; the stormwater management is fine. Mr. Blohm continued the lawn, the trees plus the side setbacks add up to abuse in his opinion, and he is trying to find a way to be in favor of this if certain things were modified a little bit.

Ms. Sherman said the applicants would be glad to rescind the request for tree cutting except for the ones the foundation would be impacting and would consider less grass. Mr. Blohm said how about none because that will affect the lake. Ms. Sherman said she has spoken to the applicants about following best practices in terms of what is planted and not using fertilizer, etc. Discussion followed. Ms. Sherman said she feels what was brought before the Board is an honest attempt to make the best use of this site. Discussion followed.

Mr. Blohm made a motion to vote on the request from Patricia Sherman (agent), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, 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 single family dwelling with an accessory apartment and a garage within the 15’ side setback and 30’ right of way setback, Newbury Tax Map 007-120-111, with the following conditions:

• Reduced tree cutting plan as directed by the arborist and approved by the Town;
• Removal of designated grass areas to be replaced by pervious surfaces.

Mr. Thomas seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variance from Paragraph 5.9.1

Reed Gelzer-voted to Deny the Variance from Paragraph 5.9.1 citing contrary to the public interest and the evidence of unnecessary hardship is insufficient with this specific plan

David Blohm-voted to Grant the Variance from Paragraph 5.9.1

Peter Fichter-voted to Grant the Variance from Paragraph 5.9.1

Motion carries.

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 said the next variance is from Article 9.4 and asked the Board if they had any other new issues in regard to the garage and steep slope that were not already discussed in the setback’s variance. The Board did not.

Ms. Sherman addressed Article 16.8 of the zoning ordinance for the variance from Paragraph 9.4:

16.8.1 The variance will not be contrary to the public interest because: GARAGE: Zoning requires 3 parking spaces (5.7.6) for this project as it includes an Additional Dwelling Unit in the lower level of the home. The proposed house sits on the north side of the Edgemont ROW (a private road) does not allow for a garage or for this number on parking spaces because of the terrain and access restrictions. The owner’s property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont. RETAINING WALLS: The existing wall is north of the house, is old and shows signs of spalling and deterioration. It is definitely in the public interest to rebuild this wall as it retains a steep slope. The wall design will be stamped by a registered engineer to assure its safety. An engineered stormwater management plan will define building procedures to assure best practices during and after construction. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: An old wooden stair to the shoreline will be removed and replaced by engineered stone stairs that use pervious areas for intermediate landings. These landings will coincide with natural grade elevations and be enhanced by plantings to help retain the grade. This plan will allow the owner access to the shoreline with minimal impact to the steep slopes all of which is in the public interest as it protects the slope.

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: GARAGE: Zoning requires 3 parking spaces (5.7.6.) for this project as it includes an Additional Dwelling Unit in the lower level of the home. The proposed house site on the north side of Edgemont ROW (a private road) does not allow for a garage or for this number of parking spaces because of the terrain and access restrictions. The owner’s property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont. RETAINING WALLS: Most of the properties in the area have retaining walls but this one is in poor condition and requires rebuilding to assure its safety. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: There is an elevation change of 26 ft from the existing grade at the retaining wall to the flat portion of the shoreline. The existing wooden stairs are unsafe and do not add stability to the steep slope. The new stairs would work more closely with the grades and the plantings would help retain the slope.
2. The property is different in a meaningful way from other properties in the area because: GARAGE: The owners property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep Slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont. RETAINING WALLS: Most of the properties in the area have retaining walls but this one is in poor condition and requires rebuilding to assure its safety. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: The existing wooden stair needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes.
3. The property is burdened more severely by the zoning restrictions because: GARAGE: The owners property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep Slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont. RETAINING WALL: The existing retaining wall needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: The existing wooden stair needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes.
4.  Because of the special conditions of the property, the proposed use of the property is reasonable because: The owners property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep Slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont.  

16.8.3 The variance is consistent with the spirit of the ordinance since: The owners property on the South side of Edgemont ROW is the only available land for compliance with the parking requirement for this project but it is in the Steep Slope Zone (over 30%). The proposed 2 car garage with guest quarters above would provide 2 covered parking spaces plus 1 space in front of the garage and a pull out spot in front of the house for a total of 4 spaces. Snow storage on this site is difficult due to the terrain so covered parking would mitigate some of the logistics of moving cars to another parking area while the open parking space is plowed. Edgemont road has a 20 ft ROW but only 10-14’ is graded as a roadbed which makes on street parking all but impossible consequently this variance will not be contrary to public interest as it allows compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont. RETAINING WALLS: It protects the natural resources and more importantly removes the danger of a deteriorating retaining wall which protects the owner and his abutters. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: The existing wooden stair needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes.

16.8.4 Substantial justice is done because: GARAGE: This property was developed before the present zoning was established in Newbury and granting this variance allow the owner the right to use all of his property to meet zoning requirements by incorporating stormwater management systems to protect the slopes and control stormwater totally on his property. RETAINING WALLS: Removes the danger of a deteriorating retaining wall which protects the owners, his abutters and the natural resources. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: The existing wooden stair needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes.

16.8.5 The value of surrounding properties will not be diminished because: The existing site north of Edgemont has no stormwater management system in place. Water flows down from Rte. 103 at the top of the slope crosses Edgemont and flow haphazardly onto the owner’s and neighbor’s properties. Building a garage on the site allows for the introduction of a stormwater management system that contains this water south of Edgemont and reduces some of the runoff that presently exists. The additional parking spaces provide more than just compliance with the town’s parking requirements and mitigates the tight traffic patterns on Edgemont as well as the snow removal process. All of this benefits the neighbors and increases rather than decreases their property value. RETAINING WALLS: Removes the danger of a deteriorating retaining wall which protects the owner, his abutters and the natural resources. Another retaining wall may need to be built south of the garage to control the drainage and redirect it into dry wells as per the stormwater management plan. STAIRS: The existing wooden stair needs replacement and requires work in the Steep Slope Zone to facilitate its replacement for safety purposes.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting. Mr. Fichter noted the two abutter letters read into the record previously.

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 Patricia Sherman (agent), Richard P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, for a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a garage and replacement of retaining wall and stairs in steep slope, Newbury Tax Map 007-120-111.

Mr. Fichter seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Grant the Variance from Paragraph 9.4

David Blohm-voted to Grant the Variance from Paragraph 9.4

Reed Gelzer-abstained

Hank Thomas-voted to Grant the Variance from Paragraph 9.4

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.

Ms. Sherman addressed Article 16.7 of the zoning ordinance for a special exception to allow an ADU in a single family home in the Shoreland Overlay District:

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: This 580 sf ADU’s use is a mother in law apartment and is designed for occupancy by one person. It is created to provide special housing needs as described by Article 5.7. The location of this one bedroom unit is in the lower floor, (walk out area) of a new primary residence. There is no external evidence of an additional living unit in the design fenestration of this residence. The property allows space for 4 parking spots where 3 are required so there is no burden to the limited parking that is provided by this narrow private road. The primary residence requires variances to the setback requirements for Rural Residential Zone but the addition of an ADU does not impact the need for such variances.

16.7.2 The use will not be injurious, noxious or offensive and thus detrimental to the neighborhood because: This 580 sf ADU’s use is a mother in law apartment and is designed for occupancy by one person. It is created to provide special housing needs as described by Article 5.7. The location of this one bedroom unit is in the lower floor, (walk out area) of a new primary residence. There is no external evidence of an additional living unit in the design fenestration of this residence. The property allows space for 4 parking spots where 3 are required so there is no burden to the limited parking that is provided by this narrow private road. The primary residence requires variances to the setback requirements for Rural Residential Zone but the addition of an ADU does not impact the need for such variances.

16.7.3 The use will not be contrary to 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 property has an approved 4 bedroom septic system and the total number of bedrooms on the property will be 3. The property allows space for 4 parking spots where 3 are required so there is no burden to the limited parking that is provided by this narrow private road.

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 and future street giving access to it shall be such that it will be in harmony with the neighborhood because: This 580 sf ADU’s use is a mother in law apartment and is designed for occupancy by one person. It is created to provide special housing needs as described by Article 5.7. The location of this one bedroom unit is in the lower floor, (walk out area) of a new primary residence. There is no external evidence of an additional living unit in the design fenestration of this residence. The property allows space for 4 parking spots where 3 are required so there is no burden to the limited parking that is provided by this narrow private road. The primary residence requires variances to the setback requirements for Rural Residential Zone but the addition of an ADU does not impact the need for such variances.

16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, vibration than would be the operations of any permitted uses in this district which are not subject to special exception procedures because: This ADU is a single family use in a single family Residential Zone. It is consistent with the intent of Article 5.7.

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

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 Patricia Sherman (agent), Richard

P. & Amy P. Neville (owners), for property located at 9 Edgemont Landing, Newbury, NH, for a Special Exception as provided for in Article 5.7.1 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Shoreland Overlay District, Newbury Tax Map 007-120-111.

Mr. Fichter seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Grant the Special Exception

David Blohm-voted to Grant the Special Exception

Reed Gelzer-abstained

Hank Thomas-voted to Grant the Special Exception

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

The meeting adjourned at 9:46 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary