Zoning Board Minutes

Zoning Board of Adjustment

November 9, 2020

Approved December 14, 2020

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

Public Present: Barry Paddock, Susan Gillick, Katheryn Holmes, Julianna Anderson, Peter Losty.

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

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of October 19, 2020. Mr. Fichter made a motion to accept the minutes as amended. Mr. Gelzer seconded the motion. Mr. Budd abstained. All in favor.

Board member introductions.

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

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, November 9, 2020 at the Veteran’s Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Barry Paddock (agent), Edward Charles Gillick, Jr. Trust (owner), for property located at 163 Bay Point Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2, 7.6.1 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, with a covered screened porch in the waterfront buffer.  Newbury Tax Map 006-082-018.

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. Gelzer said he had a point of order question about thedenied building permit and the denial letter that are crossed out on the Checklist for required items and LUC memo is written in. Ms. Favreau said that is the Land Use coordinator memo that will replace the denied building permit and denial letter. Ms. Favreau continued this change to the process was discussed at the Joint Board meeting in which the zoning compliance review is done prior to submitting for the building permit. Ms. Favreau said the Checklist will be updated to reflect the change.

Mr. Paddock presented to the Board.

Mr. Paddock said he has been a contractor in the area since 1975. Mr. Paddock continued that 163 Bay Point Road is a beautiful piece of property that has an existing 4 bedroom home with 2 baths, the square footage is comprised on three levels and is located totally in the 75’ buffer zone. Mr. Paddock said the property also has a two-car garage that is right at the street. Mr. Paddock continued that parking is a real problem and for the most part it is back and turn out onto Bay Point Road and not in a particularly good area. Mr. Paddock said most of the homes in the Bay Point area are either located the same distance from the water or closer than the existing cottage and most of the homes are a bit larger.

Mr. Paddock said the first thought was to renovate and keep the structure but some of the pier footings, that support the home, are compromised and the framing underneath the house is way undersized for a three story home. Mr. Paddock continued that there is no well on the property, the water comes from the lake, the garage is too close to the street, and there is no parking. Mr. Paddock said all of that was taken into consideration and the decision made to move forward with new construction.

Mr. Paddock said the property is comprised of a half-acre of land and on the property you have the setback requirements of the Town, the setback of the needed new septic system plan that was transferred from the previous owners. Mr. Paddock continued that the other problem in developing this lot is the DES requirement of undisturbed area on either side of the property, some of which is outside the setback, further making the building envelope smaller.

Mr. Paddock said the proposal for the new house is slightly bigger than the existing house. Mr. Paddock continued that the requirements the Gillick’s had for the new house was to maintain the four bedrooms, a modest sized living space, a home office and a playroom on the lower level for their three children. Mr. Paddock said the heated space of the existing house footprint covers about 900 square feet; the heated space of the proposed house footprint covers 1140 square feet. Mr. Paddock noted that both the existing and proposed house have a screened in porch that runs the entire length of the front of the house which is 34 feet. Mr. Paddock said the proposed house will be moved back from the water 10 feet and will be giving up roughly 300 square feet of the house in the 50-foot waterfront buffer, including a set of stairs that will be relocated to the side of the walkway on the north side of the house. Discussion followed. Mr. Paddock said the proposed project is modest in nature.

Mr. Paddock noted that this lot has a lot of boulders, so no boulders will be trucked in; there are plenty to do the retaining walls shown on the plan. Mr. Paddock said they have established a sill level for the proposed house and the first-floor level of the house will be raised up roughly five feet in order to have a full basement. Mr. Paddock continued that this will also allow the garage to be on grade with the proposed driveway. Discussion followed.

Mr. Paddock said there will be a dug in silt fence with the fabric below grade, surrounding the entire project. Mr. Paddock continued that in addition to the silt fence anywhere there are areas of potential run off haybales will be used. Mr. Paddock said another piece of the water retention will be a drip edge infiltration trench that runs the entire length of the house on both sides and on both sides of the garage. Mr. Paddock continued that a trench is dug under the drip line; There is a layer of inch and half to half inch stone, then a layer of 5” to 8” crushed rock then a layer of 3” to 5” crushed rock to grade. Mr. Paddock said the drip edge infiltration trench is very effective, it willhold a lot of water and perks it out slowly. Discussion followed. Mr. Fichter noted that on the plan he did not see a drip edge on one side of the house. Mr. Paddock said it was under the deck on that side and in the plan detail there is a 6” grate that will run the length of the deck for the water to drop down into the trench. Mr. Gelzer clarified that the runoff from the deck will fall under the deck and will not be channeled away from the lake. Mr. Paddock said that was correct and it’s pitched away from the building. Mr. Gelzer said that is not going to fly and there is no reason to do that. Mr. Blohm asked Mr. Gelzer, as opposed to what; trying to move the runoff backwards and uphill. Mr. Gelzersaid just move it further back; some of the settlement areascan be beyond the 75’ setback. Mr. Blohm noted that Mr. Paddock said the water goes into the trench and basically filters straight down into the ground as opposed to moving toward the lake. Mr. Paddock said the water immediately goes from surface level to almost 2 feet deep right at the get go. Discussion followed. Mr. Fichter asked what happens to the water that comes off the overhang which is toward the lake. Mr. Paddock said they would do a surface system, not as dramatic as the infiltration trench, crushed stone all around the house except for where the garage doors are. Mr. Fichter asked the reason why they wouldn’t put the same robust type of catchment under the overhang. Mr. Paddock said they could but there was not very much water coming off that 10 feet of roof. Mr. Paddock continued that they could continue the trench from under the deck around the corner; it is the same grade. Mr. Blohm said that makes sense. Mr. Paddock said he was good with that.

Mr. Blohm asked what is happening on the sloped driveway to catch the runoff. Mr. Paddock said that not only does the land slope toward the lake it also slopes toward the north side of the property where there is a seasonal stream. Mr. Paddock said that whole area which is undisturbed is full of boulders and so forth; a great catch area to filter out water. Mr. Paddock continued that his plan would be to slope the driveway off to that side. Discussion followed. Mr. Blohmasked how the stream at its high point will be affected by the construction and runoff. Mr. Paddock said he doesn’tfeel they have added any additional runoff; actually, there is less runoff because of what will be installed; there is nothing on the existing house to deal with runoff. Mr. Blohm said that at the bottom of the driveway instead of sloughing the runoff toward the stream could you capture the water and drain it down. Mr. Paddock said the driveway will be gravel so it will grab some water. Mr. Paddock continued that one thought would be to extend the trenchon the north side of the garage across for the water from the driveway to run into and slow it down. Mr. Blohm said that would be a reasonable thing to do. Discussion followed.

Mr. Gelzer said the Board has been attentive to the active management of the water coming off impervious surfaces, including rooftops within the 75’ lake setback in particular, but more so in the 50’ waterfront buffer. Mr. Gelzer said that in his mind recent practices would argue against the notion of the water off the roof running directly into a water catchment that goes directly into the ground within 50’ of the water. Mr. Gelzer said the Board has been historically promoting that the water must be managed back away from the lake. Mr. Gelzer said he thought this water management plan is insufficient insofar as it is not consistent with what the Board has been asking as a condition of variance for the purpose of improving the situation avoiding extraordinary cost or for things that are totally speculative Mr. Gelzer asked why the Board would not hold this site similarly responsible for much more management from pulling water back away from the lake before it goes to the ground. Mr. Paddock said he was acting on previous systems that he has done and going with Pierre Bedard’s recommendations that this was a better system. Mr. Paddock continued that he would be good either way. Discussion followed. Mr. Fichter said there sounds like there is a willingness of the applicant to change the water handling coming off the roof, if suitable to the Board it can be done with a condition. Mr. Blohm asked who designed the water handling system. Mr. Paddock said Pierre Bedard. Mr. Paddock continued that he would have Mr. Bedard redesign the water management plan. Mr. Gelzer asked if it would be burdensome if the water management plan was revised and brought back to the Board which would move everything back 30 days. Mr. Paddock said it would be burdensome. Discussion followed.

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

16.8.1 The variance will not be contrary to the public interest because: 1)The proposed construction and variance from the zoning regulations is modest and minimal in nature; 2)The proposed construction results in making the property MORE conforming in three different instances, a)further from the waterfront by 13’, b)garage moved to proper setback requirement, c)parking for two vehicles in off street location.

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 Gillick property is only ½ acre in size.There is only a small section of road frontage that allow access to the property that has reasonable grade.

b) The property is different in a meaningful way from other properties in the area because: There is a seasonal stream running down the north side of the property. There are significant large boulders on much of the property. There are two areas with significant changes in grade to be avoided.

c) The property is burdened more severely by the zoning restrictions because: The lot size in ½ acre vs. two acres as currently required for residential development. Once setbacks are calculated and septic, well and off-street parking is satisfied the building envelope is greatly reduced and reasonable development and improvement to the property is severely burdened.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:It would allow upgrading of the septic system, legal location of the well, better off street parking.

16.8.3 The variance is consistent with the spirit of the ordinance since: 1) The proposed new location of the rebuild will have less square footage in the 50’ buffer; 2) New garage location will be in the allowable building envelope area and allow vehicles to back and turn on the property as opposed to in the street; 3) The new square footages are modest in nature (under 250 square feet) and are contained behind the building not adding to the width of the footprint.

16.8.4 Substantial justice is done because: 1) It allows the Gillick family to convert the property to a more useable full time residence that works for their family; 2) It allows for replacement of the failed septic system and installation of a permanent water source instead of seasonal; 3) It allows the home to be upgraded to an energy efficient and properly constructed structure. It allows for off street parking.

16.8.5 The value of surrounding properties will not be diminished because: The proposed new construction will result in the property being of higher value and more pleasing architecturally than the existing property. Often new construction of a property will increase the value of nearby properties.

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 theZoning Board dated November 5, 2020: Dear Madame/Sir; Re: Variance for 163 Bay Point Road/Edward Charles Gillick, Jr Trust. As owners of 161 Bay Point Road, we have reviewed the drawings related to the variance application for 163 Bay Point Road. The proposed plan for 163 Bay Point Road will be a great improvement to the neighborhood. As an adjacent neighbor we are very pleased by the substantial investment that will be made by the E C Gillick, Jr Trust. The variance request for a change in height will have no impact on the neighbors and the new house moves the porch ten feet back from the lake. We sincerely hope the Zoning Board of Adjustment will grant the request so the E C Gillick, Jr Trust can proceed with its significant improvement to the neighborhood. Sincerely yours, Patricia Kijak Anderson & Edward R. Anderson III

Ms. Holmes asked if the construction will be 15 feet from her property line. Mr. Paddock said they will be around 25 feet away from the property line. Ms. Holmes asked if the retaining wall would have any impact on her property. Mr. Paddock said no it won’t. Ms. Holmes asked how much impervious surface is proposed. Mr. Paddock said 14%. Discussion followed.

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

The Board went into deliberations.

Mr. Fichter said the proposed plan is a vast improvement over what’s there now for water management. Mr. Fichtercontinued that there is not a lot the property owner can do to maintain what is coming down the stream already, but it is important not to add any more to it.

Mr. Blohm said he thinks this is a big improvement on the stormwater management. Mr. Blohm continued that he thinks taking the garage down on the road will be an improvement to the look of the road. 

Mr. Thomas said he thinks the proposed plan is in the spirit of the ordinance; they are pulling the house back from the lake and adding onto the back and not encroaching on the sides.

Mr. Budd said they have done the best job they could with the restrictive lot size, especially bringing it back from the lake.

Mr. Gelzer said the overall plan brings substantial improvements to the site.

Mr. Blohm made a motion to vote on the request fromBarry Paddock (agent), Edward Charles Gillick, Jr. Trust(owner), for property located at 163 Bay Point Road, Newbury, NH, for a Variance from the requirements of Paragraph 7.4.2, 7.6.1 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, with a covered screened porch in the waterfront buffer, Newbury Tax Map 006-082-018, with the following conditions:

• The redesign of the stormwater management plan that 1) takes the roof run off from all sides of the house and moves it back beyond the 75’ setback line and 2) takes driveway run off and moves it away from the seasonal brook.

Mr. Thomas seconded the motion.

Roll Call Vote:

Reed Gelzer-voted to Grant the Variance from Paragraph 7.4.2, 7.6.1 and 15.2.2

David Blohm-voted to Grant the Variance from Paragraph 7.4.2, 7.6.1 and 15.2.2

Hank Thomas-voted to Grant the Variance from Paragraph7.4.2, 7.6.1 and 15.2.2

Gary Budd-voted to Grant the Variance from Paragraph 7.4.2, 7.6.1 and 15.2.2

Peter Fichter-voted to Grant the Variance from Paragraph 7.4.2, 7.6.1 and 15.2.2

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.

Motion for Rehearing by Reed Gelzer (Zoning Board of Adjustment Member), 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; 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.

Mr. Fichter said that under the advice of counsel through the New Hampshire Municipal Association, it is recommended that Mr. Gelzer recuse himself from thisMotion for Rehearing. Mr. Gelzer recused himself.

Mr. Fichter reviewed the Board parameters for a Motion for Rehearing as stated in the ZBA Rules of Procedure which he read into the record: “RSA 677:3 provides that a motion for rehearing set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. This has been interpreted to include grounds such as technical errors in procedure, the board failed to adequately explain its decision, and discovery of new evidence not available at the time of the first hearing which may have affected the outcome.”

Mr. Fichter asked Mr. Budd if he was comfortable participating in this Motion for Rehearing whereas he was not part of the meeting that made the decision. Mr. Budd said yes.

Mr. Gelzer presented to the Board.

Mr. Gelzer said he would characterize the recommendations he was making for a new hearing to come under the category of additional evidence or oversight. Mr. Gelzer continued that the nature of the oversight, in his opinion, is that it is implicit that the variances as written in the Newbury rules, to a certain extent, presume normal road access. Mr. Gelzer said that Mr. Thomas had enlightened him with some history about the houses on Edgemont. Mr. Gelzer continued that it wasn’t that long ago that you couldn’t drive down Edgemont but walked down from Route 103.

Mr. Gelzer said it appears the Planning Board has never looked at Edgemont for the purposed of incorporating it or recognizing it as a road. Mr. Gelzer continued that the circumstances private roads were acted on were new roads. Mr. Fichter asked when Mr. Gelzer said “acted on” was he implying that the Town was going to accept a private road and make it a public road and take over responsibility plowing and maintenance. Mr. Gelzer said that is one option.

Mr. Gelzer said Edgemont has changed; it used to be seasonal homes, but circumstances are changing; we are seeing rebuilds. Mr. Gelzer continued that a downside is bigger homes which mean more people; year-round homes mean use year-round and Edgemont currently has no means for the Town to address the situation there. Mr. Gelzer said the other instance that the Town can speak to the condition of the road is if the neighborhood or Town decides to apply a parking management plan; that then gives the highway department standing to control things like obstacles, where the snow is piled, ice accumulation and other obstructions. Mr. Gelzer said the Board did not know that there were currently zero controls over the safe passage on Edgemont. Mr. Fichter said that he would dispute that. Mr. Fichtercontinued that he thinks the Board knows that it is a private road and by definition private roads are not controlled by the Town and by extension there are no Town regulations that govern what goes on there. Discussion followed.

Mr. Gelzer said it was his contention that without full knowledge of the state of the unique private roads situation that there was an error revealed by the discovery of new evidence that shows adding more traffic, adding year round use and adding more necessary designated parking spaces on an already problematic road merits a reconsideration of the variance. Mr. Blohm said he does not see the connection between the granting of those variances and this problem. Mr. Blohm continued that the problem needs to be addressed some other way. Mr. Blohm said the Board granted the variances with full knowledge of the fact that this was a private road. Discussion followed.

Mr. Fichter said that he does not agree with Mr. Gelzer’spremise that there is new information that came about the Board was not aware of at the hearing and therefore its impact on the findings that the Board had was nonexistent.  

The Board agreed unanimously that there was no new information presented and the criteria of RSA 677:3 was not met.

Mr. Fichter noted that Mr. Gelzer has an avenue of appeal through the courts.

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

The meeting adjourned at 9:24 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        November 9, 2020