Zoning Board Minutes
Zoning Board of Adjustment
December 14, 2020
Approved January 11, 2021
Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Gary Budd, Member; Reed Gelzer, Member; Hank Thomas, Alternate.
Public Present: John Galluzzo; Steve & Sue Russell; Katheryn Holmes
Mr. Fichter called the meeting to order at 7:02 p.m.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of November 9, 2020. Mr. Fichter made a motion to accept the minutes as amended. Mr. Blohm seconded the motion. All in favor.
Mr. Fichter advised the applicant that a quorum of the Board is five members, but the applicant could choose to go forward with tonight’s hearing with the four Board members present or continue the hearing to a future date and time certain. Mr. Galluzzo said that he was okay with moving ahead with the hearing at this time. Mr. Thomas later came into the Zoom meeting giving the Board a quorum.
Mr. Fichter appointed Mr. Thomas as a voting member for this meeting.
Mr. Fichter advised the meeting participants that because this was a virtual meeting guidelines state that you identify yourself and any other individual in the room. Mr. Fichtercontinued that if anyone experienced technical difficulties the Board would be required to continue the meeting until such time the technical difficulties can be fixed.
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, December 14, 2020 by utilizing Zoom. Directions to enter the Zoom meeting will be available on the Zoning Board of Adjustment page of the Town’s website: At 7:05 p.m., John & Kim Galluzzo(owners), for property located at 133 Gerald Drive, Newbury, NH, will seek a variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a 12’ x 16’ shed within the 30’ right of way setback. Newbury Tax Map 039-724-369. Copies of the application are available on the Zoning Board of Adjustment page on the Town of Newbury website, newburynh.org.
Mr. Galluzzo presented to the Board.
Mr. Galluzzo said that he owns property on the corner of Gerald Drive and Chalk Pond Road at 133 Gerald Drive and the applicant would like to place a storage shed on an existing, what the applicant refers to as a “lower driveway”. Mr. Galluzzo said the shed would be used for kayaks, canoes and bikes-to keep them out of the snow and to keep the property neat.
There being no further questions from the Board, Mr. Galluzzo addressed Article 16.8 of the zoning ordinance:
16.8.1 The variance will not be contrary to the public interest because: Placing the shed on an existing impervious surface means no disruption to other areas and will not create additional impervious surface. If further setback is required in addition to above an existing stonewall that once bordered the old Chalk Pond road would be impacted. There are other sheds on other properties with similar setback issues.
Mr. Fichter noted there was already a shed on the property and asked Mr. Galluzzo if his intention was to keep this shed in addition to the proposed shed. Mr. Galluzzo said yes, the existing shed is pretty much full of wood and the lawnmower and will remain on the property. Mr. Fichterasked if the existing shed is sitting on a septic system. Mr. Galluzzo said no that the tank is near the set of back stairsthat come down. Mr. Fichter asked if the existing shed was on the leach field. Mr. Galluzzo said that he guesses that it leaches out in that direction but is not sure where it begins or ends.
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: If the existing impervious would need to be extended, much fill would need to be added as there is a significant drop off that would need to be filled in. Existing stonewall would be impacted. Several large trees would need to be cut
b) The property is different in a meaningful way from other properties in the area because: 133 Gerald Drive is bordered by 2 different rights of way each requiring a 30 ft setback.
c) The property is burdened more severely by the zoning restrictions because: Property bordered by 2 different rights of way which require 30 ft setback. Because of the additional setback requirement, a steep drop off in property would require filling and tree removal.
d) Because of the special conditions of the property, the proposed use of the property is reasonable because:Does not introduce additional impervious surface area. Saves removal of existing mature trees. Preserves existing stonewall.
16.8.3 The variance is consistent with the spirit of the ordinance since: It is using existing impervious surface. Does not create any new impervious surfaces, maintains existing square feet of impervious surface.
16.8.4 Substantial justice is done because: New shed allows for storage of kayaks, canoes, bikes, lawn furniture usually stored in open in yard, creates a more pleasant property to neighborhood.
16.8.5 The value of surrounding properties will not be diminished because: The shed will match in color style the existing home. It will look aesthetically pleasing and not out of place with its surroundings. Functionally, and as noted above, it creates a neater/cleaner yard.
Mr. Gelzer asked if the Driveway Access Regulations that were sent to the Board were intended to inform this meeting. Mr. Fichter said he didn’t think so that the Planning Board approved the Regulations on November 17th and they were sent to Board members for their information. Mr. Fichter said there was no linkage intended, although it could be considered as to this particular situation.
Mr. Gelzer said he read through the Driveway Access Regulations and noted that the applicant referred to the current impervious area as a driveway, so it would seem worth consideration that one of the stipulations for driveways appears to be that there are procedures for alterations of driveways and it would seem that an obliteration of a substantial fraction of an existing driveway with a structure could be reasonably deemed to qualify as a substantial alteration of the size of the driveway. Mr. Fichter asked Mr. Galluzzo is that area really a driveway, not just a convenient term the applicant used. Mr. Galluzzosaid that spot was there when the house was purchased and is not the primary driveway. Mr. Galluzzo continued he doesn’t know what else to call it other than a spot that was graded and left there by the previous owner and occasionally will have a car parked there.
Mr. Gelzer asked why the applicant chose to place the proposed shed on that other area instead of adjacent to the other driveway and other shed. Mr. Galluzzo said that the proposed area for placement of the shed was existing and there is room. Mr. Galluzzo continued that to put the proposed shed near the existing shed the drop offs on either side of the shed would need to be filled which would require a lot of fill and trees would need to be cut down. Mr. Gelzer asked why the proposed shed couldn’t be placed between the house and existing shed. Mr. Galluzzo said that would pretty much take up his back yard and be all clustered together. Mr. Blohm asked how far the house was from the right of way. Mr. Galluzzo said the house doesn’t even meet the 30’ right of way setback. Mr. Blohm noted that the house encroached on the setback as does just about every house on that road.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
Mr. Fichter said he received a copy of a letter that the Russell’s sent in and asked Ms. Favreau if she had a copy for the records. Ms. Favreau said she did not receive the Russell’s letter. Mr. Russell said that the letter he will be reading would contain what was sent to Mr. Fichter as well as a few more points in it.
Mr. Russell read into the record the following: The subject property is located in a particularly sensitive area of the Chalk Pond watershed. In 2013 the Sunapee Hills Association in cooperation with the Town of Newbury, Audubon Society of New Hampshire, and Ausbon Sargent created a conservation easement known as Stoney Brook that directly abuts the subject property. This easement connects several conserved parcels which stretches from Hay National Wildlife refuge to the Newbury/Sutton town line creating a 1,168 acre wildlife corridor. (see map below) This easement contains important wetlands with vernal pools which also abuts the subject property. This was a long and difficult process that required the cooperation of many different organizations, including the members of the Sunapee Hills Association, who donated time and money for the creation of this important easement that benefits the Town of Newbury. We believe for the stated reasons that the proposed construction of this shed does not satisfy 16.8.1 of the variance criteria and is contrary to the public interest. The granting of a variance to permit the construction of an additional shed in this area of the watershed would not be beneficial to the Town of Newbury nor the members of the Sunapee Hills Association which has invested substantial amounts of money to preserve this special area. Hardship 16.8.2 is not established because there is an existing shed on the property. I ask that you consider the larger public interest that is reflected in the purpose of Article IV of the Newbury Town Zoning Ordinance in the purpose section. It is the intent of these regulations to limit development density on land where fragile features and critical natural resources are located. Sincerely, Steven and Suzanne Russell-372 Chalk Pond Rd. Newbury, New Hampshire
Mr. Russell said the other thing he didn’t say in the letter was that the dimensions of the proposed shed are 16’ x 12’ which is not typical of the outbuildings that are in the Chalk Pond area; most of the sheds are basically garden and tool sheds and they’re very small. Mr. Russell continued that Gerald Drive is a 20’ wide road, a very narrow road and the shed would probably sit no more than 10’ from the edge of the road and that is going to pose a problem of safety for the person plowing the road.
Mr. Fichter noted that the letter Mr. Russell read was significantly different than the letter that was sent to him. Mr. Fichter asked Mr. Russell to send an official version of the letter that Mr. Russell wanted submitted for the record to the Land Use office-letter is attached to these minutes. Mr. Fichter said he thinks the intent is essentially the same but there is a discrepancy in the verbiage of the letter sent and the letter read. Mr. Russell said that what he read is reflective of his thoughts.
Mr. Blohm asked Mr. Russell what his viewpoint is of the impact the proposed shed will have on the watershed. Mr. Russell said there are sensitive vernal pools that are located in the wetlands which are close to Mr. Galluzzo’s property. Mr. Russell continued that he is concerned that if there is a big structure on that raised site the roof run off from the shed will be drained directly into the wetlands without any mitigation. Mr. Galluzzo said the shed will be setting back from the road 17 to 18 feet. Mr. Galluzzo continued that he has owned the property for twelve years and there are no vernal pools where that existing space is, and the wet areas are not close to the proposed site for the shed. Mr. Galluzzosaid that he checked with the State and there is no mitigation required because it is an existing impervious surface. Mr. Galluzzo continued that the shed is not creating any additional impervious surface area to the lot and he would argue that the run off is no different than the run off that happens to that location right now. Mr. Galluzzo said that there are sheds bigger than what he is proposing on the street.
Ms. Holmes said that when rain comes down on a roof it picks up speed. Discussion followed.
Ms. Holmes asked if gravel was put down on the proposed site of the shed recently. Mr. Galluzzo said that he put 6 inches of ¾ crushed stone. Discussion followed.
Mr. Fichter asked Mr. Galluzzo if he would be willing to put in some sort of drip edge draining on the sides of the shed so that run off water will be allowed to dissipate into the ground a little slower. Mr. Galluzzo said absolutely. Discussion followed.
There being no comment from the public, Mr. Fichterclosed the public portion of the meeting.
The Board went into deliberations.
Mr. Fichter said he would like to see a little bit more in the way of mitigating water coming off the roof. Mr. Fichtersaid the proposed placement of the shed is a suitable location given that the area already exists and there is no additional ground disturbance, tree cutting, or fill needed.
Mr. Blohm said that he thinks this is a reasonable plan with the water mitigation. Mr. Blohm continued that he agrees that placing the shed elsewhere has a bunch of other problems.
Mr. Budd said that it makes sense in the proposed existing location.
Mr. Gelzer said he thought the Board was inadvertently mischaracterizing the nature of the variance when they call it a shed; regardless of what the current intent may be for this building, the building non the less meets the Newbury definition for structure, including building footprint, which means by granting this variance, the Board is granting an easement to permanently occupy that space with a building whose nature could change over time. Discussion followed. Mr. Gelzer continued that there seems to be some consensus that the description of a sloped roof eight or how many feet off the ground at the drip edge is materially different than a flat surface at ground level, that the water will accelerate off the roof and be concentrated in a different way than directly hitting the ground. Mr. Gelzersaid he thought this needs to be set aside while the question of is this a driveway is answered in a formal way. Mr. Gelzer continued that if this is a driveway then substantially eliminating surface with a structure is a change. Mr. Gelzer said he had two recommendations; 1) the highway department look at this and 2) a formal erosion control plan should be added.
Mr. Thomas said that he agrees with putting crushed stone around the roof drip sides of the shed for erosion control. Mr. Thomas continued that he thinks the Board is trying to read more into the new driveway regulations than the intent. Mr. Thomas said he was involved with the driveway regulations and the intent was to make safer access for emergency vehicles, and specifications for culverts and aprons. Mr. Thomas continued that there is already a driveway access to Mr. Galluzzo’s property and the proposed area for the shed is used for spare parking.Discussion followed.
Mr. Blohm made a motion to vote on the request from John &Kim Galluzzo (owners), for property located at 133 Gerald Drive, Newbury, NH, for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a 12’ x 16’ shed within the 30’ right of way setback, Newbury Tax Map 039-724-369, with the following condition:
• An appropriate stormwater management drip edge be placed around the perimeter of the shed to catch the water run off from the roof.
Mr. Thomas seconded the motion.
Roll Call Vote:
Hank Thomas-voted to Grant the Variance from Paragraph 5.9.1 with the stated condition.
Gary Budd- voted to Grant the Variance from Paragraph 5.9.1 with the stated condition.
Peter Fichter- voted to Grant the Variance from Paragraph 5.9.1 with the stated condition.
David Blohm- voted to Grant the Variance from Paragraph 5.9.1 with the stated condition.
Reed Gelzer-voted to Grant the Variance from Paragraph 5.9.1 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.
The Board discussed the process of how to deal with significant changes to submitted stormwater management plans. Mr. Fichter suggested that the Board continue the case until the new stormwater management plan can be submitted to the Board for review.
There was consensus of the Board.
Mr. Fichter made a motion to adjourn. Mr. Blohm seconded the motion. All in favor.
The meeting adjourned at 8:45 p.m.
Respectfully submitted,
Tiffany a. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 December 14, 2020