Zoning Board Minutes

Zoning Board of Adjustment

January 11, 2021

Approved June 14, 2021

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

Public Present: Peter Blakeman; Peter White; Michael & Betsy Deasy; Jennifer Deasy; Wylie

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

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of December 14, 2020. Mr. Fichter made a motion to accept the minutes as amended. Mr. Blohm seconded the motion. All in favor.Mr. Azodi abstained.

Board introductions.

Mr. Fichter appointed Mr. Thomas and Mr. Azodi as voting members for this meeting. Mr. Fichter said there are five members tonight which constitutes a full Board and for the variance to be granted the applicant needed three affirmative votes.

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, January 11, 2021 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., Peter Blakeman (agent), Betsy P. Deasy Rev Trust (owner), for property located at 205 Bay Point Road, Newbury, NH, will seek a variance from the requirements of Paragraphs 7.4.2 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Reconstruction of a 4 bedroom primary dwelling with a 2 bedroom primary dwelling with an attached garage partially within the 75’ lake and permanent stream setback. Newbury Tax Map 006-089-142. 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 to noon.

Mr. Blakeman and Mrs. Deasy presented to the Board.

Mrs. Deasy said she and her husband are now retired andplanning to move to Newbury as full-time residents. Mrs. Deasy continued that there are currently two standalonecottages with a total of seven bedrooms on the lot and they are proposing to take both down and build a two-bedroom house with an attached garage.

Mr. Blakeman said there are two cottages on the property, with the main cottage being 16 feet off the lake. Mr. Blakeman continued this cottage has four bedrooms and its own septic system. Mr. Blakeman said the second cottage is 81 feet off the lake and has three bedrooms. Mr. Blakemansaid the property is small, narrow and relatively steep. Mr. Blakeman continued that it is .4 acres-17,055 square feet in the residential district and the Shoreland Overlay district. Mr. Blakeman said the property is roughly 92-95 feet wide, 175-200 feet deep from the road to the lake. Mr. Blakeman continued that there is about a 39 feet drop from the road to the lake and is typical for Bay Point Road type of lot. 

Mr. Blakeman said the property also has a small section of stream which a wetland scientist looked at; it is jurisdictional from the outlet of the culvert at the road to the inlet of the culvert under the driveway. Mr. Blakeman said at the outlet of the culvert anytime water has gone through there, which is typically only in the springtime and not year round, it disappears into boulders and actually goes underneath one of the cottages. Mr. Blakemancontinued that there is no sign of any stream from the culvert down to the lake.

Mr. Blakeman said the access into the cottages is a driveway off the road which is very steep-26%, which is difficult in the summer and is basically unusable in the wintertime. Mr. Blakeman continued that it is not a safe driveway because it comes straight up to the edge of the road and then you have to floor it and get up onto the road as fast as you can. Mr. Blakeman said that access has been a concern of the Deasy’s right along in regard to having year round safe access.

Mr. Blakeman said they are proposing a two bedroomhouse with an attached garage and also a small accessory garage for storage, which is not part of the variance application. Mr. Blakeman continued that the driveway was what drove the location of the house. Mr. Blakeman said that because it was so steep to get down into a garage, they needed to get as much length to the driveway as they could and that is why there is an S shape to it and even with that it will still be at 17% grade for part of the driveway but still be a workable driveway in the wintertime. Mr. Blakeman said that to get the driveway length the placement of the house needed to slide laterally to the north.

Mr. Blakeman said that he understands that stormwater management and septic are a large part of improving properties in the Shoreland and this project has a fairly robust stormwater plan. Mr. Blakeman continued that they were going to infiltrate roughly 60-65% of the roof area. Mr. Blakeman said the impervious area in the Shoreland is increasing from 28.2% to 29.6% so you have to really infiltrate that increased impervious area which is about 257 square feet. Mr. Blakeman said that the existing property has virtually no stormwater measures put in. Mr. Blakeman continued that there are currently 7 bedrooms, however the Deasy’s are proposing a modest house with a two bedroom up to date modern septic system that will need to get permitted.

Mr. Fichter noted that some of the proposed septic system is under the driveway. Mr. Fichter asked if this is a chambered system. Mr. Blakeman said it is an Envirosepticand they are allowed as long as there is 18 inches of covering, which there will be more than that. Mr. Blakeman said that with moving the house across, there is a plan for the restoration of some of that area where the old house was. Mr. Blakeman continued that they were proposing a small pervious patio off the edge of the house and a landscape architect has developed a plan for plantings and restoration of the buffer area. 

Mr. Blakeman said that to keep under the 30% impervious a fair amount of the driveway, the flatter area down in front of the garage is pervious. Mr. Fichter asked what material would be the steeper part of the driveway. Mr. Blakeman said the steeper part will be paved. Mr. Fichter asked what the plans were to handle the run-off water that will come down from the paved portion of the driveway. Mr. Blakeman said there would be a ditch on the upper side following the driveway down right along the wall and the driveway itself. Mr. Fichter asked if the driveway would be pitched toward the accessory garage. Mr. Blakeman said it will have a typical crown to it and the other section will go towards the garage and house and that the grading of that is relatively flat. Mr. Blakeman said they would be building up the wall on the uphill side of the garage and pitch it toward the outlet of the culvert. Mr. Blakeman continued that the existing driveway culvert will be replaced and extended further down into the property to behind the proposed garage where basically the water goes right now.Mr. Fichter said he visited the property within the past week and noted that there was a significant amount of water coming from across the street, under the road into a swale and then into a culvert under the existing driveway and then dispersed into the open area. Mr. Fichtercontinued that he had difficulty seeing where that water went once it left the open area. Mr. Fichter asked if the water went underneath the existing 3-bedroom cottage. Mr. Blakeman said that the water does go subsurface there into boulders underneath the surface of the ground and then flows subsurface down to the lake. Mr. Blakeman said that a wetland scientist looked from the road down to the lake. Mr. Blakeman said the only spot that has a stream channel was between the existing culverts. Mr. Blohm asked if they plan to border the driveway with riprap. Mr. Blakeman said he was planning on picking up the water below the accessory garage and it would come off the upper part of the driveway and then the grading is around the garage and then down into the swale along the garage itself and then the swale will bring the water down along the driveway to the side of the patio. Mr. Blakeman said he was trying not to channelize too much into pipes and that is why there is not a series of catch basins. Discussion followed.

Mr. Blohm asked how old the septic system was. Mrs. Deasy said the current septic system has been there forever, as long as she can remember. Mrs. Deasy said there is actually two septic systems on the property, one for each of the cottages and they are ancient for sure.

Mr. Blohm asked if the house and attached garage will be guttered with the multiple pitch lines. Mr. Blakeman said the rooflines are pitched and the plan show the drip edges on three sides of the house, the lakeside and the two sidesand then the backside of the garage. Mr. Blakeman continued that is where the roof lines come down flat so gutters won’t be needed there. The one place there is a valley is in between the new garage, the pervious drivewayand the new house where there will be a small catch basin that will have a small pipe coming out by the back-in turn for the driveway. Mr. Blohm asked what would be done for the pitches on the lakeside. Mr. Blakeman said there will be a drip edge infiltration trench all along the house. Mr.Blohm asked if that would be true on all the sides where there is a roofline. Mr. Blakeman said the only spot there won't be is on the very north side because of its steepness, coming off the back of the garage and there is rip rap right there.

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

16.8.1 The variance will not be contrary to the public interest because: It is in the public interest to allow the highest and best use of real estate and to improve the natural environment. The redevelopment of this property will have no negative impact on any other property and will not increase the non-conforming conditions of the houses. The alterations to the property will improve environmental conditions and increase the value of surrounding properties with construction of a modern structure, installation of a new up-to-date septic system and the installing of stormwater management practices to treat runoff before it enters the lake.

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 property is narrow and steep with the steepest section adjacent to the Town road and the area most conducive to house construction is nearest the lake. This creates difficulties in getting safe year-round driveway access down to the existing house location. The narrowness of the property combined with the orientation of the slopes also points to the safest location for garage access.

b) The property is different in a meaningful way from other properties in the area because: The severity of the drop-off adjacent to the road, combined with the narrowness of the lot, creates difficulty in providing a level entrance with the road. There is only one location and one direction the driveway can enter the road from the property and the depth of the lot (i.e. distance from road to lake) dictates where the driveway can terminate while getting the longest length.

c) The property is burdened more severely by the zoning restrictions because: Regulatory/zoning setbacks for the septic system determine the one general area that it can be placed. These restrictions do not allow the existing house to expand away from the lake with a garage and also have a safe driveway grade to a garage attached to the house in that location.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:The proposed use of the property remains as a residential dwelling unit. The owners desire safe year-round access to a reconstructed structure built to current codes with modern amenities. That use should include an attached garage where they don’thave to walk through inclement conditions down a slope or steps open to the weather. The proposal herein allows that use while improving the environmental impact through improved stormwater treatment and new septic system.

16.8.3 The variance is consistent with the spirit of the ordinance since: The Ordinance allows for reasonable expansion of existing non-conforming structures as long asthe property is not made more non-conforming. While the applicants are not proposing to reconstruct their house in the same footprint and expand back away from the lake, the lateral movement of the structure will allow for the safest year-round access and keep its same width (and 2.2’ further from the lake). Safe access to structures is consistent with the spirit of the ordinance.

16.8.4 Substantial justice is done because: The harm to the applicant of strict enforcement of the Zoning Ordinance will far outweigh any benefit to the public in this case. Instead, denying the variance will result in a detriment to the public by limiting the beneficial expansion of its tax base. Allowing the variance will result in beneficial improvements to the property through increased stormwater management, a modern septic system and the safest year-round access to a reconstructed house. The harm to the applicant will be their inability to use and enjoy their property full-time and year-around.

16.8.5 The value of surrounding properties will not be diminished because: The value of surrounding properties islikely to be either enhanced or maintained by the replacement of two out-dated houses with a new professionally designed and built state-of-the-art structure.

Mr. Fichter asked how many trees will have to be removedin order to accommodate the new structure. Mr. Blakeman said approximately 23 trees. Mr. Blohm asked what the sitework would look like. Mr. Blakeman said they would be starting down by the lake and working their way back up. Mr. Blakeman continued that there is a concern about being opened up and the potential to wash down to the lake, but there will be erosion control measures in place such as silt fences. Discussion followed. Mr. Blohm asked how high the boulder walls would be. Mr. Blakeman said the highest would be about 7 feet in one spot but not continuous through the corner of the driveway. Mr.Blakeman continued the driveway starts down and there is a wall on the left retaining the slope; then at the entrance to the accessory garage, on the left-hand side, there is a wall that is holding up the driveway with a drop-off associated with it. Mr. Blakeman said that coming around the corner the wall between the driveway and the accessory garage would be holding back the slope with the garage on top of that; further down on the right there is a wall that is holding back the slope and then at the back-in turn there is a one- or two-foot wall at the end of the back end turn just to bring it to grade. Mr. Blohm said there would be a lot of water running off the driveway through the riprap. Mr. Blakeman said correct. Mr. Blohm asked if that would be undermining the walls. Mr. Blakeman said no and that he will be having a structural engineer looking at the walls especially the one retaining the driveway. Discussion followed. 

Mr. Thomas said that it looks like the well will be the closest impact to the lake and asked if that will be drilled once the house is removed. Mr. Blakeman said that is one of the first steps to be done. Mr. Blakeman continued that there will be a double layer of silt fence around the well for the construction and also they will line the shore with an 8 inch silt sock so there will be three layers of silt protection between the well and the lake.

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

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

The Board went into deliberations.

Mr. Fichter said this is a difficult lot and it looks like a lot of thought has been put into it to make it safe and effective. Mr. Fichter continued the fact that they are replacing an unknown septic system and a non-existent stormwater management system is attractive, so I am inclined to support this particular variance.

Mr. Blohm agrees with Mr. Fichter. Mr. Blohm continued that he knows this site will be completely blown apart before it gets put back together and he would take the extra step to catch the water coming off the driveway. Mr.Blakeman said that putting a catch basin in along with the pipe would work very well to cut the runoff in half.

Mr. Azodi is an agreement with Mr. Fichter and Mr.Blohm. 

Mr. Budd said he has no concerns with the final product however his concern is that everything is maintained properly during construction. 

Mr. Thomas said he thinks a lot of thought has gone into this plan for water retention and to make it a better andsafer situation. Mr. Thomas continued there should be extra emphasis on monitoring the erosion control measures on the lot to protect the lake during construction.

Mr. Blohm made a motion to vote on the request from Peter Blakeman (agent), Betsy P. Deasy Rev Trust (owners), for property located at 205 Bay Point Road, Newbury, NH, for a Variance from the requirements of Paragraphs 7.4.2 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Reconstruction of a 4-bedroom primary dwelling with a 2-bedroom primary dwelling with an attached garage partially within the 75’ lake and permanent stream setback, Newbury Tax Map 006-089-142.

Mr. Fichter seconded the motion.

Roll Call Vote:

Hank Thomas-voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2.

Gary Budd-voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2.

Alex Azodi-voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2.

Peter Fichter-voted to Grant the Variance from Paragraphs7.4.2 and 15.2.2.

David Blohm-voted to Grant the Variance from Paragraphs 7.4.2 and 15.2.2.

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 8:00 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        January 11, 2021