Zoning Board Minutes
Zoning Board of Adjustment
June 14, 2021
Approved July 12, 2021
Members Present: Peter Fichter, Chair; Gary Budd, Member; Katheryn Holmes, Member; Alex Azodi, Alternate; Hank Thomas, Alternate.
Public Present: Steve Bailey; Ray Critch; Mike Keenan.
Mr. Fichter called the meeting to order at 7:00 p.m.
Mr. Fichter appointed Mr. Azodi and Mr. Thomas as voting members.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of January 11, 2021. Mr. Fichter made a motion to accept the minutes as presented. Mr. Azodi seconded the motion. Ms. Holmes and Mr. Thomas abstained. All in favor.
The Board reviewed the minutes of May 24, 2021. Mr. Fichter made a motion to accept the minutes as presented. Ms. Holmes seconded the motion. Mr. Budd and Mr. Azodi abstained. All in favor.
Board Introductions
Continuance- Shea Parker Murdock (owner), for property located at 8 Snow Road, 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 an 8’ x 18’ shed within the 15’ side setback and the 30’ right of way setback. Newbury Tax Map 007-244-310.
Mr. Fichter said it is 7:05 pm. and it appears the Murdock’s are not present for the continuation of the case they brought before the Board. Mr. Fichter continued the applicant wasrequesting the placement of a shed close to the border next to their neighbor’s property and the question at the time was did they need a stormwater management plan. Mr. Fichter said the applicant could not be definitive as to the percentage of impervious area on their property and it looked like it was pretty close to 20% based on some calculations done at the previous hearing. Mr. Fichtercontinued that it was his understanding the applicant was going to go back and do an official measurement and determination and come back to the Board with a stormwater management plan if impervious area was over 20%.
Mr. Fichter made a motion to vote on the request from Shea Parker Murdock (owner), for property located at 8 Snow Road, Newbury, NH, for a variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of an 8’ x 18’ shed within the 15’ side setback and the 30’ right of way setback. Newbury Tax map 007-244-310. Ms. Holmes seconded the motion.
Roll Call Vote:
Peter Fichter-voted to Deny the Variance from Paragraph 5.9.1 because the applicant did not return to provide the required information supporting the percentage of impervious surface on their property.
Katheryn Holmes- voted to Deny the Variance from Paragraph 5.9.1 based on no submission of impervious surface calculation and the inability to know if a stormwater management plan was required if impervious surface area exceeded 20%.
Hank Thomas- voted to Deny the Variance from Paragraph 5.9.1 because the applicant was asked to submit additional information the Board needed to reach a decision. The applicant did not submit the information for the Board to go by.
Gary Budd and Alex Azodi abstained. Variance is Denied.
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, June 14, 2021 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:20 p.m., Steve Bailey and Horizons Engineering (agents), Joyce Family 2010 Rev Trust (owner), for property located at 332Bowles Rd., 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 non-conforming dwelling unit with a vertical addition within the 75’ lake and permanent stream setback. Newbury Tax Map 016-340-245. 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.
Steve Bailey and Ray Critch presented to the Board.
Mr. Bailey said the proposed project is to raze the existing structure and rebuild within the same footprint adding some living space to the second floor. Mr. Bailey continued that the under pinning’s of the structure are not very sound and it’s on piers that are in pretty rough shape. Mr. Bailey said the structure is not insulated and the owners would like to use it all four seasons and that can’t be done in the structures present condition.
Ms. Holmes asked what the increased square footage was.Mr. Bailey said 336 square feet all on the second elevation.
Mr. Ficher asked for a description of what the property currently has. Mr. Bailey said there is an uninsulatedstructure. Mr. Fichter asked how many bedrooms. Mr. Bailey said there are currently five bedrooms and there will be five bedrooms in the rebuild.
Ms. Holmes asked if this property was hooked up to the Blodgett sewer. Mr. Bailey said yes. Mr. Bailey continued that the property has its own well.
Mr. Azodi asked if the proposed project will add a second floor. Mr. Bailey said it has an existing second floor and the part of the existing structure that is one level will be raisedto two floors. Ms. Holmes asked if it would be higher. Mr. Bailey said it would be 3 feet higher than the existing structure, finishing off at 29 feet; present conditions are 26 feet. Mr. Bailey continued that essentially you will have two stories with full dormers on both sides.
Mr. Fichter said that he could only come up with four bedrooms on the plan. Mr. Bailey said there was one bedroom on the first floor and four bedrooms on the second floor.
Ms. Holmes said this house is right on the beach and it is surrounded by lots of houses Mr. Bailey said that most of the houses have been updated.
Mr. Azodi said the proposal is to demolish the structure and build on the exact same footprint; not adding a basement. Mr. Bailey said they will be keeping the crawl space. Ms. Holmes asked if it would be on a pad. Mr. Bailey said it would be on a two-foot footing with foam ICF forms and a slab poured inside the form.
Mr. Azodi asked if the added square footage will only be on the second floor. Mr. Bailey said correct. Mr. Azodi asked if the number of bathrooms were the same as before. Mr. Bailey said they are adding a half bath. Mr. Azodi asked if that was considered adding to the load of the sewer system. Mr. Critch said no, system loading is based purely on number of bedrooms.
Mr. Thomas said the applicant is not increasing the footprint to increase any setback violations; they are existing non-conforming at this time and all they are doing is going up. Mr. Thomas continued that according to 15.2.1 that is an allowable thing to go up as long as they don’t increase over the allowable building height of 34 feet. Mr. Bailey said they were 29 feet. Mr. Thomas said they were under. Ms. Holmes said the footprint is the roof and the roof line is increasing because of the bigger addition on the back. Mr. Thomas said it was the same amount of water runoff from the roof as it was before. Mr. Thomas said it is a non-conforming building, but it is not getting more non-conforming, and it is allowed by 15.2.1. Mr. Budd said he asked the same question. Mr. Thomas said maybe this is the meeting that the Board made a decision on the interpretation of 15.2.1 to see what it really means in this Boards eyes. Ms. Holmes said it is making it more non-conforming. Mr. Azodi asked what the exact language the building official denied this for. Ms. Favreau said she reviews the building permit application for zoning compliance and put this to the Board for adding square footage to a non-conforming building. Mr. Fichter said he thought this was a point that was not clear enough in the regulations. Mr. Thomas said it needs to be addressed but he doesn’t think the Board has the right to interpret something that is said here. Ms. Holmes said that is what the Board does, it interprets. Mr. Fichter said it needs to be made clearer, so the Board does not have this conundrum in the future and get a definition of ‘is going up more non-compliant’. Ms. Holmes said it is more non-conforming. Mr. Azodi said the regulation says i.e. which means “that is” not “for example”. Mr. Azodi continued “that is alteration or expansion must be constructed within the approved height limitation”, it does not say you can’t add to the rest of the building, it says as long as what you are adding does not go above the Town limitation. Mr. Fichtersaid he personally tends to agree with Mr. Azodi’sassessment and Mr. Thomas’s interpretation, but the Board has struggled with this before. Mr. Azodi said what the Board has struggled with before was not height, it was where people were into the setback and now they were more into the setback. Mr. Fichter said that he can remember one case specifically that the Board talked about is adding a second floor making it more non-conforming, but the Board has not gotten clarity on this.
Mr. Thomas said this is not a fact of interpreting, it is cut and dry on what it is saying as long as it falls within the approved height limitations which this project does. Mr. Fichter asked Mr. Thomas if essentially, he was suggesting this project does not need a variance. Mr. Thomas said correct. Mr. Azodi and Mr. Budd said they agreed.
Ms. Holmes said if this building goes higher the people behind them will lose their view of the lake. Mr. Azodi asked if those neighbors have been notified. Ms. Holmes said yes, and the neighbor is here at the meeting. Ms. Holmes said she still thinks going up is expansion. Mr. Fichter asked Mr. Bailey if the addition height will be any higher than it is today. Mr. Bailey said it will be three feet higher than it is today. Mr. Fichter said in principle, three feet of the view that Ms. Holmes is talking about for the neighbors is potentially blocked. Mr. Bailey said that he would dispute that from the conditions of the lot and the neighbor’s lot. Mr. Bailey continued that he didn’t think the neighbor has that much of a view right now, but he is not here to talk about the view. Mr. Thomas said there should be an article that states that if an expansion of height construction blocks the view in any way they need a variance, but that is not in the Zoning Ordinance. Mr. Critch said the only way a neighbor would have a legitimate right would be if they owned a view easement that specifically said you can’t go any higher than that. Mr. Budd said that it is the Board’s job to adhere to the regulations as they exist and the regulations state as long asthey are within the height limitation. Discussion followed.
Mr. Fichter said that the applicant got a sense of the direction the Board was going but he wanted to make sure that there wasn’t some information that someone in the public was going to provide that the Board should hear to make a decent decision. Mr. Fichter continued that he had said the applicant would read the five criteria for a variance but if the Board decides they are not going to require a variance you won’t have to do that.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
Mr. Keenan said he lives at 330 Bowles Road which is right behind the applicant’s house. Mr. Keenan continued that he had rented in the area for fifteen years and bought about four years ago and after a year did a rebuild of his house. Mr. Keenan said the area is thickly settled and pretty tight.Mr. Keenan continued that the applicant’s site is landlocked and has a deeded eight foot right of way over his land. Mr. Keenan said he and his wife are highly supportive of the applicants rebuilding the house, but he feels adding to the congestion and potentially having safety issues such as parking out on the street is not in the public interest. Mr. Keenan said there is currently a lake view from his bedroom window and with the proposed addition to the second story that whole view will be gone and will absolutely diminish the value of his property. Mr. Keenan said that this is something becoming more un-conforming. Mr. Budd said as long as you stay within the footprint, and you go up and you stay within the height limitations, the way it is worded is not more non-conforming. Mr. Keenan asked the Board if every one of these cases that have been before the Board has been decided in that fashion. Mr. Thomas said there were other issues involved that needed a variance.
There being no more comment from the public, Mr. Fichterclosed the public portion of the meeting.
Mr. Fichter said that the Board needed to decide if this project needed a variance. Mr. Thomas said he didn’t see why 7.4.2 needed a variance because they are building within 75 feet of the lake and within the 50-foot buffer zone. Mr. Thomas said that is moot issue because of non-conforming, you are allowed to demolish and replace within a two-year period of time.
Mr. Thomas made a motion that according to 15.2.1 the plans submitted for this project does not need a variance. Mr. Budd seconded the motion.
Mr. Thomas said he has interpreted this for years that you can go up as long as you don’t go out and stay within the height limitation. Mr. Thomas continued that the way our Zoning is currently written the applicant does not need to get a variance.
Ms. Holmes said she did not agree. Ms. Holmes continued that the applicant based their design on ordinance 15.1 with the building footprint but they are changing the roof line.
Mr. Budd said if the Board disagrees with the regulation they need to work towards a revision, but it is incredibly cut and dry what it says in there and that is the way the Board has interpreted it for a very long time.
Mr. Azodi said he would have to agree, 15.2.2 is very clear that as long as what they are building does not create a new increased violation and that going up being below thirty feet is not a violation.
Ms. Holmes said the footprint is not the foundation, it is the roof.
Roll Call Vote:
Hank Thomas-voted Yes that this project does not need a variance
Peter Fichter- voted Yes that this project does not need a variance
Gary Budd- voted Yes that this project does not need a variance
Alex Azodi- voted Yes that this project does not need a variance
Katheryn Holmes abstained.
Mr. Fichter said with that the need for a variance for this project goes away.
Mr. Budd made a motion to adjourn. Mr. Thomas seconded the motion. All in favor.
The meeting adjourned at 8:33 p.m.
Respectfully submitted,
Tiffany a. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 June 14, 2021