Zoning Board Minutes
Zoning Board of Adjustment
August 23, 2021
Approved October 18, 2021
Members Present: Peter Fichter, Chair; David Blohm,Vice-Chair; Gary Budd, Member; Katheryn Holmes, Member; Hank Thomas, Alternate
Public Present: Larry Briggs; Tony & Kim LoPresti; Elizabeth Courant
Mr. Fichter called the meeting to order at 7:00 p.m.
Mr. Fichter said that the Board is hearing two Motions for Rehearing, one for Lake Ave Realty, LLC and the other for Camp Ruffit, LLC. Mr. Fichter continued that as stated in the notice, the Board will not be taking any public comment. Mr. Fichter said the documentation that has been filed will have to stand and no additional information will be taken
ADMINISTRATIVE BUSINESS
The Recording Secretary read into the record the following Public Notice:
The Newbury Zoning Board of Adjustment will hold a meeting on August 23, 2021, at 7:00 pm., at the Town Office Building at 937 Route 103 in Newbury, NH. This meeting is for the Board to review Motions for Rehearing before them and act to grant or deny the rehearing. No public input will be taken, and no cases will be heard. Motions for Rehearing: Case 21-04-Lake Ave Realty, LLC-Variances from the requirements of Paragraphs15.2.1 and 7.12.1; Case 21-07-Camp Ruffit, LLC-Variance from the requirements of Paragraph 5.7.9.
Board introductions.
Mr. Fichter appointed Mr. Thomas as a voting member for this meeting.
July 30, 2021
PO Box 85 Grantham, NH 03753
Town of Newbury
Land Use & Assessing Coordinator
PO Box 296
Newbury, NH 03255
REF: MOTION FOR REHEARING
Dear Land Use & Assessing Coordinator:
Per Article 16.11 of the Newbury Zoning Ordinance and RSA 677:2, as a party directly affected by the Newbury ZBA decision of, Monday, July 26, 2021, granting variances to Lake Ave Realty, LLC (the “Applicant”), this MOTION FOR REHEARING is submitted.
The Applicant was represented by a professional licensed attorney. Professional attorneys do not make mistakes. The application was written and presented with intent to deceive section 164 of the Criminal Offences Act, 1960. The application was either intending to deceive the ZBA or was intending to deceive the Applicant, Lake Ave Realty, LLC, or all.
FACTS: Lot 16A-358-003 and 16A-354-004 are legal non-conforming lots in the Blodgett Landing Cottage District. This condition is often called “grandfathered”. Nevertheless, the lots remain non-conforming. These lots are abutted on the north by a strip of public land. This land is under the jurisdictional control of the State of NH, RSA 483-B:1, II. This land contains the drainage culverts for a portion of Blodget Landing, and vegetation appropriate for its functions as part of the woodland buffer. The survey and the site plan submitted, as well as other maps and plats all show that there is a distinct and separate plot of public land between the northern boundary of lots 16A-358-003 and 16A-354-004 and Sunlite Lane.
Therefore, neither of the lots, mentioned above, has frontage to the north, on Sunlite Lane.
No driveway permits or easements were submitted with the application.
Article 15:3 Non-conforming Lots prohibits lots without frontage on a town-maintained road to be developed. The two lots 16A-358-003 or 16A-354-004 are not merged. Therefore, lot 16A-358-003, the lot with the structures, has no frontage to the east on Washington St. The Applicant established that the front of the property, registered as 10 Sunlit Lane, is to the north. Furthermore, Lake Ave, is a way that is partially maintained by the municipal budget but is not a public or private road. Therefore, this lot has no frontage on any town-maintained road and in accordance with Article 15:3 may not be developed. Granting a variance for any type of development as presented by this application is in Violation of the Ordinance. The development that has already taken place at this lot is contrary to the ordinance. See Article 2:33 Development.
The applicant stated it did not make sense to talk with the abutter’s representative. The abutter agrees. It is not in the public interest for the Town of Newbury or its designees to grant variances or permits which position an applicant to violate the written ordinance knowingly or unknowingly. This condition leaves the Town vulnerable for legal action.
Considering the truth reflecting the real estate of these lots, a rehearing of the application presented July 26, 2021, is requested. The applicant needs to accept the real estate of these lots and the structures and use or reapply for variance that meets the criteria and what is written in the ordinance and in the statutes.
Sincerely,
Tanya D. McIntire
CC: Lake Ave Realty, LLC
Mr. Fichter said he was going to try and summarize what he thinks the information being brought forward by Ms. McIntire. Mr. Fichter continued that Ms. McIntire brings forth a couple of things and Mr. Fichter is not sure what some of them are, she talks about a deceive section of the Criminal Offense Law and that is above the Board’s purview. Mr. Fichter said perhaps her main issue, and it was certainly discussed during the hearing the Board granted the variance for the property, was where was the front of the property, what’s the address of the property? Mr. Fichter continued that the applicant stated at the hearing that it was at 10 Sunlite Lane, according to the accessor’s record and the property card it is listed as 10 Sunlite Lane.
Ms. Holmes asked when someone challenges a decision by the Board, they need to submit new information. Mr. Fichter said two items, either new information that wasn’t available at the time of the original hearing or there was an error in process by the Board in conducting the case. Ms. Holmes asked if Ms. McIntire was addressing the error. Mr. Fichter said it is not an error in procedure, it may be thatMs. McIntire views it one way and the Board viewed it a different way at the hearing.
Mr. Blohm said he thinks Ms. McIntire is saying the Board relied on incorrect information that was improperly presented by the applicant.
Ms. Holmes asked if Ms. McIntire had any validity saying no driveway permits or easements were submitted with the application. Mr. Fichter said he didn’t think so. Mr. Thomas said we can’t ask for a driveway permit on an existing driveway.
Ms. Holmes asked what about the sentence, “The application was either intending to deceive the ZBA or was intending to deceive the applicant.” Mr. Budd said there is no evidence presented to prove any intent to deceive.
Ms. Holmes asked if a rehearing would stir the pot, or would it make clarification and does the Board need clarification around some of the issues that Ms. McIntire has brought up. Mr. Fichter said that he thought that was the Board’s job tonight, whether they felt there was merit to what’s being presented, and the time and effort should be put into rehearing it or not. Mr. Fichter continued that this case is really just half of the story, what the Board granted was a variance for reconstruction of the property, slightly modified footprint and a slight encroachment on the setback. Mr. Fichter said the bigger plan for this property, the variance was just part of it, ultimately what the applicant wants to do is add an ADU and that’s a totally separate issue, the Board continued that case and shouldn’t confuse those issues with the variance. Mr. Thomas said the applicant can demolish and rebuild in the same footprint without coming to the Board, the applicant came to the Board for a variance because they are outside the original footprint. Mr. Thomas continued that’s the only issue the Board had to discuss.
Mr. Blohm made a motion to vote on the request by Tanya McIntire for a rehearing on Case 21-04, Lake Ave Realty, LLC, variances from the requirements of Paragraphs 15.2.1 and 7.12.1.
Mr. Fichter seconded the motion.
Roll Call Vote:
Hank Thomas-voted to Deny the rehearing
Katheryn Holmes-voted to Grant the rehearing based on the general purpose of the health and welfare of all citizens and the spirit of the Ordinances.
Dave Blohm-voted to Deny the rehearing
Gary Budd-voted to Deny the rehearing
Peter Fichter-voted to Deny the rehearing
Four votes to Deny rehearing. One vote to Grant rehearing. Rehearing is Denied.
Mr. Fichter advised that the aggrieved party can follow this through with the courts.
August 2, 2021
The Newbury SelectBoard is requesting a Motion for Rehearing under RSA 677:2 for the Zoning Board’s decision of Camp Ruffit, 26 Highland Avenue, map/lot #018-308-083 where they granted a variance for the alteration of the “bunk house” to an accessory apartment in a detached building as the primary use.
Reasons for rehearing:
Zoning ordinance 5.7.3, the owner or one of the owners of the single-family lot upon which the accessory apartment is located shall occupy at least one of the dwelling units on the premises as their residence.
Zoning ordinance 5.7.9, the interior floor area of an accessory apartment within or attached to a single-family dwelling or within a detached accessory building may be no smaller than three hundred square feet and no larger than one thousand square feet. There shall be no more than two bedrooms in an accessory apartment. The interior floor area of the accessory apartment shall be less than he interior floor area of the single-family or attached dwelling. An accessory apartment in a detached accessory building must be a secondary use of the building and the interior floor area of the accessory apartment in a detached accessory building may be equal to, but no larger than one-half the total building floor area. For example, a garage must have space for one or more cars on the ground floor, thus relegating the apartment to the back or the attic.
Zoning ordinance 7.2.2, An accessory apartment proposed to be located in the Shoreland Overlay District shall first receive approval of a Special Exception from the Zoning Board of Adjustment. The property owner shall satisfy the Zoning Board of Adjustment that the criteria and standards provided in Article 16.6 and 16.7 are met.
Granting is unreasonable because pursuant to 5.14 all pre-existing lots are permitted one dwelling unit with the granting of the variance the ZBA has allowed two dwelling units contrary to their own zoning ordinances. The Town has set forth regulations to allow accessory dwelling units in detached buildings however they must meet certain requirements per zoning ordinances.
The Newbury SelectBoard
Ed Thorson
Joy Nowell
Scott Wheeler
Mr. Fichter said this is property on Highland Ave. where the Board granted a variance and a special exception to turn a bunkhouse into an accessory dwelling unit. Mr. Fichtercontinued that the bunkhouse has been there for many years, and the owner of the property wanted to add a kitchen to the bunkhouse so that two families could utilize the property.
Mr. Fichter said a requirement for an accessory dwelling unit requires that the resident live in one of the units. Mr. Fichter continued that at the time the Board heard the hearing, the Board did not have a definition, nor is there one now within the zoning regulations, of what a resident is. Mr. Fichter said since the hearing, the Board has checked in with RSA 21:6 which is the definition that the state of New Hampshire applies for a resident and Mr. Fichter said he doesn’t think the Board complied with that definition. Mr. Fichter continued that basically what that RSA says is that a resident has declared a town as their domicile and they have further registered to vote at that address, have a drivers license with that address and registered their car at that address. Mr. Fichter said that Mr. Walls who is the property owner is not a resident of Newbury by that definition and Mr. Fichter said he thinks the Board may have made an error in process in deciding that case. Mr. Fichter continued that the SelectBoardbrought that to the Board’s attention by requesting therehearing.
Mr. Thomas said it is 5.7.3 that the Board has to address, and according to Town counsel the resident has to be a voter in the Town. Mr. Thomas continued that the Board and the building official in this Town have made the same error numerous times, but it doesn’t mean the Board can continue to make that error since it has been brought to the Board’s attention.
Ms. Holmes said as she recalls about this case, the Board was struggling with the definition of residence.
Mr. Blohm said the Board is sympathetic to what the owner was trying to accomplish, the fact is the zoning regulations says you have to be a resident. Mr. Fichter said thedistinction is that the owner has what is the bunk house, it has been there for years and the owner has had use of it, the thing that makes it an ADU is the addition of a kitchen. Mr. Blohm said the owner wanted to make it more comfortable for two families to be there without having to go to the other house to cook. Mr. Fichter said he is sympathetic to that, but he also feels that in the presence of a hard definition of residence, it is the Board’s obligation to interpret it that way and he would be in favor of granting a rehearing.
Mr. Blohm made a motion to vote on the request by the SelectBoard for a rehearing on Case 21-07, Camp Ruffit, LLC, variances from the requirements of Paragraph 5.7.3.
Mr. Fichter seconded the motion.
Roll Call Vote:
Hank Thomas-voted to Grant the rehearing
Katheryn Holmes-voted to Grant the rehearing
Dave Blohm-voted to Grant the rehearing
Gary Budd-voted to Grant the rehearing
Peter Fichter-voted to Grant the rehearing
All in favor.
The Board set the rehearing for October 18, 2021 at 7:05pm.
Mr. Blohm made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.
The meeting adjourned at 7:47 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 August 23, 2021