Zoning Board Minutes
Zoning Board of Adjustment
September 13, 2021
Approved October 18, 2021
Members Present: Peter Fichter, Chair; David Blohm, Vice Chair; Reed Gelzer, Member; Katheryn Holmes, Member; Gary Budd, Member; Hank Thomas, Alternate
Public Present: Harry Snow; Jeffrey Christensen; Doug DiCerbo; Jim Petteralli; Tanya McIntire; Larry Briggs; Kim & Tony LoPresti; Denise Mitchell; Sarah Kassman; Bob Sawyer; Chris Millette; Elizabeth Courant
Mr. Fichter called the meeting to order at 7:00 p.m.
Minutes
The Board reviewed the minutes of July 26, 2021, and August 9, 2021. Ms. Holmes made a motion to accept the minutes as presented. Mr. Blohm seconded the motion. All in favor.
Mr. Fichter said there is a full Board of five members this evening so Mr. Thomas may participate but will not be a voting member of the Board.
Board introductions.
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 September 13, 2021,at the Veterans’ Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Philip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 SunliteLane, Newbury, NH, will seek a Variance from the requirements of Paragraph 6.12.3 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Blodgett Landing Cottage District without the owner or one of the owners of the single-family lot upon which the accessory apartment is located to occupy at least one of the dwelling units on the premises as their residence. Newbury Tax Map 16A-358-003. 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.
Jeffrey Christensen presented to the Board as Mr. Hastings was not available to attend.
Mr. Christensen introduced Doug Dicerbo and Jim Petteralli, the principals of the owner of Lake Ave Realty, LLC and Harry Snow, their builder.
Mr. Christensen said the property at 10 Sunlite Lane is currently comprised of a single-family dwelling and a detached two-story garage. Mr. Christensen continued the detached garage is permitted to have an accessory apartment on the 2nd floor pursuant to a variance granted back in 1987. Mr. Christensen said the owner intends to redevelop this lot, renovate the property by removing the single-family residence replacing it with a new building that has an enclosed connection to that garage. Mr.Christensen continued that development is not what's before the Board today, what is before the Board is the change in the accessory apartment that is currently over the garage. Mr. Christensen said the garage itself will remain structurally unchanged, but the use internally will change,what is intended to happen is to take the accessory apartment out of the garage and move it into the primary residence. Mr. Christensen continued the floor plans submitted with the application shows where the accessory apartment will be located in the primary residence. Mr.Christensen said because it’s not simply a matter of moving an accessory apartment, it is removing an accessory apartment and putting in essentially a new one, it does require a variance and a special exception.
Mr. Christensen continued the variance requirements fromsection 6.12.3 of the Zoning Ordinance, which generally prohibits an accessory apartment unless the property is occupied by the owner of the property and the Board interprets that to be occupied as the primary residence. Mr.Christensen said this obviously creates a problem in this case because the property is owned in an LLC and is a seasonal residence, not a primary residence. Mr.Christensen said there are questions of constitutional enforceability of this provision, those have all been set aside for the purposes of this application. Mr. Christensencontinued that this property can legally have an accessory apartment in it already because of that 1987 variance, so whether or not this property will have an accessory apartment is not the issue, the only issue is where on the property that accessory apartment will be located, only a question of shifting around interior floor plans. Mr.Christensen said from the outside there will be effectively no difference, it will continue to be a single-familyresidence with an accessory apartment. Mr. Christensencontinued there will be no change to the essential character of the neighborhood, no adverse impact on any of the neighbors or the general public. Mr. Christensen saidbecause this does prohibit the relocation of the accessory apartment however, this creates an undue hardship; there is no rational relationship between the ownership of the property and where in the house the accessory apartment can be located.
There being no further questions from the Board, Mr. Christensen addressed Article 16.8 of the zoning ordinance:
16.8.1 The variance will not be contrary to the public interest because: A variance is contrary to the public interest when it unduly, and in a marked degree, conflicts with the ordinance such that it violates the ordinance’s basic zoning objectives. Malachy Glen Assocs., Inc. v. Town of Chichester, 155 N.H. 102, 105 (2007). There are two methods for determining whether a variance would violate an ordinance’s basic zoning objectives: (1) “whether granting the variance would alter the essential character of the neighborhood” or (2) “whether granting the variance would threaten the public health, safety or welfare.” Harborside Assocs., L.P. v. Parade Residence Hotel, LLC, 162 N.H. 508, 514 (2011). Use of the Accessory Apartment by nonresident owners will not alter the essential character of the neighborhood. An accessory apartment already exists on the Property and may continue to be used without any residency requirements on it’s occupants or the occupants of the Proposed Building. The relocation of such use from the Garage to the Proposed Building will have no impact on the neighborhood and will likely be unnoticeable by any one other than the occupants of the Property. Similarly, whether the Property is owned by an individual or an entity will have no impact on the neighborhood, nor will whether the Property is used as a primary or secondary residence.Furthermore, there is no reason to believe that the variance would threaten public health, safety, or welfare. The variance is not necessitated by any physical condition of the Property, only the nature of its ownership. The variance will not be contrary to the public interest.
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 already has an accessory apartment permitted by a variance. The Applicant proposes to relocate the Accessory Apartment. Because of this change, however, the 1987 Variance may not be applicable to the new Accessory Apartment. Because the Property is not currently used as the primary residence of an individual, however, the Applicant may not otherwise be eligible for a special exception necessary to relocate the Accessory Apartment. This unusual set of circumstances distinguishes the Property from others in the area.
b) The property is different in a meaningful way from other properties in the area because: For the same reason that the special conditions on the Property distinguish it from other properties in the area, the Property is also different in a meaningful way from other properties in the area. In particular, without limitation, the Property has a permitted Accessory Apartment which the Applicant desires to relocate, but cannot due to an interpretation of the Ordinance that prohibits an Accessory Apartment due to the nature of the ownership of the Property.
c) The property is burdened more severely by the zoning restrictions because: As set forth above in condition with the unique conditions of the Property, those unique conditions result in more severe burden on the Property. For example, if the individual owners of the Applicant used the Property as their primary residence, this variance would not be necessary. Because the Property will be used as a secondary residence and held in a limited liability company, however, the variance becomes necessary. The Property is burdened more severely by the zoning restrictions because of the nature of its ownership.
d) Because of the special conditions of the property, the proposed use of the property is reasonable because:The Proposed Building is reasonable. The Property already has an accessory apartment permitted by variance. The use of the Property itself shall remain unchanged. The Proposed Building will be consistent with all area requirements of the Ordinance and/or previously granted variances. The relocation of the accessory apartment will have no practical impact on anyone other than those living on the Property. Moreover, accessory apartments are generally permitted in this district. Vigeant v. Town of Hudson, 151 N.H. 747, 753 (2005) (uses that are permitted by the zoning ordinance are presumptively reasonable). The fact that the Property is owned by an entity, rather than by an individual directly, is immaterial and will not have a noticeable impact on anyone other than the owners. Similarly, the use of the property as a secondary residence, rather than a primary residence, will not have any impact on anyone other than the occupants themselves and will, if anything, be less burdensome to the neighborhood than constant use as a primary residence.
e) No fair or substantial relationship exists between the general purposes of the Ordinance provision and the specific application of that provision to the Property [relating to Sections 16.8.2.1.1 of the Ordinance which is not included on the Town’s Variance application Form]. There is no fair and substantial relationship between the general purposes of the Zoning Ordinance and restriction on the ownership of the Property. The general purposes of the Ordinance include to “encourage the mostappropriate use of land” and “to allow individual landowners as great a degree of freedom in the use and enjoyment of their land as is consistent with the accomplishment of these purposes”. Ordinance, §1.2. The Blodgett Landing Cottage District is specifically intended to “allow and encourage property owners to improve their properties within the confines of their existing lots”. §6.1. This variance is necessary to allow the Applicant to improve the Property and relocate an otherwise permitted use. Prohibiting the Applicant from relocating the Accessory Apartment simply because the Property is owned by an entity, not an individual, and because the individual owners are residents of Massachusetts, would not allow the Applicant “as great a degree of freedom in the use or enjoyment” of the Property. In short, the variance would be consistent with, not contrary to, the general purposes of the Ordinance.
16.8.3 The variance is consistent with the spirit of the ordinance since: The requirement that the variance not be “contrary to the public interest” is “related to the requirement that the variance be consistent with the spirit of the ordinance.” Malachy Glen, 155 N.H. at 105. As discussed above, there is no reason to prohibit the relocation of the Accessory Apartment from the Garage to the Proposed Building. Instead, approving this application will allow the Applicant to put the Property to its most appropriate use and grant the Applicant a reasonable degreeof freedom to use and enjoy the Property.
16.8.4 Substantial justice is done because: The “substantial justice” element of a variance is guided by two rules: that any loss to the individual that is not outweighed by a gain to the general public is an injustice, and whether the proposed development is consistent with the area’s present use. Malachy Glen, N.H. at 109. The harm to the Applicant of strict enforcement of the Ordinance will far outweigh any benefit to the public in this case. There would be no benefit to the public by preventing the relocation of the Accessory Apartment from the Garage to the Proposed Building simply because the Accessory Apartment will be used by nonresident owners. At the same time, denying this application would harm the Applicant by preventing it from updating the Property and achieving its highest and best use, merely because the Property is being used as a secondary, not primary, residence and owned in an entity. Balancing this loss against the little to no public benefit in strict enforcement of the Ordinance in this case clearly shows that granting the application will result in substantial justice. Separately, the proposed Accessory Apartment is consistent with the area’s present use. The present use of the Property already includes an accessory apartment permitted by the 1987 Variance without regard to the residency status of its owner. Denying this application would be inconsistent with the present use of the Property.
16.8.5 The value of surrounding properties will not be diminished because: Permitting the Accessory Apartment to be used without regard for the residency status of its owner will have no impact on any other property in the area. The Proposed Building will be consistent with the Ordinance and/or previously granted variances. The Property, as it currently exists, already has an accessory apartment permitted by the 1987 Variance and may be used without any residency requirements on its occupants or the occupants of the Proposed Building. Whether the accessory apartment is located over the Garage or as part of the Proposed Building will not in any way impact the surrounding properties. There is no reason to believe that the value of the surrounding properties would be diminished. The Applicant reserves the right to amend, modify, and/or supplement this application at or before the hearing theron. Mr. Christensen said for all these reasons we would ask the Board to grant the variance from section6.12.3.
Mr. Fichter read into the record from Article 6.12, about accessory apartments and what the intent was by the Town to include accessory apartments, “It is the specific purpose and intent of allowing accessory apartments on single-family properties in all zoning districts to provide the opportunity and encouragement for the development of small rental housing units designed, in particular, to meet the special housing needs of single persons and couples of low and moderate income, both young and old, and of relatives of families presently living in Newbury.” Mr. Fichter asked the applicant to address how their argument interprets that particular goal that the Town has in authorizing accessory apartments. Mr. Christensen said it is important to remember that whether or not this property has an accessory apartment is not before the Board, this property is permitted to have an accessory apartmentbecause of the variance granted in 1987. Mr. Gelzer said it is appropriate for the property to have that accessory apartment, not to move it from A to B. Mr. Blohm asked where it says an accessory apartment can't be redesigned and moved. Mr. Gelzer said that there were rules that existed previously under which the variance was granted for the existing accessory apartment and that is it; there is nothing to say that that somehow grants you a permanent right that you can pass to additional owners to take that existence and say it somehow applies to current rules. Mr. Blohm asked if an accessory apartment is here, and you want to put it over there because you wanted to do a little remodeling where does it say that you can’t do that. Mr. Gelzer said Mr. Blohm's example does not apply because they are not moving it from existing structure to existing structure. Mr. Gelzer continued the garage is not being disturbed and its continued use with the existing accessory apartment is completely legitimate in its current location.Mr. Gelzer said the owners want to sunset the existence of a specific physical area as the accessory apartment, tear down an existing building, create a new building and move something that was granted under different rules as if itsomehow could sidestep existing rules for an accessory apartment. Mr. Blohm said in effect the applicant is asking for a new accessory apartment. Mr. Christensen said in effect that is what the applicant is asking. Mr. Christensensaid the reason that it won't have any impact on anybody other than the occupants is because an accessory apartment already exists and lawfully can continue to exist on this property. Mr. Fichter said the Board agrees with that. Mr. Christensen said the only difference is where that accessory apartment is, so without this variance there can be an accessory apartment over the garage, the variance is necessary to take that accessory apartment away and build a different accessory apartment in the new proposed building. Mr. Christensen continued the new proposed building can be built with the floor plan as intended without any variance at all other than the addition of one stove. Mr. Christensen said there is no question of the proposed building being built, there is no question of an accessory apartment existing on this property, the only question is,can the accessory apartment be over the garage or in the new proposed building. Mr. Fichter said the construction could go ahead the way the previous variance was granted but the provision that the space had a second kitchen would have to be eliminated. Mr. Christensen said the space could still be there but not the kitchen facilities.
Mr. Blohm said if the applicant is asking for a new accessory apartment, then there is the issue of residency.Mr. Christensen said the same residency issue would come up if someone inherited their grandmother's house that had an accessory apartment and wasn't living in it, but as soon as they inherited it, it would become a zoning violation or if somebody moved to Chicago for work but kept the house and used it as a seasonal residence, again this would become a zoning violation, so this variance is only necessary because of the nature of ownership of the property and not because of the configuration of the property. Mr. Christensen continued that the fact that it's owned as an entity rather than an individual, the fact that it's a secondary residence instead of a primary residencereally has no impact. Mr. Fichter said it does have an impact because of the intent that was read into the record earlier. Mr. Fichter continued clearly the intent of accessory apartments provide a mechanism for people with limited means and for family members that needed a place to live. Mr. Fichter said he was hard pressed to accept the fact the situation being presented fits that criteria.
Mr. Gelzer said the Board has gone through an extensive exercise with regard to approving the definition of residence and have received definitive guidance from Town Counsel on that point; does the Board have standing to set that aside and grant the variance which essentially is rejecting that definition. Mr. Fichter said that the Board is not struggling over what a resident is, we have the definition from RSA 21:6, and the Board can take that at face value. Mr. Fichter continued that the board needs to decide if the applicant meets the residency definition. Mr. Christensen said for the purpose of this application the applicant is not contesting the Board's interpretation, the applicant is acknowledging that under that interpretation this proposal is not permitted by the Zoning Ordinance andtherefore requires a variance. Mr. Christensen said the Board is authorized to grant the variance from this provision of the Ordinance as much as it is from any other provision of the Ordinance, so the applicant is asking the Board to grant a variance from the provision that requires the building to be occupied by an owner as their primary residence.
Mr. Gelzer said he is not sure that the Board has heard a response to Mr. Fichter’s question regarding the language in the purpose stated in Article 6.12, “…special housing needs of single persons and couples of low and moderate income, both young and old, and of relatives of families presently living in Newbury.” Mr. Christensen said this does not specifically target those purposes, this builds into the fact that there is already an accessory apartment on this property.
Mr. Budd said that nothing the applicant has said meets the criteria of the purpose stated in article 6.12. Mr. Christensen said this proposal does not specifically address that element of the purpose because there is already an accessory apartment and we're just creating a different accessory apartment, it will have a neutral impact on that purpose, it will not create additional housing, it is not going to be a second accessory apartment.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
Mr. Briggs said he shares the Board's concern about Article 6.12.
Ms. McIntire said the 1987 variance had four conditions: A) the downstairs part of the garage structure shall remain a garage; B) only the upstairs portion of the building is to be used for living quarters; C) the garage and the adjacent cottage together are to be considered one dwelling unit; D) the cottage and garage shall not be rented separately, sold individually or subdivided in any way to separate the cottage and garage so that they would be considered more than one dwelling unit. Ms. McIntire continued that in 2017 the State adopted the accessory dwelling unit statute, so this was never an accessory dwelling unit because there was no such thing, it was never an accessory apartment because there was only one dwelling unit.
There being no more comment from the public, Mr. Fichterclosed the public portion of the meeting.
The Board went into deliberations.
Ms. Holmes said it is kind of difficult when you see what the variance was in 1987 and what the law is today; it is a whole different story. Ms. Holmes continued that the applicant wants the Board to waive the Ordinance. Mr. Fichter said correct, but what the Board needs to deal with is what the Ordinances are today, take into account what they may have been in 1987, but what is the Board dealing with today.
Mr. Blohm said given that the applicant is asking for a new accessory apartment and the Board has already covered the issue of residency in the past with Town Counsel, there must be a resident owner occupying the building in order for there to be an accessory apartment. Mr. Blohmcontinued that since the applicant is not occupying the building as their primary residence, he does not see how the Board could grant this variance.
Mr. Fichter said for him it is essentially the same issue, the Ordinance requires you to be a resident, the applicant is not a resident. Mr. Fichter continued that just because the applicant has some other usage on another piece of property that was granted at an earlier date, in his mind it doesn’t make it transferable to another location. Mr. Fichtersaid he doesn’t think that the criteria for meeting the accessory apartment goals for the Town is represented here.
Ms. Holmes said that she doesn’t think the 1987 variance is applicable here where accessory apartments have modern laws and stipulations.
Mr. Christensen said he believes there is perhaps confusion as to what the request is that should be clarified. Mr. Christensen continued that the request here was that the applicant acknowledges that the residency requirement would prevent this accessory apartment, but the applicant is asking for a waiver of that residency requirement.
Mr. Gelzer said the issue of residency has received a great amount of discussion from the Planning Board and the SelectBoard and there was uniformity in the assertion that residence meant you reside here.
Mr. Blohm made a motion to vote on the request fromPhilip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 Sunlite Lane, Newbury, NH, for a Variance from the requirements of Paragraph 6.12.3 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Blodgett Landing Cottage District without the owner or one of the owners of the single-family lot upon which the accessory apartment is located to occupy at least one of the dwelling units on the premises as their residence. Newbury Tax Map 16A-358-003.
Mr. Gelzer seconded the motion.
Roll Call Vote:
Peter Fichter-voted to Deny the Variance from Paragraph6.12.3 stating that he does not think it is in the spirit of 6.12.
Gary Budd- voted to Deny the Variance from Paragraph6.12.3 stating that the Applicant’s argument for 16.8.5 when referring to the 1987 variance, the Applicant states that there is already an accessory apartment that exists and further argues that this is essentially a neutral effect. Mr. Budd continued that it appears that it wasn’t really intendedas an accessory apartment in 1987.
Reed Gelzer-voted to Deny the Variance from Paragraph6.12.3 on the basis of not having met the requirement of 16.8.1, that this is not contrary to public interest, and he has not heard information to overturn the other observations that appear to represent that it is so contrary. Mr. Gelzercontinued also 16.8.2, there isn’t a hardship here, because there is already the capacity for a use of space for the kitchen separate and independent of the construction of the new building.
David Blohm-voted to Deny the Variance from Paragraph6.12.3 based on the firm interpretation of residency the Board is applying.
Katheryn Holmes-voted to Deny the Variance from Paragraph 6.12.3 based on 6.12 accessory apartments and how that’s defined and 6.1, the purpose. Ms. Holmes continued that also she feels compelled to honor the RSA that defines what accessory apartments are for.
Variance denied by a unanimous vote.
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.
Continuance-Philip Hastings, Esq., Peter Blakeman & Snow Building Construction (agents), Lake Ave Realty, LLC (owner), for property located at 10 Sunlite Lane, Newbury, NH, will seek a Special Exception as provided for in Article 6.12 and 7.2.2 of the Newbury Zoning Ordinance to permit the following: An accessory apartment in the Blodgett Landing Cottage District and the Shoreland Overlay District. Newbury Tax Map 16A-358-003.
Mr. Fichter said at this point he is not sure that it makes sense to proceed with the Special Exception.
Mr. Christensen said the applicant would like to proceed with the Special Exception request, particularly if one of the owners move into the property the Special Exception would still be required. Mr. Christensen continued that if the denial of the variance is overturned on appeal the Special Exception would still be necessary.
Mr. Fichter said what he thinks the Board will do is to continue the Special Exception to a point certain in the future because if one of the owners chooses to become a resident, the Board would want to see that before going further with the Special Exception because the Special Exception hinges on the residency requirement. Mr. Christensen said the Special Exception, procedurally, could be conditioned upon the residential requirement. Mr. Christensen continued that the reason the applicant would prefer to move forward, would be for administrative efficiency, if the Special Exception were to be denied, regardless of the residency requirement, the applicant would only have to file one request for rehearing, one appeal, as opposed to having to come back to the Board for a second request for rehearing and a second appeal at a later date.
The consensus of the Board was to continue the Special Exception hearing.
Mr. Fichter said that the Special Exception hearing be continued until December 13, 2021, at 7:05 pm. The Board agreed.
Mr. Gelzer made a motion to adjourn. Mr. Budd seconded the motion. All in favor.
The meeting adjourned at 8:42 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 September 13, 2021