Zoning Board Minutes
Zoning Board of Adjustment
November 8, 2021
Approved January 12, 2022
Members Present: Peter Fichter, Chair; David Blohm,Vice-Chair; Gary Budd, Member; Reed Gelzer, Member; Katheryn Holmes, Member; Henry Thomas, Alternate
Public Present: Scott Hill; Angie McAffee; Jeremy Eggleton; Dan & Beverly Wolf; Tom Hildreth; John Perry; Nick Robart; Larry Briggs; James Bishop; Steve & Cindy Remen; Durham & Natalie Jones; Cassie Hall; Greg Gage
Mr. Fichter called the meeting to order at 7:01 p.m.
Minutes
The Board reviewed the minutes of September 27, 2021and October 18, 2021. Mr. Fichter made a motion to accept the minutes as presented. Mr. Budd seconded the motion. All in favor. Mr. Gelzer abstained.
Mr. Fichter made a motion to change the meeting night to the second Wednesday of the month and if necessary, also the fourth Wednesday of the month. Mr. Budd seconded the motion. All in favor.
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 November 8, 2021, at the Veterans’ Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Jeremy D. Eggleton, Esq. of Orr & Reno (agent), Scott B. Hill (owner), for property located at 705 Route 103A and Route 103A, Newbury, NH, will seek a Special Exception as provided for in Article 15.1.2 of the Newbury Zoning Ordinance to permit the following: Change in non-conforming use. Newbury Tax Map 016-036-132-& 016-003-127. Copies 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.
Board introductions.
Jeremy Eggleton, Esquire from Orr & Reno presented to the Board.
Mr. Eggleton said the submitted application is a two-part application, first one is for a special exception which modifies and adds to an application that Mr. Hill submitted last July for a variance. Mr. Eggleton continued that after Mr. Hill submitted his variance application, he conferred with Mr. Eggleton who believes after reading the Town’s Zoning Ordinance there is a Special Exception argument to be made. Mr. Eggleton said they are before the Board to ask for a Special Exception and if the Board doesn’t feel fit to grant it on the facts presented the applicant is also asking for a variance as a back stop.
Mr. Eggleton said Mr. Hill purchased the two lots in 2019. Mr. Eggleton continued that the lots had been operated as a landscaping company, garage over the years and a boat garage at one point perhaps in the 80s or 90s and the general condition of the property was abysmal. Mr.Eggleton said Mr. Hill cleaned up the lots but has continued to use the lots for storage purposes relating to his business,so he has continued that storage use that had occupied that land for 30 odd years prior to his purchase. Mr. Eggleton continued that Mr. Hill has not headquartered his business in the same way the prior owner had headquartered his landscaping business, so his traffic is not every day, but he is using it for the continuing commercial purpose that it has always been used and for the specific use of this property as a storage area for his business-related activities. Mr.Eggleton said he submits on those facts there’s been no lapse in the storage use from after the period Mr. Hill acquired the property so under the Zoning Ordinance 15.1.1 the applicant is permitted to seek a Special Exception to convert that use to what he is proposing and what is proposed is to use that property not as an open storage but to build some neat orderly storage units. Mr. Eggleton continued that rather than being more detrimental to the neighborhood what this proposal does is it actually foreverrevokes the old use which is one that created a lot of mess and replaces it with a nice clean orderly set of structures and not a lot of coming and going. Mr. Eggleton said under 15.1.2 of the Ordinance any change of an existing nonconforming use requires the Board of Adjustment to approve the Special Exception which shows that the proposed change of the existing nonconforming use will not be more harmful or detrimental than the existing nonconforming use and Mr. Eggleton submits that most people would rather live next to these storage units than next to a junkyard.
Mr. Eggleton addressed Article 16.7 of the zoning ordinance.
16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: At present, the use that has been maintained on this property for more than three decades is inside and outside storage (loosely) in support of a landscaping operation. Mr. Hill has continued that storage use, albeit in much cleaner, more organized form. The question of whether the proposed use will be “detrimental to the character or enjoyment of the neighborhood” must be assessed in light of what is allowed on this property by virtue of Mr. Hill’s continuity of the non-conforming use since the time of his purchase of the property. Thus, the question is whether the proposed use would be less detrimental than the non-conforming use that had endured on these lots since the 1990s. It will be. Instead of a dirty, potentially dangerous jumble of rusting vehicles, trailers, barrels, and aggregates, the lot will contain neatly arranged storage buildings and organizes boat storage. It is difficult to see how replacing the neighborhood junkyard with orderly improvements could ever be viewed as detrimental to the character of a neighborhood; but doing so in this case is a clear and obvious improvement over the status quo, and the status quo ante.
16.7.2 The use will not be injurious, noxious or offensive and thus detrimental to the neighborhood because: The proposed use in fact cleans up and removes a clearly noxious, offensive and potentially injurious neighborhood hazard, replacing it with orderly, organized storage units. Almost by definition, this ameliorates a detrimental condition.
16.7.3 The use will not be contrary to public health, safetyor welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal or similar adverse causes or conditions because: To the extent there existed, under the prior junkyard conditions of the lots, a risk to life and property, or of unsanitary or healthful emissions, or waste disposal, those conditions have been ameliorated. Storage units will replace these noxious features. The proposed use will not create undue traffic congestion or hazards because the overall number of units will be modest and storage is, by its nature, an episodic use. People come and go from time to time but not daily, and not with any regularity. The point is to have a safe, secure, clean location where goods can be left indefinitely. Thus, traffic will be minimal, unlike the prior landscaping and garage businesses, which has the coming-and-going of aggregates, employees, and equipment, on a daily basis.
16.7.4 The size of the site in relation to the proposed use and the location of the site with respect to the existing and future street giving access to it shall be such that it will be in harmony with the neighborhood because: The proposed use will be in harmony with the neighborhood as it will replace an existing eyesore and detrimental use with a use substantially more compatible with the residential area in which it sits. It cannot reasonably be suggested that the value of neighboring properties or adjacent land would be less valuable than if the lots were to remain a junkyard, or even generalized outside storage. To the extent that the ZBA would like to condition the special exception upon screening or fencing requirements, Mr. Hill is certainly prepared to endorse those conditions. With regard to the factors suggested under Section 16.7.4 as appropriate for mitigation, Mr. Hill notes:
Section 16.7.4.1 (setbacks): The proposed setbacks for the storage units exceed the required setbacks for the R District by 33% and 200% (respectively). The setback for the garage building, 26 feet, will not change.
Section 16.7.4.2 (screening): The proposed plans largely preserve existing wooden buffers between the subject lots and their neighbors. Mr. Hill will conduct replanting as required by the ZBA to restore any wooded buffers impacted by the construction.
Section 16.7.4.3 (Footprint or lot coverage): The proposed buildings, each modest, will be contained within the interior section of the two lots and will not require modification.
Section 16.7.4.4 (Modification of the exterior features or appearance of the building): The proposed buildings will be basic in form, and accessible from the ground, not requiring modification.
Section 16.7.4.5 (Limitation of size, number of occupants, method or time of operation or extent of facilities): No occupants are contemplated for the storage buildings, and the existing office/garage space would remain the same size. Time of operation restrictions are not necessary, but Mr. Hill would certainly adhere to reasonable time of operation restrictions.
Section 16.7.4.6 (Regulation of number, design, and location of drives or other traffic features): N/A, as the lot is small with only a front entrance on Route 103A and a side entrance on the adjacent private road.
Mr. Fichter asked if Steves Road which is a private way, is the proposed access way to the storage facilities. Mr.Eggleton said yes, that is the proposal on the plan. Mr.Fichter asked if Mr. Hill has deeded access to that. Mr.Eggleton said Mr. Hill does not need deeded access because it is on his property, it is actually an easement across his land but he actually plans to go out the front by the garage so the Board can condition it on access from 103A only.
Ms. Holmes asked how high the buildings will be. Mr.Eggleton said right now the buildings have not been designed that would be the next step, but they would need to comply with the ordinance but will not be a two storybuilding.
Section 16.7.4.7 (Off street parking or loading spaces beyond the minimum requirements): Because traffic is expected to be light, there is no need for further modification of these parameters.
Section 16.7.4.8 (Control of the number, size, and location of lighting and signs): Mr. Hill will abide by reasonable conditions in regard to these issues, provided that signage and safety lighting be permitted.
Mr. Blohm asked if the intent for illumination is 24/7. Mr. Hill said he would like to have motion lights but does not feel lights should be on all night long.
Mr. Fichter asked about the hours of operation. Mr. Hill said 7 to 7. Mr. Eggleton said the applicant will abide by reasonable conditions.
Mr. Fichter asked if there would be an agent present on the property who would regulate the flow or any activity that would take place. Mr. Eggleton said no but to qualify the no there wouldn't be someone hired for seven days a week,but someone would be there when necessary.
Ms. Holmes asked where the water is, the little stream that goes in the back of the property. Mr. Hill said between his property and the Gage property. Ms. Holmes asked if that was a permanent stream. Mr. Hill said it comes and goes.
Mr. Blohm asked if the drainage is into a culvert along the road. Mr. Hill said there is two culverts. Mr. Blohm noted that anything on the property drains into the culvert goes downhill into Blodgetts and then down to the lake. Mr. Hill said eventually it goes down to the lake. Mr. Eggleton said in theory, but we are not hydrologists. Mr. Hill said that is a State culvert that’s been there forever, what little bit of water that goes through that culvert is going to dissipate before it gets to Lake Sunapee by the time it goes across Mr. Wolf’s land.
Mr. Gelzer asked the Board’s chair if in previous hearings on this property the Board has established to its satisfaction that this has been a continuously operating business so therefore 15.1.1 doesn’t apply. Mr. Fichter said he does not think the Board has done that. Mr. Gelzer asked if it seems like that is a possible precondition because if it hasn’t beenestablished that it had been in continuous use to the Boards satisfaction then it reverts to residential. Mr. Fichter said that’s how the regulations read. Mr. Eggleton said it is twofold, the applicant is asking for this special exception under 15.1.2 to change or convert an existing non-conforming use to a less detrimental one but in the event that the Board disagrees that a special exception is an option, then the applicant will be asking for a variance. Mr.Gelzer asked the applicant that they were not contesting that what is being requested is a change. Mr. Eggleton said yes it would be a change. Mr. Gelzer said essentially the core of the presentation is that this is a change, but it is a net change for the better. Mr. Eggleton said that is right andhe would be forced to argue that based on prior use that what is consistent is it has been used as storage and it will continue to be used as storage, but the change is in the organization and construction of buildings. Mr. Eggleton continued that he doesn't think he could get out of arguingthat there is a change the applicant is seeking. Mr. Gelzersaid he thinks it is fine the applicant is representing this as a change. Mr. Gelzer continued that he thinks the representation that its previous use as storage of personaland business property which is incidental to a business is substantially different from a storage building business.
Mr. Blohm asked the intent for the use of the existing building. Mr. Hill said he would clean it up for the use of a little office.
16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, vibration than would be the operations of any permitted uses in this district which are not subject to special exception procedures because: The proposed use will not create noise, odor or vibration. For the most part, the units will sit silently holding their goods. The R District permits, among other uses, agricultural use (§5.3.1) and timbering activity (§5.3.5), both of which create substantial noise (e.g., tractors, skidders, haulers, chainsaws), fumes (e.g., diesel, small engine gas), odor (e.g., manure, livestock, urine, diesel), or vibration (e.g., chipping, milling, log transfer, heavy equipment). Thus, the quiet storage units will substantially less objectionable than these permissible activities. Mr. Hill presently continues to use the lots for outdoor storage, a use that has existed on this lot for 30 or more years. He has discontinued the active landscaping business that used the property for decades. He proposes a change in the use to interior storage for goods in neat, orderly buildings, and exterior boat storage. This change will be substantially less detrimental in every respect than the junkyard storage uses that prevailed on these lots for decades.
Mr. Blohm noted that the applicant claims that the back part has been in use as a storage facility although it's been zoned residential. Mr. Eggleton said that’s right. Mr. Blohmasked for the Special Exception is the Board being asked to agree that it's okay to turn this into a commercial piece of property. Mr. Fichter said essentially that is what’s being requested but Mr. Fichter thinks the argument that’s beenput forward is that it's been used as such for ‘n’ number of years, and this is not really changing that use it’s merely continuing it albeit in a slightly different manner. Mr.Eggleton said he does not think the Ordinance requires the use to be similar to get a Special Exception.
Mr. Blohm said there is no design at this point for theBoard to even respond to so if the Board was to do this, they would have to put all these conditions on it, which are impossible to even think of at this point. Mr. Eggleton said he thinks the Board needs to distinguish between the role of the ZBA in approving the use of the Special Exception and the role of the Planning Board in approving site plan review which will address a lot of these sort of micro environmental concerns. Mr. Eggleton continued the Board could condition hours and adequate lighting in generalized terms, but Mr. Eggleton thinks it is not the place of a Zoning Board to run through all the myriad factors. Mr.Blohm said it is impossible to even think about by trying to come up with a spec on a new building that you're going to build, and he doesn't feel he is in a position to know what the Board is doing here for real. Mr. Eggleton asked what would help the Board because he thinks what was submitted should be adequate for the purpose of figuring out whether the use is okay. Mr. Eggleton continued at the Planning Board you will have to have a building design,going to have to show the roof structure in general terms,talk about drainage.
Mr. Fichter opened the public portion of the meeting.
Tom Hildreth said he was an attorney at McClane Middleton in Manchester NH and was representing Beverly Wolf the property owner of the parcel across the street from the subject property and was speaking in opposition to the Special Exception. Mr. Hildreth continued that to get a Special Exception to be able to change a non-conforming use you have to have an existing non-conforming use. Mr. Hildreth said it was not a generic commercial use, it was not a storage use, it was not a junkyard, it was permitted to be one thing and that was a landscaping business.
John Perry said he lives on Steves Road and is opposed to the proposal because it is a family neighborhood, and he sees nothing good for the neighborhood or the neighbors in that area if this goes forward.
Nick Robart said he lives at 11 Steves Road, and this is a residential neighborhood and not an area for a business to be run. Mr. Robart continued that this is a private dead-end road and one of the reasons he moved here was the location and quietness of the road.
James Bishop said he bought the last house on Steves Roadin August 2018 and Mr. Ilnicki was no longer using the property at that point, but still owned it. Mr. Bishop said he was against this proposal.
Greg Gage said he lives directly adjacent to the former rainbow garage and probably the most impacted. Mr. Gage said he is concerned with runoff and the stream that runs over the Wolf property and down to the lake.
Durham Jones said he lives at 842 Route 103A with his wife Natalie and they are opposed to the development of a storage facility, not only from the environmental impact reasons but also from real estate value reasons.
Steve Remen said he lives off of Cloverfield Road and would like to ask the Board to take into account the impact to traffic on 103A from applicants seeking special exceptions and variances.
There being no further comment from the public, Mr. Fichter closed the public portion of the meeting.
The Board went into deliberations.
Mr. Fichter said it seems to him the characterization of what this property has been historically and how it's been used and then by extension automatically would allow a usage like a storage facility just doesn't convince him. Mr.Fichter continued the usage that's being proposed is considerably different than how the building and surrounding property was used, and it has been pointed out a number of times that the stuff that was stored there was part of a day-to-day business and was not being stored as a commercial enterprise so to say the applicant is continuing the usage and thereby should be granted the Special Exception doesn’t weigh with him.
Mr. Blohm said he agreed with everything Mr. Fichter said and would like to add that had it been stored there it would have been stored improperly as it was not a permitted use. Mr. Blohm continued that he thinks this will significantly change the residential neighborhood.
Ms. Holmes said non-conforming is a very difficult topic and she thinks the Board needs to understand non-conforming and use. Ms. Holmes thinks this is a huge impact to the neighborhood. Ms. Holmes continued that she is in a quandary if a Special Exception is appropriate given the fact of what's been said tonight it hasn't been in use for two years therefore it's gone back to residential and as far as she can see the folks in this room want it to be residential and the Board should take that into consideration. Ms. Holmes said she also thinks that it will be a great hardship with everyone against the project. Mr.Fichter noted to Ms. Holmes about her questioning of the Special Exception, that is the core of what the Board is being asked to grant and the Board is deciding whether to grant that or not.
Mr. Budd said some of his concerns at this time are: 16.7.1-the use will not be detrimental to the character enjoyment of the neighborhood-the Board has heard from a number of neighbors and they raised some concerns; 16.7.4-the use will be in harmony with the neighborhood-the Board was not hearing a lot of harmony; 16.7.5- this use shall not be more objectionable to nearby properties- the applicant has argued that there will not be noise, fumes, odor or vibrations but the Board has heard from abutters that they believe things potentially could be more objectionable.
Mr. Gelzer said there are a lot of things about this that are troubling, the applicant purchased this property with certain commercial interests in mind and Mr. Gelzer is guessing that the applicant may have also learned things from others research, but Mr. Gelzer thinks it boils down to the same things that Mr. Budd presented with the additional notion that those of us that have been in the area are seeing a lot of changes, some of which we find troubling, some we say it is the nature of things to change and at least so far the town of Newbury has decided to pretty much embrace change.Mr. Gelzer continued that the Board has been getting a lot more feedback and commentary from residents saying the Board lets too much go through on the margins and takes Mr. Gelzer back to rereading the purpose statement which begins with promote health, safety and general welfare; to enhance and preserve the value of natural beauty of our lakes ponds and natural environment; to conserve the valueof buildings and encourage the most appropriate use of landand then there's a trailing statement that also allows individual land owners as great a degree of freedom in the use and enjoyment of their land as is consistent with the accomplishment of these purposes. Mr. Gelzer said the people of the Town of Newbury have basically putpreservation and enhancement as a precondition and in that context to have so many people take their evening and represent themselves and in some cases compile information and hire external counsel is a strong affirmation that this is detrimental to the character and enjoyment under 16.7.1 and the other components referenced by Mr. Budd.
Mr. Thomas said he would like to correct the record, it has been said that this would be the only commercial entity on 103A, Mr. Thomas believes that The Fells came before the Board for a Special Exception to run that business and there are numerous cottage industries and contractor business along 103A.
Mr. Blohm made a motion to vote on the request from Jeremy D. Eggleton, Esq. of Orr & Reno (agent), Scott B. Hill (owner), for property located at 705 Route 103A and Route 103A, Newbury, NH, will seek a Special Exception as provided for in Article 15.1.2 of the Newbury Zoning Ordinance to permit the following: Change in non-conforming use. Newbury Tax Map 016-036-132-& 016-003-127. Mr. Budd seconded the motion.
Roll Call Vote:
Peter Fichter-voted to Deny the Special Exception as provided for in Article 15.1.2 based on 16.7.1, this will significantly alter the character of the neighborhood.
Gary Budd- voted to Deny the Special Exception as provided for in Article 15.1.2 based on 16.7.1, this will alter the character of the neighborhood.
David Blohm-voted to Deny the Special Exception as provided for in Article 15.1.2 based on this will significantly impact the neighborhood and not in agreement with the argument that it’s a change in non-conforming use because the pre-existing use is in question.
Reed Gelzer-voted to Deny the Special Exception as provided for in Article 15.1.2 based on 16.7.1 given the extensive testimony that it will be detrimental to the character and enjoyment of the neighborhood and based on 16.7.5 given the extensive testimony that it is objectionable to nearby properties.
Katheryn Holmes-voted to Deny the Special Exception as provided for in Article 15.1.2 based on Article 1.2-Purpose and an adverse impact to the neighborhood, brook and lake.
Five votes to Deny the Special Exception.
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-Scott B. Hill (owner), for property located at Route 103A and 705 Route 103A, Newbury, NH, will seek a variance from the requirements of Paragraph 5.5.2 of the Newbury Zoning Ordinance to permit the following: Self-storage units and a winter boat storage building as a permitted use in the Residential District. Newbury Tax Map 016-003-127 & 016-036-132.
Mr. Fichter asked if the applicant would like to continuewith the variance. Mr. Hill said no that he would like tohave his friends and supporters of this project behind him and if we could have it another day. Mr. Eggleton requested a continuance of the variance hearing. The Board agreed.
The continued variance hearing will be scheduled for Wednesday February 9, 2022 at 7:05 pm.
Mr. Eggleton asked the Board, given the fact that the applicant is waiting on the variance and if the applicant is going to appeal could they consolidate it all into one instead of having multiple dockets going, could the Board defer this decision until such time. Mr. Fichter said no.
Mr. Blohm made a motion to adjourn. Mr. Gelzer seconded the motion. All in favor.
The meeting adjourned at 9:01 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 November 8, 2021