Zoning Board Minutes
Zoning Board of Adjustment
November 22, 2021
Approved January 12, 2022
Members Present: Peter Fichter, Chair; Gary Budd, Member; Reed Gelzer, Member; Katheryn Holmes, Member; Henry Thomas, Alternate; Alez Azodi, Alternate. Members Not Present: David Blohm, Vice-Chair
Public Present: Aaron Wechsler, Maria Dolder, David Rhodes, Darren Finneral
Mr. Fichter called the meeting to order at 7:00 p.m.
Minutes
The Board reviewed the minutes of October 25, 2021. Ms. Holmes made a motion to accept the minutes as presented. Mr. Budd seconded the motion. All in favor.
Board introductions.
Mr. Fichter appointed Mr. Thomas as a voting member.
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 22, 2021, at the Veterans’ Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Maria T. Dolder, Esq. & Aaron Wechsler (agents), Stuart H. Michie Trust (owner), for property located at 69 Lakewood Manor Road, Newbury, NH, will seek a Variancefrom the requirements of Paragraph 15.2.2 of the Newbury Zoning Ordinance to permit the following: Replacement of a non-conforming residential structure located in the same general footprint as existing conditions, with a change of footprint of the primary structure. Newbury Tax Map 019-709-468. 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.
Aaron Wechsler from Aspen Environmental Consultants and Maria Dolder, Esquire presented to the Board.
Mr. Wechlser said there is the existing primary structure with half deck, patio and a detached shed as development on the property as well as the man-made walls that go on either side of the stream that goes through the property. Mr. Wechsler continued that there is no driveway right now, parking is on a shared area on an abutting lot. Mr. Wechsler said the applicant is hoping to build a new structure within the footprint of the existing developed area so where the patio is now would be a three-season porch, the house would have the same footprint other than a bump out for a stairway in the approximate same location as the shed, the deck is in the same configuration and location. Mr. Wechsler continued the applicant is proposing a driveway and some steps to get down below, this will allow the owner to park on their own lot. Mr. Wechsler said this is going to be a retirement home so while there is a loft in the house the overall living space is on the first floor.
Mr. Wechsler said there is a slight increase in impervious surface which will be offset by doing an infiltration systemunder the driveway taking the rainwater from half the structure routing it into gutters which then goes below grade to a subsurface system, it is sized to meet AOT standards for stormwater infiltration.
Mr. Budd said the only slight change to the footprint is actually the stair access. Mr. Wechsler said there is currently a gap which is mostly covered by roof overhang between the shed and the house. Mr. Wechsler continued the proposed house will have a full foundation under it so we’re raising it up which allows us to put the driveway in. Mr. Wechsler said because of that this deck is off of that first floor so now it will be elevated so rather than having a long set of steps that would encroach further we just came right around the side. Mr. Fichter asked that what would be the first floor of the new proposed structure will be elevated compared to the first floor of the existing structure. Mr.Wechsler said yes.
Mr. Fichter said the proposed driveway is not going to be as steep as the terrain currently is on that property. Mr.Wechsler said correct the driveway is going to be almost flat.
Mr. Wechsler said they tried to stay within, as far as setbacks go; the wetland is the same existing and proposed,the right of way setback is the same distance existing and proposed, the northern line the same distance, and the eastern line we are actually slightly further away 21.9 feet existing, proposing 22.4 feet.
Mr. Fichter asked the applicant if he could question theiruse of the term structure as defined by the applicant in theirsupporting narrative as the residential structure currently located on this property include a cottage, extended deck,concrete patio and storage shed. Mr. Fichter continued that he would like to draw the applicant's attention to definition 2.133 in the Newbury's Zoning Ordinance, it talks about a structure, and it says “Anything constructed with a fixed ortemporary location on the ground or attached to something having a fixed or temporary location on the ground. Items such as swimming pools, sheds, gazebos, garages, docksand boathouses are included in the definition… Items such as on-site waste disposal systems, water wells, fences,walls, gates, signs, lampposts, mailboxes, flagpoles,children's playsets, well coverings, stairs not attached to a structure, walkways and uncovered patios are excluded from this definition.” Mr. Fichter asked if he was interpreting correctly the applicant is saying that the patio that’s there now represents a structure. Mr. Fichtercontinued the definition clearly does not allow a patio to be included as a structure. Mr. Fichter said he would come back to this because it strikes him that this is fundamental to the applicant's argument as far as this proposed project would essentially be not more conforming. Mr. Wechsler said the idea is that the applicant is taking existingdeveloped area and trying to stay within that existing developed area, trying not to have any drastic increase in impervious area.
Mr. Fichter said the applicant talked about that there’sgoing to be gutters that collect the water and put it into a filtration under the driveway. Mr. Fichter asked if that was true for all sides of the house. Mr. Wechsler said that’s just for the easterly side of the house. Mr. Fichter asked what happens on the side of the house to stormwater that comes off the roof and presumably runs towards that brook. Mr.Wechsler said not much more than what happens now, the impervious surfaces on that side are identical, so what hits the patio now runs off, what comes off the roof now runs off. Mr. Fichter said the applicant is not improving the runoff situation on that side of the house which in his mind works its way into the stream. Mr. Wechsler said he does not know how much actually makes it into the stream but there is that existing wall and it does block some of the area, it's not a smooth transition from grass dropping down,there is some barrier, there is also vegetation over there. Discussion followed.
Mr. Thomas said the applicant is asking for a variance from 15.2.2 which is to reconstruct on the same footprint by right, but the Board has determined by what Mr. Fichterread that the patio is not considered a structure.
Ms. Dolder said the applicant is asking for a variance from 15.2.2 which technically does allow you to reconstruct restore or replace by right, without variance, if you are on the same exact footprint. Ms. Dolder continued it was the applicants understanding based on discussions with the Town that because of the fact that even though they areusing, what they consider, in the Ordinance it calls it the building footprint, the applicant considered the patio as part of the building footprint that already exists. Ms. Doldercontinued so even though the applicant is still building on that same footprint the footprint of the residential structure will technically change because of the fact that theapplicant is going to take the patio and enclose it and also where the shed exists now there is a little bit of space in between which will be encompassed into the building footprint.
Mr. Fichter said by the Boards definition footprint is basically the drip edge of the roof so if you look at the structure that is there now that is the footprint. Mr. Fichtercontinued that the applicant has included the shed and the patio which is technically not part of the footprint. Mr.Fichter said the building envelope could be a larger area but when talking about footprint it is very specific and when talking about structure it is very specific. Ms. Dolder said from her position that still does not change the fact that theapplicant still needs the same variance. Mr. Fichter said there's no disputing that.
Mr. Azodi said that it may technically now be falling into 15.2.1 because now it’s an expansion of existing. Mr. Fichter said reconstruction. Mr. Thomas said the applicant needs a variance to build within the 30-foot setback of the Town road. Mr. Fichter said that is why the applicant is looking for a variance. Mr. Thomas asked why the Board didn’t list the number. Ms. Dolder said the difference in this particular circumstance from what Mr. Thomas is discussing is that there is already a structure on the property. Ms. Dolder continued that structure is pre-existing and non-conforming and because of that we jump to 15.2.2. Ms. Dolder said she would agree with Mr. Thomas if this was vacant land then the applicant would be asking for multiple variances, but because there is an existing non-conforming building and structures on the property it bumps us into the non-conforming portion of the Ordinance and under that Ordinance the applicant is not required to meet all the setbacks because the applicant is already saying we can’t meet them, we just want to reconstruct/replace what’s out there. Ms. Dolder continued that from the applicant’s position because of the fact that, although the applicant and the Board might differentiate on what the building footprint is, this will not create a new increased violation and not extending any further than what exists today but the applicant does need the variance. Mr. Fichter said he agreed with the applicant that this is the correct variance to get, but not on the same page that the new structure is not more non-conforming than the existing. Discussion followed.
Mr. Azodi said the applicant is saying they are not extending but by the Town's definition patio is not a building and you are extending when you turn the patio into a building. Mr. Azodi continued that the applicant had said they are building in the same footprint, but they are not, patio is not the existing footprint. Ms. Dolder said she understands this is a definitional thing but what theapplicant looked at was what was actually out there on the ground so when the applicant looked at it they said we are not building past the existing footprint because whether or not they are included in the definition of a structure or footprint the reality is they are on the ground and they do encroach. Ms. Dolder continued that it was the applicant’sposition that they weren't making things worse and not adversely impacting the neighborhood because they were going to use what was already on the property and already disturbed. Mr. Fichter said if he went by on the street today and looked at what's there Mr. Fichter said he would see the house and probably the little shed, but Mr. Fichter said he doesn't really see the patio. Mr. Fichter continued that if he goes by after the proposed construction has taken place Mr. Fichter thinks he will see, after a quick look at the architectural drawings, a substantial something, Mr. Fichtersaid he is being careful not to call it a structure, but something will be there that will look different and more imposing then what you see today. Discussion followed.
Mr. Thomas said the point he has to make is, that if he owns this house he will keep it exactly how it is but heneeds another room so he is going to build it on top of that patio he is going to have to come in for a variance to build a structure within the 30 foot set back of the Town road, cut and dry and that is what the Board should be looking for.Mr. Thomas said he does not know what the Board can grant to give the applicant the right to make a patio a structure in 15.2. Discussion followed.
Ms. Dolder said if the Board were to choose that the applicant needed to ask for a variance under a different section the applicant can certainly tweak their application. Ms. Dolder continued that she thinks their logic and reasoning, quite frankly, will be 100% the same just under a different section. Mr. Fichter said he thinks 15.2.2 is the correct one and asked if anyone on the Board disagreed.Mr. Azodi said if the patio is built as a building, then you are extending so 15.2.1 has the extension. Mr. Fichter says it has reconstruction under 15.2.2. Mr. Wechsler said he has concerns under 15.2.1 because to him expansion means that you’re keeping the existing structure and expanding that structure but because the applicant is replacing the whole structure it would fall under 15.2.2. Ms. Dolder said that is why the push to 15.2.2 because under 15.2.1 when you read it, it makes it sound like the applicant is keeping the house and just putting on an addition and the applicant is not doing that, they will be taking everything down to the ground and starting over so that was the applicant's concern for 15.2.1. Mr. Budd said it’s an expansion of the existing footprint. Mr. Fichter said no, the applicant is tearing down the whole house, the footprint is going away. Discussion followed.
Mr. Fichter said if the Board is going for a different variance that would require that there would be a public notice that people would know what's going on so the Board could not start talking about this under 15.2.1 instead of 15.2.2. Discussion followed.
Mr. Fichter said he was stuck on the notion that it is not an alteration and not an expansion. Ms. Holmes said the way she understands it is they’re expanding the building they're not building in the footprint because they are including the shed and the patio as an expansion. Discussion followed.
Ms. Dolder asked is there any reason, because she does not feel that the Board will agree on this 100% why the applicant can’t just ask for a variance to sections 15.2.1 and 15.2.2, the Board knows what the applicant wants to do. Mr. Thomas said and 5.9.1. Discussion followed.
The majority of the Board said the applicant should come back to the Board under 15.2.1 and 5.9.1 for the right of way setback. Mr. Fichter said from a procedural standpoint this will have to be re-noticed for whatever the applicant comes in and asks for. Mr. Fichter continued the applicantscan withdraw the application otherwise it is likely the board will deny it and then the applicant wouldn't be able to come back with the same plan again. Discussion followed.
Ms. Dolder said she formerly withdraws the application for variance under 15.2.2.
Mr. Gelzer made a motion to adjourn. Mr. Budd seconded the motion. All in favor.
The meeting adjourned at 8:47 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 November 22, 2021