Zoning Board Minutes

Zoning Board of Adjustment

December 13, 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. Members Not Present: Alex Azodi, Alternate

Public Present: Larry Briggs, Tanya McIntire, Tony & Kim Lopresti, Jerry Walls, Jane Clutterbuck, Dan Wolf, Doug Gamsby

Mr. Fichter called the meeting to order at 7:05 p.m.

Board introductions.

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 asked if there was any representative for the applicant. There was no one present for the Special Exception continuance. 

Mr. Fichter said this was a continuance that was requested by the proprietor's attorney as the Board was in the midst ofdiscussing a Special Exception and this Special Exception was for the fact that they wanted to include an ADU within the new main house as proposed. Mr. Fichter continued that it was pointed out to the applicant that according to the Newbury Ordinances at least one of the people living there has to be a resident. Mr. Fichter said at the time neither of the two individuals who are associated with the LLC were residents and there is no information to suggest that has changed.

Mr. Fichter asked the Board if they felt comfortable deciding the disposition of the Special Exception without any applicant input. The Board said yes. Mr. Fichter said at this point he doesn’t think that there’s much dialogue that the Board hasn’t had on this topic and the Board is clear that residency was a requirement.

Mr. Blohm made a motion to vote on the request from 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. Gelzer seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Deny the Special Exception as provided for in Articles 6.12 and 7.2.2 based on not conforming to the residency requirement.

Gary Budd-voted to Deny the Special Exception as provided for in Articles 6.12 and 7.2.2 based on not conforming to the residency requirement.

David Blohm-voted to Deny the Special Exception as provided for in Articles 6.12 and 7.2.2 based on not conforming to the residency requirement.

Reed Gelzer-voted to Deny the Special Exception as provided for in Articles 6.12 and 7.2.2 based on not conforming to the residency requirement.

Katheryn Holmes-voted to Deny the Special Exception as provided for in Articles 6.12 and 7.2.2 based on not conforming to the RSA and the Town Ordinance being a resident in order to have an ADU.

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. 

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, December 13, 2021, at the Town Office Building at 937 Route 103 in Newbury, NH. At 7:20 p.m., Charles Ydoate Rev Trust & Nancy Ydoate Rev Trust (owners), Doug Gamsby (agent), for property located at 1321 Route 103, Newbury, NH, will seek a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a replacement septic system partially on steep slopes. Newbury Tax Map 007-114-095.

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.

Doug Gamsby from Greenline Property Services, LLC presented to the Board.

Mr. Gamsby said this is kind of an exclusive situationwhere the owners of the property, the Ydoates are intending to grant an easement to the Clutterbucks. Mr. Gamsby continued that the Clutterbucks own a piece of property just in the area between Edgemont Road and the lake, whereas the Ydoates own their lot between Edgemont Road and the lake, and they have another lot across the way bordering on 103 where their septic system is located. 

Mr. Gamsby said the Clutterbucks septic system is State approved and probably one of the first ones that was done in 1970, it has a 300-gallon septic tank, today’s standard is 1250, located under the deck. Mr. Gamsby continued that there is a 4x8x4 deep drywell that was hand built out of concrete block which is not current standard procedure. Mr.Gamsby said the applicant’s system is not in failure at this time, they are looking to the future and proposing to construct a system that still uses the septic chamber but change it to a pump chamber. Mr. Gamsby continued that when you use a pump chamber you have to double the septic tank capacity for raw sewage, it would be pumped up between the Ydoates and Clutterbucks into a plastic septic tank, from there go into a concrete septic tank with a pump chamber and then run it to a clean solution tank which will have a very small leach field profile then to a three-compartment concrete chamber. Mr. Fichter asked if the Ydoates would be tying into the Clutterbucks septic system. Mr. Gamsby said no, there is two completely different systems. Mr. Gelzer asked if the existing systemwould be abandoned. Mr. Gamsby said yes. Mr. Blohmasked if it would be dug up and a bigger tank put in. Mr.Gamsby said no and the reason the proposed system is to be up by Route 103 is because there is very little access.Mr. Gamsby continued the property line is maybe five feet from the building between the two houses and there is no room to install a system. Mr. Thomas said there would be two pumps a raw sewage pump and an effluent pump. Mr.Gamsby said yes.

Mr. Gelzer asked what the bedroom capacity would be. Mr.Gamsby said three. Mr.

Gelzer asked how many bedrooms in the current house. Mr. Gamsby said three.

Ms. Holmes asked what the grade of the slope is. Mr.Gamsby said there is about 50 feet of slope that is probably 55 to 60%. Mr. Fichter asked if the system would be going in steep slope. Mr. Gamsby said no it would be in the flat area about 10 feet in front of the slope and that was the only place that it could be placed. Mr. Fichter noted that the variance is for placement of the pipe.

Mr. Thomas asked if the plan was approved by the State.Mr. Gamsby said no, but they wanted to make sure they got the variance because there would be a Shoreland and aseptic design.

Mr. Gelzer asked if the stairway would be removed to put the pipe in and then put back. Mr. Gamsby said that has not been discussed much, the stairs are in poor condition. Mr. Gamsby continued that he is not an installer, but he knows that this would be a good situation where they could run a borer underneath the stairs instead of having an excavator, it is only a two-inch pipe.

There being no further questions from the Board, Mr. Gamsby addressed Article 16.8 of the zoning ordinance:

16.8.1 The variance will not be contrary to the public interest because: The proposed replacement septic system will be farther from the lake and will meet current statesubsurface standards. The existing system was state approved (CA#15736) and installed in 1971 and is substandard to current regulations. The variance will allow for a substantial improvement over the existing septic system.

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 existing property in question has insufficient space for a newer design in the existing location. We are proposing a new State approved septic system design located further from the Lake.

b) The property is different in a meaningful way from other properties in the area because: We are proposing a new state approved septic system installed further from the Lake, thereby improving the overall quality of the Lake, in general.

c) The property is burdened more severely by the zoning restrictions because: The existing lot that the septic system is on is small and is limited to its construction access to provide a suitable septic system location on the Lakeside of the property.

d) Because of the special conditions of the property, the proposed use of the property is reasonable because:The majority of other houses on Edgemont Landing have installed their septic systems on the Route 103 side of Edgemont Landing Road, partially constructed on steep slopes. The uniqueness of the Clutterbuck Property is that they do not own land on the Route 103 side of Edgemont Landing Road.

16.8.3 The variance is consistent with the spirit of the ordinance since: The proposed State approved septic system will be farther from the Lake, similar to the majority of existing septic systems on Edgemont Landing. Erosion control will be managed thru out the constructionwith silt fences being installed along all the areas of disturbance. Additionally, the construction on the steep slope section should not take more than a few days to excavate, lay pipe and fill in trench. It may also be possible to install the pipe using trenching technology, greatly reducing the impact on the steep slopes.

16.8.4 Substantial justice is done because: The current owners of the lot benefitting from the septic system replacement (the Clutterbucks) will have the peace of mind of having a new state approved septic system to replace the existing system.

16.8.5 The value of surrounding properties will not be diminished because: A newer State approved septic system will be built farther from the Lake in a situation very similar to the other properties on Edgemont Landing.

Mr. Blohm made a motion to vote on the request fromCharles Ydoate Rev Trust & Nancy Ydoate Rev Trust (owners), Doug Gamsby (agent), for property located at 1321 Route 103, Newbury, NH, will seek a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a State approved replacement septic system partially on steep slopes. Newbury Tax Map 007-114-095. Mr. Budd seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Grant the Variance from Paragraph 9.4

Gary Budd-voted to Grant the Variance from Paragraph 9.4

David Blohm-voted to Grant the Variance from Paragraph 9.4 

Reed Gelzer-voted to Grant the Variance from Paragraph 9.4

Katheryn Holmes-voted to Grant the Variance from Paragraph 9.4

Five votes to Grant the Variance. 

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. 

The Recording Secretary read into the record the following Public Notice:

Public Notice Town of Newbury, NH. The Newbury Zoning Board of Adjustment will hold a meeting on December 13, 2021, at 7:00 pm., at the Town Office Building at 937 Route 103 in Newbury, NH. At this meeting the Board will review Motions for Rehearing before them and act to grant or deny the rehearing. No public input will be taken on the Motions for Rehearing. Motions for Rehearing: Camp Ruffit, LLC-Motion for Rehearing on the October 18, 2021decision by the ZBA.

November 15, 2021

Peter Fichter, Chair

Newbury Zoning Bord of Adjustment

Re: Rehearing-Camp Ruffit, LLC, Property Located at 26 Highland Ave., Newbury, NH Newbury Tax Map 018-308-083

Appeal: Reversal of July 12, 2021 Board decision granting of a Special Exception to an accessory apartment, dated October 18th, 2021.

Mr. Fichter:

We are submitting this letter as an official appeal of the Boards October 18th, 2021 reversal of their unanimous approval granted July 12th, 2021. The essence of the Board’s decision and reversal is the definition of “Resident” Paragraph 5.7.3 and concern of setting “precedent” regarding future cases. This was reheard on October 18th, 2021. Other than a request for rehearing it was not clear in the notice as to the cause or reason. It was my intent to appear before the Board at the rehearing, however, that say we received a call that my wife’s aunt, a resident of Sunapee Cove, had passed away. Her aunt and uncle, previously deceased, did not have children. We are the closest living family members (Iowa next closest), needless to say this required our attention the rest of the day and the next day.

We believe that every decision and finding should be based on context of the issue under consideration.

• Since May 31st 1945 we have without interruption has been a seasonal resident of the Town of Newbury, 76+years.

• The structure in question had been there for at least 80+ years. Circa 1990 a 6’x8’ addition was constructed with shower, sink and toilet. It has continuously served as a seasonal residential accessory building for all these years. There is no change of the building footprint as requested, only nominal interior modification to include the addition of an additional sink.

• The Town of Newbury presently and historically has identified this structure as “cabin” with plumbing on the Town records. A cabin is defined as a “small simple house.

As provided in the original application, unanimously approved by the Board on July 12, 2021, are two previous approvals by the Board. The Town of Newbury had set approval precedent for this building on May 24th 2004when the Zoning Board approved a “Certificate of Zoning Compliance-No. 1313” for an 8’x12’ addition to include a small kitchenarea. On August 8th 2007 a “Certificate of Zoning Compliance-1630” was issued for a 6’x8’ addition for a kitchen. Our family did not act on these at the time.

The Town relies on Article 5.7 (Accessory Apartment) and 5.7.3 residency in its decision. This states that “it is the purpose of intent of this provision to allow the more efficient use of the Town’s existing stock of single-family dwellings and detached accessory buildings”.

• The building in question has been there for over 80 years. The use of this existing building as an accessory apartment does “protect and preserve the rural single-family residential character of the Town”.

• 5.7.3 states that the owners must occupy one unit as the primary residence. The property in question is only capable of being occupied during months when the outside temperature is above freezing as all the water supply and sewage disposal is exposed and cannot be winterized. The only way this steep and ledge site could be made into a “residence” is by complete demolition and redevelopment at a likely cost of $1 million plus, which is not financially feasible and an undue financial burden.

• With respect to “residency” N.H. Code Admin. R. Csp603.03, Domicile Determination, state an indication of domicile in N.H. is “payment on non-payment of any tax levied by the State of any political subdivision(Newbury) on persons, resident or domiciled therein”. For the past 76 years we have paid all taxes, on time with limited benefit (fire/police) to the exclusion of any other benefit, education, etc.

• “Residency” allows use of “Resident-only” Town facilities such as the transfer station. For the past 76+ years we have used our residency to utilize the original “dump” and now the transfer station.

In summary, the property at 26 Highland Ave., main house and accessory apartment can only be used during times when an outside temperature are consistently above freezing and therefore is inadequate for year-round residency. The use and future use with an accessory apartment is of such a nature that it does not constitute hazard to public health, safety and is not a nuisance. The use does not involve an enlargement of the footprint of the dwelling. The use as an accessory apartment does not affect the surrounding neighborhood, roads, municipal resources or the environment. The Town Zoning Ordinance does not distinguish seasonal residential use from year round residency use and as such discriminates against seasonal residents. We recognize the concern of the Townregarding precedent; accordingly we respectively request a conditional approval and permit for occupancy of an “accessory apartment” for occupancy by a maximum of 2 adults and a limited occupancy season commencing may 1st, and ending October 31st of each year.

Thank you for your consideration regarding this appeal.

Jerry Walls

Camp Ruffit LLC

Mr. Fichter said there is a long history on that property and unfortunately over time some of the regulations in the Town and State have changed. Mr. Fichter continued that by definition now, the building that is there, if it gets kitchen appliances or function or sink, then it becomes an ADU under today's rule and the application was made under today's rule. Mr. Fichter said he does not think, in his mind, that there is any question; Mr. Walls is not a resident of Newbury and therefore does not meet the criteria for residency of an ADU and he does not feel an appeal to the Board's decision is warranted. Ms. Holmes said she could not find any new information, the Board had been told the applicant had been there for 76 years, the new information would be the applicant is registering their car in Newbury, the applicant would be voting in Newbury. Mr. Fichter said that would solve the problem, but it has not come to the Board's attention that that’s been the case. Ms. Holmes asked if the applicant clearly understood that was thecriteria for an ADU. Mr. Fichter said yes. Mr. Thomas asked if the applicant could get a variance to the criteria of an ADU. Mr. Fichter said you could. Mr. Thomas said the applicant didn't ask for that the last time, this time is something new the applicant is asking for a variance to the definition of ADU of which if the applicant gets the variance, then the Board will have to hear the Special Exception again Mr. Fichter said he guesses that would be true but that has not been requested. Mr. Thomas said the applicant just requested a rehearing and if the Board denies this, the applicant then can request a variance.

Mr. Gelzer asked in regard to the point of the certificate of zoning compliance being issued for a 6x8 addition for a kitchen in August 2007 does that have an expiration. Mr.Thomas said yes. Mr. Gelzer said so that has long since expired.

Mr. Fichter made a motion to vote on the request for a rehearing by Camp Ruffit, LLC for property located at 26 Highland Ave., Newbury. Newbury Tax Map 018-308-083. Mr. Gelzer seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Deny the rehearing based on no new information that has not been brought up before, and the residency requirement has not been met.

Gary Budd-voted to Deny the rehearing based on no new information that has not been brought up before, and the residency requirement has not been met.

David Blohm-voted to Deny the rehearing based on the residency requirement not being met.

Reed Gelzer-voted to Deny the rehearing on the basis of the rules as they stand now.

Katheryn Holmes-voted to Deny the rehearing based on the possibility that the owner could apply for a variance.

Five votes to Deny the rehearing. 

The Recording Secretary read into the record the following Public Notice:

Public Notice Town of Newbury, NH. The Newbury Zoning Board of Adjustment will hold a meeting on December 13, 2021, at 7:00 pm., at the Town Office Building at 937 Route 103 in Newbury, NH. At this meeting the Board will review Motions for Rehearing before them and act to grant or deny the rehearing. No public input will be taken on the Motions for Rehearing. Motions for Rehearing: Scott B. Hill-Motion for Rehearing on the November 8, 2021decision by the ZBA.

December 8, 2021

Tiffany Favreau, Land Use Board Coordinator

Town of Newbury

937 Route 103

PO Box 296

Newbury, NH 03255

RE: Hill and Son Trucking

Motion for Rehearing, Special Exception Decision of November 8, 2021

Lots 03-127 & 36-132

Dear Members of the Zoning Board of Adjustment and Ms.Favreau:

As you know, I represent Scott Hill and Hill & Sons Trucking. I am writing to ask that the ZBA reconsider and rehear the Special Exception request from Mr. Hill for his lots on Route 3-A for the following reasons:

First, by denying Mr. Hill the special exception he sought, the ZBA effectively is permitting the unequal protection of the laws. It bears emphasis that the area in question is not solely a residential community, even if the zone itself is deemed rural-residential. For example, the Fells operates an extensive commercial touristic attraction just a mile to the south on Route 3-A and Blodgett Landing is a quasi-town center with substantial density and the coming-and-going of traffic.

Second, the Board appears to have made the determination that Mr. Hill permitted the existing commercial use on both lots-the front lot with the garage and the storage space on the back lot-to lapse following his acquisition of the properties. In deciding that Mr. Hill had not continued the storage use he had inherited on the lot despite Mr. Hill's testimony to the contrary, the ZBA erred. There was no lapse in his commercial use of the property-a property that, all agreed, and the ZBA confirmed, had been in commercial use for decades prior to his acquisition of the property in 2019.

Third, the imagery presented by opponents, which included aerial views of storage units from Connecticut, was not representative of the buildings and the use being proposed by Mr. Hill for his combined lots. Thus, the ZBA considered evidence that had no relevance or relationship to the special exception sought by Mr. Hill.

Fourth, to the extent that the continuity of Mr. Hill’s use is a determinative factor, Mr. Hill testified that the Town Zoning Administrator had told him that he had two full years to submit in an application for an alternative use before the non-conforming commercial use would be considered to have lapsed. The Town is estopped from denying Mr. Hill a special exception on the basis of a lapse in ongoing commercial use under those circumstances.

Fifth, on the merits, Mr. Hill demonstrated that the proposed use would be less detrimental and less impactful than the garage and storage use to which the properties had been put for close to forty years prior to his acquisition of the properties. This is particularly the case with the numerous concessions, conditions and safeguards Mr. Hill was willing to adopt to ensure that the impact of his storage units would be minimized. The ZBA should rehear the evidence on this point and reconsider its decision.

For these reasons, Mr. Hill has shown good cause for the ZBA to rehear and reconsider its decision concerning Mr.Hill's request for special exception. RSA 677:3. Regarding this request, the undersigned notes that he will be out for medical leave from January 7 to January 31, 2022 and hopes that any consideration by the ZBA of this request can be scheduled after that leave.

Respectfully submitted,

Jeremy D. Eggleton for 

Scott Hill and Hill & Sons Trucking

Mr. Fichter said the attorney’s second point where he talks about lapse in operation, in going back over his notes the lapse in operation took place under Matt Ilnicki’sownership. Mr. Fichter continued that once Mr. Ilnickilapsed the property then reverted back to its stature of residential zone. Mr. Thomas asked how Mr. Ilnicki lapsed if he was running his business from there. Mr. Fichter said Mr. Ilnicki did not operate it for that period of time. Mr.Budd said this was information presented to the Board and the applicant has to prove to the Board that no lapse occurred under Mr. Ilnicki.

Mr. Fichter said the third item the attorney brings up is the imagery that was taken of a storage unit in Connecticut as an example and the attorney said that was not relative. Mr.Fichter said he does not think that is germane to the argument. Mr. Blohm said that the applicant did not present any plans to the Board at the hearing to know what the applicant was doing. Mr. Thomas said that goes to site plan review.

Ms. Holmes said that meeting was very well attended by the abutters with many concerns. Mr. Fichter said Ms.Holmes was correct and at least for some of the Board thatformed the reason for voting as they did on the Special Exception. Mr. Fichter continued that the board is going through the letter to see if there is a basis for a rehearing and in his mind, it is not a basis to grant the rehearing.

Mr. Fichter made a motion to vote on the request for a rehearing from Scott B. Hill on the Zoning Board of Adjustment’s November 8, 2021 Special Exception decision. Mr. Blohm seconded the motion.

Roll Call Vote:

Peter Fichter-voted to Deny the rehearing based on nothing in the attorney’s letter warrants that the Board did anything incorrect.

Gary Budd-voted to Deny the rehearing based on Motion for Rehearing letter; there is no evidence in the letter that proves any negligence or that the Board did anything incorrect.

David Blohm-voted to Deny the rehearing based on the attorney representing Scott Hill not bringing forth any new information that the Board made any kind of error in the previous decision.

Reed Gelzer-voted to Deny the rehearing on the basis that the request does not substantially address 15.1.2 about the lack of documentation of a succession of Special Exceptions to bridge changes in the use of the property that would have persisted its non-conforming status.

Katheryn Holmes-abstained

Four votes to Deny the rehearing. One member abstained.

Mr. Fichter said at this particular point this request for Special Exception has come to the end as far as the Board is concerned which does not mean that the applicant and his attorney couldn't take this to the court system and appeal it there.

Mr. Gelzer made a motion to adjourn. Ms. Holmesseconded the motion. All in favor.

The meeting adjourned at 8:30 p.m.

Respectfully submitted,

Tiffany A. Favreau

Recording Secretary

Zoning Board of Adjustment                     Page 1 of 6                        December 13, 2021