Zoning Board Minutes
Zoning Board of Adjustment
April 13, 2022
Approved June 8, 2022
Members Present: David Blohm, Chair; Henry Thomas, Vice-Chair, Larry Briggs, Member; Katheryn Holmes, Alternate Members Not Present: Steve Hurd, Member; Gary Budd, Member; Alex Azodi, Alternate
Public Present: Tanya McIntire, Lisa Palmer, Robbin MacVittie, Dan Wolf, Tony & Kim Lopresti, David Rhodes, Susan Rogers, Peter & Lisa Schiess, Officer Levi Clark
Mr. Blohm called the meeting to order at 7:00 p.m.
Board introductions.
Mr. Blohm appointed Ms. Holmes as a voting member.
Minutes
The Board reviewed the minutes of March 16, 2022, and March 23, 2022. Mr. Briggs made a motion to accept the minutes as presented. Mr. Thomas 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 Wednesday, April 13, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Tanya McIntire, agent for Barbara Sleight Living Trust,will seek an Appeal From an Administrative Decision as follows: The decision to allow development at 10 SunliteLane. Newbury Tax Maps 16A-358-003 & 16A-354-004.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.
Tanya McIntire presented to the Board.
Ms. McIntire said she has a pretty detailed blow by blow on the different Ordinances she believes are not being enforced and the violations that are existing now. Mr. Blohm said the Board read that very closely. Ms. Holmes said the Board does not have any jurisdiction over enforcement. Mr. Blohm said the Board would get to that.
Ms. McIntire said that this administrative appeal is to reverse the decision of the Code Enforcement Officer not to enforce the Ordinance.
Ms. McIntire read the following into the record:
Dear Board Members: The ZBA in Newbury has been elected by the people of Newbury and holds an influential role in local governance. They work together with the Planning and Administration to govern the people of Newbury. I am coming representing not only my own interest in Blodgett Landing, but also the interests of my family and mother. She owns the property at 4 Lake Ave, which directly abuts the lots at 10 Sun Lite Lane. We have read and understand the purpose and intent of the Blodgett Landing Cottage District Ordinance. The ordinance was adopted because the town of Newbury felt the historic nature of this community should be preserved.
The district ordinances were written to allow for improvement of the cottages, within the confines of their existing lots (provisions were written into the ordinance to encourage the remediation of encroachments). The purpose of the ordinances including the shoreland ordinances were to protect the quality of the neighborhood, the environment, and the Lake Sunapee Watershed. This neighborhood is built on one of the most fragile and valuable natural resources in the state and comes under the protection of the Newbury Ordinances as well as state statutes. The use of Blodgett Landing lots on the shoreland is extremely restricted through multiple requirements, founded on scientific evidence.
These ordinances put in order, line by line, the will and experience of many people who have resided and voted in Newbury. The will is found in the purpose statements of the articles, and they are established through the authority of the NH State Legislature. Public benefit is the basis of most legal requirements including the authority to establish public trusts. The waters of New Hampshire are held in trust and by extension the shoreland is under the jurisdiction and protection of the state. Unfortunately, gaps have developed in the administration of ordinances and statutes, these gaps really need to be closed by bringing into alignment the multijurisdictional permitting process.
We are asking that the decision of the Code Enforcement Officer to not require compliance with ordinances for the 10 Sun Lite Lane property be reversed, and his request that a surveyor be hired to measure the setbacks be found unreasonable. The project at 10 Sun Lite Lane in not compliant and therefore in violation of many ordinances. Including but not limited to those listed below.
A timeline has been constructed to help visualize the events.
Oct 13, 2021, the Newbury ZBA, unanimously denied a variance for an accessory apartment without an owner occupying the building as their residence.
Oct 15, 2021, lots 16A-358-003 and 16A-354-004 were merged and recorded.
The merger was illegal. The lot recorded did not comply with the minimum lot size requirement of the local ordinances (200 Feet) or the minimum require by state statute (150 feet) for shoreland frontage which is defined in RSA 483-B:4 XX-a. “Shoreland Frontage” means the actual shoreland frontage along the waterfront measured at the reference line.
Everything else that happened from Oct 15, 2021, on is unlawful and illegitimate-the shoreland permit, the tree cutting permit, the demolition permit, the building permit, and if there was one the Certificate of Zoning Compliance. The merged lots nullified the July 26, 2021, variance. Lake Ave Realty needed to come back to the ZBA for all the required variances before they commenced developing the Property.
For this reason, the development of lots 16A-358-003 and 16A-354-004 is unlawful and illegal and is a crime in the state of New Hampshire.
The COE has failed to require the Project at 10 Sun Lite Lane to comply with the Newbury Zoning Ordinance. We are appealing to the ZBA to reverse the decision.
We understand the complexity of this request, but also understand the statute has made provision to help when they are asked RSA 483-B:6 and 7.
The remainder of document are many showing arears of inconsistence and noncompliance. Please forgive me if some is repetitive the same issue often has multiple consequences, in a variety of areas. When I worked for hydrogeologist, I had to learn to think in 3 and 4 dimensions the movement of ground water in the earth is often counter intuitive.
Thank you for considering this appeal.
Tanya D. McIntire
Representing the Barbara L. Sleight Living Trust
Mr. Blohm opened the public portion of the meeting.
Mr. Blohm read into the record a letter from Philip M. Hastings an attorney from Cleveland, Waters and Bass, P.A.who represents Lake Ave Realty, LLC
April 11, 2022
Town of Newbury, Zoning Board of Adjustment
David Blohm, Chair
937 Route 103
PO Box 296
Newbury, NH 03255
Re:10 Sunlite Lane, Newbury, New Hampshire
Administrative Appeal by Tanya McIntire
Dear Chairman Carley,
This letter is submitted on behalf of Lake Ave Realty, LLC (the “Owner”) to object to the above-referenced Application for Appeal From an administrative Decision (the “Appeal”) filed by Tanya McIntire on behalf of the Barbara L. Sleight Living Trust (the “Trust”). For the reasons set forth below, we request that the Newbury Zoning Board of Adjustment (the “Board” or the “ZBA”) decline the Appeal.
First, Ms. McIntire’s Appeal is untimely. Pursuant to RSA 676:5 and Section 16.4 of the Zoning Ordinance, an administrative appeal must be filed within thirty (30) days of the decision being appealed. While Ms. McIntire does not specify which administrative decision she is appealing, the most recent decision that could be appealed would be the issuance of the building permit on December 28, 2021. See Building Permit, attached hereto as Exhibit 1. The deadline to appeal this permit would have been January 27, 2022. This Appeal comes almost a month later, on February 25, 2022 (59 days after the permit). As such, the Board does not have jurisdiction to consider the Appeal and must decline it. See, e.g., Tausanovitch v. Town of Lyme, 143 N.H. 144, 149 (1998) (affirming the denial of an appeal filed 55 days after the issuance of a building permit).
Second, notwithstanding the untimeliness of the Appeal, Ms. McIntire presents herself as a representative of the Trust based on an undated letter from Barbara Sleight authorizing Ms. McIntire to represent her “on behalf of her Estate”. This letter does not reference the Trust and is not signed by Ms. Sleight in her capacity as Trustee of the Trust. Even if the reference to Ms. Sleight’s Estate was intended to be a reference to the Trust, Ms. Sleight’s letter is expressly limited to “matters regarding property taxes and zoning issues”. Ms. McIntire therefor lacks standing to appear on behalf of the Trust to bring an administrative appeal challenging the issuance of a building permit to an abutter.
Third, even to the extent that Ms. McIntire is properly authorized to represent the Trust in this matter, the Trust itself lacks standing to bring this Appeal. Pursuant to RSA 676:5, only an aggrieved person may bring an administrative appeal to a zoning board. In order to be “aggrieved”, one must demonstrate a direct, definitive interest in the outcome of the proceeding. While Ms. McIntire argues that various Town officers have failed to properly enforce or abide by the Town’ s ordinances, she does not sufficiently articulate any direct, definitive manner in which the Trust is impacted by the construction at 10 Sunlite Lane. As such, the Trust does not have standing to bring this Appeal.
Finally, because Ms. McIntire’s Appeal fails to comply with the legal requirements of New Hampshire law and Town of Newbury Zoning Ordinances, this Board need not consider the various issues discussed therein. Most of the issues in the Appeal have been raised repeatedly before by Ms. McIntire, including before this Board during the Owner’s applications for variances to allow such redevelopment. For the sake of brevity, the Owner declines to address those issues again and instead incorporates the arguments previously presented to the Board in connection with 10 Sunlite Lane. Furthermore, the Appeal does not specify the decision Ms. McIntire is appealing. It instead appears to take broad issue with the redevelopment of 10 Sunlite Lane and asks the Town to take affirmative action and impose new requirements upon the Owner outside the scope of its jurisdiction. Suffice it to say, the Owner believes that the Town Officers acted properly in issuing the building permit and the issues raised in the Appeal misconstrue the applicable facts and law.
Thank you for your attention to this matter.
Sincerely,
Philip M. Hastings
There being no further comment from the public, Mr. Blohm closed the public portion of the meeting.
Mr. Briggs said he thinks the building permit is central to Ms. McIntire’s appeal. Mr. Briggs continued the date on the building permit is the 28th of December. Mr. Briggs asked Ms. McIntire why she chose to wait until the 25th of February to file the appeal. Ms. McIntire said they started building and then the violations happened so her request to the Code Enforcement Officer was to ensure that these violations were noted, and he refused, and he sent an email that said this was his administrative decision, you have thirty (30) days to appeal it, so that is what she did. Mr. Briggs said that his understanding is the appeal clock started ticking on the 28th of December, but he doesn’t think that correspondence with people resets that timer. Ms. McIntire said the building permit is not central to what she is doing, it has nothing to do with her appeal. Ms. McIntire continued that particular building permit was issued in violation, those lots were merged. That building permit is illegitimate. Ms. McIntire said you asked why did I wait, I waited because the Code Enforcement Officer refused to enforce the Ordinances, because there were violations that happened during the building the he refused to enforce and that is the decision I am appealing. Discussion followed.
Mr. Blohm said what the Board has to go by is the building permit because you can’t come to the Board objecting to other things and call it an administrative appeal. Mr. Blohmcontinued that the Board is about reacting to what the zoning regulations are, and the zoning regulations say the applicant has to clearly state what the appeal is for, if it is not the building permit what is it. Ms. McIntire said the Code Enforcement Officer’s decision not to enforce the Ordinances. Mr. Blohm said the Board does not have the authority to deal with that issue. Discussion followed. Mr. Blohm said that if Ms. McIntire feels the Code Enforcement Officer is not doing his job and she is being harmed by it then she needs to go to the SelectBoard or to court. Ms. Holmes said that she believes the SelectBoard is the avenue Ms. McIntire needs to go because they are ultimately who enforce the regulations. Ms. Holmes continued that this Board is not the enforcers. Discussion followed.
Mr. Thomas made a motion to vote on the request fromTanya McIntire, agent for Barbara Sleight Living Trust to seek an Appeal From an Administrative Decision as follows: The decision to allow development at 10 SunliteLane. Newbury Tax Maps 16A-358-003 & 16A-354-004. Mr. Briggs seconded the motion.
Roll Call Vote:
David Blohm voted to Deny the Appeal From an Administrative Decision based on the application not being submitted in a timely manner.
Larry Briggs voted to Deny the Appeal From an Administrative Decision based on the application not being submitted in a timely manner.
Katheryn Holmes voted to Deny the Appeal From an Administrative Decision based on the application not being submitted in a timely manner.
Henry Thomas voted to Deny the Appeal From an Administrative Decision based on the application not being submitted in a timely manner.
Four votes to Deny the Appeal From an Administrative Decision.
Ms. Holmes made a motion to adjourn. Mr. Blohmseconded the motion. All in favor.
The meeting adjourned at 8:04 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 April 13, 2022