Zoning Board Minutes
Zoning Board of Adjustment
May 11, 2022
Approved July 13, 2022
Members Present: David Blohm, Chair; Steve Hurd, Member; Larry Briggs, Member; Alex Azodi, Alternate;Members Not Present: Henry Thomas, Vice-Chair; Gary Budd, Member; Katheryn Holmes, Alternate
Public Present: Earl Sandford, Bill Herlicka, John Mooradian
Mr. Blohm called the meeting to order at 7:00 p.m.
Minutes
No minutes for the Board’s review.
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, May 11, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m.,Earl Sandford (agent), John E. Mead (owner), for property located at 1067 Route 103, Newbury, NH, will seek Variances from the requirements of Paragraphs 4.6 & 7.4.2of the Newbury Zoning Ordinance to permit the following: Construction of a single-family dwelling with the garage within the 30’ right of way setback and an open deck within the 75’ lake setback. Newbury Tax Map 020-353-546.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.
Board introductions.
Mr. Blohm appointed Mr. Azodi as a voting member.
Mr. Blohm advised the applicants that a full Board is five members, business could be conducted with the four members present however a minimum of three affirmative votes are needed to grant the variances. Mr. Blohmcontinued that the applicants could choose to go forward with tonight’s hearing or continue the hearing to a future date and time certain.
The applicant chose to proceed with the hearing at this time.
Earl Sandford from Sandford Surveying & Engineering presented to the Board.
Mr. Sandford said that there is an existing structure on the property showing signs of deterioration, most likely there since the 1950s since the structure appears on the road improvement maps. Mr. Sandford continued that the owner would like to upgrade and modernize the structure. Mr. Sandford said he was hired to come up with a design for the Shoreland Protection application. Mr. Sandford continued that one of the unique parts of this site is that there is the old, abandoned railroad bed running down and there is a steep embankment.
Mr. Blohm asked if the proposed building is on the same footprint. Mr. Sandford said no, the proposed building is being shifted forward and coming in the side for a garage.Mr. Briggs asked how much the building is shifting forward off the existing footprint. Mr. Sandford said it is moving 10 feet forward from the existing foundation, but the foundation will stay out of the 75-foot setback from the lake. Mr. Briggs asked what direction. Mr. Sandford said toward the lake.
Mr. Sandford said they are looking to have a bio berm and an infiltration dry well that would contain the water flow from going over the embankment. Mr. Blohm asked Mr. Sandford to explain what a bio berm looks like. Mr. Sandford said it is mix of soil, wood chips and stump grindings that is mounded about 18 inches high with a two to one slope on each side. Mr. Sandford continued that they lay flat on the ground. Mr. Blohm asked if the bio berm is a permanent thing. Mr. Sandford said it would be semi-permanent because over time it biodegrades and will sink some but remains as a containment berm for stormwaterand there will be aggressive infiltrating with a stone box and a dry well.
Mr. Briggs asked what’s the driver of the increased impervious percentage. Mr. Sandford said pavement, and the footprint of the building and the deck, the deck was a half deck and now will be bigger. Discussion followed.
Mr. Blohm said that he thinks that capturing everything that comes off the roof and putting it somewhere should be done, as opposed to letting a bio berm catch it, which in the beginning sounds alright but eventually the bio berm is not going to do its job. Mr. Sandford said because of the septic setback another dry well will not work, but he will add mitigation.
Mr. Briggs said it looks like the proposed deck is bigger than the existing deck. Mr. Sandford said it is longer.
There being no further questions from the Board, Mr.Sandford addressed Article 16.8 of the zoning ordinance:
16.8.1 The variance will not be contrary to the public interest because: 1. [front setback] The purpose of the front setback is to prevent structures from being built too close to a traveled way and to protect from crowding. For a typical 50’ right of way this translates to 40’+/-. Separation from the edge of the road to the structure. In this case the right of way is extra wide and if this variance is approved the front of the structure will still be forty feet from the edge of pavement. The public interest is well served in avoiding construction on the steep slope next to a lake. Granting this variance will not be contrary to the public interest because the forty-foot setback from the edge of pavement will not create a safety issue or be esthetically unpleasing and the sensitive slopes to the lake will be protected. 2. [Lake setback] The reasonable use of the flat area between the lake and the road requires relief from the 75’ lake setback for the deck only. The deck will meet all the criteria for existing structures in which the regulations allow a reduction to 50’ from the lake for decks. There is no public interest conflict with the reduced setback to the deck from 75’ to 64.1’
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: 1. [Front Setback] The slope of the property on the lake side of the house is a steep cut slope to an abandoned railroad that could easily be destabilized with construction. Keeping the house and garage away from that slope and in the flat area allows for safer and more environmentally sound construction and ongoing stability (note that the house meets all setbacks and relief is for the garage). 2. [Lake setback] The ideal balance for the proposed construction is to utilize the existing flat area where the existing cottage is. The proposed rebuild is where the actual house meets all setbacks, but the proposed deck extends into the setback by 10.9’. The proposed 12’ deck is 64.1’ rather than 75’ from the lake. The unique shape of the lot and its topography provide special conditions necessitating relief from the ordinance.
Mr. Azodi said the applicant is saying the deck is 12’ wide and on sheet two of four also shows the dimension of 12’ wide, but the foundation section shows it to be 16’ wide. Mr. Sandford said he has never seen that plan, but 12’ is the standard and that is what the applicant is asking for. Mr. Sandford continued that the engineer plan for the building is correct and the driving force for the what can be done and the Board is basing their decision on the engineered plans for the layout of the building.
b) The property is different in a meaningful way from other properties in the area because: The property abuts Lake Sunapee and has increasedsetbacks from the lake and the steep railroad embankment creates a topographical challenge which is a meaningful difference from the typical lot. Other properties in the area share this uniqueness and have been given relief to a much greater extent than this project.
c) The property is burdened more severely by the zoning restrictions because: Because the State took land from the front of this lot in the 1950’s and the Shoreland overlay district impacts the lake side of this lot, the building envelope has been diminished and the lot is burdened more severely by the zoning restrictions that have encumbered this lot since the original camp was built.
d) Because of the special conditions of the property, the proposed use of the property is reasonablebecause: The proposed use is reasonable because it allows for an existing non-code compliant lake cottage to be modernized and placed in the most reasonable and safe location, allowing standard home amenities, i.e. the garage and deck to be constructed without compromise to the safety or esthetics of the neighborhood.
16.8.3 The variance is consistent with the spirit of the ordinance since: [Front Setback] Due to the extra wide right of way, a reduction in the front setback would be consistent with the spirit of the ordinance as the front of the new structure would be a comparable distance from the pavement of a typical home with a standard 50’ right of way and is not in any way “crowding” the road. [Lake setback] The deck is to be constructed on piers with minimal environmental impact. The way the regs read it appears that if the deck is added to an existing structure it would only need to be 50’ from the lake, implying that the homeowner could construct the house first and then return for a second building permit for the deck without the need for a variance. That would be counter to the spirit of the ordinance as it would require additional lot disturbance and environmental impact than simply doing the house and deck together in one smooth sequence.
16.8.4 Substantial justice is done because: The variance allows for reasonable use of the property, allowing an existing run-down cottage to be rebuilt and modernized, meeting current code and allowing the standard home amenities of a garage and deck.
16.8.5 The value of surrounding properties will not be diminished because: The proposed reduced setbacks are not adverse to the neighborhood. Using the towns GIS, three homes in the immediate neighborhood were found with similar setbacks. Tax lot 20-330-455 has a house 3’+/- from the right of way, tax lot 20-327-461 has a detached garage 7’+/- from the right of way, and tax map20-337-508 has a building 16’ +/- from the right of way, likewise 9 of the lake front lots in the neighborhood do not meet the 75’ lake setback. The rebuild and modernization of the run-down cottage on the subject parcel should only prove to enhance surrounding properties.
Mr. Blohm asked when the house was built. Mr. Sandford said that it is shown on the 1950s road improvement plan as being there but the tax map say 1960.
Mr. Blohm opened the public portion of the meeting.
There being no comment from the public, Mr. Blohmclosed the public portion of the meeting.
Deliberations
Mr. Blohm said he is worried about the stormwater management in this plan, there should be water capture under the deck, should gutter everything and put the runoff somewhere as opposed to just let it rip. Mr. Blohmcontinued that as far as the setback from the road it is very consistent with the neighborhood and as far as the deck, if you are building a house like that you need to have somedeck as long as the water off the deck is being capturedunderneath. Mr. Blohm said that he is okay with those two aspects of it.
Mr. Briggs said that he is on the same page as Mr. Blohm. Mr. Briggs continued that in regard to stormwater management taking proactive measures to prevent runoff getting anywhere close to the lake. Mr. Briggs asked if the applicant knows about any flow that comes off the road straight down to the lake in the spring. Mr. Sandford said there is a culvert at the toe of the slope and that is washing down but the project will not contribute anything to that flow. Mr. Sandford continued that he has walked the site and did not observe any washouts. Discussion followed.
Mr. Azodi said that he agreed with Mr. Blohm. Discussion followed.
Mr. Briggs made a motion to vote on the request from Earl Sandford (agent), John E. Mead (owners) for property located at 1067 Route 103, Newbury, NH, for a Variancefrom the requirements of Paragraphs 4.6 & 7.4.2 of the Newbury Zoning Ordinance to permit the following: Construction of a single-family dwelling with the garage within the 30’ right of way setback and an open deck within the 75’ lake setback. Newbury Tax Map 020-353-546, with the following conditions:
• The width of the deck shall be 12 feet in accordance with the drawings submitted by Sandford Surveying and Engineering dated 2/14/2022.
• Stormwater emanating from the roof of the structures shall be collected or routed into a suitable containment structure or trench to prevent water sheeting into the lake.
Mr. Hurd seconded the motion.
Roll Call Vote:
Steven Hurd voted to Grant the Variances from Paragraphs4.6 & 7.4.2 with conditions.
David Blohm voted to Grant the Variances from Paragraphs4.6 & 7.4.2 with conditions.
Larry Briggs voted to Grant the Variances from Paragraphs4.6 & 7.4.2 with conditions.
Alex Azodi voted to Grant the Variances from Paragraphs4.6 & 7.4.2 with conditions.
Four votes to Grant the Variance with conditions.
Mr. Blohm 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 Wednesday, May 11, 2022, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:20 p.m.,Bill Herlicka (agent), John H. & Christine Mooradian(owners), for property located at 16 Edgemont Landing, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a generator in the side and right of way setbacks. Newbury Tax Map 007-080-085.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.
Bill Herlicka, General Manager of NH Generator Installerspresented to the Board and introduced the property owner, John Mooradian.
Mr. Herlicka said his company has been installing generators since 2010 and have installed a number of them in Newbury recently. Mr. Herlicka continued that this particular property has a beautiful home on a neat little side road. Mr. Herlicka said the applicant does have right of way and side setback issues because of where the house is and the size of the lot. Mr. Herlicka continued that the proposed location of the generator is at the highest spot on the property furthest from the lake, on the other side there is water runoff coming down from the mountain through a pipe through the road. Mr. Herlicka said the proposed generator location is a beautiful dry flat spot with a rock wall from the road down to the bottom, and a fence. Mr. Herlicka continued that the spot is not really a visible spot from the road and does protect the sound from neighboring properties.
Mr. Herlicka said there will be no heavy equipment, everything will be dug by hand. Mr. Herlicka continued that there will be a short 5-foot trench. Mr. Azodi asked how big the generator was. Mr. Herlicka said it is a 14-kwgenerator, the case itself fits within a 3’ x 5’ pressure treated frame with dirt and crushed stone underneath which allows rain water to percolate through and the freeze and thaw cycle of winter doesn’t impact the generator as muchin terms of level.
Mr. Briggs asked how far below the surface of the road is it. Mr. Mooradian said about 12 feet. Mr. Herlicka said the generator will be 2 feet off the fence, that gives working room for maintenance, and 5 feet off the house. Discussion followed.
There being no further questions from the Board, Mr. Mooradian addressed Article 16.8 of the zoning ordinance:
16.8.1 The variance will not be contrary to the public interest because: Standby generator location is as far from lake as possible. Further, Generator location is protected from neighbor and street view by property boundary fence and rock inline from lot to street level.
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 left side of the property from the street side is a drainage to the lake. The only other place for a generator is between the house and the lake, closer to the lake which would impact neighbor’s enjoyment of the lake.
b) The property is different in a meaningful way from other properties in the area because: It is a small lakefront lot. It loses power intermittently during the year and as a regular residence we have limited space for a generator versus a standard lot.
c) The property is burdened more severely by the zoning restrictions because: The best location for this generator is the level area beside the electrical service of the home and on the same level and side of home as the propane. Any other spot would require installation hardships and expenses otherwise not required.
d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed location for the generator will both allow us to have the reliable power for our home we want and be the least intrusive to the site and our neighbors properties as possible.
16.8.3 The variance is consistent with the spirit of the ordinance since: Every effort has been made to find a safe site and neighbor friendly location for the generator.
16.8.4 Substantial justice is done because: The house can be supported with standby generator power with the most minimal impact to the lake and neighboring properties.
16.8.5 The value of surrounding properties will not be diminished because: The generator is as far from the lake as possible and obscured from street view.
Mr. Blohm opened the public portion of the meeting.
There being no comment from the public, Mr. Blohmclosed the public portion of the meeting.
Mr. Briggs made a motion to vote on the request from Bill Herlicka (agent), John H. & Christine Mooradian (owners), for property located at 16 Edgemont Landing, Newbury, NH, for a Variance from the requirements of Paragraph 5.9.1 of the Newbury Zoning Ordinance to permit the following: Placement of a generator in the side and right of way setbacks. Newbury Tax Map 007-080-085. Mr. Blohmseconded the motion.
Roll Call Vote:
Steve Hurd voted to Grant the Variance from Paragraph 5.9.1.
David Blohm voted to Grant the Variance from Paragraph 5.9.1.
Larry Briggs voted to Grant the Variance from Paragraph 5.9.1.
Alex Azodi voted to Grant the Variance from Paragraph 5.9.1.
Four votes to Grant the Variance.
Mr. Blohm 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.
Mr. Briggs made a motion to adjourn. Mr. Blohm seconded the motion. All in favor.
The meeting adjourned at 8:23 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary
Zoning Board of Adjustment Page 1 of 6 May 11, 2022