Meeting Minutes
Zoning Board of Adjustment September 13, 2023 Approved November 8, 2023
Members Present: David Blohm, Chair; Henry Thomas, Vice-Chair; Larry Briggs, Member; Katheryn Holmes, Member; Patricia Sherman, Alternate; Alex Azodi, Alternate Members Not Present: Steve Hurd, Member
Public: James Bruss; Alison Kinsman; Geoffery Dodge; James Kizis; Jared & Laura Raymond; Tim Bernier; David Morgan; Donald & Celine Hatch; Scott Wheeler
Mr. Blohm called the meeting to order at 7:02 p.m.
Minutes
The Board reviewed the minutes of July 26, 2023. Ms. Sherman made a motion to approve the minutes as amended. Mr. Briggs seconded the motion. All in favor.
The Board reviewed the minutes of August 9, 2023. Mr. Briggs made a motion to approve the minutes as presented. Ms. Sherman 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, September 13, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., James Bruss (agent), Kenneth A. & Debra L. Nemcovich (owners), for property located at 276 Mountain Road, Newbury, NH, will seek a Special Exception as provided for in Article 5.4.1 of the Newbury Zoning Ordinance to permit the following: Utilization of the shop building already on site for 1-2 workers to continue use as a woodworking shop for creation of built ins and cabinetry for construction projects as a Cottage Industry as a permitted use in the Residential District. Newbury Tax Map 022-056-245. 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.
James Bruss presented to the Board.
Mr. Bruss said there is a green building already existing on the site that they would like to continue using for a limited amount of time for carpentry projects on site. Mr. Blohm asked what the proximity to the road or an abutter was from this building. Mr. Bruss said from one corner of the building, it is 56 feet and from the other corner it is 67 to the edge of the pavement and the nearest abutter is directly across the street. Mr. Blohm asked from the point of view of sound what is in the way. Mr. Bruss said trees and the applicant is willing to build a fence.
Mr. Blohm asked if the applicant intended to use this facility for two employees. Mr. Bruss said for two offsite staff. Mr. Blohm asked what hours. Mr. Bruss said from 8 to 4:30 Monday through Friday. Mr. Blohm asked how much material is going to be brought in by
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truck. Mr. Bruss said that what comes in is mostly plywood, some hardwood and usually brought in with their own pick-up trucks, occasionally there will be a panel truck delivery if it’s a big order. Discussion followed.
Mr. Blohm appointed Ms. Sherman as a voting member of the Board for tonight’s meeting.
Ms. Holmes asked what was different from the last time the applicant was in front of the Board. Ms. Sherman said nothing is different, the big issue was the definition of cottage industry. Mr. Blohm said also who could apply for this special exception and the Board sought the opinion of counsel on that. Discussion followed.
There being no further questions from the Board Mr. Bruss 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: The work will be occurring within a building and be limited to a maximum of two workers per day. All vehicle parking will occur on the inside of the parking area and if necessary, trees will be planted along the border to the adjacent property. There will not be constantly running equipment, due to the number of people within the shop and what noise that is made will be better controlled due to keeping all doors shut while in operation.
16.7.2 The use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: We will work within the space keeping all doors and windows closed other than when entering the building. The traffic will be limited to two arrival and departure trips per day.
16.7.3 The use will not be contrary to the public health, safety or 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: All waste from the building will be picked up weekly and disposed of. The workers will be able to use the restroom in the main house, the traffic will be very limited number of trips per day, there are no other emissions that come from the site.
Mr. Briggs asked if there would be a dumpster on site for the waste or will it require a truck. Mr. Bruss said Jared Raymond, who lives on site, will bring waste to the new shop site in Sunapee for disposal. Discussion followed.
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 or future street giving access to it shall be such that it will be in harmony with the neighborhood because: The existing site is a 26 acre site of which 1200 square feet inside of a building will be used for this purpose. We plan no changes in the exterior or interior of the building and we will maintain a strict 8 to 4:30 hours of operation. We are open to adding more screening from the parking area as the board sees logical and appropriate.
16.7.5 The operations in connection with this use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operations of any permitted use in this district which are not subject to special exception procedures
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because: There will be no fumes, odor or vibration. The noise that is made will be better contained within the building than previously as discussed above and we will be using the building far less and on shorter hours. This is a rural area so any intermittent noise heard will not be significantly different than what is heard from chain saws, lawn mowing and other maintenance equipment used by some neighbors.
Ms. Holmes asked if the applicant has been doing this business already. Mr. Bruss asked what Ms. Holmes means by already, he wants to be clear because they were using it before they moved out. Ms. Holmes asked if the applicant was doing woodworking right now. Mr. Bruss said no. Mr. Briggs asked when the applicant moved out. Mr. Bruss said he thought it was July 9th. Mr. Raymond said he lives on the property, and he uses the wood shop often to build stuff for himself. Discussion followed.
Mr. Blohm asked what’s in the workshop. Mr. Bruss said table saw, assembly tables, routers, there is a planer in there.
Mr. Blohm opened the public portion of the meeting.
Mr. Blohm read the following into the record:
September13, 2023 FROM: Alison Kinsman
578 Mountain Rd
TO: Newbury Zoning Board of Adjustment
RE: Cottage Industry Application, Woodworking shop, Relax Company, 276 Mountain Road
I would like to express my concerns about the application the Relax Company has made for a woodworking Cottage Industry on Mountain Road. I respectfully request the Board consider the following when deciding on this application.
1. According to the definition of Cottage Industry in the Newbury ZBA Ordinances, this woodworking business would/should be carried out “by a resident, or residents, who occupy the dwelling unit.” I have heard that Mr. and Mrs. Raymond, who sublet and live in the house at the above address with their two children, actually manage the cleaning and linen component of the Relax Company which has moved to the town of Sunapee. If this is true, how can a Cottage Industry be granted? Is there someone else residing at this address that would qualify as a resident who lives in the house that would work in the shop?
2. The Ordinance also states that a cottage industry “may include no more than two non-occupant employees on the premises.” The ordinance does not specify that these non-occupant employees must be the same two people or just 2 people at one time. I walk daily to the Andrew Brook trailhead and have noticed that there has been activity at the woodworking shop almost daily over the past 3 weeks. There have been different vehicles there each day but I cannot see from the road how many persons have been working in the shop. My fear is that if this Variance is granted, and there is no stipulation and oversight as to the number of ‘non-occupant employees’ and given Mr. Bruss’s non-compliance history with
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Town ordinances, there will soon be multiple employees working in the
woodworking shop.
3. The building that houses the woodworking shop is the closest building on the
property to the town road and is directly across the street from the Kizis residence. Mr. Kizis is retired and is home each day and has incurred the brunt of the Relax Company’s noise and traffic over the past three years. The sound of the woodworking machines is a noticeable disturbance to the quiet residential nature of Mountain Road.
I thank you for your consideration.
Geoffery Dodge, lives on Mountain Road, said he would like to endorse what Ms. Kinsman said about the continuing violations of the Towns ordinances. Mr. Dodge continued that three years ago he contacted the then enforcement officer who said the Town would look into it. Mr. Dodge said that he is sad that it is still continuing, it has been three years that they are still dealing with these issues.
James Kizis said that he is the closest neighbor and lives there year-round and can see the woodworking shop and can tell when they are planing or chipping wood. Mr. Blohm asked Mr. Kizis what he hears coming from the woodworking building. Mr. Kizis said his hearing is not that sensitive, he knows there’s planers and that type of machinery. Mr. Blohm asked Mr. Kizis if he was bothered by that sound. Mr. Kizis said it is more bothering from the timber cut down the road. Mr. Kizis said his point is this, that they wouldn’t be here if in the beginning things were done right.
Mr. Bruss said the letter that was read said that neither Mr. nor Mrs. Raymond had anything to do with the construction business and that is not accurate. Mr. Bruss continued that one of the major criteria is it any more objectionable than other things already happening in the neighborhood and in an abutter’s own words, he rather them stop cutting the trees than the applicant stop doing what they did.
Mr. Azodi asked the applicant to clarify how many residents and how many non- occupants if the special exception is granted. Mr. Bruss said there are four residents and two non-occupants.
There being no further comment from the public, Mr. Blohm closed the public portion of the meeting.
Mr. Blohm said the Board’s opinion is that Article 2.2.9 does not require the residents own the business and does not prohibit employees from being the residents, and the resident requirement is met.
Mr. Briggs said it doesn’t appear that noise is a big issue here, if it was, he would suggest a fence.
Mr. Briggs made a motion to vote on the request from James Bruss (agent), Kenneth A. & Debra L. Nemcovich (owners), for property located at 276 Mountain Road, Newbury,
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NH for a Special Exception as provided for in Paragraph 5.4.1 of the Newbury Zoning Ordinance to permit the following: Utilization of the shop building already on site for one to two workers to continue use as a woodworking shop for creation of built ins and cabinetry for construction projects as a Cottage Industry as a permitted use in the Residential District. Newbury Tax Map 022-056-245 with the following conditions:
• Operation is restricted from 8am to 4:30pm Monday through Friday.
• Exterior doors to be closed while woodworking machinery is in operation. Mr. Thomas seconded the motion.
Mr. Bruss pointed out that Mr. Briggs did not say non-occupant workers, asked if Mr. Briggs would consider amending it to say non-occupant per the definition.
Mr. Briggs withdrew his motion.
Mr. Briggs made a motion to vote on the request from James Bruss (agent), Kenneth A. & Debra L. Nemcovich (owners), for property located at 276 Mountain Road, Newbury, NH for a Special Exception as provided for in Paragraph 5.4.1 of the Newbury Zoning Ordinance to permit the following: Utilization of the shop building already on site for up to two non-occupant employees plus up to two residents to be used as a woodworking shop for creation of built ins and cabinetry for construction projects as a Cottage Industry as defined in Article 2.2.9 as a permitted use in the Residential District. Newbury Tax Map 022-056-245 with the following conditions:
• Operation hours to be Monday through Friday 8am to 4:30pm.
• Exterior doors to be closed while woodworking machinery is in operation. Mr. Thomas seconded the motion.
Roll Call Vote:
Patricia Sherman voted to Grant the Special Exception as provided for in Article 5.4.1 with conditions.
David Blohm voted to Grant the Special Exception as provided for in Article 5.4.1 with conditions.
Larry Briggs voted to Grant the Special Exception as provided for in Article 5.4.1 with conditions.
Katheryn Holmes abstained.
Henry Thomas voted to Grant the Special Exception as provided for in Article 5.4.1 with conditions-meets the criteria.
Four votes to Grant the Special Exception
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, September 13, 2023, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7;10 p.m., T.F. Bernier, Inc.
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(agent), Donald E. & Celine C. Hatch (owners), for property located at 158 Winding Brook Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 5.10 of the Newbury Zoning Ordinance to permit the following: A house development on a new lot which is not within a one-acre buildable area. Newbury Tax Map 035-540-514. 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 8am to noon.
Tim Bernier, President of T.F. Bernier Inc. presented to the Board.
Mr. Bernier said they were hired by the Hatch’s to prepare a subdivision plan. Mr. Bernier continued that the Hatch’s own 149 acres and their son would like to build in Newbury. Mr. Bernier said the Town has some very unique and strict requirements for the definition of a lot. Mr. Bernier continued that they surveyed this piece of property and there is a lot of steep slopes, the hill tops and low in the watershed, so there’s a lot of wetlands, drainage ways and things that just cut the land up. Mr. Bernier said the regulations require a one- acre contiguous building envelope that can’t contain any setbacks and was very hard to do because of the uniqueness of this property as it curves down where the access is; so, there is the access driveway, power, utility poles already on the hill where the proposed building envelope is, but it doesn’t meet zoning. Mr. Bernier continued that they went through the Zoning Ordinance and realized that probably the least intrusive relief to be asked for is for the Board to allow subdivision of a lot that has .4 acres that meets the building envelope where one acre is required.
Ms. Sherman noted that the applicant has two site plans, and they have different elevation bases, and she is unable to correlate one with the other. Mr. Bernier said one of the plans was done by a local septic system designer with the wetland delineation supplied by Mr. Bernier’s company and presented in a different way. Ms. Sherman said it would have been helpful if the building envelope had been outlined. Discussion followed.
Ms. Sherman noted that the first-floor finished floor is substantially above the high ground, also the septic system is built almost above grade. Ms. Sherman asked if this was mostly ledge. Mr. Bernier said the first floor is 515 and the grade is 512 so it is only three feet above. Ms. Sherman said the average grade through this footprint is 506, the natural grade is 504, and the basement is 505.5. Ms. Sherman said the house is substantially higher and was wondering whether the building is on ledge. Mr. Bernier said that is because of the Town’s regulations, by regulations you can’t disturb outside this boundary line so you can’t change the grade outside that line. Mr. Bernier continued that the hill happens to be outside that line you will have water draining into the house unless you raise the house up so you can get a positive pitch away from the house. Ms. Sherman said one of the things that should be talked about is the need for a stormwater management system; everything is coming downhill very close to the property line. Mr. Briggs said there was a significant issue that took place back in 2021, right after the land was cleared. Mr. Bernier said a single-family residential development is exempt from State laws regarding stormwater. Ms. Sherman said not exempt from the Town regulations, it is just shy of 15%. Discussion followed.
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Mr. Briggs said that this property was before the Board on August 10, 2022 and the Board asked for a surveyors plan delineating land contours for areas less than 15%, areas greater than 15% but less than 25% where the line was 20 feet from the top of the slope and the relationship to the building, where the contours were greater that 25%. Mr. Briggs continued that the Board asked for stormwater management plans for Article 21, during construction and post construction including maintenance. Mr. Briggs said that he doesn’t see any of those details on the plans. Mr. Bernier said this is just the first process, all the applicant is asking for is relief from the one acre, they still have to go to the Planning Board. Mr. Bernier said the runoff from the house is minuscule compared to the driveway. Mr. Bernier said he was told about the stormwater management aspect of this, but he took that to be part of the driveway and will be dealing with that with the Planning Board. Discussion followed.
Mr. Blohm said what the Board has to decide on is why that particular location is the only location where the house can be built on this lot and if it is the only location what does it affect by being in that location, there’s wetland and other things to think about. Mr. Blohm continued that what he hadn’t heard yet was why it has to be there and not someplace else. Mr. Bernier said the one acre they are asking for the variance for, within that building envelope there are some environmental issues that need to be addressed. Mr. Bernier said they surveyed eleven acres already just to try to get to an acre lot. Mr. Bernier continued that there is the one acre building envelope, it’s just not contiguous because of a relatively narrow runoff stream that cuts it in half. Mr. Bernier said they looked at if they could get out to a large flat area in the back that would likely meet, but four wetlands would need to be crossed with a driveway well over 1,000 feet long. Mr. Bernier continued that the total building area on this lot is 2% of the 149 acres, so 98% of this will be untouched. Discussion followed.
Mr. Blohm said the next question is what has to happen in the building envelope to make a building make sense and that’s when all the stormwater management and other stuff comes into play. Ms. Holmes said there is a lot of surface water over there. Mr. Blohm said the question is whether the Zoning Board should be dealing with that now or let the Planning Board take that on. Ms. Sherman said she’s not sure that the Planning Board is going to deal with the level of stormwater management that we are dealing with, that’s not their purview; they are not dealing with the location of the house. Discussion followed.
Mr. Blohm asked the Board if the applicant had provided the kind of information the Board has been discussing, do we then have enough information to decide whether that is an acceptable location to do this. Ms. Sherman said yes, in her mind the Board has enough information now to make a decision on whether that’s an acceptable spot. Ms. Holmes said it appears very impossible to go someplace else. Ms. Sherman said it’s a burden on the landowner and that’s the basis of what this argument’s all about. Mr. Blohm said that theoretically then, the code enforcement officer should be making sure that the stormwater management is handled properly. Ms. Holmes said that she agrees with Mr. Blohm, however, the Board had asked for stormwater management the last time the applicant was before the Board, and we don’t have that. Mr. Thomas said the applicant was asking for a different variance at that time. Mr. Bernier said that with the previous variance the applicant
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would not have needed to go to the Planning Board for subdivision approval, so that the Zoning Board was the only Board that was going to see that application. Discussion followed. Mr. Bernier said that if the Board really feels that they will have a hard time with the criteria if it doesn’t have the stormwater management information now and doesn’t trust the Planning Board will do an adequate job. Mr. Briggs said it is not a matter of trust, it would be the first time ever that the Board would not have looked at a stormwater management plan. Mr. Briggs suggested that the Board go through what the other issues might be in fairness to the applicants and then ask them to return and present to the Board any information contained in the ZBA checklist that was not submitted with the application. Mr. Briggs continued that he thinks it is up to the applicant to convince the Board that they are not over the 15% steep slopes criteria, he would feel more comfortable if the Board had that information in front of them.
Mr. Briggs asked if the road the applicant is proposing to widen will be going into the neighbor’s property at all. Mr. Bernier said no, any improvements made has to stay within the 50 foot right of way. Discussion followed.
Mr. Blohm said he thinks the Board should consider this as the applicant has presented it, he doesn’t think the Board needs to go into a whole lot of depth on the rest of it. Mr. Blohm continued that the Board could put conditions in that somebody take a look at that, but he doesn’t think it is the Board’s job right now. Ms. Holmes said that she disagrees. Ms. Sherman said she thinks it is a burden to ask the applicant to come back to the Board, the applicant has heard the Board’s concerns. Discussion followed.
There being no further questions from the Board Mr. Bernier addressed Article 16.8 of the Zoning Ordinance:
16.8.1 The variance will not be contrary to the public interest because: The two 75 acre lots will be at the end of a dead-end private road over 700’ from Winding Brook Road. The house sites will have approx.1.7x & 3x the contiguous suitable area required by NHDES Subsurface. The developed area on each of the new lots will be 1% or less of the entire lot area leaving the remaining 147+ acres undeveloped. The new house will have a NHDES approved septic design and construction will be within the available building envelope (0.40 acre) at the road.
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 new lots will be 75 acres, but with a substantial amount of steep slopes and wetlands throughout the lots. The best development site on the new lot, creating the least disturbance is just off the end of the new private road. In order to develop elsewhere would involve multiple wetland crossings and >1,000’ of additional driveway construction. Granting the variance will allow the owners’ son a building lot and to build his house near theirs, just off the end of the private road in the most reasonable and prudent location.
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b) The property is different in a meaningful way from other properties in the area because: Although the lot is 149 acres, it has limited road frontage, and a substantial amount of wetlands and steep slopes (a mountain). The orientation of the steep slopes and wetlands create odd shaped building envelopes and make access to the rear of the property difficult. There is >1 acre of buildable land, by Town regulations on the new lot within the area surveyed, just not contiguous. The new lot will have common access via a private dead-end road. A new house can be constructed just off the new road, creating minimal lot disturbance.
c) The property is burdened more severely by the zoning restrictions because: The orientation of the wetlands and steep slopes on the lot create odd shaped building envelopes per zoning, and make access to the rear of the property challenging. However the house sites will still have more than the required buildable area per NHDES Subsurface. A new house, septic and well can be constructed within the available building envelope at the road on the new lot (septic design is attached).
d) Because of the special conditions of the property, the proposed use of the property is reasonable because: One house site is already developed. The new house would literally be 100’ off the end of the private road, in an area with approx. 1.7 times the buildable land as required by NHDES. Building the new house in this location eliminates the need for a wetland crossing and leaves the remaining 74 acres of the lot undeveloped.
16.8.3 The variance is consistent with the spirit of the ordinance because: Granting the variance will allow the Hatch’s son to build his house near them, just off the end of the road. This location will require the least amount of ground disturbance, rather than constructing a driveway across the wetlands. There is sufficient area for the new house development just off the end of the road, more than meeting NHDES requirements. A house, well and septic can be constructed in this location meeting State and Town setbacks. This will also preserve the remaining 74 acres of the lot as undeveloped land. 16.8.4 Substantial justice is done because: Granting the variance will allow the owners to develop part of their 149 acres lot in a reasonable and environmentally sound manner so their son can build a new house on the new lot. Allowing the house to be constructed in the available building envelope near the road eliminates the burden of surveying another 20-30 acres of the lot searching for one acre of contiguous building envelope that would then require a wetland permit to access. A new house can be built within the available building envelope located just off the end of the private road as seen by the septic design. 16.8.5 The value of surrounding properties will not be diminished because: These two lots will each be 75 acres. The houses will be located over 700’ from Winding Brook Road, accessed only by a private road. The rear 147+ acres of the land will remain undeveloped.
Mr. Blohm opened the public portion of the meeting.
Scott Wheeler said he was an abutter and from what he has heard tonight he thinks the Board has everything before them and any conditions would be appropriate to the Planning Board and to consider conservation also and a copy of the findings to the code enforcement
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officer. Mr. Wheeler continued that he doesn’t see an issue at all for the applicant to put another house in there.
There being no further comment from the public, Mr. Blohm closed the public portion of the meeting.
Mr. Blohm said his opinion is the Board should vote on this, he thinks the case has been made that this is the appropriate place to put this as the other places are quite burdensome. Mr. Blohm said he is concerned as is the rest of the Board about the whole stormwater management and erosion control, that all has to be dealt with appropriately by the other Boards and employees.
Ms. Holmes said she thinks it’s really important that the burden gets to be relaxed so that the applicant can build there but they have to meet certain criteria in order to do that.
Mr. Briggs said he hates to break the precedent of not having the Board look at stormwater management. Mr. Briggs said that he will accept the fact that this is probably the right location, but he is concerned about not following the Board’s checklist. Mr. Briggs continued that he knows that the other Boards and committees are competent but he would feel more comfortable if this Board had looked at it.
Mr. Blohm made a motion to vote on the request from T.F. Bernier, Inc. (agent), Donald E. & Celine C. Hatch (owners), for property located at 158 Winding Brook Road, Newbury, NH for a Variance from the requirements of Paragraph 5.10 of the Newbury Zoning Ordinance to permit the following: A house development on a new lot which is not within a one-acre buildable area. Newbury Tax Map 035-540-514 with the following conditions:
• A comprehensive stormwater management plan is developed and presented to the Planning Board and the code enforcement officer for review.
• A properly maintained erosion control plan.
• Review by the Conservation Commission.
• Subject to approved subdivision plan as presented.
• Compliance with Article 21 in Newbury’s Zoning Ordinance.
Ms. Sherman seconded the motion.
Roll Call Vote:
Henry Thomas voted to Grant the Variance from Paragraph 5.10 with conditions-met criteria.
Katheryn Holmes voted to Grant the Variance from Paragraph 5.10 with conditions-met criteria.
Larry Briggs abstained
Patricia Sherman voted to Grant the Variance from Paragraph 5.10 with conditions-met requirements.
David Blohm voted to Grant the Variance from Paragraph 5.10 with conditions-met criteria.
Four votes to Grant the Variance
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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. Blohm made a motion to adjourn. Ms. Sherman seconded the motion. All in favor. The meeting adjourned at 9:30 p.m.
Respectfully submitted,
Tiffany A. Favreau
Recording Secretary