Meeting Minutes

Zoning Board of Adjustment February 14, 2024 Approved April 10, 2024
Members Present: Henry Thomas, Vice-Chair; Larry Briggs, Member; Katheryn Holmes, Member; Steve Hurd, Member; Patricia Sherman, Alternate
Members Not Present: David Blohm, Chair; Alex Azodi, Alternate
Public: Will Davis; Chris Millette

Mr. Thomas called the meeting to order at 7:00 p.m.
Minutes
The Board reviewed the minutes of December 27, 2023. Ms. Holmes made a motion to approve the minutes as presented. Mr. Briggs seconded the motion. All in favor. Mr. Hurd and Ms. Sherman abstained.
Minutes

The Board reviewed the minutes of January 10, 2024. Mr. Briggs made a motion to approve the minutes as amended. Ms. Sherman seconded the motion. All in favor. Mr. Hurd abstained.

Board Introductions.
Mr. Thomas appointed Ms. Sherman as a voting member of the Board for this meeting.

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, February 14, 2024, at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:05 p.m., Horizons Engineering, Inc. (agent), Slye Living Trust (owner), for property located at 212 Route 103A, 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 portion of new residence, installation of new modern septic system and associated grading within the steep slope overlay district. Newbury Tax Map 019-147-352. Copies of the application are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday-Friday from 8am–4pm.
Will Davis from Horizons Engineering, Inc. presented to the Board.
Mr. Davis said the site is on Route 103A and like almost all properties do, it slopes from the road to the lake. Mr. Davis continued that there is an existing driveway kind of in a horseshoe configuration. Mr. Davis pointed out the existing house site and existing tree line on the plan. Mr. Davis said they defined the steep slopes within this property starting with what the software defines as 25% and then engineers look at it to meet the Towns regulation. Mr. Davis said the gray areas on the plan is what the computer generates as
   

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25% slopes, and the blue line area is the area that meets the Towns definition of steep slopes. Mr. Davis continued that the existing steep slopes come right up to the existing house. Mr. Davis pointed out the existing leach field and existing tree line on the plan.
Mr. Davis said the project is a redevelopment of the existing site using the same alignment of the driveway, improving it, upgrading it to a paved driveway and slightly widening it to 12 feet for better access. Mr. Davis continued that the new house is bigger than the existing house but all fits within the existing building envelope. Mr. Davis said the applicant is proposing a stormwater management plan, collection through catch basins and pipes that will be sent to two drywells on site to infiltrate and re-charge stormwater; also proposing infiltrating drip edges along some of the rooflines; there is an erosion and sedimentation control plan as part of the project. Discussion followed.
Ms. Sherman said the applicant mentioned that some of the steep slopes were man-made. Mr. Davis said it’s hard to tell exactly, but it seems that way because of the area where we are talking about with the house then it benches for septic and then benches back down. Ms. Sherman asked if some of the 4,000 square feet is in what you would call the man- made steep slopes. Mr. Davis said yes, basically the whole area the applicant is talking about, when the house was built, they probably pushed out, when they built the leach field years later, they had to bench and that made the down slopes steeper. Mr. Davis continued that there is certainly a possibility that it was naturally 25% in there. Discussion followed.
There being no further questions from the Board Mr. Davis addressed Article 16.8 of the Zoning Ordinance:
16.8.1 The variance will not be contrary to the public interest because: The project as proposed is not anticipated to threaten public health, safety or welfare, would not injure public or private rights of others, does not alter the essential character of the locality, and is not anticipated to adversely affect lake water quality or erosion on-site. The proposed construction is located primarily over existing developed areas and was originally constructed on steep slopes circa 1918. The project does not increase traffic or impact wetlands and includes modern construction and design features, stormwater drainage catch basins and drywell structures which help to manage runoff, ultimately protecting Lake Sunapee. The project provides a wider driveway which will help emergency vehicle access in the event of fire or health emergency.
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 residence was originally constructed within steep slopes and maintained since 1918. The steep slopes delineated on the current site plans appear to be man-made daylight slopes immediately surrounding the existing septic system and former residence. The intent of the Ordinance is minimizing ground disturbance and avoiding steep slopes or other overlay districts. The new proposed septic system piping and septic tank stays within the original footprint

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laterally and the effluent disposal area is located beyond defined steep
slopes.
b) The property is different in a meaningful way from other properties in the
area because: The property is different in a meaningful way to other properties in the area similarly to the property having special conditions noted above. The proposed construction is located primarily over existing developed areas and within apparent existing man-made daylight slopes, as originally constructed.
c) The property is burdened more severely by the zoning restrictions because: As noted above, the unique conditions of the property would be impossible to build on over existing disturbed areas if strict compliance with the Ordinance was followed. While the project proposed to rebuild over the existing historically developed area as much as possible, it cannot be done without a variance due to the man-made daylight slopes meeting the steep slope criteria as defined in the Ordinance Article II.
d) Because of the special conditions of the property, the proposed use of the property is reasonable because: The current proposal is reasonable based on the unique conditions described above. The single-family use of the property will remain unchanged. Stormwater runoff will be mitigated with catch basins and drywells, prior to being conveyed towards Lake Sunapee. The general purpose of the Ordinance will not be impaired by this proposal. An application approval will not have adverse impacts on the health, safety or general welfare of the public. On the contrary, the proposed project and associated extensive infrastructure add material benefits to the environmental stewardship of the property and lake and improve materially safe ingress and egress to the property for residents, guests, service and life-safety personnel.
16.8.3 The variance is consistent with the spirit of the ordinance because: The proposal marginally impacts steep slopes 25% or greater to allow for a typical width driveway (12’ minimum), drainage structures, new septic system and residence in order to avoid unnecessary further site grading. However, this area of steep slopes as defined by the Ordinance, as noted above, are apparent man-made daylight slopes originally constructed for the former residence in 1918 and former septic system. The project would not injure the public or private rights of others and provides safe access for service and life safety vehicles. The proposal is consistent with similar lots surrounding Lake Sunapee and an Application Approval will allow the Applicant the most reasonable use and freedom to use and enjoy the property.
16.8.4 Substantial justice is done because: Strict enforcement of the Ordinance in this case will outweigh any benefit to the public. A new residence is proposed to replace a dilapidated structure which is anticipated to maintain or increase the value of this and neighboring properties, in addition, to improved drainage and erosion controls. We do not anticipate any “public gain” from preventing a modern and intentionally highly efficient sustainable residence from being constructed over existing disturbed areas as a reasonable improvement towards the highest and best use of the property.
16.8.5 The value of surrounding properties will not be diminished because: As noted in Section 16.8.4 above, a new residence is proposed to replace a dilapidated structure

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which is anticipated to maintain or increase the value of this and neighboring properties. The original residence was in serious and advancing disrepair and presented a public nuisance as is documented in town records. A new modern residence will materially improve the environmental footprint of both structures and landscaped areas on the premises. The above-mentioned intentional design and use of materials and sustainable systems will serve as a benefit to the environment and surrounding property values.
Discussion followed.
Mr. Thomas opened the public portion of the meeting.
Chris Millette, an abutter on the north side said the project looked like it actually improves the situation. Mr. Millette continued that the current property, and the leach field are in the steep slopes, this eliminates that concern. Mr. Millette said the Town may want to look at revising the language of the steep slope ordinance because something that was man-made doesn’t seem to be what is intended and in this situation, it seems that the owner’s are going to be improving it and removing a steep slope area and making the situation better than it was and it shouldn’t need a variance but does with current language.

Mr. Thomas read the following into the record:
February 13, 2024
Dear members of the Newbury ZBA,
I represent the Eberhart family which owns the direct abutting property to the South of the Slye property. Unfortunately, I just received the abutters notice two days ago. I have not had a chance to review the application. I am out of the area and will not be able to attend the ZBA hearing on 2/14/24. I would like to express a few concerns.
1-Hardship must be demonstrated to grant a variance and usually this a very high threshold. I assume that the ZBA will be appropriately thoughtful in requiring strong proof of hardship.
2-There is an active stream that divides the two properties. The Blye Hill development has resulted in a great deal of seasonal run off of sand and salt that I feel is detrimental to the Lake. Any effect of this project that involves the “steep slope overlay” should be carefully evaluated to be sure that it does not impact run off into the Lake.
3-Though this may not pertain to this ZBA hearing, the property also contains a now decrepit boathouse which every year collapses further into the lake and sheds nail filled wood into the lake and frequently washes up onto our property. I understand that a wetlands permit was obtained in 2017 to address the boathouse. To date, I am not aware of anything that has been done to mitigate this problem.
I understand that there is a 30 days appeals period following the ZBA vote on the variance requests.
Thank you for your time and consideration.
Sincerely yours,
Robert Eberhart
70 Sea Road
Rye Beach, NH 03871

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There being no further comment from the public, Mr. Thomas closed the public portion of the meeting.
Mr. Briggs made a motion to vote on the request from Horizons Engineering, Inc. (agent), Slye Living Trust (owner), for property located at 212 Route 103A, Newbury, NH for a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following: Construction of a portion of new residence, installation of new modern septic system and associated grading within the steep slope overlay district. Newbury Tax Map 019-147-352.
Ms. Sherman seconded the motion.
Roll Call Vote:
Steve Hurd voted to Grant the Variance from Paragraph 9.4-looks good.
Patricia Sherman voted to Grant the Variance from Paragraph 9.4-thinks more than met the five criteria.
Larry Briggs voted to Grant the Variance from Paragraph 9.4-package is comprehensive, liked stormwater management system, answers to 16.8.1-16.8.5 were on the money. Katheryn Holmes voted to Grant the Variance from Paragraph 9.4-believes everything has been taken into consideration on a steep slope.
Henry Thomas voted to Grant the Variance from Paragraph 9.4-feel presentation was good, met criteria of 16.8.
Five votes to Grant the Variance
Mr. Thomas 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.
Ms. Holmes made a motion to adjourn. Mr. Briggs seconded the motion. All in favor. The meeting adjourned at 7:58 p.m.

Respectfully submitted,
Tiffany A. Favreau Recording Secretary
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