Zoning Board Minutes

Zoning Board of Adjustment

June 10, 2019

Approved September 9, 2019

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Henry Thomas, Alex Azodi, Alternates.

Mr. Fichter called the meeting to order at 7:01 p.m.

Mr. Fichter appointed Mr. Thomas and Mr. Azodi as voting members for this meeting.

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of May 13, 2019 and made corrections. Mr. Blohm made a motion to accept the minutes as corrected. Mr. Fichter seconded the motion.

In Favor: Mr. Fichter, Mr. Blohm

Abstain: Mr. Thomas, Mr. Azodi

Meeting Schedule

The Board re-scheduled the October ZBA meeting to October 16 because of the Columbus Day holiday.

Caseload Per Meeting

The Recording Secretary suggested that the Board revisit an earlier discussion regarding placing a time limit and/or case limit on ZBA meetings. Earlier discussions on the topic acknowledged that applications are often complex and require more time to be heard. Given the increased complexity of applications, it was suggested that each ZBA meeting contain no more than two cases. Additional cases may be scheduled for a second ZBA meeting on the fourth Monday each month to ensure that the applicable state 30-day law of application submission-to-hearing RSA is met. There was Board consensus and Mr. Fichter noted that he will contact the Land Use Administrator regarding making this change.

Agenda on Town Website

There was follow-up to a suggestion made by Nancy Marashio, ZBA member, at the May 13, 2019 ZBA meeting regarding a request she received from a resident to post the ZBA meeting agenda on the town website. Mr. Fichter noted that he will contact the Land Use Administrator to find out the status of that request.

At 7:15 p.m. Continuance - Mark & Anne Hilton (owner), Eckman Engineering, LLC (agent), for property located at 274 South Rd., Newbury, NH, will seek a Special Exception as provided for in article 5.4.8 of the Newbury Zoning Ordinances to permit the following: Reclamation work to bring the existing gravel pit back into compliance with the rules & regulations specified by NHDES AOT Bureau. Newbury Tax Map 045-382-409.

Mr. Fichter reviewed the application with the Board to provide context, background and status, noting that he and Mr. Blohm were present for the initial hearing. Mr. Fichter described the case as follows: the Hiltons were excavating the area in question when someone reported them to the NHDES. Excavation ceased while the Hiltons applied for a NH Alteration of Terrain (AOT) permit from DES. Application for a Site Plan review was submitted to the Planning Board (PB). The PB sent the applicant to the ZBA for a Special Exception (for changes of use) and a Variance (for Article 20. Aquifer Protection Overlay District Paragraph 20.3 Prohibited Uses Section 20.3.10 Mining of land and Excavation of sand or gravel).

Mr. Fichter noted that the situation is complicated. He acknowledged the concerns raised by neighbors regarding the noise created by the excavation equipment and heavy machinery and the length of time to complete the excavation (estimated as 10 years by the Hiltons). Mr. Fichter noted that Mr. Eckman stated at the May 13, 2019 meeting that he had information on acceptable recommended noise levels for this kind of work.  

Mr. Fichter introduced the Board and reviewed the hearing process with the applicant and members of the public. Mr. Fichter noted that there were just four voting members present for this hearing and asked the applicant if they wished to wait until a future meeting when a full board (five voting members) was present. Mark and Anne Hilton (property owners) said they wished to proceed.

Dave Eckman, agent, presented to the Board. He stated that the application requests permission for reclamation work to construct horse paddocks and a hay field in the location of the existing gravel pit (created during construction of Forest Road on the subject parcel prior to the current owners). The proposed work will be agricultural in nature which is permitted within the Residential Zoning District.

Mr. Eckman distributed copies of the 274 South Road Aquifer Map and indicated the location of the stratified drift aquifer on the map, which is the portion of the property that has prompted the request for a variance. 

It was noted that the gravel pit was activated in the 1970s.

Mr. Fichter noted that the Hilton’s neighbors, Henk and Mary Oolders, had significant concerns about the duration of this project, the daily noise level on the property from excavation activity and heavy equipment, and the potential runoff into Gillingham Pond of fertilizer used on the hay field and animal by-products from the horses in the planned paddocks.

Mr. Fichter noted that it was suggested to the Hiltons at the last meeting that they converse with the Oolders about these issues and come to an agreement about a work schedule moving forward. Mr. Hilton said they have been in touch and have discussed the noise concerns, the timing of the work each day and the weekly number of days that the work will be done. Mr. Hilton said the conversation was amicable and productive.  

There being no further questions from the Board, Mr. Eckman addressed the criteria for the Special Exception as follows: 

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because: The temporary reclamation work will convert the existing gravel pit area into horse paddocks and a hay field which, as an agricultural use, is allowed. The horse paddocks and the hay field fit the spirit of the Residential Zoning District Ordinance by providing a scenic use that keeps the rural character. The existing undulating terrain is good for little other than a motor-cross training facility which is not desired by the owners who have horses.

16.7.2 The use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: Following the temporary reclamation process the proposed use as horse paddocks and a hay field is not injurious, noxious or offensive. In fact, these uses are scenic in nature and in keeping with the spirit of the Newbury Zoning Ordinance for the Residential Zoning District by preserving the rural character of the area.

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: The use involves construction of horse paddocks and a hay field. The heavy vegetation in a hay field will transform the undulating remnants of the gravel pit used to create Forest Road from a potential area with high erosion potential near Gillingham Pond (an area with non-point source pollution concern) into a vegetated filter and buffer that protects Gillingham Pond.

Mr. Fichter questioned the use of fertilizer on the hay field and the potential adverse impact on Gillingham Pond. Mr. Eckman said a slow release fertilizer will be used on the hay field and noted that DES has standards and regulations regarding the use of fertilizer in an area such as this. 

Mr. Hilton said the paddocks are not near the pond but are ¼ of a mile away near the house.

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: Following the temporary reclamation process, the horse paddocks and hay field will be scenic and will provide the rural character that maintains harmony with adjacent properties.

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 uses in this district which are not subject to special exception procedures because: The horse and hay fields are less objectionable than the undulating remnants of the gravel pit used to create Forest Road. During the temporary reclamation process, excavation/removal of material will be required utilizing modern construction equipment. Equipment sound is low enough that operators within these machines do not need to use ear protection and with the closest public roadway 850+/- feet away, not an issue. The proposed reclamation area is only marginally visible from a large distance (>1,500 feet from across the pond) after leaves have fallen, thus minimize temporary visual impacts, fumes or vibrations associated with the temporary reclamation process.

There was discussion regarding 16.7.2. Mr. Eckman noted that it may take some time to complete the reclamation and the noise will be kept to a minimum. He added that each week of work on the area will bring the equipment and noise further away from the pond.

Mr. Hilton added that it might take 10 years to excavate but it is not the excavators that the Oolders were hearing – it was the bulldozers. 

Mr. Fichter noted that Newbury excavation regulations were put into effect in June 2018 and there are guidelines for excavation work such as timing: Monday – Saturday only; 7:00 a.m. – 5:00 p.m.; no mechanical hammering; etc.

Mr. Thomas pointed out that those regulations and guidelines will be covered in the Hilton’s Site Plan Review with the Planning Board.

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

There being no comment from the public, Mr. Fichter closed the public portion of the meeting and the Board went into deliberations.  

Mr. Blohm noted that the Hiltons have conversed with the Oolders regarding the noise concerns but added that it may continue to be a problem because of the way noise is amplified across the water. Discussion followed.

Mr. Azodi asked if the project could be done in three months, given the Newbury guidelines. Mt. Eckman said yes.

Mr. Azodi asked that since the Oolders are not present, does that mean they are OK with this project. Mr. Hilton stated that they have conversed, and he feels that they appear to be 

OK with the project.

Mr. Azodi stated that the owners are trying to do the right thing in reclaiming the pit and creating a better use for the area. Mr. Blohm agreed.

There being no further comments from the Board, Mr. Fichter called for a Motion to Vote.

Mr. Blohm made a motion to vote on the request from Mark & Anne Hilton for property located at 274 South Rd., Newbury, NH, for a Special Exception as provided for in Article 5.4.8 of the Newbury Zoning Ordinance to permit the following: Reclamation work to bring the existing gravel pit back into compliance with the rules & regulations specified by NHDES AOT Bureau. Newbury Tax Map 045-382-409. Mr. Azodi seconded the motion.

Mr. Fichter voted to Grant the Special Exception from Article 5.4.8. 

Mr. Blohm voted to Grant the Special Exception from Article 5.4.8.

Mr. Thomas voted to Grant the Special Exception from Article 5.4.8. 

Mr. Azodi voted to Grant the Special Exception from Article 5.4.8.

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 as per RSA 677.2.  Said motion must set forth, in detail, all grounds on which the appeal is based.

At 7:15 p.m. Continuance - Mark & Anne Hilton (owner), Eckman Engineering, LLC (agent), for property located at 274 South Rd., Newbury, NH, will seek a Variance from the requirements of Paragraph 20.3.10 of the Newbury Zoning Ordinance to permit the following:  Mining of land and Excavation of sand or gravel. Newbury Tax Map 045-382-409.

Mr. Eckman addressed Article 16.8 of the zoning ordinanceas follows: 

16.8.1 The variance will not be contrary to the public interest because: The existing gravel pit was created during the construction of Forest Road long before the current owners purchased the property. Reclaiming the existing pit area will result in the creation of horse paddocks and a hay field which will be scenic and keep the residential character desired within the Residential Zoning District.

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 gravel pit located on the subject parcel was created during the construction of Forest Road prior to the purchase of the lot by its current owners who wish to convert the pit area into horse paddocks and a hay field which is a permitted use in the residential zoning district. While they did not create the undulating and pock-marked terrain, the owners are willing to facilitate the reclamation, making the property usable as horse paddocks and a hay field.

b. The property is different in a meaningful way from other properties in the area because: Few, if any, other lots in the Town of Newbury remain scarred by the undulating terrain associated by a gravel pit used to construct a town road (in this specific instance, Forest Road). As a result of this fact, the owners should be justly allowed to reclaim their land, so it is usable to them. Nor are other properties located in a stratified drift aquifer where reclamation that requires excavation is not allowed.

c. The property is burdened more severely by the zoning restrictions because: The temporary reclamation process to construct usable agricultural land according to the Newbury Planning Board requires an excavation permit which is not allowed in a stratified drift aquifer. Without this variance, the owners are stuck with undulating terrain best suited for a motor-cross training area and not usable as agricultural land. application here. 

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The owner proposes construction of a horse paddock and a hay field which are agricultural uses permitted by the ordinance. The temporary reclamation of the Forest Road gravel pit is required as a result of others and ultimately will benefit to all.

16.8.3 The variance is consistent with the spirit of the ordinance since: The temporary reclamation work will convert the existing gravel pit into horse paddocks and a hay field which, as an agricultural use, is allowed. The horse paddocks and the hay field fit the spirit of the Residential Zoning District Ordinance by providing a scenic use that keeps the rural character.

16.8.4 Substantial justice is done because: The owners propose horse paddocks and a hay field which is permitted in the Residential Zoning District. Due to the undulating conditions of the existing pit, the only current use would be for a motor-cross training facility which is not desired by the owners of the property. Just is done by allowing the temporary reclamation to take place which will fix a problem not created by the current owners.

16.8.5 The value of surrounding properties will not be diminished because: The owners propose horse paddocks and a hay field which is permitted in the residential zoning district. This scenic use is in keeping with the spirit of the Newbury Zoning Ordinance (Article 5 – Residential District) which strives to perpetuate the rural  nature of the area.

Mr. Blohm referred to the prohibited uses as defined in Article 20. He asked if the Hiltons are mining or not mining. Mr. Thomas asked, “What’s the definition of mining?”

Discussion followed regarding the commercial definition of mining.

Mr. Blohm expressed concern regarding the fact that the Hiltons plan to sell the gravel they excavate and mine on the property and what impact that has in a designated residential district. Also, if the gravel is sold, does that create a commercial enterprise within the residential district.

Further discussion included the definition of a drift stratified aquifer, the history of the property, the hay field location on the map, how the excavated boulders will be used in the planned paddocks, and the total acreage of the project (5.75+/- acres).

There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.

There being no comment from the public, Mr. Fichter closed the public portion of the meeting and the Board went into deliberations.  

Mr. Azodi noted that the owners are trying to make the area more scenic.

Mr. Blohm questioned whether this project is a mining operation. Also, the fact that the gravel will be sold makes the whole project more complex.

Mr. Fichter noted that there is no specific definition in the Newbury regulations for mining.

Mr. Azodi added that the excavation activities are a necessary action in order to heal the damage that has been done to the area.

There being no further discussion from the Board, Mr. Fichter called for a Motion to Vote.

Mr. Azodi made a motion to vote on the request from Mark & Anne Hilton for property located at 274 South Rd., Newbury, NH, for a Variance from the requirements of Paragraph 20.3.10 of the Newbury Zoning Ordinance to permit the following:  Mining of land and Excavation of sand or gravel. Newbury Tax Map 045-382-409. Mr. Thomas seconded the motion.

Mr. Fichter voted to Grant the Variance from Paragraph 20.3.10.

Mr. Blohm voted to Grant the Variance from Paragraph 20.3.10.

Mr. Thomas voted to Grant the Variance from Paragraph 20.3.10.

Mr. Azodi voted to Grant the Variance from Paragraph 20.3.10.

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 as per RSA 677.2.  Said motion must set forth, in detail, all grounds on which the appeal is based.

Mr. Fichter called for a break at 8:11 p.m.

The meeting resumed at 8:16 p.m.

Motion for Rehearing by Jack D’Alelio (abutter), Kristen Schultz (owner), for

property located at Shore Dr., Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2 and 5.9.1 of the Newbury Zoning Ordinance to permit the following: Construction of a 24’X36’ garage within the 75’ lake and permanent stream setback, and within the 30’ right of way setback.  Newbury Tax Map 020-172-544.

Mr. Fichter reviewed for the Board the parameters for a Motion for Rehearing as stated in the ZBA Rules of Procedure which he read into the record as follows: “RSA 677:3 provides that a motion for rehearing set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. This has been interpreted to include grounds such as technical errors in procedure, the board failed to adequately explain its decision, and discovery of new evidence not available at the time of the first hearing which may have affected the outcome.”

Mr. D’Alelio was not present, having informed the Land Use Coordinator earlier in the day of his inability to attend the meeting. Mr. Fichter acknowledged receipt of a letter and photos from Mr. D’Alelio that repeated the points made by Mr. D’Alelio at the April 8, 2019 ZBA meeting when this case was heard. Mr. Fichter noted that there was no new information presented in Mr. D’Alelio’s letter to the ZBA. [NOTE: Mr. D’Alelio’s letter and attachments, in its entirety, may be found in the ZBA Minutes binder at the Town Office.]

The Board reviewed Mr. D’Alelio’s letter and agreed that there was no new information presented.

There being no further discussion from the Board, Mr. Fichter called for a Motion to Vote.

Mr. Blohm made a motion to vote on the request for a Motion for Rehearing by Jack D’Alelio, for the Variance granted to Kristen Schultz for property located at 20 Shore Dr., Newbury, NH, Newbury Tax Map 020-172-544. Mr. Fichter seconded the motion.

Mr. Fichter voted to Deny because the criteria of RSA 677:3 has not been met.

Mr. Blohm voted to Deny because the criteria of RSA 677:3 has not been met.

Mr. Thomas voted to Deny because the criteria of RSA 677:3 has not been met.

Mr. Azodi voted to Deny because the criteria of RSA 677:3 has not been met.

Mr. Fichter noted that Mr. D’Alelio has 30 days in which to take his request to court. 

There being no further business to discuss, Mr. Fichter called for a Motion to Adjourn.  

Mr. Blohm made a motion to adjourn. Mr. Fichter seconded the motion. All in favor.

The meeting adjourned at 8:27 p.m.

Respectfully submitted,

Meg Whittemore

Recording Secretary

 Zoning Board of Adjustment                     Page 1 of 6                                     June 10, 2019