Zoning Board Minutes

Zoning Board of Adjustment

September 9, 2019

Approved September 23, 2019

Members Present: David Blohm, Vice-Chair; Nancy Marashio, Gary Budd, Reed Gelzer, Members; Alex Azodi, Alternate.

Peter Fichter, chair, was absent and Mr. Blohm, vice-chair, chaired the meeting.

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

Mr. Blohm appointed Mr. Azodi as a voting member for this meeting.

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of June 10, 2019 and made a correction. Mr. Budd made a motion to accept the minutes as corrected. Mr. Gelzer seconded the motion. All in favor.

At 7:15 p.m., Mr. Blohm introduced the Board and reviewed the hearing process with the applicant and members of the public.

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 Monday, September 9, 2019 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:15 p.m., Northcape Design, LLC (agent), Abbie Celniker (owner), for property located at Route 103, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2 of the Newbury Zoning Ordinance to permit the following: Construction and placement of a single family residence within the 75’ lake and permanent stream setback. Newbury Tax Map 020-343-520. 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.

 Jeffrey Claus, Northcape Designs LLC, agent, presented to the Board. He reviewed the history of the property, noting that the lot has stood vacant for some time. He said the previous owner had an easement across the road for the septic field. He noted that the applicant and Northcape used the previous owner’s plat which included a wetland delineation on the lot. Mr. Claus noted that the original house design was based on the wetland delineation as indicated on the previous owner’s plat.

Mr. Claus stated that when Northcape visited the lot, the presence of the wetland was far more extensive than was indicated on the previous owner’s plat. As a result, the house design had to be re-positioned on the lot, thus requiring a Variance.

Mr. Blohm asked Mr. Claus to describe the wetland. Mr. Claus indicated the area on the site plans submitted to the Board and noted that the DES criteria for a designated wetland is met.

Ms. Marashio asked if the lot is a new or existing lot. She added that a building lot in Newbury required a 200-foot frontage and this lot’s frontage is only 140-feet. Mr. Claus said this is an existing, non-conforming lot or record.

Mr. Blohm asked if effort has been made to reconfigure the house design to avoid impinging on the wetland setback. Mr. Claus said Northcape has gone through five different house designs to do that and still accommodate the applicant’s design preferences.

Mr. Azodi questioned the positioning of the garage as it pertains to easier driveway/turning access. Discussion followed. Mr. Claus stated that the submitted design provides an adequate turning ratio.

Mr. Blohm asked why the plan includes a deck that close to the 50-foot setback, adding that this lot is a tough site to work with. Mr. Claus said Northcape suggested various redesigns, including reducing the overall square footage, but that the owners have a list of “wants”. He added that one of the earlier designs was a three-story house which had a huge visual impact from the lake side.

Mr. Gelzer stated that this is a unique situation for a Variance. He said the significant stormwater runoff into the lake that is presented at this site is a serious challenge when considering the submitted building design. He added that there is an opportunity for the applicant to put in place stormwater management elements that robustly deter any – if not all – stormwater runoff. Mr. Gelzer noted that he and Mr. Blohm installed significant stormwater management elements on their respective lake front properties to mitigate the potential runoff. Mr. Gelzer suggested that there might be a way for Northcape to design a house around the existing conditions on the site. As it stands, he said, this design is like trying to fit a size 10 foot into a size 6 shoe.

There was discussion regarding the town regulations for height restriction. Ms. Marashio noted that it is 34-feet and Mr. Gelzer said the regulation applies to the most advantageous side of the house.

Mr. Blohm asked Mr. Claus to describe the planned stormwater management plans for the site. Mr. Claus said most of the water comes off the driveway. He said there is a natural swale and inlet that goes to a level spreader. Some gutters are planned and there will be a dry well installed.

Mr. Blohm asked how the level spreader will work over time. Mr. Claus said some maintenance will be needed to clear out the accumulated silt.

There was general discussion regarding the best use and placement of gutters on a house.

Mr. Blohm asked about the mitigation strategies for the water that runs through the deck to the ground below. Mr. Claus said that the current design does not capture the water that runs off/through the deck.

Mr. Gelzer noted that the best strategy is to move as little water towards the lake as possible – during and after construction. He suggested that deeper filtration be placed in the ground when excavating for the septic tank.

Mr. Claus said that the existing wetlands act as a filtration and that the planned dry well will offer infiltration. He added that the existing natural vegetation on the slope will remain, offering more filtration.

Mr. Blohm asked about the percentage of impervious elements on the lot. Mr. Claus said the planned impervious percentage is 20%, noting that the regulations allow for a 25% impervious presence.

Mr. Gelzer said this plan misses some opportunities to abate the existing stormwater runoff problems. He raised the question of whether a wetland could be enlarged. Discussion followed but no conclusions were reached. He added that the submitted house plan was designed for a property that was mis-represented by the previous owner.

There being no more questions from the Board, Mr. Claus addressed Article 16.8 of the zoning ordinance:

16.8.1 The variance will not be contrary to the public interest because: The lot exists in the residential zoning district and the proposed use is intended and allowable. There is a significant percentage of existing homes and structures on the lake that are well within the 75-foot lake setback. Some are grandfathered while others have been granted variances over the years. Granting the variance for the proposed residential dwelling would not change, in any aspect, the character of the surrounding area nor the character of the lake.

Ms. Marashio noted that the “grandfathering” designation is for pre-existing houses. She said that this is a new house and that must be considered seriously.

Mr. Azodi asked about the number of adjacent houses that are within the 75-foot setback. Mr. Claus noted that, without a professional survey, he saw there are portions of the houses to the north and south of this property that are within the 75-foot setback. 

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: With reference to “other properties” we will be drawing comparisons to the first nine homes clustered along the lake side of Route 103 as you leave the harbor (lot 428 north to lot 8). The primary condition that distinguishes this property from the other eight properties is the presence of an intermittent stream channel and associated vegetated wetlands that runs through the property.

b. The property is different in a meaningful way from other properties in the area because: The location of the noted intermittent stream and associated wetlands has a significant impact on the development of this lot. The stream is situated such that it bisects the building envelope which drastically reduces the buildable area.

c. The property is burdened more severely by the zoning restrictions because: The property is a relatively small lot at less than half an acre in size. As such, zoning restrictions and dimension controls proportionally have a greater impact on smaller lots. Consequently, the result is a significant reduction in the size of the building envelope. This is further compounded with the presence of the intermittent stream and associated vegetated wetlands located within the building envelope which further reduces the buildable area.  

Mr. Blohm asked if this lot size is different than the others. Mr. Claus said no.

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: Due to the special conditions of the property, non-traditional measures have already been taken in an effort to develop the property. The septic field has been located, permitted and deeded on a lot across the road. A steep driveway has been constructed to allow access from Route 103. The variance is that last measure that would allow for a reasonable use of the property.

16.8.3 The variance is consistent with the spirit of the ordinance since: “…It is the intent of the ordinance to allow individual landowners as great a degree of freedom in the use and enjoyment of their land as is consistent with the accomplishment of these purposes.” (Article 1/Section 1.2 – Statement of Purpose – Town of Newbury NH Zoning Ordinance). “Promote construction of housing which maintains and strengthens traditional New England settlement patterns of compact villages surrounded by open, rural landscape,” (Article 5/Section 5.1.2 – Statement of Purpose – Residential District – Town of Newbury NH Zoning Ordinance).

16.8.4 Substantial justice is done because: The applicant is entitled to a reasonable use of their property and in the spirit of the ordinance the variance would allow the applicant to enjoy this property right.

16.8.5 The value of surrounding properties will not be diminished because: The variance will not impair any property rights for the adjacent property owners or nearby property owners. In addition, we reviewed the assessed parcel values for properties in the surrounding area. Based on those values we approximate that the assessment of the Celniker home, if/when completed, would fall in the upper 50% of those listed values. Suggesting that the Celniker home will not diminish the values of surrounding properties, rather it would strengthen the values of those surrounding properties.

Ms. Marashio noted that the zoning ordinance uses the word “reasonable”. She asked if this plan is a “reasonable”-sized house, given the existing conditions of the lot. Mr. Claus said, yes, this is a “reasonable”-sized house. Ms. Marashio said, “So, a 3,000+-square foot house on this lot is reasonable.” Mr. Claus said, “That’s tough to answer. It’s subjective.” Discussion followed.

The Board and Mr. Claus agreed that this is a big house. Mr. Claus added that the applicant didn’t want to house to look big.

Mr. Blohm said he agreed with Mr. Gelzer regarding the stormwater management mitigation elements of the plan and that a lot more needs to be done in that area. He added that if the applicant wants a house of this size on this lot, then a more robust stormwater management plan must be included.

Mr. Gelzer added that addressing the stormwater management on this site is part of the rationale for a variance. He added that it isn’t about this-is-the-house-we-want, but rather how do we fit in a house on this site to ensure the best practices of land stewardship.

Mr. Gelzer went on, noting that this property has been vacant for a long time – for a good reason. It is a tough lot, with challenging existing conditions. He encouraged an approach that starts with improving the stormwater runoff conditions on the lot before placing a house on it.

Mr. Azodi referred to the copy of the plan on display, noting that Mr. Gelzer’s points are to first improve the water that goes into the green area on the plan, and into the wetland. Improve those two areas with your design.

Mr. Claus added that the wetland is influenced by the pipe that runs under the road.

Ms. Marashio asked if there are any state culverts affecting the property. Mr. Claus said only the aforementioned pipe. Discussion followed.

Mr. Claus said it is Northcape’s intention to capture all the water runoff on the property.

Mr. Blohm asked the board if they felt the application was adequate as presented or if a continuance should be considered.

Mr. Azodi suggested three things for the applicant to consider in the application:

1. Improved water drainage and stormwater management;
2. Find a better positioning for the existing house design, or reduce the square footage of the house; and
3. Remove the deck within the 75-foot setback since it is new house.  

Ms. Marashio stated that the setback infringement with a new house design is very important.

Mr. Azodi added that the Board wants to see reasonable efforts made to address these areas of concern.

Mr. Blohm added that this proposed plan needs some re-thinking given the lot size, the house size, wetland presence, and stormwater runoff issues.

Mr. Budd agreed, adding that if this is the house the applicant wants, then Northcape must show the Board a strong stormwater management plan.

Mr. Gelzer added that the proposed single dry well will not accommodate the 100-year storms that are becoming the norm.

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

Brett Cusick, CGP, Principal with Northcape Design Build, expressed concern for the cost to the client [applicant] for a re-design and the development of a stormwater management plan. He added that the application checklist was vague regarding the stormwater management plan requirement.

            The Board briefly discussed the checklist contents. The Recording Secretary suggested examining the checklist issue at the next meeting during Administrative Business. The Board agreed  

There being no further comment from the Public, Mr. Blohm closed the public portion of the hearing and the Board went into deliberations.

Mr. Blohm suggested that the application be continued to allow the applicant/agent to amend the proposed plan based on the Board’s aforementioned concerns and suggestions. Mr. Claus agreed.

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

Mr. Gelzer made a motion to Continue until October 16, 2019 at 7:15 p.m., the application from Abbie Celniker (owner), for property located at Route 103, Newbury, NH, for a Variance from the requirements of Paragraph 7.4.2 of the Newbury Zoning Ordinance to permit the following: Construction and placement of a single family residence within the 75-foot lake and permanent stream setback. Newbury Tax Map 020-343-520. Ms. Marashio seconded the motion.

Mr. Blohm called for a Roll Call Vote.

In Favor: Mr. Budd, Ms. Marashio, Mr. Azodi, Mr. Gelzer, Mr. Blohm

Opposed: None

At 8:20 p.m., Mr. Blohm introduced the Board and reviewed the hearing process with the applicant and members of the public.

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 Monday September 9, 2019 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:30 p.m., Danielle Jallah, for property located at 356 Chalk Pond Rd. Newbury, NH, will seek a Special Exception as provided for in article 5.4.1 of the Newbury Zoning Ordinance to permit the following: Operation of a family-based daycare. Newbury Tax Map 039-637-409. 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.

Danielle Jallah, owner of Hope’s Haven, a home-based daycare business, presented to the Board. Ms. Jallah said she has been offering daycare services for two years at this location. She said an anonymous call to the state resulted in a state inspection of the business premises and a requirement that she become licensed. She said part of the license procedure includes approval by the town (Planning Board and ZBA), along with fire department approval. She added that this is a cottage industry in a residential zone.

Mr. Blohm asked how the business is doing. Ms. Jallah said it is doing great.

Mr. Gelzer noted that the state differentiates between a family group daycare and a family childcare home. The latter is allowed a maximum of six children. He also noted that Article 5.4.3 of the Zoning Ordinance includes childcare as a business type. He suggested including 5.4.3 in the variance request for clarity. Ms. Marashio agreed.

Ms. Marashio made a motion to add Article 5.4.3 to what is in the Public Notice as Article 5.4.1. Mr. Gelzer seconded the motion.   

Mr. Blohm called for a Roll Call Vote.

In Favor: Mr. Gelzer, Mr. Azodi, Ms. Marashio, Mr. Budd, Mr. Blohm

Opposed: None

Mr. Gelzer noted that there is a deed restriction within the Chalk Pond Association [Sunapee Hills Association]. He said it pertains to Article 16.7.1, specifically to the issue of being detrimental to the neighborhood.

Ms. Jallah said she spoke with the chair of the Sunapee Hills Association, along with another individual and was advised to go to the ZBA because this was a cottage industry.

Mr. Blohm asked if the business was detrimental to the neighborhood. Ms. Jallah said she has been running her daycare out of her home for two years and has received no complaints. She said she cares for five children and that four cars drop off the children in the morning and picks them up in the afternoon. The children range in age from two- to four- years old.

Mr. Blohm noted that the restrictions imposed by the Sunapee Hills Association are not within the purview of the ZBA. Discussion followed regarding deed restrictions pertaining to cottage industry, development of Chalk Pond, and noise levels.

Ms. Jallah read into the record the criteria for Special Exception as follows:

16.7.1 That the use will not be detrimental to the character or enjoyment of the neighborhood by reason of undue variation or undue violation of the character of the neighborhood because: I don’t see it being detrimental to the character or enjoyment of the neighborhood running a family-based daycare. We are up on a hill away from the abutter except one house and they are there not very often -only on weekends. We are not aware of any complaints regarding the daycare business.

16.7.2 That the use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: I will be running a family-based daycare out of my home.

16.7.3 That 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: My family-based daycare will not present any of the listed conditions. There will be slight traffic for drop-off and pick-up, but it will be at various times in the morning and afternoon.

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:  I am doing a family-based daycare out of my home. My site is the largest in the vicinity of all the abutters. I have 8.1 acres and cannot see my neighbors.

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: My property sits on a hill away from most of my neighbors. The one house I can see from my property is not occupied full-time.

There being no further Board discussion, Mr. Blohm opened the Public portion of the hearing.

The Recording Secretary read into the record the following two letters:

1. September 4, 2019. I am the owner of 344 Chalk Pond Road in Newbury NH and I learned that there is a petition for an exception of our zoning restriction which explicitly states that the land within our Association is for residential us (with the exception of allowing renting when not occupied by the owner). I cannot make the hearing but am registering my opposition for this exception. It is important to keep our neighborhood business free to prevent excessive traffic flow and keep our community safe. It is also a key reason I bought my property within this neighborhood back in 2005 and important to the continuing property value of my land and home. Regards, Kathleen McKeown, 344 Chalk Pond Rd., Newbury, NH
2. September 5, 2019. To the Zoning Board Members: With regard to the request from Danielle Jallah for an in-home day care, I would ask the Board to deny this request. Ms. Jallah’s property lies within the Sunapee Hills Community at Chalk Pond. All the deeds to the properties there have a set of deed restrictions that constitutes a legal part of the deed. Restriction number 2 on her deed states: “The within described premises shall be used for residential purposes only, except that premises may be rented for residential use when not owner occupied.” This is restated in Restriction number 11. Ms. Jallah is aware of the deed restrictions. Allowing a day care facility violates the residential use only restriction. If the Zoning Board grants this exception, then they are opening the door for other “cottage industries” within the Sunapee Hills community. This would clearly violate the intent of the deed restrictions that this is a residential only community. Thank you, Phyllis McDonough, 56 Gerald Dr., Member, Sunapee Hills Community.

Kathleen McKeown, 344 Chalk Pond Rd., abutter, said she does not want the extra traffic and noise and added that she didn’t know that Ms. Jallah was running a business. Ms. McKeown said this deteriorates property values and Ms. Jallah is violating the deed restriction after-the-fact. Ms. McKeown said noise travels and that you can hear young kids outside. She added that Ms. Jallah is changing what the community was designed to be. She added that her husband is retired and doesn’t want noise from kids next door.

            Ms. McKeown confirmed to Ms. Marashio that the former’s house was on the right when facing the road.

Mr. Gelzer asked Ms. McKeown if this was a question of noise that should be there versus noise that shouldn’t be there. Ms. McKeown said that is correct.

Mr. Azodi asked if there were any physical restrictions outside to keep the children from wandering. Ms. Jallah said the children are allowed in the front yard only and are supervised by her at all times. She said there is no fence and if one child has to go inside for any reason, all the children are brought inside. No child is left outside unattended at any time. Ms. Jallah added that she was a licensed home care provider in Colorado before moving to Newbury.

Robert Merrick, president, Sunapee Hills Association, expressed the concerns of the Association. He said there are no licensed business contained in the association documents. He added that some residents run trades at their home location, but they are not doing business out of their house. He said there is a concern regarding liability. He questioned if Ms. Jallah carries a high enough liability insurance and whether the association may become party to a liability – such as a potential injury on association property. He expressed concern regarding the potential for a possible lawsuit should such an injury occur. He added that the deed restriction was placed when Chalk Pond was developed to ensure that the area remain residential only.

There was general discussion about the development of Chalk Pond from the 1960s forward.

            Mr. Merrick said the Sunapee Hills Association exists to govern the common areas in Chalk Pond that include the beach, tennis courts, and playground.

            Mr. Azodi asked if Ms. Jallah takes the children to the common areas. Ms. Jallah said she did so once or twice in the past two years. She said she takes the children to Newbury Harbor or the State Beach if there is an outing planned. She added that she currently does not have liability insurance but will get it if her application to the ZBA and PB are approved.

Mr. Gelzer offered the following summation:

1. Enforcing the deed restriction of the Sunapee Hills/Chalk Pond community is not within the purview of the Zoning Board of Adjustment.
2. The representation of intent regarding Article 16.7.1 is concerning. It refers to intent of the community. Three people have raised concerns pertaining to the neighborhood and the impact on same from this business.

Mr. Merrick again voiced concerns about the violation of the deed restrictions. There was discussion regarding the potential for liability on association common areas.

There being no further comment from the Public, Mr. Blohm closed the public portion of the hearing and the Board went into deliberations.

Mr. Azodi suggested seeking town counsel to determine if the Board jurisdiction included the issue of deed restriction in this case.

Mr. Gelzer said it is question of the impact on the community as it pertains to Article 16.7.1.

Mr. Blohm noted that Ms. Jallah must get licensed and go through the channels of the PB and the ZBA.

Mr. Budd noted that the word “detrimental” [in Article 16.7.1] is open to interpretation. He also noted that this case is looking at a person’s livelihood.

Ms. Marashio reviewed the parameters of the Special Exception definition and noted that the Special Exception regulations must look at what the zoning ordinance allows.

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

Ms. Marashio made a motion to vote on the request from Danielle Jallah, for property located at 356 Chalk Pond Rd. Newbury, NH, for a Special Exception as provided for in article 5.4.1 and Article 5.4.3 of the Newbury Zoning Ordinance to permit the following: Operation of a family-based daycare. Newbury Tax Map 039-637-409. Mr. Azodi seconded the motion. All in favor.

Mr. Blohm called for a Roll Call Vote.

Mr. Blohm voted to Grant the Special Exception from Article 5.4.1 and Article 5.4.3.

Mr. Budd voted to Grant the Special Exception from Article 5.4.1 and Article 5.4.3.

Ms. Marashio voted to Grant the Special Exception from Article 5.4.1 and Article 5.4.3.

Mr. Azodi voted to Grant the Special Exception from Article 5.4.1 and Article 5.4.3.

Mr. Gelzer voted to Deny the Special Exception from Article 5.4.1 Article 5.4.3. The criteria in Article 16.7.1 has not been met. The use will be detrimental as represented by written and spoken submissions.

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 as per RSA 677:2.  Said motion must set forth, in detail, all grounds on which the appeal is based.

There being no further Board business, Mr. Blohm called for a Motion to Adjourn.

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

The meeting adjourned at 9:18 p.m.

Respectfully submitted,

Meg Whittemore

Recording Secretary