Zoning Board Minutes

Meeting date: 
Monday, March 9, 2020

FINAL

Zoning Board of Adjustment

March 9, 2020

Approved June 15, 2020

 

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Henry Thomas, Alternate. 

 

Mr. Fichter called the meeting to order at 7:00 p.m.

 

Mr. Fichter appointed Mr. Thomas as a voting member for this meeting.

 

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of February 10, 2020 and made no corrections. Mr. Blohm made a motion to accept the minutes as presented. Mr. Fichter seconded the motion.All in favor.

 

Re Building Permits

Mr. Fichter noted that discussion has surfaced with the Land Use Coordinator (LUC) regarding improving the current procedures for building permits.  It has been suggested that the applicant first meet with the LUC to determine if the application surfaces any variance/special exception/etc. issues before going to the CEO. This procedural change is intended to streamline the building permit process. 

 

Mr. Blohm and Mr. Thomas indicated that they have both discussed this possibility with the LUC and felt that it could be implemented on a trial basis. However, Mr. Thomas questioned whether such a procedural change requires a Board motion and vote to approve. Mr. Fichter said he checked with the Town Administrator who told him that the Selectboard would have to vote on such a procedural change.

 

Mr. Fichter said he would like to know how many building permits annually require a variance/special exception/etc., adding that if that number is high, then this suggested change to the existing procedure would make sense.

 

There was discussion regarding how this proposed change would affect the preliminary design consultation for building projects that has been part of the overall permitting process to date. Also discussed was the potential for scheduling issues (given the differing schedules of the LUC and the Code Enforcement Officer), and the issue of individual interpretation of the zoning ordinance. (CEO). Board members agreed that further discussion is needed and suggested a meeting with the LUC, the Code Enforcement Officer, and Bruce Healey, Planning Board chair.  

 

Mr. Fichter indicated that he will follow up on the Board suggestion for a meeting and report on any developments resulting from same.

 

Mr. Fichter introduced the Board and reviewed the hearing process with the applicant and members of the public.

 

Mr. Fichter informed the applicant and agent that there are three members on the Board this evening to hear the application and that all three members must vote Yay to grant the requested variance. Since the Board is usually comprised of five members, Mr. Fichter offered the applicant the option to continue the hearing to a date when five Board members are present. The applicant chose to proceed.

 

At 7:05 p.m., 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, March 9, 2020 at the Veteran’s Hall Building at 944 Route 103 in Newbury, NH: At 7:05 p.m., Melissa Thompson (owner), for property located at 14 Edgemont Landing, 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 building within the 75’ lake and permanent stream setback, and within 30’ of the right of way setback.  Newbury Tax Map 007-088-092. 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.

 

Melissa Thompson presented to the Board.

 

Ms. Thompson stated that she owns 14 Edgemont LandingRoad and 15 Edgemont Landing Road. She said the existing building on 15 Edgemont Landing Road was torn down in 2016 and built on within the past three years. She added that there is a house on 14 Edgemont Landing Road. Her request is to reorient the house on 15 Edgemont Landing Road without changing the distance between the houses on the adjacent lots.

 

Ms. Thompson said she wants to rotate the position of the house 90 degrees to provide better road safety. The reoriented location would not infringe on the existing side setbacks and would not position the house any closer to the lake.

 

Mr. Fichter noted that the old house was torn down in 2016 and that there is a two-year window in which to rebuild on the same footprint.

 

Mr. Thomas noted that the septic system and a retaining wall was put in within the two-year period and that qualifies for a pre-build status.

 

Mr. Fichter asked if 14 and 15 Edgemont Landing Roadshare a leach field. Ms. Thompson said yes, it is behind the retaining wall. She said the contractor who installed the retaining wall met all required conditions pertaining to vegetation planting.

 

Mr. Blohm asked about the stormwater management plan, noting that the existing plan is dated 2015. Ms. Thompson said the stormwater management plan is for both houses and that the proposed reoriented building has the same roof pitch and all drains are in place. She added that the former CEO, Jack Shephard, and DES have signed off on the plan.

 

Mr. Thomas indicated that the DES approval letter applies to both properties and is probably included in the property files.

 

Discussion followed regarding the stormwater management plan particulars – namely, the re-submission of the plan to DES with the proposed new house at 15 Edgemont LandingRoad, the new leach field installation, and the ground cover adjacent to the retaining wall. Ms. Thompson said the ground cover is a railroad bed and train tracks.

 

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

 

16.8.1 The variance will not be contrary to the public interest because: The rotation of the structure increases the setback from the center of the right-of-way (Edgemont Landing Road) making access by fire trucks, plow delivery vehicles easier and increases road shoulder. It does not change the footprint of the house or setback from lake or impervious surfaces. The rebuilding of structure supplements continuous improvement of Edgemont Landing 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 size of the lot will not accommodate setback requirements. All properties on Edgemont Landing Road do not meet setback requirements as defined in articles cited. This community was established in the ‘30s and ‘40s and building codes have changed. The original proximity of the home was less than 4-feet from the road edge. 

 

b. The property is different in a meaningful way from other properties in the area because: All properties on this road are on small lots with substandard setback. The original structure did not conform to the 30-feet/15-feet requirements of 5.9.1, nor the minimum 75-foot setback as defined in 7.4.2. The original structure proximity to road hindered plowing and large vehicle access. Snow accumulated on wall of home during plowing reducing road access. 

 

c. The property is burdened more severely by the zoning restrictions because: Current setback requirements are not possible on this site even without variance request.

 

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The lakeside wall of the home will not be any closer to the lake (no change). Only change is side wall proximity to property owned by Thomas Feller. The abutting property is a vacant lot (side yard) to their home and distance from side wall to their actual home is over 30-feet. The distance from 15 Edgemont Landing Drive does not change.

 

16.8.3 The variance is consistent with the spirit of the ordinance since: We are not seeking to change existing footprint of the home.

 

16.8.4 Substantial justice is done because: The rotation of the home provides a safer environment for all residents on the street, for access by safety vehicles, etc., and does not impact the lake or surrounding environment. The distance of wall on lake side does not change from previous distance.

 

16.8.5 The value of surrounding properties will not be diminished because: The rotation of the home improves current road access and conditions.

 

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

 

There being comment from the public, Mr. Fichter closed the public portion of the meeting and the Board went into deliberations.

 

Mr. Blohm had no objections, as long as the stormwater management plan is properly managed, and that point is a condition of approval.

 

There was general discussion about the unpaved parking area across the street.

 

Mr. Fichter agreed with Mr. Blohm.

 

Mr. Thomas said he had no problem with the request and stated this proposal will be better for the Edgemont Landing Drive community. He emphasized the importance of adherence to the stormwater management plan.

 

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 from Melissa Thompson for property located at 14 Edgemont Landing, Newbury, NH, Newbury Tax Map 007-088-092,for 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 building within the 75-foot lake and permanent stream setback, and within 30-feet of the right of way setback, with the following condition:

• Submission to the Newbury CEO of a NHDES-approved stormwater management plan that addresses the new building configuration.

Mr. Thomas seconded the motion.

 

Mr. Thomas voted to Grant the Variance from Paragraph 7.4.2 and 5.9.1 with the stated condition.

Mr. Fichter voted to Grant the Variance from Paragraph 7.4.2 and 5.9.1 with the stated condition.

Mr. Blohm voted to Grant the Variance from Paragraph 7.4.2 and 5.9.1 with the stated condition.

 

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 7:50 p.m., Mr. Fichter informed the applicant and agent that there are three members on the Board this evening to hear the application and that all three members must vote Yay to grant the requested variance. Since the Board is usually comprised of five members, Mr. Fichter offered the applicant the option to continue the hearing to a date when five Board members are present. The applicant and agent chose to proceed.

 

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, March 9, 2020 at the Veteran’s Hall Building at 944 Route 103 in Newbury, NH: At 7:20 p.m., Greg Grigsby of Pellettieri Associates, Inc. (agent), Ann Terese Ryan Rev. Trust (owner), for property located at 107 Bay Point Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2, 5.9.1 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Construction and replacement of a non-conforming building within the 75’ lake and permanent stream setback, and within 15’ of the side setback.  Newbury Tax Map 007-142-406. 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.

 

Greg Grigsby, Pellettieri Associates, Inc., Peter Blakeman, Blakeman Engineering, Inc., and Marcus Gleysteen, architect, presented to the Board.

 

Mr. Grigsby noted that Ann Ryan (owner) owns 105 Bay Point road and has been a lake property owner for 25 years. She wants to retire at this property but still have accommodations for her large family to visit. With that in mind, she purchased the house next door and wants to build on that lot.

 

The existing conditions of the house on the lot (107 Bay Point Road) are as follows: it is a small single family house and is 6-feet from the side setback, within the 75-foot shoreland setback, and within the shoreland buffer. There is an existing 17.1% of the lot of natural woodland buffer and 24.4% of impervious surface area.

 

The proposed plan places the new house further from the lake, does not change the existing side setbacks, and improves the waterfront buffer. The square footage of impervious surface drops from 1,085 sf (existing) to 1,045 sf (proposed). The unaltered area would be increased, and the natural woodland buffer would be increased, but it would be further away from the lake.

 

Mr. Grigsby added that the proposed improvements consist of replacing the existing home with a new home and utilizing the existing legal non-conforming portions of the footprint, with expansion away from the lake. He noted that the proposed plan does not expand the footprint towards the lake, just away from the lake. He added that the proposed plan moves the enclosed living space away from the lake by 9-feet 10inches to as much as 13-feet 8-inches.

 

He noted that the property currently does not have a state-approved septic system or a stormwater management plan. The proposed plan would include both, along with reducing the area of impervious surface by 80 square feet. Additionally, the amount of coverage within the Woodland Buffer increases from 17.2% (existing) to 23.1% (proposed).

 

He added that a Letter of Map Amendment (LOMA) is pending from FEMA and will be included as part of the building permit application.

 

Mr. Grigsby discussed the placement of the catch basins, where the discharge occurs, and how the existing culvert functions that carries water from the land across the road. He further reviewed on the plans the location of the catch basins, the amount of anticipated discharge and the location of the effluent disposal system.

 

It was noted that the proposed septic is for a 4-bedroom home and is the same as the existing home.

 

Discussion ensued regarding well digging, the regulations allowing digging to occur within 50-feet of the lake, and the option of modifying the well location on the property if necessary.

 

Peter Blakeman described the landscape plan and the choices of pervious driveway material. He said Perm Drivewill be used because it infiltrates 200 gallons per square foot.

 

Mr. Blakeman described the proposed stormwater management plan, noting the four areas of downspouts, soil composition to increase reception of infiltration, drip edge drains, and the location dry wells.

 

Mr. Blohm asked if the entire house will be guttered. Mr. Blakeman said no and deferred to Marcus Gleysteen, architect.

 

Mr. Gleysteen reviewed the downspout locations and how they collect and distribute water that may be problematic. Mr. Grigsby added that this will not be a closed system so it can be opened and cleaned out of debris periodically.

 

Mr. Fichter asked about the location of the discharges and how overflow will be handled.

 

Mr. Blakeman said there isn’t an overflow accommodation on the plan, but it could be added if needed. He said the roof runoff will percolate well.

 

Mr. Fichter asked how many gallons of water are held by the dry well. Mr. Blakeman admitted to not knowing but said the well hold water in a tank and the surrounding stone.

 

Mr. Blohm said that when the well is drilled, erosion control measures and silt fencing must be in place. Mr. Blakeman said absolutely, Mr. Grigsby oversees all parts of the construction.

 

Mr. Blakeman stated that drainage will go down through the property and through two catch basins. He noted that all existing pipes will be replaced by PVC piping.

 

Mr. Gleysteen further described the proposed house as being under 4,000 square feet and maintaining the scale of older houses in the neighborhood. The roof height of the first floor is 22-feet 10 ½-inches. He added that the existing boathouse will be replaced. He noted that he has designed three other lake houses and, when completed, his designs disappear into the woodland. 

  

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

 

16.8.1 The variance will not be contrary to the public interest because: The proposed alterations to the structure are consistent with the existing conditions and therefore the overall intent of the Zoning Ordinance. It is in the public interest to allow the proposed construction using modern techniques and energy efficiency, which provides a beneficial expansion of its tax base. Furthermore, no portions of the proposed structure are proposed to be closer to the lake than what exists today. By encroaching no closer to the waterbody, avoidance and minimization have been achieved. In addition, the proposed structure reduces the area of living space in the Waterfront Buffer by 180 square feet, thereby bring the property towards conformity. The impervious area of the structure within the Waterfront Buffer, is reduced by 10 square feet, again bringing the property toward conformity. The additional square footage of the house has been designed away from the lake, to best protect the resource.

 

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: A town drainpipe runs through the property, and to the lake. As such, any proposed septic system must be at least 35-feet from the catch basins and 25-feet from the drain-pipe – which necessarily places it in the middle of the site. In addition, the town requires new septic systems be set back from the lake 75-feet. Therefore, the only reasonable location for the septic system, and house, is as shown. This requires abandoning the existing well and drilling a new well at lease 75-feet from the proposed leach field.

 

b. The property is different in a meaningful way from other properties in the area because: While the dimensions of this pre-existing lot do not meet the current lot requirements, its overall size is comparable to some of the other properties in the neighborhood. However, the cove-like shape of the shoreline makes this property distinctly different from other properties in the area – causing the shoreland setback to extend farther inland than most adjacent lots. Like most properties on the lake, the exiting boathouse and primary dwellings are generally constructed parallel to the shoreline. As a consequence, the house is oriented more toward the cove.  As such, the dwelling (existing and proposed) isn’t parallel to the side property lines. That said, every effort has been made with the design of the house to not encroach further on any of the setbacks, and in fact, coverage is reduced under the re-development proposal.

 

c. The property is burdened more severely by the zoning restrictions because: The zoning setbacks for septic systems dictate the location of the system, which consequently ends up in the middle of the property. The exiting primary structure was constructed long before the adoption of State and municipal shoreland setbacks. Therefore, the positioning of the existing structure, which is almost entirely within the 50-foot state, means that any landward extension of the house is within the town 75-foot lake setback. Therefore, the property is burdened more severely than properties without these waterfront conditions. 

 

d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed use of the property remains a single-family residential dwelling unit, with a detached garage, just as in the case in the existing conditions. The continuance of this use is reasonable, predominantand allowed by the current zoning ordinance for the residential District.

 

16.8.3 The variance is consistent with the spirit of the ordinance since: Article 15 Section 15.2.1 allows for expansions and/or alterations to non-conforming structures, as long as the building is not made more non-conforming. The non-conformity of the proposed structure is consistent with the spirit of the ordinance, because the expansion is located away from the waterfront. Consequently, the proposed structure does not exacerbate any of the applicable side and lakeward setbacks. The added portion of the structure within the Waterfront Buffer is consistent with the spirit of the ordinance because it is a necessity of the present location of the residence and is built away from the lake, no closer to the property line than what exists.

 

16.8.4 Substantial justice is done because: Relief from the setback limitations results in less living space in the Waterfront Buffer, as well as a 10 SF reduction of primary dwelling unit impervious area within the Waterfront Buffer. By approving the Variance, the property owner will be able to construct a replacement comparable with property values and land values in the neighborhood and around the lake. The location of the new leach field, in concert with the house location, will help protect water quality of Lake Sunapee. 

 

16.8.5 The value of surrounding properties will not be diminished because: The values of the surrounding properties are likely to be enhanced by the removal of the aged structure, which is to be replaced by a professionally designed, energy efficient, technologically state-of-the-art-structure.

 

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

 

There being no Public present, Mr. Fichter closed the public portion of the hearing and the Board went into deliberations.

 

Mr. Blohm said the proposed house is bigger than the existing house, but the plan is an improvement over existing conditions on the property.

 

Mr. Fichter said he liked the stormwater management plan and the handling of effluent.

 

Mr. Thomas said the proposed plan does a good job at keeping house within the setbacks. He added that the stormwater management plan is good.

 

Mr. Fichter stated that it is necessary that the applicant check the ordinances regarding well location as it pertains to the property line and proceed accordingly. Mr. Blakeman assured him that he will flag it and follow up.

 

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 from Ann Terese Ryan Rev. Trust (owner), for property located at 107 Bay Point Road, Newbury, NH, Newbury Tax Map 007-142-406, for a Variance from the requirements of Paragraph 7.4.2, 5.9.1 and 15.2.1 of the Newbury Zoning Ordinance to permit the following: Construction and replacement of a non-conforming building within the 75’ lake and permanent stream setback, and within 15’ of the side setback, with the following condition:

• That the proposed site of the well is within the applicable town ordinance.

 

Mr. Thomas seconded the motion.

 

Mr. Thomas voted to Grant the Variance from Paragraph 7.4.2, 5.9.1 and 15.2.1 with the stated condition.

Mr. Fichter voted to Grant the Variance from Paragraph 7.4.2, 5.9.1 and 15.2.1 with the stated condition.

Mr. Blohm voted to Grant the Variance from Paragraph 7.4.2, 5.9.1 and 15.2.1 with the stated condition.

 

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.

 

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

 

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

 

The meeting adjourned at 8:55 p.m.

 

Respectfully submitted,

 

Meg Whittemore

Recording Secretary

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