Zoning Board Minutes

Zoning Board of Adjustment

October 16, 2017

Approved December 11, 2017

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair, Nancy Marashio; Armen Tarbassian, Alternate; and Reed Gelzer, Alternate.

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

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes from the Zoning Board of Adjustment meeting from September 11, 2017.  Corrections were made.  Mr. Fichter made a motion to amend the minutes.  Mr. Blohm seconded the motion.  Mr. Blohm made a motion to correct the minutes as amended.  Ms. Marashio seconded the motion.  All were in favor.  The minutes were accepted for the record. 

Old Business

Mr. Fichter made a motion to allow the Marilyn Gobin and Stewart Brown variance to be continued indefinitely since they have not had enough time to prepare for the October meeting.  Ms. Marashio seconded the motion.  All were in favor.

Mr. Gelzer asked what the criteria is for waiving the need for a landscape plan for a proposed project.  Mr. Fichter said that it depends on the specific project and site.  He said sometimes the applicant decides that it is not necessary.  Mr. Fichter said that if the Board believes a landscape plan is required, it will be required in the conditions of the granting of a project.

Introductions

Mr. Fichter explained the process and procedures of the ZBA hearings to the general public.  The members of the Board introduced themselves.  Mr. Fichter stated that Mr. Tarbassian and Mr. Gelzer would be a voting members at tonight’s meeting.

The Recording Secretary read the Public Notice into the record as follows:

Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, October 16, 2017 at the Town Office Building at 937 Route103 in Newbury, NH:  7:15 p.m., Ron Ferris, agent Rick Flint, property located at Grace Hill Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2 of the Newbury Zoning Ordinance to permit the following: Construction of a 72” x 72” shed within the 75’ lake and permanent stream. Newbury Tax Mm setback.  Newbury Tax Map  16A-303-072.  Copies of the applications 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.

Variance

Ms. Marashio mentioned that there was no number on the house and she had a hard time identifying the property.  Mr. Flint said that he will mention this to the homeowners.  Mr. Flint explained that the current shed is old and is near a leaning tree.  The property owners are hoping to build a bigger shed and move it.  It would be used to store lakeside materials.  Mr. Flint explained that the new shed will be moved about three feet over from where the original shed is currently located.  The new location is further from the water than the original shed.

Mr. Gelzer wants to know if the original structure needed a variance.  Mr. Flint was unsure of the answer.  He said that Charlie Hirshberg was responsible for the original project of the house. Mr. Gelzer said that he wanted to know if the original shed was required to be demolished when the previous variance for the house was granted.  Mr. Flint said that he did not think so. 

However, Mr. Gelzer also asked if the homeowners would be against bringing the shed further away from the lake.  Mr. Flint said he looked at the shoreline permit and if the shed goes back there is a natural woodland area as well as a tree.  Mr. Flint said it is possible that the shed could be moved back. He is uncertain that if they move the shed, trees might need to be taken down.

16.7.1 The variance will not be contrary to the public interest because:  This is not a request for a new use, it’s a request to improve and relocate and existing lakeside shed.  The existing structure, which is currently in need of repairs, is approximately 308” x 72” and 9’ tall.  It’s positioned up on blocks so it has no permanent impact, and has been in its current location for many years.

16.7.2  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: There has been an existing shed on the property for many years, this is not a request for an entirely new use, just an improved shed.

            b. The property is different in a meaningful way from other properties in the area because: The shoreland protection requirements restrict and control development within certain distances of water bodies.  While these are good regulations, they reduce the free use of one’s property more so than properties located elsewhere in town.

            c. The property is burdened more severely by the zoning restrictions because: It abuts a water body.

            d. Because of the special conditions of the property, the proposed use of the property is reasonable because: It allows the property owner to move an existing shed away from a large tree to a more open area and the property owner would have better access to its use.

16.7.3 The variance is consistent with the spirit of the ordinance since:  This will not be a permanent structure.  The remodeled shed will continue to be supported on concrete blocks.

16.7.4 Substantial justice is done because: It allows the property owner to continue the use of an existing feature on the property, and enhance the enjoyment of their property without adverse impact to others, or the shore land.

16.7.5 The value of surrounding properties will not be diminished because:  The current shed has no impact on surrounding properties, and the relocation and improvement request will have no impact on these properties either.

Ms. Marashio said the verbiage on the application is not convincing.  She stated that if it was for a project larger than a shed, she would not approve the project. 

Mr. Fichter opened up the hearing to the public.  There was no comment from the public.

Mr. Fichter closed the hearing to the public.

The Board deliberated. 

Mr. Blohm made a motion to vote on the request of Ron Ferris for property located at Grace Hill Road, Newbury to grant a variance from the requirements of paragraph 7.4.2 to permit a 72” x 72” shed within the 75’ lake and permanent stream with the following conditions:  that a dripedge be installed and that the final location of the shed be further from the lake as possible while still remaining practical. 

Ms. Marashio seconded the motion. All in favor.

Ms. Marashio voted to Grant the Variance from Paragraph 7.4.2.

Mr. Blohm voted to Grant the Variance from Paragraph 7.4.2.

Mr. Tarbassian voted to Grant the Variance from Paragraph 7.4.2.

Mr. Gelzer voted to Grant the Variance from Paragraph 7.4.2.

Mr. Fichter voted to Grant the Variance from Paragraph 7.4.2.

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.

The Recording Secretary read the Public Notice into the record as follows:

Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, October 16, 2017 at the Town Office Building at 937 Route103 in Newbury, NH:  7:30 p.m., Adventure Lifestyle LLC, agent Dan Higginson, for property located at 2 Province Road, Newbury, NH, will seek a Variance from the requirements of Paragraph 7.4.2, 7.6.1, 8.6, 15.2.1 and 15.2.2 of the Newbury Zoning Ordinance to permit the following: Expansion of a deck on an existing non-conforming building within the 75’ lake and permanent stream setback and wetland buffer, and within the 50’ waterfront buffer. Newbury Tax Map  007-419-072.

7:30 p.m., Adventure Lifestyle LLC, agent Dan Higginson, for property located at 2 Province Road, Newbury, NH, will seek a Special Exception as provided for in article 4.3.11 of the Newbury Zoning Ordinance to permit the following: Operation of a therapeutic spa used by both the general public and B&B guests. Newbury Tax Map  007-419-072.  Copies of the applications 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.

Variance

Jennifer Van de Pavoordt and Rudi Franklin of Adventure Lifestyle, LLC addressed the Board and explained the project.  They explained that the building was involved in a fire.  They have been slowly working on the project so it will fit in the NH surroundings.  He explained that the barn is very important to him due to its old age.  He explained that the barn had a lot of rot and termites and required a lot of work.  They now want to work on the deck and have a therapeutic spa.  He is requesting to expand the deck and make it handicap accessible. 

Mr. Blohm asked how the wheelchairs will be able to get up the deck.  Mr. Franklin explained that there will be a bridge that will go under the deck and will come out as needed.

Mr. Franklin explained the rest of the project.. 

Mr. Fichter explained that if they don’t change the footprint, then they will not need a variance to work on the pillars over the brook.

Mr. Gelzer said that the information that they have in front of them with the application does not coincide with the information in what their new objectives are.   Mr. Gelzer said that they need to rewrite their application.  Mr. Blohm said they would simply be withdrawing their application.  Mr. Fichter reiterated that they are looking for approval for the deck and are withdrawing their original request. 

Mr. Blohm said the silt fence is ineffective.  Mr. Franklin said that the ground work is completed, they are just finishing the deck. 

Mr. Gelzer said he thinks some requirements might need to be added on this project to include an erosion control plan.  Mr. Blohm said that typically there is a perimeter drain around the original structure and Ms. Van de Pavoordt and Mr. Franklin said that there is a draining system in place.  Ms. Van de Pavoordt said that the drainage right now is under the ground.  Mr. Fichter said they need to do something with the water from the roof of their structure. 

Ms. Marashio said that in the past there were many cars parked on this property and she is not concerned with the fact that there is parking for nine cars on this property.

Mr. Gelzer said he would like to continue this hearing and have the proper paperwork.

Mr. Fichter said he feels that there are members of the board that feel that there is disconnect and ease of reading the documentation that has been distributed versus what they now are looking for since their plans have changed.

Mr. Blohm said he would be okay with the deck portion of the application with conditions.

Mr. Fichter agreed to let Adventure Lifestyle, LLC proceed with their case.

16.8.1 The variance will not be contrary to the public interest because:  the wetland buffer is intended to protect the associated wetland from siltation and pollution.  The areas proposed to be impacted are currently maintained land will not occur as neither are common place in landscaped yards.  Any temporary ground disturbance associated with construction will be controlled with silt fence and straw bales as needed and stabilized with seed and mulching.

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 subject property was developed prior to zoning and the establishment of the wetland buffer.  Areas of proposed impact to the buffer have been maintained as yard for many years and there is no natural vegetation remaining.

            b. The property is different in a meaningful way from other properties in the area because:  The building envelope on the property is small and adjacent to Johnson Brook other area lots have far larger building envelopes and are not bordered by the brook.  This lot was developed prior to the establishment of the wetland buffer and has been used for landscaping and patios for many years.

            c. The property is burdened more severely by the zoning restrictions because: The lot is small and the building setbacks and wetland buffer leave no room on the lot for building that conforms with current zoning.

            d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The proposed improvements are within areas of the wetland buffer that are already used in a manner different than intended by the ordinance, being that no natural vegetation currently exists in the areas of proposed construction.

16.7.3 The variance is consistent with the spirit of the ordinance since:  The spirit of the ordinance is to protect wetlands from siltation and pollution, our proposal will not introduce any pollution or siltation that will impact the wetland.

16.7.4 Substantial justice is done because: Substantial justice is done when the benefit to the applicant far outweighs any burden to the general public.  In this ase approval of the variance will not burden the public whereas denial of the variance will cause substantial burden to the applicant.

16.7.5 The value of surrounding properties will not be diminished because:  The proposed improvements will make the property more visually appealing to the passer by and abutting property owners.  Not long ago this building had burned down.  These improvements are part of the continued effort that the applicant has made to fix up the property.

Mr. Gelzer asked about the handicap access portion of the application.  He would like the wording to change to instead say accessible to wheelchairs.

Mr. Fichter opened up the hearing to the Public.

There was no public input. 

Mr. Fichter closed the hearing to the Public.

Mr. Fichter said that he would like the application to be cleaner, but he feels that this is not the applicant’s fault in this case.  He will have a discussion with John Greenwood moving forward.  Mr. Fichter said he is okay with granting the project with landscaping and drainage conditions. 

Mr. Gelzer said that they should have required to have a landscape plan a long time ago. 

Ms. Marashio said she is okay with the project with the drainage conditions. 

Mr. Tarbassian said he would like to see a plan for the roof drainage.

Mr. Blohm said the notice only talks about the deck. 

Mr. Blohm made a motion to consider the request for variance from the requirements of paragraph 7.4.2, 7.6.1, 8.6, 15.2.1 and 15.2.2  of the Newbury Zoning Ordinance to permit the following:  Expansion of a deck on an existing non-conforming building within the 75’ lake and permanent stream setback and wetland buffer, and within the 50’ waterfront buffer with the following conditions: that a stormwater management and landscape plan be developed and presented to the code enforcement officer as well as fixing the erosion control on the property until all the work has been completed. 

Mr. Fichter seconded the motion. All in favor.

Ms. Marashio voted to Grant the Variance with conditions from Paragraphs 7.4.2, 7.6.1, 8.6, 15.2.1, and 15.2.2.

Mr. Blohm voted to Grant the Variance with conditions from Paragraphs 7.4.2, 7.6.1, 8.6, 15.2.1, and 15.2.2.

Mr. Tarbassian voted to Grant the Variance with conditions from Paragraphs 7.4.2, 7.6.1, 8.6, 15.2.1, and 15.2.2.Mr. Fichter voted to Grant the Variance from Paragraph 5.9.1.

Mr. Fichter voted to Grant the Variance with conditions from Paragraphs 7.4.2, 7.6.1, 8.6, 15.2.1, and 15.2.2.

Mr. Gelzer voted to Deny the Variance with conditions from Paragraphs 7.4.2, 7.6.1, 8.6, 15.2.1, and 15.2.2.

Special Exception

16.7.1 The use will not be detrimental to the character or enjoyment of the neighborhood because:  The spa will operate within a building on site, no part of the daily operations of the business will be seen by the general public.  The use is a service that is consistent with other businesses in the area.

16.7.2 The use will be injurious, noxious or offensive and thus detrimental to the neighborhood because:  The site is in a part of town that is substantially composed of other businesses that provide customer services in a similar manner to that of which is proposed.  Spas, restaurants and other service industries operate completely inside a building.

16.7.3 The use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazard, undue risk to life and property, unsanitary or unhealthy emissions or waste disposal, or similar adverse causes or conditions because:  the proposed spa is a low volume business and will serve the general public and people that are already on site staying at the bed and breakfast.  The site is immediately adjacent to a major highway therefore traffic congestion will not occur.  The business does not produce any unhealthful emissions and is to be services by a state approved effluent disposal system.

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 proposed spa is a low volume business and is serviced by West Province Road which joins the state highway which can easily accommodate any traffic generated by the business.

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 because:  The spa is an accessory to the bed and breakfast and will create no noxious fumes, odor or vibrations that would affect the neighborhood.

Mr. Fichter opened the hearing to the Public.  There was no public input.

Mr. Fichter closed the hearing to the Public.

The Board began deliberations. 

Ms Marasio made a motion to grant the application for Special Exception for Adventure Lifestyles, LLC. as provided for article 4.3.11 of the Newbury Zoning Ordinance to permit the following: Operation of a therapeutic spa used by both the general public and B&B guests with the condition of incorporating a stormwater management plan.. Newbury Tax Map 007-419-072.

Mr. Fichter seconded the motion.

Ms. Marashio voted to Grant the Special Exception with condition from Article 4.3.11.

Mr. Blohm voted to Grant the Special Exception with condition from Article 4.3.11.

Mr. Tarbassian voted to Grant the Special Exception with condition from Article 4.3.11.

Mr. Fichter voted to Grant the Special Exception with condition from Article 4.3.11.

Mr. Gelzer voted to Deny the Special Exception with condition from Article 4.3.11 due to the fact that there is not a proposed stormwater management plan included in the application.

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

The meeting adjourned at 9:33 p.m.

Respectfully submitted,

Donna Long

Recording Secretary