Zoning Board Minutes

Meeting date: 
Monday, December 11, 2017

Zoning Board of Adjustment

December 11, 2017

Approved February 12, 2018

 

Members Present: Peter Fichter, Chair; David Blohm, Vice-Chair; Nancy Marashio, Gary Budd,  Members; Alex Azodi, Alternates.

 

Mr. Fichter called the meeting to order at 7:02 p.m.

 

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

 

ADMINISTRATIVE BUSINESS

Minutes

The Board reviewed the minutes of July 10, 2017 and made corrections. Mr. Blohm made a motion to accept the minutes as corrected. Mr. Fichter seconded the motion. All in favor.

 

The Board reviewed the minutes of October 16, 2017 and made corrections. Mr. Blohm made a motion to accept the minutes as corrected. Ms. Marashio seconded the motion. All in favor.

 

Mr. Fichter 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 December 11, 2017 at the Town Office Building at 937 Route 103 in Newbury, NH: At 7:15 p.m., Brett & Laura Dobens, agents Salmon & Nostrand and CLD/Fuss & O’Neill, Inc., for property located at 24 Highland Ave. Newbury, NH, will seek a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following:  Access walk from driveway to house.  Newbury Tax Map 018-308-072. At 7:15 p.m., Brett & Laura Dobens, agents Salmon & Nostrand and CLD/Fuss & O’Neill, Inc., for property located at 24 Highland Ave. Newbury, NH, will seek an Equitable Waiver of Dimensional Requirement as provided in article 16.9 of the Newbury Zoning Ordinance from the requirements of Paragraph 5.9.1 to permit the following: Allow an already permitted garage roof overhang that does not meet front and side setbacks to remain. Newbury Tax Map 018-308-072. 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.

 

Ms. Marashio noted that the Code Enforcement Officer (CEO) has required a NH DES Shoreland Impact Permit for this application.

 

Brian Vincent, CLD Engineers, agent, presented to the Board. He reviewed the existing conditions of the property, noting that the house was built in 2016 and when the house and garage was built, work was done in an area that was determined to be in a steep slope. DB Landscaping installed a set of stairs in that area during the summer months. The stairs are bluestone and granite steps and impact 1,030 square feet. The builder of the house stayed out of the steep slope area but DB Landscaping did not.

 

Lawrence Slason, land use attorney, presented photos of the location in question and reviewed the area of encroachment with the Board.

 

Mr. Blohm asked if the building permit showed the walkway. Brett Dobens, applicant, said the building permit showed the original dirt path. Mr. Slason noted that a four foot walkway is permitted per the town ordinance.

 

Ms. Marashio asked if the front of the house is in violation. Mr. Slason said the DES approved it. Mr. Dobens added that the house is situated on a natural flat area of the lot.

 

Mr. Blohm asked about the stability of the walkway when it is wet. Mr. Dobens stated that after the storms in October nothing in the walkway moved.   

 

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

 

16.8.1 The variance will not be contrary to the public interest because: The variance comprises an area of steep slopes that was impacted totaling approximately 1,030 square feet, which was disturbed during dry conditions, and is now fully stabilized. The earthen cuts and fills were minor, in most cases under one vertical foot. As such, no erosion occurred as a result of the work, and since the area has been stabilized, no significant erosion has occurred or is expected. Given these conditions, no detriment to the public interest is expected.

 

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 property is not served by a driveway so access to the house from the garage is by means of a walkway which must traverse a sloped area from the garage downhill to the house. The house is on a flat natural-occurring plateau and is accessible only via this walkway.

            b. The property is different in a meaningful way from other properties in the area because: Prior to these improvements, access to the lakefront was by means of an existing dirt path through the steep slope area which was unstable and contributed to erosion conditions. Use of the preexisting pathway has been discontinued in favor of a walkway constructed along the edge of the steep slope area to provide safe ingress and egress to the house site. 

 

Mr. Fichter asked how this property is different from adjacent areas regarding access. Mr. Dobens said all adjacent properties have driveways.

            c. The property is burdened more severely by the zoning restrictions because: See answers to (a) and (b) above. Construction of the walkway entirely outside of the steep slope area would necessitate that it be constructed along a narrow area along the common boundary, rendering the walkway more steep and located over the wastewater force main from the pump station to the leach field.

            d. Because of the special conditions of the property, the proposed use of the property is reasonable because: The purpose of the walkway and landscaping work enables the owner to discontinue use of the unstabilized path through the steep slope area. The walkway provides the owner with a reliable and safe means of ingress and egress to the house. By completing the work, the path and stone stairs improve the safety of the walkway. This is most important during the winter months when there is a larger risk of slips and falls. Without the walkway to the house, the owner would be forced to walk along the natural slope, which would be unsafe, contribute to erosion, and be difficult to maintain. The new walkway is more aesthetically pleasing and is a positive improvement to the property.

 

16.8.3 The variance is consistent with the spirit of the ordinance since: The stated purpose of the ordinance is to limit the intensity of development on steep slopes (>25%) such that unstable or erosive conditions do not occur. Given the small size of this landscaping project and the conditions in which the work was done, limited earthwork/grading changes, and given the fact that the affected areas are now permanently stabilized, the spirit of the ordinance has been observed. The landowner would like to propose additional plantings within the steep slope area and along the walkway which would further the environmental purpose of the ordinance to stabilize slopes, minimize erosion potential, and provide additional stormwater retention and surface water treatment.

 

Mr. Fichter noted that it was very encouraging that the owner was committed to additional plantings. Mr. Fichter questioned whether this commitment applied to future owners of the property. Mr. Slason suggested making that a condition of the variance. Mr. Fichter added that additional plantings should include low growth shrubs in the bare areas along the shoreland. Discussion followed.

 

There was further discussion about how many 2-inch trees versus 6-inch trees should be planted and where.

 

16.8.4 Substantial justice is done because: Additional work occurred which was after-the-fact of the original permits and Town approvals. This variance has been prepared to account for this oversight and request authorization for this work. By granting this variance, substantial justice will be done in that the intent of the ordinance will be met and proper processes are being followed to obtain approval of the work.

 

Mr. Azodi asked why the connection between the garage and the house was not shown on the plan. Mr. Dobens said the house and garage were built piecemeal over time and they were not certain where the house was going to end up. The Board reviewed the various drawings.

 

16.8.5 The value of surrounding properties will not be diminished because:  The walkway has been aesthetically landscaped and is a positive improvement to the property. Any perceived affect to the values of surrounding properties is anticipated to be positive and is not expected to diminish the value of any surrounding property.

 

Ms. Marashio referred to the CEO’s letter, specifically Article 9 pertaining to disturbance of any area in the steep slope area. Mr. Dobens said he thought it referred to disturbance during construction.

 

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 hearing and the Board went into deliberations.

 

Ms. Marashio stated that the plan is a favorable one.

 

Mr. Fichter noted that there is a net benefit with the additional plantings. Mr. Azodi agreed.

 

Ms. Marashio asked about the grassy side of the walkway adjacent to the steps. Mr. Dobens said that is the leach field.

 

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

 

Mr. Blohm made a motion to vote on the request from Brett & Laura Dobens for property located at 24 Highland Ave. Newbury, NH, Newbury Tax Map 018-308-072, for a Variance from the requirements of Paragraph 9.4 of the Newbury Zoning Ordinance to permit the following:  an after-the-fact access walkway as shown on Drawing # USB sated 12/15/17 with Revision 3 on 1/28/16 by CLD Consulting Engineers with the following condition: require tree planting in Cell 2 to meet point system by the end of June 2018. Mr. Budd seconded the motion.

 

Mr. Fichter voted to Grant the Variance from Paragraph 9.4 with the stated condition.

Mr. Budd voted to Grant the Variance from Paragraph 9.4 with the stated condition.

Mr. Blohm voted to Grant the Variance from Paragraph 9.4 with the stated condition.

Mr. Azodi voted to Grant the Variance from Paragraph 9.4 with the stated condition.

Ms. Marashio voted to Grant the Variance from Article XXXX 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.

 

Equitable Waiver of Dimensional Requirement

 

Mr. Dobens noted that the garage foundation is within the side and front setbacks but the roof overhang extend over the setbacks by 6-inches on the side setback and 10-inches on the front setback. He said the title company required a survey and the error was discovered in the as-built plan.

 

Equitable Waiver of Dimensional Requirements:

16.9.1 When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance, the Zoning Board of Adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver of dimensional requirement, if and only if the Board makes all of the following findings.

 

16.9.1.1 That the violation was not noticed or discovered by any owner, former owner, owner’s agent or representative, or municipal official, until after a structure in violation has been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;

 

16.9.1.2 That the violation was not an outcome of ignorance of the law, or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner’s agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner’s agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;

 

16.9.1.3 That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible uses of any such property;

 

16.9.1.4 That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be granted.

 

Mr. Slason reviewed the above criteria, noting that the applicant made an honest mistake. He added that the encroachment is minimal and to require reconstruction at this point would be very expensive and create undue hardship on the applicant.

 

Mr. Azodi stated that he felt the four criteria have been met.

 

Ms. Marashio asked what was under the roof edge at ground level. Mr. Dobens said there is a stone infiltration/ drip edge and two propane tanks under the roof. He added that the infiltration system is designed to handle dripping from that size roof.

 

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

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

 

Mr. Fichter stated that he felt this was an honest mistake. Mr. Blohm agreed.

 

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

 

Ms. Marashio made a motion to vote on the request from Brett & Laura Dobens, for property located at 24 Highland Ave. Newbury, NH, Newbury Tax Map 018-308-072 for an Equitable Waiver of Dimensional Requirement as provided in article 16.9 of the Newbury Zoning Ordinance from the requirements of Paragraph 5.9.1 to permit the following: Allow an already permitted garage roof overhang that does not meet front and side setbacks to remain. Mr. Fichter seconded the motion.

 

Mr. Fichter voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.9.

Mr. Budd voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.9.

Mr. Blohm voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.9.

Mr. Azodi voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.9.

Mr. Azodi voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.8.

Ms. Marashio voted to Grant an Equitable Waiver of Dimensional Requirements from Article 16.9.

 

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

 

The meeting adjourned at 8:43 p.m.

 

Respectfully submitted,

 

Meg Whittemore

Recording Secretary