Zoning Board of Adjustment
March 12, 2012
Approved March 26, 2012
Members Present: Katheryn Holmes, Chair; Peter Fichter, Vice-Chair; Barbara Richmond, Harry Seidel, Members; Alex Azodi, Steve Russell, Alternates.
Ms. Holmes called the meeting to order at 7:12 p.m.
Ms. Holmes appointed Mr. Azodi as a voting member for this meeting.
Ms. Holmes informed the Board about the upcoming Saving Special Places conference on April 14, 2012 sponsored by the UNH Cooperative Extension. She said the Board is invited to attend.
The Board reviewed the minutes of January 9, 2012 and made corrections.
Mr. Seidel made a motion to accept the minutes of January 9, 2012 as corrected. Ms. Richmond seconded the motion. All in favor.
Ms. Richmond questioned the accuracy of the submitted abutter list for this hearing. She asked whether or not the applicant had notified Steve & Michelle Noyer (Tax Map/Lot 20A-107-334) regarding this application. Peter Blakeman, agent, of Blakeman Engineering, Inc. said no. Ms. Richmond expressed concern that the proposed plan would have a negative impact on the Noyer’s property, specifically their current view of Lake Sunapee.
Discussion followed regarding the definition of a direct abutter. Mr. Seidel read into the record Article II (Definitions), Paragraph 2.0 Abutter. Mr. Fichter noted that, by definition, the parcel in question (Tax Map/Lot 20A-107-334) is not a direct abutter.
Ms. Holmes took a consensus of the Board regarding whether or not the Noyer’s property qualified as a direct abutter under the criteria of Paragraph 2.0 Abutter. The Board consensus was that it did not. Ms. Holmes added that if the Board makes a decision on this application tonight, there is a 30-day appeal period during which any concerned party may appeal.
There was discussion about whether to review each variance application separately or concurrently. The Board agreed to review both variance applications concurrently.
Ms. Holmes introduced the Board and reviewed the hearing process with the applicant and members of the public.
Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposal on Monday, March 12, 2012 at the Town Office Building at 937 Route103 in Newbury, NH:
7:15 pm, Jeffrey & Brenda Estella, property located at 6 Stoodley Rd, Newbury, NH, will seek a Variance as provided for in 5.9.1 to permit the following: Construction of a structure 9.5 feet from the Stoodley Road right-of-way where 30 feet are required and where the existing structure is 18 feet from the right-of-way. Newbury Tax Map 020-130-386.
7:15 pm, Jeffrey & Brenda Estella, property located at 6 Stoodley Rd, Newbury, NH, will seek a Variance as provided for in 5.9.2 to permit the following: to allow excavation within 25 feet of the boundary of a cemetery. Excavation is to expand an existing driveway within an already disturbed area within the 25 foot setback. Newbury Tax Map 020-130-386.
Peter Blakeman, of Blakeman Engineering, Inc., presented to the Board. Jeffrey Estella, applicant, was also present.
Mr. Blakeman said the project involves razing the existing house on the lot and constructing a new house with a new septic system and new stormwater practices that will improve water quality protection of the lake. He cited the restrictions on the property that limit the buildable area. He said in addition to the standard front, side and rear setbacks the property also is located within the Shoreland Overlay district and is subject to the 75 foot setback from the lake. Also, 20+ percent of the property sits within the Steep Slopes Conservation Overlay District. As well, the southerly side of the buildable area is subject to the cemetery setback (25 foot setback) and no excavation or construction is allowed within the setback area.
Mr. Blakeman said a small pull-in driveway will be put in and gravel parking will be placed alongside the road. He said Mr. Estella has owned the property for five years and has worked with the town road agent regarding appropriate drainage and plowing to ensure compliance with town regulations.
Ms. Holmes asked if fire trucks and emergency vehicles are able to safely traverse the road. Mr. Blakeman said yes.
There was significant discussion about the presence of water on the property and its source and the plans to mitigate and improve drainage. Mr. Blakeman discussed the location of the new culvert that was put in about 1 ½ years ago.
Mr. Blakeman said state permits have been approved for shoreland protection and septic system improvement. The septic permit was approved for a two-bedroom house. He indicated on the plans the area that would remain in its natural state per the requirements of the shoreland protection permit.
Mr. Blakeman said the plans call for the addition of a garage. The Estellas want to move to the area full time and are avid snowmobilers and need room to park and store their snowmobiles. Discussion followed regarding the space limitations for vehicle storage and parking.
Mr. Blakeman discussed the proposed new septic system, EnviroSystem, and described its functionality and noted that it is in the same category as the Clean Solutions system.
Mr. Fichter noted that there is a proposed bathroom on the lower level and asked how the resulting effluent will reach the septic system’s holding tank. Mr. Blakeman said it will be pumped up to the holding tank.
Mr. Seidel questioned the location of the proposed septic system under the driveway. Mr. Blakeman said the location choices were limited.
Mr. Seidel said overall, he like the proposal but questioned the proposed proximity to the street (9 ½ feet).
Discussion followed regarding the setback from the right-of-way (ROW) and the difficulty in establishing the ROW on Stoodley Road due to lack of historical documentation.
Mr. Fichter discussed the options available to the proposed plan, noting that as the proposal currently stands, the applicant wants to take a small house that is currently non-conforming and replace it with a much larger house that is even more non-conforming. He questioned why the applicant couldn’t make the proposed house smaller and less non-conforming.
There was discussion about the square footage of the proposed house and garage. Mr. Blakeman said the square footage for the ground floor was 875 square feet, the first floor was 1,262 square feet, and the second floor was 1.056 square feet.
There was discussion about the location of the proposed house and garage and the proximity to the cemetery, steep slopes and the road. Mr. Estella said the proposed location ensured that a lawn service could navigate the property easily when the Estellas were not in residence.
Mr. Seidel suggested moving the house so that there is six feet of clearance for the lawn service to drive mower around.
There was further discussion regarding the location of the septic system, the drainage for the driveway and the proposed impervious materials to be used for the driveway. Mr. Blakeman admitted that the applicant has not considered pervious materials for the driveway service. Ms. Richmond said that if there is a lot of water present on the property
it is preferable to see a filtering system for the water before it gets to the lake.
Mr. Seidel expressed concern about the water runoff adversely affecting the proposed septic system and leach field. Mr. Blakeman said there is surface water runoff only and he is not concerned with the potential for adverse impact on the septic system.
There was further discussion about water runoff, drainage, the detrimental affect of lawns close to the edge of the lake, the need for more robust erosion control, and the percentage of impervious surfaces on the property.
Mr. Blakeman said the Estellas tried to keep the proposed new house modest. Ms. Holmes said the proposed house is twice as big as the existing house.
Mr. Fichter suggested flipping the house location and placing the garage closer to the lake which would present a lower overall building profile. Mr. Blakeman said that was considered and rejected because of safety concerns regarding the movement of cars on the property, an adverse impact on the existing culvert, and the Lovingtons (direct next door abutter) preferred the current plan.
There was further discussion regarding the location of the garage.
There being no more questions from the Board, Mr. Blakeman addressed Article 16.7 of the zoning ordinance for Paragraph 5.9.1:
16.7.1 The variance will not be contrary to the public interest because: all structures will be located within the existing developed area and the existing building lies within 18’ of the road.
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 are multiple setback requirements that result in a greatly reduced building area. There is the wooded slope that is included in the steep slopes district which cannot be disturbed, the cemetery setback which is also a no disturbance area, the road setback and the lake setback. These setbacks allow for just a 4,360 square foot envelope to be built within and even that, at the curvature of the road lessens the usable area due to the narrowing of the easterly end of it. Further, the location of the septic system dictates the building location must slide within the road setback. And, significantly, placing the house as proposed allows the 75’ setback from
the lake to be adhered to.
b. The property is different in a meaningful way from other properties in the area because: the various setback requirements and steep slope overlay district require the usable building envelope to be severely restricted and diminished in size so that the location of the house as well as the size of the house is negatively impacted. This is also the only house on Stoodley Road that adheres to the 75’ lake setback requirement.
c. The property is burdened more severely by the zoning restrictions because: the steep slopes district pushes the building area to the east side of the lot where the building envelope is at its most narrow due to the curvature of the road and adhering to the 75’ lake setback pushes the house closer to the road where it must infringe on the setback from the right-of-way.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: the use of the property is currently residential with a house encroaching into the road setback (18” to the edge of the R/W). The essential character of the neighborhood will not be affected by approving this variance. The abutters (Lovington) directly to the north have reviewed the project plans with the owners and have submitted letters of support.
16.7.3 The variance is consistent with the spirit of the ordinance since: allowing the proposed house to be built closer to the road setback than the existing house keeps the structure 75’ or more away from the lake.
16.7.4 Substantial justice is done because: allowing this encroachment into the road setback allows a new septic to be placed in suitable soil where no waivers are required. Allowing this encroachment does no harm to the general public or the neighborhood and furthermore enhances the environment with new septic and stormwater systems.
16.7.5 The value of surrounding properties will not be diminished because: the construction of a new building to replace an outdated structure along with the construction of an upgraded driveway and parking will maintain abutting property values by adding a modest architecturally designed and aesthetically pleasing house.
There being no more questions from the Board, Mr. Blakeman addressed Article 16.7 of the zoning ordinance for Paragraph 5.9.2:
16.7.1 The variance will not be contrary to the public interest because: the developed portion (i.e., driveway and lawn) of the existing property already encroaches into the setback and the proposed work does not encroach further into the setback. The proposed work will not alter the character of the neighborhood as the neighborhood will likely not even notice it. Public safety will be enhanced rather than threatened as an enlarged driveway will accommodate more parked vehicles rather than having them park along Stoodley Road.
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 are multiple setback requirements that result in a greatly reduced building area. There is the wooded slope that is included in the steep slopes district which cannot be disturbed, the cemetery setback which is also a no disturbance area, the road setback and the lake setback. These setbacks allow for just a 4,360 square foot envelope to be built within and even that, at the curvature of the road lessens the usable area due to the narrowing of the easterly end of it.
b. The property is different in a meaningful way from other properties in the area because: other properties along Stoodly Road do not have a cemetery setback and this is also the only house on Stoodley Road that adheres to the 75’ lake setback requirement. Due to the various setback requirements, the usable building area is severely restricted and diminished in size so location as well as size of house is impacted.
c. The property is burdened more severely by the zoning restrictions because: of the seasonal stream, the steep slopes district, the cemetery setback, the lake setback and the road setback. The curved road configuration adds additional burden in that narrow band of buildable area is created with the setback but is not practically buildable due to its narrow width.
d. Because of the special conditions of the property, the proposed use of the property is reasonable because: it is already a disturbed area within the setback.
16.7.3 The variance is consistent with the spirit of the ordinance since: the driveway location will not encroach further into the setback than what is currently the case. The same wooded buffer is provided to the cemetery as currently exists.
16.7.4 Substantial justice is done because: a continuation in use will be allowed. The proposed work area already encroaches into the cemetery setback and will result in no harm to the general public or any other persons. The proposed project has been reviewed with the direct neighbor and they have submitted letters of support.
16.7.5 The value of surrounding properties will not be diminished because: the proposed work within the already disturbed cemetery setback will have no impact on surrounding property values.
Mr. Azodi asked if the trustees of the Newbury Cemetery Committee had been contacted for their reaction to this proposed plan. Mr. Blakeman said no, the applicant did not feel it was necessary to do so.
Ms. Richmond questioned how the applicant could not have known about the cemetery setback regulations when he purchased the property five years ago.
There being no further questions from the Board, Ms. Holmes opened the public portion of the meeting.
Ms. Holmes acknowledged Mrs. Bachelder, past custodian of the cemetery, and asked her for her input. Mrs. Bachelder said she was not present to represent the Cemetery Committee but rather as an interested custodian of the cemetery. She said her main concern was further encroachment into the cemetery, the weakening of the retaining wall and chain link fence, and the removal of trees.
It was noted that the plan does not call for any tree cutting between the proposed driveway and the cemetery. Mr. Blakeman noted that only a slight grade change would occur. There was further discussion about the potential for land disturbance adjacent to the cemetery.
Mr. Fichter asked if there would be any excavation in the area defined by the tree line that delineates the edge of the limits of the existing developed site. Mr. Blakeman said no, there will be no excavation involved in that area.
There being no further comments from the public, Ms. Holmes closed the public portion of the meeting.
Mr. Russell asked about the percentage increase of impervious surface from the existing house to the proposed house and garage. Mr. Blakeman said the existing property has 2350 square feet of impervious surface, or 10.4%. The proposed plan results in 4,109 square feet of impervious surface, or 18.2%.
Ms. Holmes closed the presentation portion of the meeting and the Board moved into deliberations.
Ms. Holmes called for a break at 8:55 p.m.
The meeting resumed at 9:00 p.m.
Ms. Holmes summarized the Board’s concerns about the location of the septic, proximity of proposed house location next to the road, the setback requirements, the size of the proposed house/garage and the resulting blocking of existing views of the lake.
The Board discussed the variance for Paragraph 5.9.1 Setback Requirements.
Mr. Seidel said that generally, he was impressed by the application package but he said he believed there was a better option for the septic than what is presented in the plan. He said the septic option would offer better protection for the lake and it would be behind the house instead of in a narrow area that habitually funnels water towards the lake. He added that the eaves on the north side of the house could be protected with gutters so water does not run off the eaves into the septic.
Mr. Azodi asked Mr. Seidel how the septic option affects the variance request to place the house 9.5 feet from Stoodley Road. Mr. Seidel said if the septic is moved then the house can be moved over and the setback from the road increases to about 14 feet. He added that by moving the house over there is a marginal improvement in the flow for cars.
Ms. Richmond said she favored moving the house to increase the setback from the requested 9.5 feet because Stoodley Road is a small road. There was further discussion about how far the house could be moved given the existing restrictions on the property that affect the buildable area.
Mr. Azodi wanted to know what the justification was for granting the variance to allow the new house to be 9.5 feet from the road. He said establishing hardship meant proving that there was no other alternative than what was presented in the plan. He added that the Board has surfaced options for the applicant to consider.
Mr. Fichter said he agreed with Mr. Seidel and Mr. Azodi. Mr. Fichter added that the variance would cause a non-conforming building to become more non-conforming. He added that there are alternatives open to the applicant for consideration. He said, on the positive side, there is a new septic system proposed, rain gardens are planned and additional drainage and plantings are planned. However, he expressed concern over placing the house only 9.5 feet from the road.
Mr. Azodi returned to the question of hardship, noting that not getting what one desires does not mean hardship.
There was further discussion regarding what constitutes hardship.
Ms. Holmes noted that the applicant could build this building and still be in compliance by reconfiguring it on the lot or by making it smaller.
There was further discussion about setbacks and the size of the house.
Mr. Fichter said that the current house is non-conforming and the variance request is asking the Board to allow the new structure to be even more non-conforming.
Ms. Holmes closed deliberations and re-opened the hearing to ask the applicant if he wanted to reconfigure the plan and continue this hearing or have the Board vote on it tonight. Mr. Blakeman conferred with Mr. Estella and said he would prefer to continue the hearing.
Ms. Richmond made a motion to continue the hearing for a variance as provided for in 5.9.1 to permit the following: Construction of a structure 9.5 feet from the Stoodley Road right-of-way where 30 feet are required and where the existing structure is 18 feet from the right-of-way, Newbury Tax Map 020-130-386, until 7:15 p.m. on March 26, 2012. Mr. Seidel seconded the motion. All in favor.
Mr. Seidel made a motion to continue the hearing for a variance as provided for in 5.9.2 to permit the following: to allow excavation within 25 feet of the boundary of a cemetery. Excavation is to expand an existing driveway within an already disturbed area within the 25 foot setback, Newbury Tax Map 020-130-386, until 7:15 p.m. on March 26, 2012. All in favor.
Ms. Holmes sought Board consensus that the Noyers were not considered direct abutters to this applicant’s property. The Board’s consensus was that the Noyers were not direct abutters to this applicant’s property.
Ms. Holmes recommended that the applicant contact the Newbury Cemetery Committee to ensure that they are aware of this application.
Mr. Fichter made a motion to adjourn. Ms. Richmond seconded the motion. All in favor.
The meeting adjourned at 9:36 p.m.