Present: Peyton Carr, R. Scott Quinlan, Richard Shelton (Chairman), Dan Vincent (Zoning Administrator), Michael Watson, Mike Provost (Alternate), Dana Glennon (Alternate), Rose-Anne Kwaks
Chairman Shelton called the meeting to order at 7:01pm.
Pledge of Allegiance
Review and Approval of Minutes: October 20, 2008
Action
Motion: Peyton Carr made a motion to approve the October 20, 2008 minutes.
Seconded: Michael Watson
Vote: All in favor
Regular Business
John & Lynda Raczek – Public Hearing for a Special Exception, reference Section 7.03 of the Newmarket Zoning Ordinance. The applicant requests a Special Exception to permit an Accessory Apartment. The lot is located at 29 Ash Swamp Road, Tax Map R3, Lot 17-1, Zone R1.
Chairman Shelton appointed Mike Provost as a voting member.
John Raczek noted this accessory apartment is strictly for his mother-in-law. In the event the apartment is no longer needed by his mother-in-law, the apartment will be converted back to the main home.
Chairman Shelton explained in order for a Special Exception to be met there are seven criteria that need to be met. The accessory apartment shall be a minimum of 300 square feet and a maximum of 800 square feet of finished living area. John Raczek noted the apartment is 802 square feet. The house is 215 years old. He explained the construction process and issues with pouring the foundation due to the original stone foundation. Chairman Shelton noted the 800 square foot maximum is non-negotiable. Zoning Administrator Dan Vincent explained a wall might be shortened to meet the criteria. John Raczek agreed he could shorten the wall.
Chairman Shelton explained the accessory apartment shall be either an efficiency apartment or a one-bedroom apartment. John Raczek answered it was a one-bedroom apartment.
Chairman Shelton explained one of the dwelling units must be owner occupied. John Raczek answered he and his family live in the main part of the house.
Chairman Shelton explained there shall be a minimum of two parking spaces for each dwelling unit. A parking space is defined as a rectangular space 9’ x 18’. Parking spaces shall be permitted within the setbacks if the location is located over 50’ from abutting dwelling units. John Raczek answered there is sufficient parking.
Chairman Shelton explained no exterior changes shall be made which significantly alters the appearance of the structure from the street. John Raczek answered no exterior changes have been made.
Chairman Shelton explained adequate water supply and sewer disposal shall be provided. If Town water and sewer services the site, tie-in fees shall be paid. John Raczek answered the property is on Town water and private septic. Zoning Administrator Dan Vincent noted no tie-in fees would be assessed, because the same monitor is being used. The septic system is not discussed as part of the requirements, but the Board can discuss it.
Chairman Shelton explained granting of the Special Exception must be consistent with §1.05(A)(2).
Chairman Shelton noted the apartment size needs to be reduced. He asked the Board if they wished to require a septic design. John Raczek explained the house was a four-bedroom. One bedroom was removed to create a living room; the bedroom in the accessory apartment brought the home back to a four-bedroom house. The existing septic tank was designed for a four bedroom. Zoning Administrator Dan Vincent explained the septic meets State law. He felt the Board would be overstepping its jurisdiction, if they required a septic plan.
Michael Watson noted accessory apartments are only allowed in certain areas of town. Zoning Administrator Dan Vincent agreed stating accessory apartments are not permitted downtown.
Vice-Chairman Carr discussed the timing issue stating the permit should have been pulled prior to construction. John Raczek explained he had come before the Board prior to construction and had been told to build the apartment and then come back after a year for a Special Exception. Chairman Shelton noted he had been on the Board when the applicant had requested permission for an apartment within the garage. The application had been denied. John Raczek explained the apartment is now not located within the garage; part of the house had been renovated to accommodate the apartment. A building permit had been obtained for the construction. The size of the house has not changed. The construction process has been long.
Zoning Administrator Dan Vincent explained the homeowners had built a new kitchen within the house, leaving the old kitchen intact. Between that construction and now, the applicant had gone to the Planning Board for the accessory apartment. The Planning Board had instructed the property owner to build the apartment and come back to the Zoning Board for a Special Exception after one year. The applicant had come to the Zoning Board for an apartment in the barn, which was detached at the time and it was denied. Recently, an appraiser appraising the property for refinancing had appraised the home and questioned the Office of Building Safety as to whether the current accessory apartment had ever been permitted. Since it had not been permitted, the applicant was then advised to apply to the Board for a Special Exception.
Chairman Shelton opened the floor for public comments 7:18pm.
No comments.
Chairman Shelton closed the floor for public comments at 7:18pm.
Mike Provost reiterated the apartment would be a temporary apartment. John Raczek confirmed the apartment would be temporary.
R. Scott Quinlan felt the applicant had broken the law.
Action
Motion: Mike Provost made a motion to approve the request for a Special Exception reference Section 7.03 of the Newmarket Zoning Ordinance to allow an accessory apartment with the following conditions:
The size of the accessory apartment will be reduced to less than 800 square feet by a method approved by the Code Enforcement Officer
The approval is for a temporary accessory apartment to be utilized by family only; once the use is no longer needed, the home will revert back to a single-family structure.
Seconded: Michael Watson
R. Scott Quinlan expressed his concern the applicant has broken the law. Chairman Shelton noted there is no monetary fine that can be attached. He felt this was a good faith mistake.
Vote: In favor: Vice-Chairman Carr, Mike Provost, Chairman
Shelton, Michael Watson
Opposed: R. Scott Quinlan
Abstained:
Chairman Shelton reiterated Code Enforcement Officer Dan Vincent would have final approval.
Walter W. Cheney – Public Hearing for an Appeal from Administrative Decision. The applicant requests an Appeal from Administrative Decision to allow for the issuance of a building permit, the application for which was denied due to the lot being determined as “unbuildable open space”. The lot is located off Cushing Road, Tax Map R2, Lot 36-13, Zone R1.
Chairman Shelton noted he would be recusing himself from this application and would ask Vice-Chairman Carr to act as Chair in his absence. The Board would need to take a brief recess because a Board member is currently attending a Town Council meeting upstairs.
TheBoard recessed from 7:22pm until 7:36pm.
Rose-Anne Kwaks joined the Board at 7:35pm.
R. Scott Quinlan noted he would recuse himself from this application because he is a resident of Moody Point.
Michael Watson noted he would recuse himself from this application because he is an abutter.
Vice-Chairman Carr appointed Mike Provost, David Bird and Dana Glennon as voting members for this application.
Zoning Administrator Dan Vincent noted the law firm Mitchell Municipal Group is here representing the Code Enforcement Office. Attorney Laura Spector would be representing the law firm.
Vice-Chairman Carr noted normally the Zoning Board hears from the applicant first but after receiving approval from the applicant, the Board would hear from Attorney Spector first.
Attorney Laura Spector noted she is representing the Code Enforcement Office, not the Zoning Board. She provided each Board member with a binder of materials, apologizing for not getting the information to them ahead of time. She did not believe the Board had jurisdiction to hear this matter tonight. The Board has jurisdiction to hear matters that fall within its purview under RSA 674:33 relating to matters that involve enforcement or interpretation of the Zoning Ordinance. If a matter does not involve the interpretation of a Zoning Ordinance; if a building permit is not denied based on the Zoning Ordinance, the Board has no jurisdiction to hear an appeal on that denial. In this case, the building permit was not denied based on the Zoning Ordinance; it was denied based on the approval of the subdivision from 1985, the regulations in effect at the time, representations made to the Board at that time and subsequent amendments. She encouraged the Board to dismiss the appeal based on jurisdiction. She added there is a dispute as to who the owner of Lot 13 is. The Moody Point Community Association filed a petition for quiet title on Friday requesting Walter Cheney to convey Lot 13 to the Homeowner’s Association. She noted if she were advising the Board, she would tell them it is a private dispute the Board should not interfere with. If the Board is inclined to stay these proceedings until the litigation is resolved, she would not have objection with that.
Walter Cheney noted Attorney Spector could have presented this information prior. He asked permission to address the Code Enforcement Officer.
Mike Provost felt the issues Attorney Spector has raised should be addressed first. This is an opportunity for Walter Cheney to present his rebuttal for the Board to be able to make a decision.
Walter Cheney noted Code Enforcement Officer Dan Vincent had drafted a letter as instructed by Attorney Spector stating the building permit request had been denied, because it had been determined that Lot 13 is unbuildable open space. He had asked to meet with Attorney Spector, but she had refused. There have been many opportunities for Attorney Spector to present this information in writing prior to tonight.
Rose-Anne Kwaks noted it was possible Attorney Spector couldn’t respond due to the suit filed by the Moody Point Community Association on Friday. Walter Cheney noted he had heard about the filing, but has not received any information as of yet. Attorney Spector noted Walter Cheney would be receiving information. She added she has responded on occasion to Walter Cheney, but has not done so recently because he continues to request the same information. She did not instruct Code Enforcement Officer Dan Vincent to do anything. Dana Glennon concurred with Attorney Spector’s synopsis stating he had been notified as a Zoning Board member and the Town Council had received a memo.
David Bird noted the Town is involved in a lawsuit with the applicant. He felt the Board should wait until the court has properly adjudicated the case before making any decisions.
Attorney Spector noted the buildability of Lot 13 is not directly an issue with any pending lawsuit.
Mike Provost noted state statute requires the Board to know the owner or agent of the property. He is uncomfortable with the knowledge there are questions surrounding the ownership of the property. He did not feel the Board could hear this application until the ownership has been determined.
Action
Motion: David Bird made a motion to postpone any discussion on this issue until the lawsuits have been properly adjudicated and the Board has legal answers in front of them by which the Board can then render a decision.
Seconded: Dana Glennon
Walter Cheney noted he has a deed showing he is the owner of the property. He has owned the property since 1999. He felt the Board was playing a stalling game. He can prove he is the owner of the property.
Attorney Spector noted she is not claiming Walter Cheney does not own the property, nor is she encouraging the Board to make its decision based on that. If the Board is going to make a decision to dismiss the case, it needs to be on a jurisdictional basis.
Vice-Chairman Carr acknowledged the ownership of the parcel is in question, but that was not the basis for tonight’s decision.
Vote: All in favor
Walter Cheney asked if he goes directly to court in order to appeal. He expressed his frustration with not being able to speak with anyone outside of court. He has been unable to meet with the Town Administrator, Town Council or Town legal representative. He noted it has been made clear to him the Town would rather go to court over this issue.
Adjournment
Action
Motion: Dana Glennon made a motion to adjourn at 7:51pm.
