Present: Peyton Carr (Vice-Chairman), Brian Donner, Rose-Anne Kwaks, Richard Shelton (Chairman), Michael Watson
Absent:
Chairman Shelton called the meeting to order at 7:02pm.
Pledge of Allegiance
Review and Approval of Minutes: May 18, 2009
Chairman Shelton explained he, Vice-Chairman Carr and Michael Watson were the only Board members voting on the first case.
Rose-Anne Kwaks noted on the first page, under attendance, she should not be listed as an Alternate. She asked if David Bird, who sat in on the second application, would have the ability to make corrections to that portion of the minutes. Chairman Shelton felt that would be appropriate.
Vice-Chairman Carr noted on the bottom of page 4 the statement reads: “Vice-Chairman Carr noted normally the Zoning Board hears from the applicant first; in this case the Board will hear from Attorney Spector first” but should read “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.”
Action
Motion: Vice-Chairman Carr made a motion to approve the first case from the May 18, 2009 Zoning Board minutes.
Seconded: Michael Watson
Vote: All in favor – Rose-Anne Kwaks abstained
Rose-Anne Kwaks abstained from this vote because she had not been present for this part of the meeting.
Action
Motion: Rose-Anne Kwaks made a motion to accept the second case from the May 18, 2009 Zoning Board minutes as amended.
Seconded: Vice-Chairman Carr
Vote: All in favor – Chairman Shelton and Michael Watson abstained
Chairman Shelton and Michael Watson abstained from the vote because they had not participated in this portion of the meeting.
Election of Officers
Chairman
Rose-Anne Kwaks nominated Richard Shelton as Chairman of the Zoning Board.
Peyton Carr seconded the nomination.
All voted in favor.
Vice-Chairman
Rose-Anne Kwaks nominated Peyton Carr as Vice-Chairman of the Zoning Board.
Chairman Shelton seconded the nomination.
All voted in favor.
Zoning Board Benefit Statement
Chairman Shelton read at statement that explained Zoning Board meeting procedures.
Regular Business
Diego & Raul Hernandez - Special Exception reference Section 7.03, of the Newmarket Zoning Ordinance. The applicant requests a Special Exception to permit the addition of an accessory apartment. The lot is located at 43 New Road, Tax Map U3, Lot 67, R2 Zone.
Chairman Shelton explained there are seven criteria that need to be met in order to meet the requirements of the Special Exception. He explained the apartment must be a minimum of 300 square feet and a maximum of 800 square feet of finished living area. Raul Hernandez, of 43 New Road, answered the apartment meets that criteria.
Chairman Shelton explained the accessory apartment shall either be an efficiency apartment (without a separate bedroom), or a one-bedroom apartment. Raul Hernandez explained the apartment is a one bedroom.
Chairman Shelton explained one of the dwelling units must be owner-occupied. Raul Hernandez explained one of the units is owner occupied.
Chairman Shelton explained there shall be a minimum of two parking spaces for each dwelling unit. A parking space shall be defined as a rectangular space 9’ x 18’. Parking spaces shall be permitted within the setbacks if the location is over 50’ from abutting dwelling units. Raul Hernandez explained there is sufficient parking.
Chairman Shelton explained no exterior changes shall be made, which significantly alters the appearance of the structure from the street. Raul Hernandez explained the structure has not been altered significantly.
Chairman Shelton explained adequate water supply and sewage disposal shall be provided. If
Town water and sewer services the site, tie-in fees shall be paid. He noted the property has private septic, but asked if the tie in fees for water have been paid. Raul Hernandez understood everything has been taken care of. The building used to be a doctor’s office.
Chairman Shelton explained granting of the Special Exception would be consistent with § 1.05(A)(2). He felt this criterion has been met.
Chairman Shelton explained before the Zoning Board can approve the Special Exception, the applicant must speak with the Public Works Department about the tie in fees. Raul Hernandez explained he has sent a letter to the Public Works Department but has not heard back. Chairman Shelton noted the Zoning Board would need to have something from the Public Works Department before the Board can approve the Special Exception. He suggested the Board can approve the Special Exception with conditions or the Board could hold a meeting in two weeks in order to allow time for the applicant to obtain the requested letter.
Michael Watson noted the apartment is in the basement and asked if it has already been constructed. Raul Hernandez explained the basement had been finished as a doctor’s office before the house was purchased. He lives in the basement; his brother-in-law lives in the main house. There is complete access throughout the house; nothing has been blocked off.
Chairman Shelton explained the history of ownership of the house. He noted the apartment downstairs might have been there for years.
Michael Watson asked why permission needed to be granted to use that space. He asked if the space would be rented. Raul Hernandez explained there are no plans to rent the apartment. The house was purchased with the understanding there were two levels. The apartment was already in the basement. Nothing has been done to the apartment since the purchase of the home except making the existing half bath a full bath, which has been approved by Code Enforcement Officer Dan Vincent.
Rose-Anne Kwaks noted they are both legal owners of the house. She suggested permission would not be necessary unless the house is to be sold and the next owner wishes to rent the apartment.
David Bird, alternate to the Planning Board, explained in order for a future sale of the home to be a legitimate sale, the home must list the accessory apartment. A certificate of occupancy must be obtained.
Chairman Shelton instructed the applicant to obtain a letter from the Public Works Department, submit the letter to the Planning and Zoning Administrative Assistant and the Board could add this to the agenda for July 27, 2009.
Sandra Baillargeon Cassidy & Mathew J. Baillargeon - Variance reference Section 7.02(B), of the Newmarket Zoning Ordinance. The applicant requests a variance to permit the construction of a second single-family home on a 6.9 acre lot, where one single-family home currently exists. The lot is located at 169 New Road, Newmarket, NH, Tax Map R3, Lot 46, R1 Zone.
Mathew Baillargeon, of 52 Gordon Ave, noted he is representing his mother who lives at 169 New Road. Chairman Shelton noted he has a letter from Sandra Baillargeon stating Mathew Baillargeon can represent her interest during these proceedings.
Chairman Shelton explained there are five criteria that need to be met in order to grant a variance.
CRITERION #1
The variance will not be contrary to the public interest.
Mathew Baillargeon explained the location of the structure would be in the R1 Zone, which is dedicated to single-family homes. This proposal is the addition of a single-family home on a 6.9-acre lot.
Chairman Shelton explained the applicant is seeking an area variance so Boccia hardship criteria will be evaluated.
CRITERION #2
Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.
A.)An area variance is needed to enable to the applicant’s proposed use of the property given the special conditions of the property.
Mathew Baillargeon explained his family has owned the property since 1956. There were once two residential structures on the lot. The older home was demolished in the mid-80s. The road frontage is about 237 feet. The proposal is to use the existing driveway to access both homes.
B.) The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance.
Mathew Baillargeon explained the benefit of this proposal would allow him to be closer to his mother in the event she needed him. It would also allow him to better maintain the property. It would benefit his wife and children, as they would have their own yard to safely play in.
CRITERION #3
The variance is consistent with the spirit of the ordinance.
Mathew Baillargeon explained the Zoning Ordinance consists of protection of water and land. A second driveway would not be constructed; therefore mature trees and earth would not be disturbed. There would be no interruption of wetland flow. This zone is also dedicated to single- family homes, which the proposed home would be. The home would also meet all requirements listed on the dimensions table.
CRITERION #4
Substantial justice is done.
Mathew Baillargeon explained the proposal and request for the relief are in consideration of conservation and well being for his family. This would allow him and his family to live on the land his family has owned since 1956.
CRITERION #5
The value of surrounding properties will not be diminished.
Mathew Baillargeon explained his home would be constructed with new materials similar to the materials used in other homes in the neighborhood. The closest neighbor would be estimated at 400 feet from his home. There will be a wooded buffer between him and his neighbors.
Chairman Shelton opened the floor for public comments at 7:30pm.
No Comments.
Chairman Shelton closed the floor for public comments at 7:30pm.
Mathew Baillargeon explained he had spoken to the abutters and got a general consensus. He provided the Board with the summary letter he initiated.
Vice-Chairman Carr asked if all abutters had been notified of the meeting. Chairman Shelton explained that is part of the hearing process.
Michael Watson asked if rather than getting a Zoning variance if consideration had been given to getting a variance on the frontage and subdividing the lot. Mathew Baillargeon explained Code Enforcement Officer had suggested this would be the best way to go. That thought was based on not having to add an additional driveway. Michael Watson asked what would happen if the applicant decided to sell the house one day. Mathew Baillargeon explained he didn’t see wanting to sell the house. He hoped this is something he would be able to pass down for generations to come.
Chairman Shelton did not feel the applicant could achieve his goal through the requested variance. He felt the applicant should request a variance to permit the construction of a house on a subdivided lot with less than the required frontage. In the R1 Zone, it is one house per lot. He did not feel the Board could grant a waiver from that requirement. He added the Board could not discuss and approve a variance relative to road frontage, because of the way the application had been noticed.
Mathew Baillargeon noted he had spoken with Chairman Shelton about a week ago. He asked Chairman Shelton if there was anything discussed or seen during that time that would have indicated the property needed to have been subdivided in order to build the house. Chairman Shelton noted he prefers to see the properties of all the applicants before the Board so he has an idea of what is being requested.
Michael Watson explained one of the criteria of the variance is that the applicant cannot pursue a reasonable alternative method to obtain the same goal. With this application, there is another way. The applicant can subdivide the property with a variance for frontage and build on the subdivided lot. He suggested it isn’t that the Board is against the use of the property.
Chairman Shelton did not feel the Board could approve what is being requested. He felt the Board could approve a variance for road frontage if the applicant chose to go to subdivision.
CRITERION #1
Vice-Chairman Carr felt the variance would be contrary to the public interest, because the proposal is for something that is not allowed under the zoning ordinance. Michael Watson stated any applicant that seeks a zoning variance is seeking the variance because the proposal is not allowed.
Chairman Shelton noted Section 7.02(B) of the Newmarket Zoning Ordinance specifically states there shall not be more than one residential structure per lot.
Action
Motion: Rose-Anne Kwaks made a motion the variance would be contrary to the public interest because Section 7.02(B) of the Newmarket Zoning Ordinance specifically states there shall not be more than one residential structure per lot.
Seconded: Vice-Chairman Carr
Vote: All in favor
CRITERION #2 – B – 1
Chairman Shelton explained the special conditions of the property include the fact this lot had two residential structures on it; one of which was demolished in the mid-80s. Section 1.05(A)(1) any lawful non-conforming use may continue indefinitely. In the event such use is abandoned for any period of time the reestablishment of this use shall not be permitted.
Action
Motion: Vice-Chairman Carr made a motion the applicant has not met the requirements of criterion 2-B-2 because the second home on the lot was demolished in the mid-80s. Section 1.05(A)(1) any lawful non-conforming use may continue indefinitely. In the event such use is abandoned for any period of time the reestablishment of this use shall not be permitted.
Seconded: Rose-Anne Kwaks
Vote: All in favor
CRITERION #2 – B – 2
Chairman Shelton explained the benefit sought by the applicant could be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance. The applicant can seek a variance for road frontage and then pursue a subdivision. He did not feel this criterion has been met.
Action
Motion: Rose-Anne Kwaks made a motion the applicant has not met the requirements of criterion 2 – B – 2 because the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance. The applicant can seek a variance for road frontage and then pursue a subdivision.
Seconded: Vice-Chairman Carr
Vote: All in favor
CRITERION #3
Chairman Shelton explained the spirit of the ordinance is one residence per lot. The proposal is inconsistent with the spirit of the ordinance. Criterion #3 has not been met.
Action
Motion: Rose-Anne Kwaks made a motion that criterion #3 has not been met because the spirit of the ordinance is one residence per lot. The proposal is inconsistent with the spirit of the ordinance.
Seconded: Vice-Chairman Carr
Vote: All in favor
CRITERION #4
Chairman Shelton felt substantial justice would be done for the applicant, but not for the Town if the variance were granted. He felt Criterion #4 has not been met because the preponderance of the evidence for prior criteria would be an injustice to the Newmarket Land Use Code and Regulations.
Action
Motion: Rose-Anne Kwaks made a motion criterion #4 has not been met because the preponderance of the evidence for prior criteria would be an injustice to the Newmarket Land Use Code and Regulations.
Seconded: Vice-Chairman Carr
Vote: All in favor
CRITERION #5
Chairman Shelton explained the value of surrounding properties would not be diminished. He felt this criterion has been met.
Action
Motion: Rose-Anne Kwaks made a motion the applicant has met criterion #5 because the value of surrounding properties would not be diminished.
Seconded: Michael Watson
Vote: All in favor
Chairman Shelton explained the applicant has not met the five required criteria for the granting of the variance. He explained the applicant has thirty days to appeal the decision of the Zoning Board. He suggested for the applicant to see the Code Enforcement Officer to proceed forward with a variance for road frontage and subdivision.
Vice-Chairman Carr suggested this would be a cleaner way of proceeding. He suggested the Board was not opposed to the general idea, but felt the wrong avenue had been taken to achieve the goal.
New/Old Business
Action
Motion: Rose-Anne Kwaks made a motion the Zoning Board for the Town Council to impose penalty fees for ordinance infringements.
Chairman Shelton noted residents who know there is an infringement that come forward should have a grace period before being imposed a penalty fee.
Brian Donner asked if the Town was concerned with loss of revenue on taxes and water fees.
Rose-Anne Kwaks noted what had brought this up was the first application on tonight’s agenda. She asked for a discussion and request for the Town Council to discuss imposing penalty fees.
Michael Watson noted the Zoning Board often imposes restrictions and asked if there is a procedure in place to follow up and ensure those restrictions are adhered to. Chairman Shelton explained that is the responsibility of the Code Enforcement Officer.
Rose-Anne Kwaks amended her motion to include there be a grace period.
Rose-Anne Kwaks suggested penalty fees along with whatever permit fees would have been assessed originally.
Brian Donner suggested retroactive fees could be assessed. Rose-Anne Kwaks suggested retroactive taxes should also be assessed. Chairman Shelton did not feel retroactive taxes could be assessed legally.
Rose-Anne Kwaks felt it should be a substantial fee so it would hinder residents from doing it illegally.
Vice-Chairman Carr suggested the penalty fees should not be waived, but suggested there could be flexibility on waiving of original permit fees based on individual cases.
Rose-Anne Kwaks suggested it should be the responsibility of the Town Council to waive the fees, not the Town Administrator.
Seconded: Vice-Chairman Carr
Vote: All in favor
Rose-Anne Kwaks explained she would bring this issue to the Town Council on Wednesday night.
Rose-Anne Kwaks noted the Zoning Board had another meeting scheduled for July 27, 2009.
Adjournment
Action
Motion: Rose-Anne Kwaks made a motion to adjourn at 7:56pm.
