Present: Peyton Carr (Chairman), Brian Donner,Dana Glennon (Alternate), Rose-Anne Kwaks (alternate),Dan Vincent (Zoning Administrator), Michael Watson
Absent: Richard Shelton (Vice-Chairman)
Chairman Carr called the meeting to order at 7:02pm.
Pledge of Allegiance
Zoning Administrator Dan Vincent noted the Board members should have received a handbook for local officials published October, 2010.
Chairman Carr noted there have been a couple changes since the last meeting. Wayne Rosa has been appointed as a regular Board member. He welcomed Wayne Rosa as a new member. Vice-Chairman Shelton was not present tonight. Chairman Carr appointed Rose-Anne Kwaks to sit in as a voting member for tonight.
Chairman Carr noted one of the Zoning Board of Adjustment’s regular members has resigned. He appointed Rose-Anne Kwaks to sit in for this meeting. He noted for the benefit of those who had not attended these hearings, the procedure was as follows:
The Petitions would be heard in the order that they were posted in the legal notice; however the Chair/Vice-Chair may change the order with consent of the Board to expedite the public hearing as appropriate.
Each petitioner would be allowed to state why his or her petition should be granted. Following the petitioner’s statement, any abutter or interested part would be allowed to speak for or against the petition. In the interest of getting facts the Board may go around a second time.
The Board may elicit testimony at any point but could not allow any cross discussion.
The Board would ask that the public not repeat themselves or their neighbor’s testimony. If they wish to indicate concurrence, they were welcome to do so.
After hearing all the fact regarding a petition, the Chair/Vice-Chair will close the public hearing and the Board would deliberate and vote on the petition before moving on to the next petition. There may be some cases where a second meeting may be needed to make a decision.
The Zoning Administrator would present the Finding of Fact to the Board prior to the Board making their decision.
The Zoning Board was empowered to legalize the breaking of the Zoning Ordinance and this was not done lightly. State law and local ordinances set out the criteria that must be met in order for this Board to grant a petitioner’s request. It is the responsibility of the petitioner to prove their case so that this Board has justification for granting the requested petition. The minimum requirements are listed in the form received by the Planning and Zoning Office and would be helpful if petitioners proceeded on that basis.
All cell phones and pagers must be turned off.
Zoning Administrator Dan Vincent suggested the Board revisit the application for variance and Special Exception.
Attorney Bruton made a point of order stating he would object with moving forward without someone taking the minutes of the meeting. Rose-Anne Kwaks noted, when the recording secretary is not present, she is able to do the minutes by DVD, as she does with any other meeting she is unable to attend.
Attorney Bruton asked who the Board members were that would be sitting on the application he is representing. Chairman Carr noted he had appointed Rose-Anne Kwaks to sit in as a voting member tonight in Vice-Chairman Shelton’s absence. The five voting members tonight would be Brian Donner, Rose-Anne Kwaks, Chairman Car, Michael Watson and Wayne Rosa.
Review and Approval of Minutes:
October 18, 2010
Chairman Carr noted it has become apparent the Board does not have the full set of minutes. They have the minutes from the discussion on the application before the Board tonight, but the minutes are not a complete set.
Action
Motion: Rose-Anne Kwaks made a motion to amend the agenda not to include the approval of minutes.
Seconded: Brian Donner
Vote: All in favor
Regular Business
Zoning Administrator Dan Vincent asked the Board to revisit the application just to clarify the intent. On the first page of the application, Section 1 is appeal from administrative decision. He assumes the applicant has typed this in as being a decision from the Building Official to be reviewed. He noted this is not an administrative decision. This is a request for a variance. The second application is for a Special Exception. He felt the typed in sentences should not appear on the application. Chairman Carr found this information confusing and hoped Zoning Administrator Dan Vincent knew what was going on. Rose-Anne Kwaks asked if the Board would be getting a copy of that application. Zoning Administrator Dan Vincent noted he had been referring to the original application, which the Board should have received. He added if the typed in language by the applicant remains, he felt it would lead the Board towards an administrative appeal hearing. This is not for administrative appeal, but for a Variance and possible Special Exception. Chairman Carr noted this is the first time he has seen this; he didn’t see it last time. He was unsure whether this was something the Board normally sees. Zoning Administrator Dan Vincent explained the reason the denial for the application came to this Board was for the criteria of the Special Exception for accessory apartment. That was followed up by the applicant presenting, to this Board, the request for Special Exception and Variance request. Chairman Carr noted this was denied. Zoning Administrator Dan Vincent explained the application was denied, which is not the application to the Zoning Board. This language indicates a decision by the Building Official to be reviewed shouldn’t be there, because this is not an appeal for administrative decision. Chairman Carr asked if Zoning Administrator Dan Vincent could have typed in an explanation stating the application was denied because it doesn’t follow 7.03. Zoning Administrator Dan Vincent explained that was denied on the original application the applicant made. Chairman Carr agreed stating that is the reason the applicant has come to the Zoning Board of Adjustment for a variance request.
Attorney Bruton understood the discussion and stated that form was filled out, because the Town of Newmarket uses the same form for administrative appeals and for Variance requests. Zoning Administrator Dan Vincent agreed stating the language in Section 1 on the form should be crossed out because it is irrelevant to the application before the Board for a variance. The language being referred to was not typed in by Attorney Bruton or the applicant. That language is part of the application and appears on every application. Attorney Bruton explained there are two applications; one for the Variance and one for the Special Exception. He asked if it would be helpful to simply cross out the sections that don’t apply in the future rather than leaving them blank as he has done.
Chairman Carr noted he is unsure whether the public session had been left open or closed at the last meeting.
Chairman Carr opened the public hearing at 7:19pm.
Rose-Anne Kwaks believed the public hearing had been left open. She read the public notice into the record:
Vincent Jarosz – Continuation of an application for a Variance, reference Section 7.03(B), of the Newmarket Zoning Ordinance. The applicant requests a Variance to allow consideration for an accessory apartment in an existing detached structure. If the variance is granted, there will be a public hearing immediately followingfor a Special Exception for the accessory apartment itself, reference Section 7.03(B). The lot is located at 10 Langs Lane, Tax Map R5, Lot 62-2, R1 Zone.
Chairman Carr thanked Rose-Anne Kwaks for reading the public notice into the record noting he was going to ask the Zoning Administrator to do that. He commented that he was tasked by the Board to check a couple of things with legal counsel. He took it upon himself to contact the Local Government Center rather than contacting legal counsel. He first spoke with Town Planner Diane Hardy who felt the answer was affirmative for both questions. He then followed that up with speaking with the Local Government Center who felt anything in the zoning regulations could have a variance granted and, specifically, a special exception. The statement “shall be contained within” is within a document that can be granted a variance.
Attorney Bruton responded that he too had done research and agreed with the answers provided by both the Town Planner and the Local Government Center, but wished to submit his response for the record. He explained the word shall does not detract the Zoning Board from granting a variance. The Board can also grant a variance related to the Special Exception. He provided the Board with a copy of his response. He spoke to the spirit and intent of the ordinance and asked the Board to refocus on what that criteria are, which is the spirit and intent of the ordinance. Normally, when he speaks before a Board, he speaks to the spirit and intent of the ordinance, which is usually located at the beginning of the ordinance. Section 1.02(H)(5) states the purpose as providing for a variety of quality living arrangements with an emphasis on quality neighborhoods. There are two components to this; quality living arrangements and maintain a quality neighborhood. He felt the quality living arrangements is echoed in the applicant’s intent to provide an accessory apartment. The emphasis on quality neighborhoods is also coordinated with the request, since the location of the proposed accessory apartment is already constructed. The applicant would rather not have to construct a building to attach the house and the garage. They would like to maintain the quality of the neighborhood. Because the ordinance has a special section on accessory apartments, the ordinance describes the purpose of accessory apartments as: “to ensure adequate provisions of small, affordable residential units for various segments of the population.” It then goes on to say: “to help homeowners utilize excess space; to generate revenue to help offset the cost of homeownership.” He felt the discussion held at the last meeting was not confined to what the ordinance says, but perhaps to what the drafters put when they put this section in the ordinance. He felt what they intended to do is what they did; they created a purpose clause that reflected exactly what they were trying to do, which is provide for affordable residential units for various segments of the population. He also felt they were complying with the general purpose of the ordinance, which is to provide a variety of quality living arrangements within the town. He felt it was pretty clear and that the Board would agree this application would provide a small affordable residential unit for a portion of the community. He also felt the Board would agree the applicant was trying to generate revenue to help with the cost of homeownership. He felt it was clearly spelled out not only with respect to the general ordinance purpose, but also with respect to specific terms have been addressed squarely and completely. He asked the Board to reconsider what the ordinance says noting those are the rules the Board must interpret. If it is determined the application complied with the rules, then they can move forward and ask for the relief. If there is something else in there the applicant cannot meet, the applicant has to consider whether to come before the Board. In this case, the purpose and intent has been clearly identified and he feels the application complies with that. He asked the Board to provide approval of the variance. He asked the Board to realize the applicant is trying to avoid disruption on the property that is completely unnecessary. He asked the Board to keep in mind this is a unique property. When the ordinance defines a single-family residence or dwelling, it provides a blanket statement, but everyone knows every piece of property is different, especially in Newmarket. A single-family residence could be a colonial, cape or ranch style home; some homes may have a breezeway to a garage, others may have a detached garage, and still others may have no garage. He felt this specific property was a unique situation and supported the granting of a variance.
Michael Watson asked how long the garage has been connected to the septic system. Vincent Jarosz answered the garage has been connected since 1991. Rose-Anne Kwaks asked if the applicant had received proper approvals to add that to the septic system. Vincent Jarosz noted at the time the connection had been approved as part of the building permit process by the Building Inspector. Rose-Anne Kwaks asked if there are approved septic system plans. Vincent Jarosz noted approved septic system plans were not required in those days. It is a grandfathered septic system; when he got the permit, he continued the use that was there.
Rose-Anne Kwaks noted she had received a signed letter from Jeanette Fernald, of 6 Candace Lane, an abutter, and would like to read the letter, dated October 19, 2010 into the record:
“Please be advised I do not wish to see renters on private property as requested in the variance being worked on to pay taxes. Close family members, especially older folks okay, no children. Also, I don’t feel storing vehicles for profit should be allowed either. What if there was a fire?”
Rose-Anne Kwaks noted she had also received a phone call from Jeanette Fernald, with concerns about a motorcycle being stored on the property when she got home this weekend.
Rose-Anne Kwaks asked if there were any covenants or restrictions placed upon the property when it was subdivided. Attorney Bruton noted the comment about no children was an interesting comment. He added the purpose states the accessory apartments are not to foster the use by children, so accessory apartments are limited to a one bedroom or efficiency apartment. The applicant has presented this proposal is for an efficiency apartment, not even a one bedroom, so that concern has been taken into account. The application complies with the ordinance. He didn’t see the merit in addressing any of the other issues. The question about covenants and restrictions has nothing to do with the granting of a variance. Often times people might come in stating the development may affect their covenant or restriction, which is a civil matter. Other times, an applicant will present a lot and an abutter will claim that is part of their lot. The Board in those instances would tell the two parties to figure it out amongst themselves; the Board’s job is to look at the ordinance. He did not think there is any issue with whatever covenants or restrictions are placed on this lot.
Rose-Anne Kwaks asked if Attorney Bruton knew of any covenants or restrictions within this subdivision. Attorney Bruton believed there were covenants and/or restrictions. Rose-Anne Kwaks asked if someone owning a piece of property within that subdivision whether it be phase I or phase II is legally obligated to adhere to those covenants or restrictions, and if so, does a homeowner have the legal right to apply for a variance when they’re not legally allowed to do it. Attorney Bruton challenged Rose-Anne Kwaks’ use of the word “legal” stating it was vague and he did not understand what she was asking. He was not going to give anyone in that subdivision legal advice in this context.
Rose-Anne Kwaks referenced an attachment to a VA mortgage stating there are several restrictions. She didn’t discuss all of them, but did single out two out of eleven: 2) Only one single dwelling unit shall be permitted on each lot and from ground level should not exceed two stories in height;” 5) “No trailer, tent, garage, barn or other out buildings erected on a lot shall be used either temporarily or permanently as a dwelling.” She passed the attachment to the mortgage to the rest of the Board. Attorney Bruton explained that restriction does not apply to this property. Rose-Anne Kwaks asked if it had been nullified and how the restriction does not apply. Attorney Bruton explained when the subdivision was created, and this happens a lot with Town’s and conservation easements, carves out a lot, and those restrictions are not applicable to the master lot. He asked the Chairman to step in at this time stating the discussion is no longer about the zoning ordinance and he has given what he feels is in adequate response to the question.
Rose-Anne Kwaks felt it was something, if this comes back to the Board, the Board should be aware of. She noted if the language is read, Vincent Jarosz’s house is included. Attorney Bruton noted Rose-Anne Kwaks is parceling out only a portion of the evidence and she was not providing the Board all of the documents or the deeds, particularly the one to this property.
Chairman Carr closed the public hearing at 7:34pm.
Michael Watson asked Zoning Administrator Dan Vincent what it would take to consider this a separate residential unit. Zoning Administrator Dan Vincent explained a residential unit would need to maintain at least one person, with separate kitchen and bathroom facilities. Michael Watson asked if the residential unit would need to have its own septic system, in order to be considered a separate residential unit. Zoning Administrator Dan Vincent answered a separate septic system is not necessary to consider a residential unit as separate. He explained there are larger subdivisions that have shared septic systems. Chairman Carr explained the proposal is for an efficiency apartment, which is a residence. The only thing that identifies it as anything different is because it is being called an accessory apartment. Michael Watson asked if this was a duplex, whether each unit would be considered a separate residence. Rose-Anne Kwaks and Chairman Carr answered each unit of a duplex is considered a separate residence.
Chairman Carr noted, although this doesn’t pertain to Newmarket, his daughter first lived in an efficiency apartment in New York City that was less than half the size of this. That was considered a condominium and she had owned it. He felt Newmarket’s documents recognize this unit as an accessory apartment, which is very specific. Zoning Administrator Dan Vincent referred back to the definition of dwelling units in terms of single family and multi-family. He noted the adequacy of the septic design is taken into consideration during an accessory apartment application and approval.
Michael Watson noted there have been instances where residents have built garages, with the intent of getting approval for an accessory apartment and then waiting a year for the garage to become part of the residence and then came back to the Town for an accessory apartment approval. Zoning Administrator Dan Vincent agreed that has happened and did not feel it was decided upon not necessarily through the Zoning Board or Planning Board or any of Newmarket’s documents. Michael Watson explained that would be against the spirit of the accessory apartment ordinance, because it was created new. Zoning Administrator Dan Vincent explained the problem was caused with the wording of existing structure. When the committee looked back at the ordinance itself, they saw some complications with the attached structure wording. There were instances where an attached garage was built in the 1970s, with additional space above that was not necessarily part of the residential structure. The applicant received a permit and approval until the committee reviewed the ordinance and determined the stand alone garage and accessory apartment over the garage was no longer permitted.
Michael Watson noted a resident could build an attached garage and come back a year later requesting approval for an accessory apartment. Zoning Administrator Dan Vincent agreed. Rose-Anne Kwaks disagreed noting it states in 7.03(B) that the accessory apartment must be contained entirely within the single-family residence. There have been approvals granted on that scenario prior to 2004 when the rules changed due to the amount of applications and approvals residents were receiving for that scenario.
Michael Watson noted the Zoning Board approved an accessory apartment use for a woman last year whose husband ran a dental lab. Rose-Anne Kwaks noted that had been an existing building. Michael Watson noted the only difference between that case and this one before the Board was about 15 feet of attached structure. This proposal does not have an attached garage, whereas the other application had the attached garage. Rose-Anne Kwaks noted it had been in an existing footprint of the house. Michael Watson noted the accessory apartment had been in the garage. Rose-Anne Kwaks noted that is how the house was built. Michael Watson noted based on Zoning Administrator Dan Vincent’s explanation, if a resident built a garage then came back to the Board a year later, the Board would not consider the garage or the space within it to be part of the house. Zoning Administrator Dan Vincent explained in the past, the wording “existing structure” complicated the ordinance. He explained, in the past, both scenarios have happened; where accessory apartments had been approved in an attached and detached garage. Michael Watson felt the Board could approve this application, because the Board had approved applications for accessory apartments in attached and detached garages. Zoning Administrator Dan Vincent did not feel the Board could approve an application based upon the fact the Board had approved a similar application in the past. Chairman Carr agreed noting every variance is its own special case.
Wayne Rosa asked, if he went to the Town tomorrow to build a house with a garage attached to the house and an apartment above it, would he be able to do that. Zoning Administrator Dan Vincent answered it would depend upon what the zoning allowed; if accessory apartments were allowed with a Special Exception, Wayne Rosa would need to get a Special Exception to permit the accessory apartment use. Wayne Rosa asked how most of this discussion applies to the application before the Board. Michael Watson felt the Board would be burdening the applicant considering other applicants have received different treatment in the past. He felt an argument could be easily made that building an apartment over the garage would be within the detached single-family residence. He noted it would depend on how single-family residence would be defined. Chairman Carr asked if Michael Watson was confused between a detached and attached garage. Michael Watson explained he was not confused about anything. His concern stemmed from what was done in the past and the fact the ordinance does not state anything about building a garage and coming back in a year for approval for an accessory apartment, which clearly would be in defiance of the purpose of the ordinance. He felt the Board might be burdening the applicant unfairly. He stated he is still troubled by the fact the Board approved an accessory apartment for an applicant last year whose garage was detached and were putting so much emphasis on the fact this garage is not attached. He noted the applicant could come to the Board to attach the house with the garage. He did not see why the Board wouldn’t grant a variance for that. Brian Donner explained the connection structure would be within the setback. Michael Watson explained the Board gives variances for setbacks all the time. Zoning Administrator Dan Vincent understood the conversation, but did not feel it was appropriate to indicate that because the Board granted a variance a year ago this one should be granted, as well. Michael Watson understood that reasoning, but suggested if the applicant wanted to build a breezeway, so he didn’t have to walk out in the snow to get to his garage, the Zoning Board would grant that variance. If the applicant built the breezeway, he could then come back to the Board again for a Special Exception for the accessory apartment and the Board would have just caused the applicant unnecessary hardship. Rose-Anne Kwaks explained unnecessary hardship is nearly impossible to meet. If a property owner has reasonable use of their land, then there is no unnecessary hardship.
Zoning Administrator Dan Vincent referenced the definition of a self-contained residential unit. He explained a residential unit is complete with its own kitchen and bathroom. Rose-Anne Kwaks explained an accessory apartment must be contained within a residential structure. Zoning Administrator Dan Vincent recommended the Board have a definition added to the zoning ordinance, which tells the Board what is existing and what isn’t existing. He suggested the Board must determine at this point what an existing structure is. Rose-Anne Kwaks explained an accessory apartment must be contained within an existing single-family residential structure. She noted it must be within the existing family home. Michael Watson explained that is why the applicant is before the Board requesting a variance. Variances are requested to provide relief from a zoning code. Rose-Anne Kwaks referenced the language of the ordinance, which states specifically the accessory apartment shall be contained within a single-family residence. Chairman Carr noted the Board could grant a variance for that. Rose-Anne Kwaks explained the intent of the ordinance was to keep scenarios like this from happening, even with an attached breezeway.
Michael Watson noted the Board was in error last year in granting the accessory apartment over the garage, if the ordinance is to be interpreted the way Rose-Anne Kwaks is interpreting it. Brian Donner explained last year’s application had been for an accessory apartment over an existing garage. Chairman Carr noted this discussion is not applicable to this application and asked for the discussion to cease.
Chairman Carr felt there were contrary situations. Section 7.03(B) states how accessory apartments are allowed and then there is the overall zoning ordinance, which sets up districts to determine what is allowed. When the zoning was initially drawn up there were several parcels that were not compliant. The question is whether the Board wants to make something more non-compliant, by granting a variance, or whether to try to uphold the intent of the original zoning. The applicant’s property is located within the R1 Zone. There are a number of reasons this property is already non-conforming. Granting of this variance would make this lot more non-conforming. Brian Donner referenced Section 7.03(B)(5) stating there would be no exterior changes that significantly alters the appearance of the structure from the street. He suggested there would be windows added. Michael Watson suggested those changes would not be visible from the street. Rose-Anne Kwaks suggested the changes would be visible from Candace Lane. Michael Watson noted he doesn’t find the issues of non-conformance especially weighting in this application.
CRITERION #1
Granting the variance would not be contrary to the public interest.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact that the proposed use would not alter the essential character of the neighborhood and by granting the variance it would not be contrary to the public interest.
Seconded: Brian Donner
Vote: 5-0 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Aye
Wayne Rosa Aye
CRITERION #2
If the variance were granted, the spirit of the ordinance would be observed.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact the spirit of Ordinance 7.03(B) which allows for one accessory apartment that shall be permitted per detached single family residence and that accessory apartment shall be contained entirely within the detached single family residence. By granting the applicant’s request to permit an accessory apartment located within a detached structure would violate the ordinance basic zoning objectives for accessory apartments and thereby, denying the granting of an accessory apartment in a detached structure the spirit of the ordinance would be observed.
Seconded: Brian Donner
Chairman Carr noted the wording of the motion is a little confusing. Rose-Anne Kwaks agreed stating, by voting in the affirmative, Board members would be stating that they agree with the statement of fact; that it is violating the ordinance basic zoning objectives. Michael Watson stated an “Aye” is a no vote. Chairman Carr followed up by stating an “Aye” vote would be affirming criterion #2 has not been met. Rose-Anne Kwaks agreed. She noted it is not in a single-family existing structure. In her mind this has not been met.
Vote: 3-2 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Nay
Wayne Rosa Nay
CRITERION #3
Granting the variance would do substantial justice.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact granting the variance would do substantial justice because the variance would not cause any harm to the general public that would not outweigh the benefit to the property owner.
Seconded: Brian Donner
Chairman Carr noted by voting in favor of this, criterion #3 has been met.
Vote: 5-0 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Aye
Wayne Rosa Aye
CRITERION #4
Granting of the variance will not diminish the value of surrounding properties.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact that the approximate 1.2 acre lot located at 10 Langs Lane with the primary residence and five additional structures would not diminish the value of surrounding properties, thereby criterion #4 has been met.
Seconded: Brian Donner
Vote: 5-0 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Aye
Wayne Rosa Aye
CRITERION #5
Owningspecial conditions of the property that distinguishes it from other properties in the area, denial of the variance would result in unnecessary hardship because:
No fair and substantial relationship exists between the general public purpose of the ordinance provision and the specific application of that provision to the property.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact that there is a substantial relationship between the general public purpose of the ordinance provision and the specific application of that provision that unduly and in a marked degree conflicts with the ordinance, such that it violates the ordinance’s basic zoning objective. As such, criterion #5(A)(1) has not been met.
Rose-Anne Kwaks explained if members voted “aye” for this motion, they would be agreeing criterion #5(A)(1) has not been met.
Seconded: Michael Watson
Richard Shelton, of 23 Packers Falls Road, arrived at the meeting and made a point of order noting he is the current Vice-Chairman of the Zoning Board of Adjustment. He has submitted an application for resignation, but the Town Council has not accepted it as of yet and he is, therefore, is still a member of the Zoning Board of Adjustment.
Vote: 3-2 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Nay
Wayne Rosa Nay
Action
Motion: Rose-Anne Kwaks noted having not met the five prongs of the criteria, she made a motion to not grant the applicant’s request Section 7.03(B) of the Newmarket Zoning Ordinance for a variance to allow for an accessory apartment in an existing detached structure.
Attorney Bruton asked if the Board had voted on criterion #5(B). He believed the Board has only voted on criterion #5(A). Chairman Carr asked to continue with the reading. He noted Attorney Bruton’s statement is correct.
The proposed use is a reasonable one.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact the proposed use is a reasonable one because if the owner is currently making a reasonable use of the property that fact is conclusive evidence that a hardship does not exist. Therefore, criteria #5(A)(2) has not been met.
Seconded: Brian Donner
Chairman Carr asked what the definition of reasonable use is. Rose-Anne Kwaks explained, if the property owner can use the property as stated in zoning, then they have reasonable use of his property. This property is zoned for a residential home; the applicant has a residential home on the property and has reasonable use of the property. She stated since they did the government standards the laws have all changed. This is extremely hard to prove hardship now.
Michael Watson noted the applicant did not have to prove both (A) and (B) of criterion #5. Rose-Anne Kwaks agreed. Chairman Carr noted if either one of the prongs of (A) does not pass, the Board can then discuss (B). Attorney Bruton noted the Board is discussion criterion #5(A)(2).
Vote: 3-2 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Nay
Wayne Rosa Nay
Zoning Administrator reread the votes for clarification.
Rose-Anne Kwaks noted with a vote of 3-2, criterion #5(A)(2) has not been met.
Explain how, if the criterion in subparagraph (A) are not established, an unnecessary hardship will deemed to exist if, and only if, owning to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, a variance is therefore necessary to enable reasonable use of it.
Rose-Anne Kwaks questioned why the Board was discussing (B). Michael Watson explained criterion #5(A) failed so the Board has to discuss #5(B).
Rose-Anne Kwaks read: “Explain how, if the criterion in subparagraph (A) are not established.” Chairman Carr noted the criteria in subparagraph (A) were not established. Rose-Anne Kwaks thought by voting “aye” on criterion #5(A)(2) the Board agreed hardship had not been met. Chairman Carr explained (1) and (2) are part of #5(A). Rose-Anne Kwaks felt the Board had already established a hardship does not exist. Chairman Carr answered the Board had only discussed #5(A). Because the Board was unable to find a hardship in #5(A), the Board needs to discuss #5(B) to see if hardship exists under this criterion.
Chairman Carr asked the Board what the special conditions of this property were that would make it so without the variance the applicant would be unable to make reasonable use of the property. Michael Watson noted the garage is not attached to the house.
Action
Motion: Rose-Anne Kwaks made a motion and statement of fact that it is not enough to show that the proposed use is reasonable. The applicant must establish that there is no other reasonable use of the property that would comply with the zoning ordinance. Even though the restrictions significantly inhibit the value of the property, the standard is not met if it can be put to reasonable use. If the owner is currently making a reasonable use of the property that fact is conclusive evidence that hardship does not exist.
Rose-Anne Kwaks referenced the government standard 124-NH noting it is difficult to get a hardship on any property under the new law. Michael Watson noted it might be difficult, but not impossible.
Seconded: Brian Donner
Chairman Carr noted his observation is this property has a number of storage buildings that currently exist, which to the best of his knowledge would not have been allowed unless they were grandfathered. Rose-Anne Kwaks noted the applicant has a single-family residential unit in a residentially zoned district. Because the applicant is making reasonable use of the property, there is no hardship.
Wayne Rosa asked if the hardship would be not connecting the buildings. Rose-Anne Kwaks explained it’s clearly written, as long as the applicant has reasonable use of his property, no hardship is present. She felt the applicant had reasonable use of his property. The applicant has a single-family residence and five other buildings that are being used for a variety of purposes. Chairman Carr noted the applicant is trying to get additional use of the property. Rose-Anne Kwaks agreed stating the applicant already has reasonable use of the property.
Michael Watson thought the applicant only needed to prove the requested use was reasonable. Rose-Anne Kwaks answered the applicant already has reasonable use of his property. Chairman Carr explained that is why the Board went on to discuss criterion #5(B) which is another way to try to establish the hardship criteria. He noted this seems to be more strict that #5(A) was.
Wayne Rosa asked what an “aye” vote meant. Rose-Anne Kwaks explained an “aye” vote means the Board member is in agreement with the statement of fact that a hardship does not exist. Chairman Carr noted in order to grant a variance, the applicant must prove there is a hardship.
Vote: 4-1 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Aye
Wayne Rosa Nay
Chairman Carr asked if Wayne Rosa was satisfied with his decision. Wayne Rosa answered he was; he believed a hardship does exist.
Action
Motion: Rose-Anne Kwaks noted having not met the five prongs of the criteria, she made a motion to not grant the applicant’s request Section 7.03(B) of the Newmarket Zoning Ordinance for a variance to allow for an accessory apartment in an existing detached structure. The Lot is located at 10 Langs Lane, Tax Map R5, Lot 62-2, R1 Zone.
Seconded: Michael Watson
Rose-Anne Kwaks noted the applicant did not meet all the criteria required, therefore the Board cannot grant a variance.
Wayne Rosa asked for clarification on this vote. Michael Watson explained the applicant has not met the required criteria for variance approval. Even though he and Wayne Rosa had voted against a couple of the motions, the fact remains the Board, as a whole, has determined not all criteria have been met.
Vote: 5-0 Motion carries
Brian Donner Aye
Rose-Anne Kwaks Aye
Chairman Carr Aye
Michael Watson Aye
Wayne Rosa Aye
Chairman Carr explained the application has been denied. He referenced RSA 677:2 speaks to the rehearing process. The applicant has 30 days to appeal.
Attorney Bruton noted the applicant would likely appeal. He felt there was confusion of the law, as well. In light of the variance decision, the applicant will withdraw the application for Special Exception at this time.
Zoning Administrator Dan Vincent asked if the Board would like to comment on Richard Shelton’s comments made earlier. Rose-Anne Kwaks noted the Board would speak about it. Zoning Administrator Dan Vincent noted Rose-Anne Kwaks’ statement earlier about Richard Shelton no longer being a member of the Zoning Board might have been made prematurely. He noted it is not Rose-Anne Kwaks’ position to inform the Board of such matters. Especially considering the comments made by Richard Shelton earlier this evening.
New Business/Old Business
Rose-Anne Kwaks noted, in light of the Council actions the other evening and the support of other members, she reluctantly felt she had to submit her resignation to the Zoning Board of Adjustment.
Michael Watson noted he has also decided to resign in support of the Chairman, Vice-Chairman and Rose-Anne Kwaks. In reality, the resignation of the more senior members of the Board will leave the Board in a weakened condition. To have a successful Zoning Board there needs to be a solid base of knowledgeable people in addition to new people. That was the goal of the Board in requesting the appointment of Rose-Anne Kwaks as a full member to the Zoning Board; the Town Council mishandled that request, which has resulted in a loss of the Board’s most experienced members. As a result, the Board may well struggle for sometime, he chooses not to participate in that struggle. He would be pleased to serve again in the future if better relations between the Town Council and Zoning Board of Adjustment can be reestablished.
Chairman Carr recognized Dana Glennon.
Dana Glennon, of 2 Beech Street, noted he is an alternate of the Zoning Board. He noted he has had extreme pleasure serving on this Board as the Chairman, Vice-Chairman, member and alternate. He agreed the Town Council has missed an opportunity to put experienced people on Boards. He submitted his resignation to the Zoning Board as an alternate in support of the Chairman, Vice-Chairman, Rose-Anne Kwaks and Michael Watson. He noted he resigns with a heavy heart.
Chairman Carr noted on November 3, 2010, the Newmarket Town Council acted on an agenda item to fill a vacancy on the Zoning Board of Adjustment. As the Chairman, he had submitted emails to the Town Council in support of one of the Board’s alternate members to fill the position based on experience, knowledge of Zoning Board procedures and the dedication to the job by that individual. Zoning Board of Adjustment Vice-Chairman Richard Shelton who has served the Board for many years including several terms as Chairman had also endorsed the same individual. During the previous filling of an opening in July 2010, the Zoning Board had also endorsed this same individual to fill a vacant position. At neither time did the Town Council approve the endorsed application. Instead, someone with no previous Zoning Board experience was selected. He never received any explanation as to why the Town Council acted as they did with the exception of a statement made during one of the meetings of “needing new blood.” In my recommendation emails, he had indicated how difficult Zoning Board rules and procedures can be and had pointed out how important it was to have the most highly qualified individuals appointed to this Board. He also noted three alternate positions are intended to allow new people to become acquainted with the rules and procedures before being appointed to a regular position. The Newmarket Town Council have chosen to disregard the recommendations made by the Chairman and Vice-Chairman of the Zoning Board of Adjustment to get the most qualified members appointed, without giving any reason, he concluded the Town Council has lost confidence in the current Board and its leadership. After agonizing over this apparent lack of respect and wanting to do what is best for the Town of Newmarket, he has also decided to resign.
Chairman Carr apologized to Wayne Rosa. Michael Watson noted this decision has nothing to do with Wayne Rosa, who was appointed to the open position on the Board.
Adjournment
Action
Motion: Rose-Anne Kwaks made a motion to adjourn at
