Present: William Barr,Robert Daigle, Diane Hardy (Zoning Administrator), Chris Hawkins (Chairman), Gerry O’Connell, Wayne Rosa (Vice-Chairman)
Absent:
Chairman Hawkins called the meeting to order at 7:01 p.m.
Pledge of Allegiance
Review and Approval of Minutes: 02/22/11
February 22, 2011
Wayne Rosa explained Wickson had been misspelled on page 9.
Zoning Administrator Diane Hardy discussed her changes.
Chairman Hawkins noted on page 11, line 8, the apartment had sustained water damage as a result of the fire in the unit upstairs, but the fire had not damaged the apartment itself.
Action
Motion: Robert Daigle made a motion to accept the minutes from the February 22, 2011 meeting as amended.
Seconded: Wayne Rosa
Vote: All in favor – Bill Barr abstained
Bill Barr abstained from voting because he had not been present at the meeting.
Regular Business
Kevin Burke – Continuance of the following applications:
Variance reference Section 2.03(B)(1) Permitted Uses M3 Zone, of the Newmarket Zoning Ordinance, to allow multi-family housing.
Variance reference Section 3.03(B) Dimensions Table Residential Density, of the Newmarket Zoning Ordinance, to allow three dwelling units.
The lot is located at 206 South Main Street, Newmarket, NH, Tax Map U4, Lot 109, M3 Zone.
Chairman Hawkins explained this application was continued to address the variance criteria, only because the Board has already dealt with the appeal from administrative decision at the last meeting.
Kevin Burke noted he had been asked by the Board to think about what distinguished his property from other properties in the neighborhood. He explained this third unit is original. The other homes in the area were all single-family homes that have been remodeled into multi-units. There is a graveyard adjacent to the property. The main entrance to this graveyard is on his property. No other property in this area shares a driveway with the graveyard entrance. No other property in the area has a buffer that matches this property. There is a field on one side of the property and a historic gravesite on the other. The third unit cannot be accessed from any part of the main house. The apartment ceased to be utilized, because of deaths in the family, not abandonment. There is an empty electric meter on the side of the house specific to this apartment. The restrictions placed on this property are not equally shared by all property owners in the area. This property is located close to wetlands, which means no new buildings or homes will be built behind the house. This property and the proposed use cannot conform to the zoning, because putting in a daycare or another commercial business would diminish the property values of other surrounding homes due to traffic and the size of the lot that would be needed. In addition, lights, signage, and additional parking would also be needed. The proposed use is a realistic use for the space due to the neighborhood the property is located in. This proposal would reuse existing space as it had originally been built to use. Nothing is changing within the building or with the building’s appearance; there is only an upgrade of what is already there. The zoning ordinance as written does not provide a reasonable use for the space downstairs. The language of the ordinance is contradictory, because, by following the permitted uses, not only would property values diminish, but there would also be commercial use in a primarily residential district, which would increase traffic flow and disturb neighbors. This proposed use is reasonable for this area. If the variances were denied, this would result in a loss of his property rights. He explained $8,000 has already been invested in this project, while moving forward on the project with permission by the Building Inspector. There has been significant heat loss due to lack of insulation, because work has been stopped. This project is keeping with the purpose of the zoning ordinance by trying to provide affordable housing and help with the cost of living. The hardship placed on this application is great. There is a misunderstanding between the Building Inspector and the applicant. There is also disconnect between the purpose of the zoning ordinance and the way it is being applied to this proposal. There are nine egresses in this building; and three are specific to this apartment. There isn’t another house in Newmarket with nine individual egresses. This in part, makes this property very different from other properties not only in the area, but also within the Town.
Vice-Chairman Rosa noted the purpose of the M3 District suggesting it would be difficult to conform based on the property size and the location of the property. Having wetlands directly behind this property prohibits any possible expansion. This is a classic example of using what already exists. Kevin Burke agreed stating the wetlands are about fifty feet from the edge of his garage. There was a school proposed in that area at one time, but due to the amount of wetlands, that project became impossible.
Vice-Chairman Rosa stated the permitted uses in the M3 District would require additional parking. This expansion would be prohibited because of the wetlands. Kevin Burke noted in addition, there is the historic graveyard on one side and a field with ledge on the other. Vice-Chairman Rosa felt these circumstances prohibited use of the property for what the ordinance intends.
The Board continued a lengthy discussion about what distinguished this property from other properties in the district. Discussion included the location of the property and the physical aspects surrounding the property (wetlands, the graveyard, the field of ledge).
Kevin Burke explained his wife’s grandmother was, at one time, taxed for the graveyard. The entrance to the graveyard is shared with his driveway. His wife’s uncles used to cut the grass for the graveyard. He explained he went ahead with this project in good faith and with the proper approvals until a few weeks ago when the Building Inspector ceased any further work on the project.
The Board continued their discussions, referencing the Zoning Criteria, the Zoning Board Handbook and specific sections of Zoning Ordinances, Variances, and Equitable Waivers.
Kevin Burke explained this was a three family unit 80 years ago. The third unit became unoccupied, because of deaths in the family, not because the use was no longer there. He provided the analogy of a family having two bedrooms in an attic. When the children moved out and the bedrooms were no longer needed, the bedrooms would not cease to exist, because they are not being used, the bedrooms would still be there. This use was not abandoned; it just wasn’t used for a period of time, because of the expense to renovate the space and the lack of need for occupancy at the time. When his wife’s aunt passed, the taxes doubled. He looked at the table of permitted uses seeing studio as a permitted use and went ahead getting the necessary permitting to renovate the existing studio apartment. The Building Inspector had granted the permitting for work to be done and had made a mistake by doing so. This mistake has caused a financial hardship not only in the funds put into the project so far, but also with the heat loss due to not being able to complete the project.
Robert Daigle agreed the apartment seemed to be original to the building and asked if this could be considered a unique aspect of the building. Other buildings in the area had been single-family homes converted into duplexes or multi-family buildings. Zoning Administrator Diane Hardy noted according to the tax cards, the footprint of the building has not changed since 1977 (as far back as the tax cards go due to the Town Hall fire).
Gerry O’Connell explained there is sufficient evidence to support the third unit was there at some point. This distinguishes the property from other properties in the area. He felt there were several aspects of this property and proposal that distinguished it from the other properties in the area as discussed earlier in the meeting.
Vice-Chairman Rosa noted the applicant couldn’t abide by the ordinance, because there is no way to build additional parking for what would be required for commercial use. Kevin Burke agreed adding there is an empty part of this building he is trying to reuse in an adaptive manner. He and his wife are trying to update what is there in order to generate income to allow him to afford the increase in taxes. This apartment would be small and would accommodate one person. The proposed square footage is 450 square feet. This would not impact the neighbors or town negatively, and all of his abutters support this proposal.
Gerry O’Connell explained commercial uses sometimes require two access/egress points. There is only one entrance to this lot, which could prohibit any commercial use. Zoning Administrator Diane Hardy noted the only other option would be to create a loop road and due to the ledge in the field, the cost would most likely be prohibitive.
Gerry O’Connell felt this was a reasonable use. Zoning Administrator Diane Hardy explained the duplex use for this property is grandfathered, even though it is not a permitted use in this zone. Kevin Burke discussed the buildings in the area explaining there are a number of buildings with multiple units (from duplexes to 16-unit buildings), but this would be the only three-unit building.
Zoning Administrator Diane Hardy summarized the Board’s discussions stating the special conditions of the property include: the size of the lot (less than ½ an acre); shape and configuration of the lot; no land available for expansion of the lot; there are wetlands to the rear, graveyard to one side and a field of ledge to the other. These special conditions of the property distinguish it from other properties in the area.
Variance reference Section 2.03(B)(1) Permitted Uses M3 Zone
CRITERION #1
Granting of the variance will not be contrary to the public interest.
Action
Motion: Robert Daigle made a motion the requested variance to allow multi-family housing would not be contrary to the public interest because there are letters from abutters in support of the application, this would be a good use of the property, the use would complement the neighborhood uses, and there is historical evidence this space was an apartment in the past. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Gerry O’Connell
Vote: All in favor
CRITERION #2
Granting of the variance would observe the spirit of the ordinance.
Action
Motion: Gerry O’Connell felt granting the variance would observe the spirit of the ordinance because the M3 District is a mixed-use zone which allows limited commercial use mixed with residential use. In the purpose statement of the zoning ordinance it states: “this is to be accomplished to the extent possible through the reuse of existing buildings within the district.” This is an adaptive reuse and rehabilitation of existing space. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Bill Barr
Vote: All in favor
CRITERION #3
Granting the variance will provide substantial justice.
Action
Motion: Vice-Chairman Rosa made a motion that granting the variance will provide substantial justice because the benefit to the applicant is outweighed by any negative impact to the abutters and neighborhood. There would be no negative impact to the abutters, neighborhood or town. The apartment would be small and not suitable for school age children. The apartment would be brought up to building life safety codes, which would benefit the homeowner, abutters and town as a whole. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Robert Daigle
Vote: All in favor
CRITERION #4
By granting the variance, the values of surrounding properties will not be diminished.
Action
Motion: Bill Barr made a motion granting of the variance will not diminish the values of surrounding properties because there are other multi-family uses in the area. The improvements to the space will only enhance this building, and therefore enhance the values of all abutting properties. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Gerry O’Connell
Vote: All in favor
CRITERION #5
Owing to special conditions of the property which distinguish 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 to the property because. .
Action
Motion: Vice-Chairman Rosa made a motion no fair and substantial relationship exists between the general purpose of the ordinance provision and the specific application to the property because of the close proximity to the wetlands, the size and dimensions of the lot, the location of the adjacent historic graveyard, and the adjacent field of ledge. Due to these site conditions, the applicant cannot conform to the purpose of the M3 District and the restrictions applied do not serve purpose in a fair and substantial way. He also included the factual findings of the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Bill Barr
Vote: In favor: Bill Barr, Gerry O’Connell, Vice-Chairman Rosa
Opposed: Robert Daigle, Chairman Hawkins
The proposed use is reasonable.
Action
Motion: Vice-Chairman Rosa made a motion the proposed use is reasonable because granting the variance will allow the homeowner use of existing space within the home. The proposed use will not alter the essential character of the neighborhood and no exterior changes will be made. There are many multi-family units in this neighborhood. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Gerry O’Connell
Vote: All in favor
Action
Motion: Robert Daigle made a motion to grant the requested variance reference Section 2.03(B)(1) Permitted Uses M3 Zone of the Newmarket Zoning Ordinance because all criteria have been met.
Seconded: Gerry O’Connell
Vote: In favor: Bill Barr, Robert Daigle, Gerry O’Connell, Vice-Chairman Rosa
Opposed: Chairman Hawkins
Variance reference Section 3.03(B) Dimensions Table Residential Density
CRITERION #1
Granting of the variance will not be contrary to the public interest.
Action
Motion: Gerry O’Connell made a motion the variance would not be contrary to the public interest because it would not alter the essential character of the neighborhood.
Seconded: Vice-Chairman Rosa
Vote: All in favor
CRITERION #2
Granting of the variance would observe the spirit of the ordinance.
Action
Motion: Gerry O’Connell made a motion the variance would observe the spirit of the ordinance because there would be no threat to public health, safety or general welfare. He included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting. The M3 District is a mixed-use district.
Seconded: Robert Daigle
Vote: All in favor
CRITERION #3
Granting the variance will provide substantial justice.
Action
Motion: Bill Barr made a motion the variance would provide substantial justice because allowing the building to be brought up to current life safety codes would benefit the homeowners, abutters, and town as a whole.
Seconded: Gerry O’Connell
Vote: All in favor
CRITERION #4
By granting the variance, the values of surrounding properties will not be diminished.
Action
Motion: Robert Daigle made a motion granting the variance will not diminish the value of surrounding properties because the use is a reasonable one and allowing the building to be brought up to current life safety codes will benefit the homeowners, abutters and town.
Seconded: Gerry O’Connell
Vote: All in favor
CRITERION #5
Owing to special conditions of the property which distinguish 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 to the property because. .
Action
Motion: Vice-Chairman Rosa made a motion there is no substantial relationship between the general public purpose of the ordinance provision and the specific application to the property because due to the close proximity to the wetlands, the size of the lot, the abutting graveyard and field of ledge the applicant cannot conformto the purpose of the M3 District.
Seconded: Gerry O’Connell
Vote: In favor: Bill Barr, Gerry O’Connell, Vice-Chairman Rosa
Opposed: Robert Daigle, Chairman Hawkins
The proposed use is reasonable.
Action
Motion: Robert Daigle made a motion the proposed use is reasonable because granting the variance will allow the homeowner use of existing space within the home. The proposed use will not alter the essential character of the neighborhood and no exterior changes will be made. There are many multi-family units in this neighborhood. He also included the factual findings from the February 22, 2011 Zoning Board of Adjustment meeting.
Seconded: Bill Barr
Vote: All in favor
Action
Motion: Robert Daigle made a motion to grant the variance reference Section 3.03(B) Dimensions Table Residential Density because all criteria have been met.
Seconded: Bill Barr
Vote: In favor: Bill Barr, Robert Daigle, Gerry O’Connell, Vice-Chairman Rosa
Opposed: Chairman Hawkins
The Board recessed from 8:16 p.m until 8:19 p.m.
Cheney Property Management – Continuance of two variances. The first is reference Section 2.05 of the Newmarket Zoning Ordinance to allow a mix use of nonresidential and residential development in the B1 zone and the second variance is reference Section 3.04 to allow a 9.9-foot front yard setback where 15 feet is required and to allow an 8.2-foot side setback where 25 feet is required. The lot is located at 54/56 Exeter Road, Tax map U4, Lots 12 & 13, B1 Zone. Continued from February 7, 2011.
Cheney Property Management – Continuance of a variance request reference Section 7.02(C)(3) of the Newmarket Zoning Ordinance. The applicant requests a variance to permit six residential units on the second floor of a proposed mixed-use building. Maximum density in the B1 Zone for a mixed-use development is one unit per acre. The lots, which will be merged when this development goes before the Planning Board would be .917 acres. The proposed lot is grandfathered for three units. Granting of this variance would allow for the additional three units. The lot is located at 54/56 Exeter Road, Tax Map U4, Lots 12 & 13, B1 Zone.
Chairman Hawkins explained, at the last meeting, there had been a question raised as to whether Gerry O’Connell would have a conflict of interest in this application. He referenced RSA 673:14 and RSA 500-A:12 stating he did not feel there would be a conflict of interest in Gerry O’Connell’s participation in this application. There is no personal interest in this application. He noted RSA 673:142 discusses if there is uncertainty among the Board, the Board can take a vote.
Gerry O’Connell explained the only conflict of interest that may occur is professionally. He is a real estate agent and would not want to be excluded from being considered as a possible agent to represent this property if it gets developed. He raised this issue because it had been raised at the Town Council when his application for the Zoning Board of Adjustment had been reviewed. After having read the rules and code of ethics, which governs this Board, he did not feel there would be a conflict of interest in participating in this application.
Action
Motion: Robert Daigle made a motion there would be no conflict of interest by allowing Gerry O’Connell to perform his duties as a member of the Zoning Board of Adjustment by listening and voting on this application.
Seconded: Vice-Chairman Rosa
Vote: All in favor
Attorney Mark Beliveau, representing the applicant, noted he agreed with the Board’s decision.
Chairman Hawkins asked if this application had been noticed appropriately. Zoning Administrator Diane Hardy noted it had been.
Attorney Mark Beliveau noted he is representing Cheney Property Management, Corp. This application would consolidate two lots into one lot. Both lots have frontage on Route 108. The proposal includes removing both residential structures and eliminating the access points which currently serve the lots off Route 108. This proposal includes the construction of one building and one access point. There would be 53 on-site parking spaces, which is more than the required number of parking spaces for this design. The building would be depot style architecturally. The proposed use of the building is compatible with the purpose of the B1 Zone and the Master Plan. The first floor would be a mix of commercial uses, with six residential units on the second floor. He passed around the proposed site plan. The five-foot roof overhang and patio of the building will encroach into the front setback. The enclosed dumpster and recycling will encroach into the side setback. He passed around proposed renderings of the building. The driveway access for this building will be shared with the business park. He discussed the properties and the elevation of the lot.
Variance reference Section 2.05
CRITERION #1
Granting the variance would not be contrary to the public interest.
Attorney Mark Beliveau noted the New Hampshire Supreme Court asks Zoning Boards to consider whether the proposal would alter the essential character of the neighborhood and whether it would negatively affect the public health, safety and general welfare. This property is located in an area where there are many mixed multi-family and commercial uses. The proposed design of the building would be an aesthetically pleasing depot style building, eliminates two access points along Route 108, and would provide additional tax revenue for the Town.
CRITERION #2
If the variance were granted, the spirit of the ordinance would be observed.
Attorney Mark Beliveau explained this proposal would dramatically improve the access to the area and would segregate the commercial use from the residential use. The proposal and design of the building are consistent with other properties in the area. There would be more than adequate parking on the lot; residential and commercial spaces will be designated. There would either be a self-sustaining ledge wall or retaining wall so the site would be self-contained.
CRITERION #3
Granting the variance would do substantial justice.
Attorney Mark Beliveau explained this proposal is compatible with the purpose of the B1 District, which is to provide a transition into town. There would be no harm to the general public.
CRITERION #4
Granting of the variance will not diminish the value of surrounding properties.
Attorney Mark Beliveau explained this proposal will be compatible with the area, will eliminate two access points and will provide more safety to the lot. In addition, by eliminating the two access points off Route 108, it will allow other properties along Route 108 to request additional access points in the future.
CRITERION #5
Owing tospecial conditions of the property that distinguishes it from other properties in the area, denial of the variance would result in unnecessary hardship because:
Attorney Mark Beliveau explained this lot is located less than 100-feet from the railroad tracks and abuts a large emergency traffic signal. There is a large duplex set 10-feet off the property line with off street parking inadequate at best. The lot and driveway has a steep slope to Route 108.
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.
Attorney Mark Beliveau explained combining the two non-conforming lots and eliminating two curb cuts off Route 108 would create a larger lot with more adequate parking and a safer entrance to the lot. The unique configuration of land results in self-supporting ledge walls or retaining walls on two sides of the property creating a self contained site. Prohibiting mixed use would not enhance the purpose of the ordinance and would result in a hardship if the variance were denied.
2.)The proposed use is a reasonable one.
Attorney Mark Beliveau explained this use is reasonable, because it will eliminate two curb cuts on Route 108 and will remove two structures, which he believes are currently grandfathered for three units. The proposed structure would be an attractive addition to the town and would become a destination point within the town.
Robert Daigle asked how many bedrooms each residential unit will have. Walter Cheney explained he has not thought about the layout of the residential units yet; he suggested each unit might have two or three bedrooms. Attorney Mark Beliveau suggested the number of bedrooms would be limited by the square feet of the space.
Zoning Administrator Diane Hardy asked if the first floor commercial space would be separated for individual tenants. Attorney Mark Beliveau explained separation of the space would depend upon what the market will allow.
Variance Reference Section 3.04 Setbacks
CRITERION #1
Granting the variance would not be contrary to the public interest.
Attorney Mark Beliveau explained the purpose of the front setback relates to the proximity of the structure to the road affecting the character of the neighborhood. Allowing buildings too close to the street may inhibit site distance and may discourage pedestrian travel. He explained with this proposal, the building itself is not within the front setback; the five-foot roof overhang and patio area is what encroaches into the setback. Neither of these two aspects will negatively affect the character of the neighborhood, discourage pedestrian travel nor inhibit site distance. There is excellent site visibility and because the site will be regraded, the site visibility will only get better.
Chairman Hawkins asked if the snow (drainage?) would flow to the streets. Attorney Mark Beliveau explained the Planning Board would take that discussion up when this application goes before them for a site plan review.
Attorney Mark Beliveau explained the enclosed dumpster and recycling area encroaches into the side setback. The purpose of side set backs is to provide adequate space between buildings for fire safety, landscaping and driveways. The area that will be encroached upon is at the rear of this building and the abutter’s home. Encroachment into this area will not have an adverse effect on abutters, fire safety efforts or this project. The duplex located on one of the lots is situated closer to the building now then the new building is proposed to be. There is a lot of ledge on the lot, which would create a scenario where the ledge wall is self-sustaining or there would be a retaining wall, which would create a self-enclosed space on that side creating a buffer between the lots.
Attorney Mark Beliveau suggested his explanations for CRITERIA 2, 3, 4, & 5 would be answered as he answered them earlier in the meeting. Section 7.02(C)(3) allows for one residential unit per acre. The proposed site is located off Route 108; would have site access and devoted parking to the site. Parking designated for the lot would exceed the parking requirements. He did not believe there would be any traffic congestion as a result of this development. He believes the property is grandfathered for three residential units. This proposal would not violate the reasons for density control. Constructing the proposed building would be consistent with the spirit of the ordinance and would not threaten public health, safety or welfare.
Chairman Hawkins noted the late time suggesting this application be continued to the next Zoning Board of Adjustment meeting scheduled for March 21, 2011.
Bill Barr noted the variance would be based on a configuration as proposed. He expressed concern with the final plan on the building being different than what is proposed this evening as a result of going through the Planning Board process. He asked if any changes were anticipated. Attorney Mark Beliveau explained this is a complex project including three specific variances. He explained if there were any changes significant enough to affect the variance approval, the application would have to come back to the Zoning Board for that change. The Zoning Board of Adjustment is the first step in this process. In order to present before the Zoning Board, a full site plan does not have to be developed. As the application moves towards the Planning Board, the site plan and information will become more specific. He felt it was unreasonable to impose a condition on the application to limit the approval to specifically what was presented tonight in the renderings.
Chairman Hawkins noted he would suggest if this variance is approved, there be a condition on the approval requiring the application to come back before the Zoning Board if there is a material change which would affect the approved variances. Attorney Mark Beliveau explained the Zoning Board of Adjustment does not typically* have oversight over engineering issues. If the changes made at the Planning Board do not affect the relief the Zoning Board granted, the application would not have to come back for another review. Walter Cheney explained this project has received a considerable amount of thought, engineering and feasibility to get to this point. The plan will become more developed as it advances through the process, but that type of specific information isn’t required for presenting to the Zoning Board.
Attorney Mark Beliveau understood the Board was deciding not to deliberate on this application tonight, although he and the applicant would encourage and welcome them to do so. He asked for any questions the Board may have to be submitted prior to the next meeting so he can be prepared to answer them at the meeting.
Zoning Administrator Diane Hardy explained she received a telephone message on the main telephone of the Planning and Zoning Office at 6:41 p.m regarding the Cheney Property Management application. The message was from Lon Thorpe, abutting property owner, who owns Map U4, Lot 14. Lon Thorpe said he was calling about the Cheney project and said: “So far, it looks like a ‘nice’ project that is being proposed at 54-56 Exeter Road. What Walter has planned is ‘good,’ He and I have spoken. The only thing that appears close to my lot is the dumpster enclosure, which is encroaching on the property line and I don’t see that as a major problem. I hope to see this project go forward and that he gets his variance.”
Action
Motion: Bill Barr made a motion to continue this application to the next Zoning Board meeting scheduled for March 21, 2011.
Seconded: Robert Daigle
Vote: All in favor
Old Business/New Business
Vice-Chairman Rosa explained his name is on the deed somewhere for an application being heard on March 21, 2011. The farmer is the owner of the property and he does not know the current property owners who purchased the property in 2008. He doesn’t feel there is a conflict of interest, but wanted that information to be known. There is no personal or financial interest in the application.
Chairman Hawkins noted according to the Rules of Procedure this would not create a conflict of interest. If any Board member finds it necessary to recuse themselves from an application, he asked to be contacted prior to the meeting so an alternate can be informed when there are alternates on the Board. He believed there is an application before the Town Council for an alternate position currently.
Adjournment
Action
Motion: Robert Daigle made a motion to adjourn at 9:20 p.m.
