Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
SEPTEMBER 12, 2016
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Zoning Administrator), Richard Shelton (Alternate), Jonathan Kiper, James Drago, Bob Daigle, Steven Minutelli (Alternate)
Absent: Bill Barr (Alternate) – excused
Called to order: 7:02 p.m.
Adjourned: 7:32 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 08/22/16
Action
Motion: Bob Daigle made a motion to accept the minutes
Second: Steven Minutelli
Vote: James Drago & Richard Shelton abstained due to absence
Wayne Rosa abstained due to recusing himself for the hearing at that meeting
All others in favor
Agenda Item #3 – Regular Business
Jane Rosa/Paul & Sally Rosa – Continuation of a public hearing for an application for a Variance from Section 3.01, of the Newmarket Zoning Ordinance, to permit the subdivision of a residential lot containing approximately 4 acres, with road frontage of 37.85 feet, where a frontage of 200 feet is required. The new lot will share a driveway with the property at 340 Wadleigh Falls Road. The applicant also requests the Zoning Board confirm that the remaining land will remain a non-conforming lot. The property is located at 342 Wadleigh Falls Road, Tax Map R5, Lot 81, R1 Zone.
Jane Rosa/Paul & Sally Rosa – Public hearing on an application for a Variance from Section 1.05(C)(1) of the Newmarket Zoning Ordinance, to allow the change of a boundary of an existing non-conforming lot, which does not meet the current 200 foot frontage requirement, in a way that does not bring the lot into closer conformance with the Zoning Ordinance. The applicant proposes to subdivide the 45 acre lot to create a new 4-acre non-conforming lot, with 37.85 feet of frontage, thus increasing the non-conformity of the remaining lot. The property is located at 342 Wadleigh Falls Road, Tax Map R5, Lot 81, R-1 Zone.
Wayne Rosa recused himself.
Attorney James Schulte represented the applicants. They were seeking two variances for the same cause. Paul and Sally Rosa own 45 acres of land extending into Durham. Wayne Rosa owns abutting property. He indicated the Wayne Rosa lot, another abutter’s lot, which is the Wade property, and the proposed lot on the plan. It has not been surveyed yet, as they would need the variances first. There is 37’ of frontage on the proposed lot. The easterly side of the property currently has over 70’ of frontage. There is an existing large driveway that goes to the back of the Wayne Rosa parcel for his business. It is approximately 12’ wide and is very solid. It is an ample sized driveway to provide access to both properties. Other land abutting is owned by the Audubon Society, so it will never be developed. Land on the other side is owned by Mrs. Sewall. She lives elsewhere and her land also extends into Durham. Currently, there is a big red barn near the road and a couple of outbuildings, but no dwellings on her property.
He indicated the location for the new home that would be built by Jane Rose and her fiancé, John, would be 300’ or 400’ from the Wade house, so it will not be close and there are trees in between. There will be a substantial separation.
He went over the five criteria.
He stated the variance would not be contrary to the public interest, because this would not constitute a substantial change in the character of the neighborhood. Other properties in the neighborhood have less than 200’ of frontage, although none have as little as 38’. There are other properties, where houses sit back substantially from the road. Some further than this proposed house. They will not need a new driveway, which is significant. One of purposes of the ordinance’s frontage requirement is to limit the number of entrances onto a highway. Another is to make sure there is sufficient room for safe access and a third is to make sure buildings are not crowded too close together. Since this new home will be located behind the existing homes, there is no spacing problem and they meet all setback requirements.
The variance would do substantial justice, because this development is reasonably consistent with other properties in the neighborhood. It is for a single family residence, which is expressly permitted. It is no detriment to the public. This criterion requires that you balance the interests of the applicant vs. the interests of the general public. There is no detriment to the general public to allow this property to be developed, particularly where they are still going to reserve 40+ acres of open land out back.
The variance will not have any impact on abutting properties. The new house will be several hundred feet away from abutting properties and also from existing houses. It has no impact on the Audubon Society property and Mrs. Sewall’s property. If this was a proposal for a major subdivision, there could be a house in this exact location. The Rosas do not want to develop the rest of the land, they want to leave it as open space for the indefinite future.
The final criterion is regarding hardship. The purpose of this is three-fold. One is to limit the points of access onto the highway, second is to make sure there is adequate space for safe access for the property out back, and third is to make sure there is adequate spacing between buildings and they meet all of those. Applying the technical requirements of frontage is not necessary in order to meet all of the objectives, because they can meet the objectives of the ordinance with this development proposal. The proposed use is a reasonable use. In the last 12-15 years, there has been quite a change in the hardship definition. The test now is whether this is a reasonable request. This allows Jane, her fiancé, and their daughter to build a home in the neighborhood, where their family lives, and still satisfy the basic requirements of the ordinance.
Chairman Hawkins asked Richard Shelton to fill in and sit in on the application.
Attorney Schulte stated he did not specifically address the second variance, because it is really part and parcel. You can’t count that 37’ of frontage for purposes of determining whether this is conforming, because they can’t add those together. The strict definition in the ordinance says, if you change a non-conforming property without making it more conforming, you need a variance. They are changing it and it will be less conforming even though the conformity does not make much difference to any of the standards, it is still a change.
Chairman Hawkins stated he had a housekeeping issue to bring up. His law firm represents one of the abutters. He is not personally involved in that. He knows enough about it that it has nothing to do with this application whatsoever. He is comfortable continuing to sit on this, but he wanted to give the applicant a chance to address it, if it is an issue. Attorney Schulte stated he was sure it was fine. He left it up to Chairman Hawkins’ judgement as to whether he needed to recuse himself and they will rely on that. Chairman Hawkins stated he was comfortable he could evaluate this fairly. He had just wanted to give the applicant a chance to weigh in.
Chairman Hawkins stated they received word from the Town of Durham that they have no objection to the application.
Bob Daigle asked if there was any intent to make a perpetual easement through the deed for the common driveway. Attorney Schulte stated the Planning Board will require them to have a deed easement.
Bob Daigle asked if the strip to the south was adequate to put in a full 50’ right of way if someone in the future decides to do something else with the land. Attorney Schulte stated it was wide enough.
Diane Hardy stated there is enough frontage for a road. She asked about the suitability of the land conditions should someone want to develop it. Attorney Schulte stated it was level and buildable. There are wetlands toward the back of the property, but not close to this proposed lot. Wayne Rosa stated the only thing that might restrict anything is the wetlands that come from the stream.
Chairman Hawkins stated the last application that ended up in court involved 1.05(C)(1). The application made the property less conforming and they denied the application based on that. This application is different. The configuration of this lot is very, very unusual. It satisfies the hardship criterion, because of the way the back lot more or less wraps around 340 Wadleigh Falls Road. This is a very different set of circumstances and a very different configuration of a lot.
Richard Shelton read his Statement of Facts. Granting the variance would not be contrary to the public interest. It would not alter the essential character of the locality or threaten the health, safety or welfare and would not be contrary to the public interest.
If the variance was granted, the spirit of the ordinance would be observed, because sharing an existing driveway would be consistent with other properties in the area that also share an existing driveway. The existing driveway located at 340 Wadleigh Falls Road has excellent viewing both east and west and provides for safe access and egress to the road, thereby eliminating an additional access point to the road. The structures will satisfy all setback requirements.
Granting the variance would do substantial justice, because the proposed residential use is consistent with other uses in the area that also have limited road frontage. The lot of four acres will meet all zoning requirements, only lacking road frontage, and, by sharing an existing driveway substantial justice is satisfied. Any loss to the individual that is not outweighed by a gain to the general public is an injustice.
If the variance was granted, the values of surrounding properties would not be diminished. The four acre lot is where an expressly residential use is allowed in this zone. There will be no visual impact to other properties and the remaining acres will remain undeveloped.
No fair and substantial relationship exists between the general public purpose of the ordinance provisions and the specific application. The proposed use is a reasonable one. He referred to Simplex 145 NH, page 731-732. A zoning restriction, as applied to their property, interferes with their reasonable use of the property considering the unique setting of the property in its environment. The self-created hardship does not preclude the landowner from obtaining a variance, since they purchased with knowledge of a restriction and it is but a non dispositive factor to be considered under the first prong of Simplex. He referenced Hill vs. Town of Chester, 146 NH. As this use for a single family residence on a lot of 4 acres, where 2 acres is required, is only lacking road frontage, it is reasonable. No fair and substantial relationship exists between the general purpose of the zoning ordinance and the specific restrictions on property. As the only restriction applying to this property in its environment is that it is lacking road frontage, where 200’ is required, the applicant has shown sharing the existing driveway with 340 Wadleigh Falls Road would make safe access to each property owner and others. By reducing curb cuts, it would result in lessening traffic control points and thereby support quality thoughtful development, which preserves our natural resources and enhances the aesthetics of Newmarket, while creating a long term tax base as part of the Master Plan Vision Statement.
The variance would not injure the public or private rights of others. This lot only lacks road frontage and does not have any adverse impact on the health, safety, or convenience or general welfare of the community.
Action
Motion: Richard Shelton made a motion, having met the five parts of the variance from Section 3.01 of the Newmarket Zoning Ordinance, he moves to grant the subdivision of a non-conforming residential lot containing approximately four acres and grant approval for a single family residence, with road frontage of 37.85’, where 200’ is required, as shown on the plan of land for Paul Jr and Sally Rosa, Newmarket, NH, by Teton Land Consultants, Inc., dated 22 April 1988. The lot is located at 342 Wadleigh Falls Road, Tax Map R5, Lot 81, R1 Zone.
Richard Shelton stated that he noted the easement of the shared driveway of the four acre property, with the abutting property located at 340 Wadleigh Falls Road shall be so noted and recorded on the deed and the land use change tax should be assessed at fair market value and impact fees will apply. He stated those are Planning Board issues.
Second: Bob Daigle
Chairman Hawkins suggested adopting the factual information contained in the application as part of their findings to support the making of the motion.
Chairman Hawkins stated this was for approval of 3.01 only. He proposed they act on this and come back and say, “For the reasons previously stated, we grant the request for the second variance, as well”.
Chairman Hawkins opened the public hearing.
There were no comments.
Chairman Hawkins closed the public hearing.
Vote: All in favor
Action
Motion: Richard Shelton made a motion for a variance from Section 1.05(C)(1) of the Newmarket Zoning Ordinance requested by Jane Rosa and Paul and Sally Rosa to allow the change of a boundary of an existing non-conforming lot of 45 acres +/-, with two separate road frontages of 37.85 and 71.54 feet on Wadleigh Falls Road for the sole purpose to subdivide the 45 acre +/- lot to create a new non-conforming 4 acre lot. By allowing this change, the new 41 +/- acres with a reduction of 37.85 road frontage to 71.54 feet, which does not meet the current 200 foot frontage requirements, thus increasing the non-conformity of this lot located at 342 Wadleigh Falls Road, Tax Map R5, Lot 81, R1 Zone. He makes this motion to approve it.
Second: Bob Daigle
Chairman Hawkins opened the public hearing.
There were no comments.
Chairman Hawkins closed the public hearing.
Vote: All in favor
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Jonathan Kiper made a motion to adjourn at 7:31 p.m.
Second: Bob Daigle
Vote: All in favor