Minutes

DRAFT

NEWMARKET ZONING BOARD OF ADJUSTMENT

JANUARY 23, 2017

MINUTES

Present:            Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Zoning Administrator), Bob Daigle, Jonathan Kiper, Richard Shelton (Alternate), Steve Minutelli (Alternate)

Absent:             Bill Barr (Alternate), James Drago – both excused

Called to order:           7:05 p.m.

Adjourned:                    7:33 p.m.

Agenda Item #1 - Pledge of Allegiance

Agenda Item #2 - Review & Approval of Minutes:         12/19/16

              Chairman Hawkins appointed Richard Shelton to fill in for James Drago.

              Action

                             Motion:            Bob Daigle made a motion to approve the minutes

                             Second:            Wayne Rosa

                             Vote:                 Richard Shelton abstained due to absence

                                                          All others in favor

Agenda Item #3 - Regular Business

Mike & Elaine Mangan  - Public Hearing for two Special Exceptions from Section 1.05(B)(1) & (2) of the Newmarket Zoning Ordinance, requested by Mike & Elaine Mangan.  The existing structure is nonconforming, as it violates side setbacks of ten feet.  The applicants are proposing squaring off the northwesterly corner of the building, thereby horizontally and vertically expanding the structure by enclosing a portion of the structure underneath.  The property is located at 5-7 Creighton Street, Tax Map U3, Lot 15, R4 Zone. 

              Chairman Hawkins asked the Board if they had a chance to go and look at the property.  Everyone responded in the affirmative.

              Paul Lebeau represented the applicants.  He gave a history of the property.  The house was built in 1900.  It is a duplex and in pretty rough shape.  The existing house is 1,763 sq. ft.  They have recently purchased it and they would like to tear it down and build on the same footprint.  It will be a duplex again and be owner occupied.  They are looking to increase the square footage by approximately 49%.  He showed an image of the existing house side by side with the proposed house.  One end of the porch comes out 7.6’ and the opposite end comes out 5.6’.  They would like to square of the porch, so both ends are squared off and even at 7.6’.  The area below the porch would be filled in as part of the building.  There is just open space there now. 

              Mr. Lebeau showed the footprint/floorplan of the existing house.  He showed where the porch would come out from the house.  They would like to bring it out evenly at 7.6’ and then bring the side out 3’.  That comes out to roughly 41 sq. ft.

              He stated none of the expansion will be into the 100 year flood zone.  That covers the horizontal expansion.

              For the vertical, he showed the existing conditions on a plan.  It is 22.7’ roughly to the ridge.  It has a 9-13 pitch.  The new house will be 29.1’ to the ridge.  That would be increasing the height of the roof to 6.6’ and that is keeping the 9 pitch.  The only way they could meet the vertical restrictions is if they did a flat pitch and they do not want to do that.  They are trying to keep it looking like the other houses in the neighborhood.  He said that covers Criteria 1 and 2.  Regarding Criterion 3, he stated the intended purpose was to have a more functional and aesthetically pleasing structure.  The increased functionality is that it will have driven-under garages, which will help to alleviate and already tight parking area. 

              Mr. Lebeau indicated, on a rendering of the house, where the apartment would be located.  The apartment would have a garage bay.  He showed where the 2 bay garage would be located for the homeowners.  He indicated a retaining wall would be removed. 

              For Criterion 4, he stated there is already Town water and sewer.

              For Criterion 5, he stated it was his understanding this criterion only applied to the B1 zone.  Diane Hardy stated this was applied to all zones.  Chairman Hawkins stated this was a postage stamp sized lot in a dense area.  Mr. Lebeau showed a plan of the property.  Chairman Hawkins stated the building occupies almost the entire lot. 

              For Criterion 6, Mr. Lebeau stated they think the proposed expansion will enhance the surrounding property values and enhance the aesthetics of the neighborhood.  The existing house is in pretty rough shape.  The porches are up on the posts.  They would like to bring that all down to grade on a foundation to clean it up.  The house is very visible from Schanda Park, where the Town has a lot of functions. 

              Richard Shelton asked what the height of the existing building was.  Mr. Lebeau stated it was 22.7’.  They are going up to 29.1’ from the Creighton Street side. 

Wayne Rosa asked if they were putting in a new foundation.  Mr. Lebeau stated they would be doing that.  Wayne Rose suggested they make sure everything is in the proper location on the property.  Mr. Lebeau stated they would have someone set the points.  The total proposed expansion is 26.42’. 

Chairman Hawkins opened the public hearing.

No comments from the public.

Chairman Hawkins closed the public hearing.

Bob Daigle asked if it would be a full foundation underneath the entire structure.  Mr. Lebeau stated it would be under the entire building. 

Chairman Hawkins asked if the building was going to be closer to Creighton Road (Creighton Street runs in front of the structure, Creighton Road is partially behind the structure-the official frontage is Creighton Street).  Mr. Lebeau stated currently 9’ from Creighton Road and they are proposing 7’.  Wayne Rosa stated the removal of the retaining wall will improve the area along Creighton Road. 

              Richard Shelton stated:

The applicant’s 1900 built property, as being located at 5-7 Creighton Street on a lot of .07 acres, as well as 3 other properties that are sandwiched between Creighton Street & Creighton Road.  Creighton Street & Creighton Road receive limited traffic, as both streets end at the gated areas to Town property, Creighton Road to the pump station & Creighton Street to the Treatment plant, thereby its limited use would be mostly utilized by the property owners & the Town.  It appears from visual observation that all these properties are non-conforming related to current zoning.

1.05 NON-CONFORMITY

Under (B) Non-conforming Structure Section (1)

The applicant has stated as a matter of fact that,

(a) The expanded structure is no closer to the side lot line than the existing structure.

(b) The proposed horizontal expansion will not be in a 100-year flood plain.

(c) The proposed horizontal expansion is intended and needed to square off the NW corner of the property.  There is no other expansion that fulfills this purpose that can be achieved that is in conformance with the ordinance.

(d) The proposed horizontal expansion/property has Town water & sewer.

(e) The expansion shall not render the lot proportionally less adequate.

(f) The expansion does not adversely affect abutting properties, public health, safety or general welfare, but rather enhances the value of the abutters’ properties and the aesthetics of the public.

Section (2)

Portions of structures within a setback may be enclosed or expanded upwards if granted a Special Exception

(a) Ordinance 3.05(A) states, “Structure height strongly affects the character of the neighborhood and the allowance of adequate sunlight and air circulation”.  The structure’s upward expansion from 23’ to 29’+/- will not change the character of the neighborhood as there are properties exceeding the applicants’ property of 23’ in the area and will not have any adverse impact on any neighboring property, including but not limited to blocking of air circulation, views and/or sunlight

(b) Upward expansion is well under the dimensional height of 35 feet.

(c) Is not in the 100-year floodplain.

(d) The expansion shall not render the lot proportionally less adequate, but, by approving the requested Special Exception with improvements, the health, safety & welfare of the residents in the area will be vastly improved and more adequate than in its present condition.

In New London Land Use Association v. New London 130 NH. 510, the court overruled a decision by the ZBA that approved a Special Exception.  In its decision, the court said: “Nonconforming uses may be expanded, where the expansion is a natural activity, closely related to the use at the time of enactment of the ordinance creating the nonconforming use.  However, enlargement or expansion may not be substantial and may not render premises or property less adequate.”  Therefore, as this building built in 1900 and its use has remained unchanged since the adoption of the ZBA and the expansion is not so great, the courts’ ruling are valid to this property located at   5-7 Creighton Street.

Action

              Motion:            Richard Shelton made the following motion:

I would entertain a motion, to grant the Special Exception from Section 1.05(B)(1) of expanding the side setback of 5’ 6” to the NW area to align the present lot line.  This expansion will not be any closer than the footprint of the current building’s foundation and the expansion to the rear, north footprint facing Creighton Road of 22’ that will align with the side setback.  The impact to the rear expansion will be from 0’ to 3’+/- to the NW corner, as shown on Plan of Doucet Survey dated November 2016.  There shall be no change to the east lot line or the lot line facing Creighton Street and

(B)(2) The vertical expansion of 6’ to a height of 29’ is well under the 35’ as shown on the Dimension Table   

And, by granting this Special Exception for the proposed expansion of 26.35+/- square feet that will make this lot more nonconforming, the applicant will be able to rebuild this building that will have an enhanced value to surrounding properties, a positive effect on the public health, safety or general welfare of the community and the aesthetics as viewed from the highly trafficked area of Schanda Park & the public parking lot of the Town of Newmarket off Water Street.

The property is located at 5-7 Creighton Street, Tax Map U3, Lot 15, R4 Zone.        

                             Second:            Bob Daigle

                            Vote:                 All in favor

Agenda Item #4 - New/Old Business

              Diane Hardy stated there was a change to the Powers of the Zoning Board of Adjustment in the State statutes.  It states, “Variances shall be valid, if exercised within two years from the date of approval or as further extended by local ordinance or by the Zoning Board for good cause provided that no such variance shall expire within six months after the resolution of the Planning Board filed and reliance upon the variance.”  She stated, in the past, they have always stated that variances run with the land and they are good forever.  Chairman Hawkins stated, if it is acted upon, it runs with the land and it is permanent.  If it is not acted upon within two years, it expires, unless extended by the Board or a local ordinance covers it.  Diane Hardy passed out copies of the change. 

              Diane Hardy stated the Planning Board has been working on updates to the Zoning Ordinance.  A couple of those changes involve nonconforming uses.  She mentioned the case a couple of years ago, where there was a house with an accessory apartment in the basement, where that use had been abandoned for about thirty years.  The Zoning Board did grant it, but she does not know if the project ever went forward.  They had issues with fire codes.  At that time, they had discussed having a date for the expiration of vested rights contained within the zoning ordinance.  The Planning Board will be adding language for that. 

Agenda Item #5 - Adjourn

            Action

                        Motion:          Bob Daigle made a motion to adjourn at 7:33 p.m.

                        Second:           Jonathan Kiper

                        Vote:               All in favor