Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
NOVEMBER 6, 2017
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, James Drago, Richard Shelton (Alternate), Steven Minutelli (Alternate), Michael Hoffman (Building Official/Acting Zoning Administrator)
Absent: Bill Barr (Alternate) – excused
Called to order: 7:04 p.m.
Adjourned: 8:06 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & Approval of Minutes: 04/24/17
Chairman Hawkins tabled the item for later in the meeting. He appointed Richard Shelton to sit as a full Board member.
Agenda Item #3 – Regular Business
Eric DeWitt - Public hearing for an application for a Variance from Section 32-49 of the Newmarket Zoning Ordinance, to permit residential use in a B1 Zone, where residential use is not permitted, and from Section 32-233, Mixed Use Development Paragraph(b)(1), to permit a mix of residential and non-residential uses on one lot. The property is located at 81 Exeter Road, Tax Map U3, Lot 137, B1 Zone.
Eric DeWitt stated there are quite a bit of wetlands and a steep hill on the property. There are two houses, a driveway and a “stub out” parking space, as well as a garage and two sheds. There is also a footbridge. Of the two houses, one was originally a chicken coop and the other was an in-law home. They are dated and in need of a little TLC. The proposal is to remove all of the existing buildings and replace them with a single building, without encroaching on the wetlands. The building would be a New England farmhouse style barn, with a modern twist. There will be a couple of cupolas. The first floor is meant to have one or two small businesses and the second floor has eight studio style apartments, on the idea of compact, “eco” living. The idea is to make this a green development to promote local living. The footprint is 40’x70’. The apartments would be meant for someone transitioning from college or a young professional. It would be for someone who lived alone and did not want the more expensive rent of a larger apartment.
Doug MacDonald, Keene & MacDonald, represented Eric Dewitt. He stated it was a unique project on a unique lot. The topography is a bit of a challenge in this area, with the slopes and the wetlands. The buildable area that makes sense is where the current buildings are located. The current buildings are residential. They do not conform to the current ordinance either. This is a forward-thinking project, with two commercial businesses.
He stated, when you look at the variance criteria, you look at public interest and spirit of the ordinance, which are often looked at together after the Harborside case. Public interest is served by the application. There will be the removal of the current buildings, which are aged. The proposed building is attractive and in keeping with the New England format. Another aspect that serves the public interest is the elimination of having two access points on Route 108. There is currently the existing driveway and a parking slot. The proposed access and egress are more like the other properties in that area on Route 108. Further, with the placement, size, and character of the proposed building, this fits more with the context of the surrounding buildings. It is a unique lot. There is a fair amount of wooded area. The area across the street is similar. There is an auto repair business that is hidden in the hill behind the car wash on the opposite side of Route 108.
The most direct neighbor is a funeral home. The other neighbors are a car wash, the Irving gas station and another building that looks a little bit residential, but is not. As you go down Route 108 going north and come out of the wooded area and then into the vicinity of the property, where the commercial area begins, you will note the uniqueness of this lot. It is almost a transitional lot.
With the Harborside case in Portsmouth, a consideration was whether the essential character of the neighborhood would be altered. He did not believe, with reference to the Harborside case, that would be an issue in that the building would blend in and the lot would be improved. It would not threaten the health, safety, and welfare of the public. In fact, it would increase safety, with improved ingress and egress.
As far as the spirit of the ordinance being met, he stated there is no commercial development there now and this adds commercial in a tasteful way and it blends with the limited residential use. The residential units are fairly small. They would be more affordable for a younger group of people. They are not necessarily going to have families in them. It is not a place where school buses are going to be stopped and/or kids will be playing around the building. Even though it’s allowing residential, it is not allowing the development of single family homes in the commercial district.
Attorney MacDonald stated relative to the purposes enumerated in the zoning ordinance regarding vehicle congestion, that will be relieved by the new ingress and egress, the aesthetic qualities, and the community value.
Regarding substantial justice, the loss to the developer would not be outweighed by any perceived gain to the general public. The loss, if the project did not move forward, would be some of the things he just enumerated. It is a sensible development, it is attractive, and it fits commercial space on the lot. It does not burden municipal services. You will have single people living in the studio apartments. There would probably be a better tax benefit to the Town. The safety element and the Purpose of the Zoning Ordinance would be served. This also flows into the next criterion, which pertains to value.
A well thought-out project like this certainly is not going to diminish the value of the abutters’ property and the surrounding areas. This development would increase the surrounding property values, just by adding a modern, newly developed space. It also provides a nice transition into the commercial properties. It is more attractive than what is there now.
With respect to hardship, this is a tricky property to develop. There have been attempts at other commercial development, but they have not been able to move forward. The developers have found the challenges were not something they could overcome, primarily because of the wetlands. Keeping those wetlands with this development serves the town’s interests.
Eric Dewitt showed a slide onscreen of a development that had been proposed in the past. It would have filled in a considerable amount of wetlands, because of the setbacks required. They walked away, because of the wetland challenges. This was a development proposed nine or ten years ago. That was with Appledore Engineering. He also had a dentist walk away saying he couldn’t do anything with the lot. He had another developer this year turn down the possibility of development due to the wetlands. This has been a pattern with the property. People look at it and they see the wetlands, the steep slope, the perennial stream and they say it is not worth their time.
He is presenting this as he already owns it, he does not have to invest in it, and he worked a long time to make the development plan viable, between the commercial use, the size, the required parking, and all of the other things that go into it and he feels this is it.
Chairman Hawkins asked if a copy of the Appledore plan could be submitted to the office to be kept in the official record. Mr. MacDonald stated he would email that to Diane Hardy, the Zoning Administrator. Chairman Hawkins stated that the packet should contain all of the information they were showing them tonight. They had been showing slides of the property pertaining to the subject at hand during the course of the meeting. Bob Daigle stated, if he had copies of the emails from the developers saying thanks, but no thanks, that would be helpful to have in the record, too. Mr. Dewitt stated he could look back and get those.
Mr. MacDonald stated the lot is physically unique, with the wetlands and topography and the small developable portion.
There is no real fair and substantial relationship that exists between the public purpose of the ordinance and the specific application. They address that in detail in their application and the comments support that.
The proposed use is a reasonable one for reasons stated earlier about bringing forward a commercial use and improving some of the safety issues. It is a reasonable use for this site.
If you were to continue this under subpart B, this property has special conditions, as were discussed. It cannot be reasonably used in strict conformance with the ordinance, which they have also discussed, those being the other developments that did not happen because of the challenges involved in this site and its physical characteristics.
Chairman Hawkins opened the public hearing.
There were no comments and no members of the public present.
Chairman Hawkins closed the public hearing.
Wayne Rosa asked what the minimum size requirement is for an apartment. Michael Hoffman stated one room has to be at least 120 sq. ft., with sanitary facilities.
Chairman Hawkins asked how long he has owned the property. Mr. Dewitt stated he grew up in Newmarket. The property was owned by Dennis Wojnar. He was sort of a father figure to him when he was growing up. He inherited the property when Mr. Wojnar died nine years ago. It is currently a rental property.
Richard Shelton stated, on April 13, 2011, an application for a similar project came in located in the B1 zone. He stated the Town later “spot zoned” that area of town to a mixed use zone known as M2-A. He asked why they didn’t just do the remainder of the B1 zone on that end of town. He said it is a small B1 zone of about a quarter of a mile. He stated the Town changed the lot owned by the Town by the RR tracks and the next three lots. He questioned why they didn’t do the rest of the zone. He stated, in the Town’s thought, they only accommodated one person.
(Note: On August 7, 2013, the Town Council approved a zoning change of certain areas from being part of the B1 zone, a commercial zone, to M2-A, a mixed use zone. The lots changed were at the southwesterly side of the bridge where Route 108 crosses the Lamprey River, along Elm Street, Nichols Avenue, Washington Street, Lincoln Street, and Spring Street, and also starting at the intersection of Route 152 east of Railroad Avenue an along Route 108, to include Map U2, Lots 249, 248, 247, 246, 245, 244, 243, 59, 60B, 57, 56C, 56B, 61 and 60A. U3, Lots 138, 138A, 138-1, 127, 128, 129, 139, 131, 132, 133, 134-1, 134, 135, 136, 137, Map U4 15, 14, 13, 12, 11, 10, and 9.This was done to foster a more business-friendly atmosphere, streamline the development process, and promote projects which would result in a positive fiscal impact to the Town. This was done by a Planning Board subcommittee that evaluated current business zoning and mixed-use development districts, their corresponding dimensional controls, and permitted uses to identify barriers to commercial development and come forward with some specific recommendations for changes to the Town’s development regulations. Over the course of seventeen months, several public informational meetings, workshops, and three formal public hearings to solicit citizen input were held and modifications were made in response to those comments. This was done to facilitate positive economic development, encourage in-fill development and the conversion and adaptive re-use of underdeveloped properties through innovative zoning techniques.)
Mr. Dewitt stated he did read the case to which Richard Shelton was referring. The proposal was similar, but the building was substantially larger, almost 200’ x 70’. That project’s hardship was not very strong. If you compare it, the lot before you this evening really meets the hardship criterion, with the wetlands, the setbacks, and the steep hill.
Chairman Hawkins asked Richard Shelton if he was referring to the Cheney application on Route 108 at the business park. Richard Shelton stated that he was. He stated the Zoning Board denied his application with a 3-2 vote. Later on, the Town changed the zoning in that area to M2-A. He stated the whole B1 zone should have been changed, not just one section of it. Chairman Hawkins stated he did not know why the area was zoned the way it was, but that is not relevant to this application. It has to rise and fall on its own merit. When this application came in, he asked for the minutes of the Cheney meeting to be distributed to the Board, as this application had similarities. The difficulty with that application was what he was presenting as hardship was not tied to what he wanted to do. This application before the Board now has some similarities, as it is a mixed use development application. It is not his job to decide what is good or bad zoning policy for the Town. This application has to stand on its own merit. He stated Mr. Dewitt has significant hardships on his property. It is a very large lot, with a very tiny sliver of it being developable. There is evidence of efforts to market the property as a commercial use that have not come to fruition, because of the wetlands and slopes on the property. He stated he was conscious of the Cheney application, but this is not an “apples to apples” comparison. He did not want to say what is spot zoning and what isn’t or what is good or bad zoning. It is a B1 zone, as it stands today.
Bob Daigle asked if Mr. Dewitt had any marketing research that states the lot is not viable due to the issues on it. He asked if a real estate professional has ever made recommendations. Mr. Dewitt stated he did market the property through a real estate professional. After taking some time with it, the realtor walked away. If he could have made money with it, he would have stayed.
Chairman Hawkins stated the Board was concerned with setting up a “slippery slope”. He had not realized the zoning had been changed to M2-A nearby. Richard Shelton stated the other side of this property borders the R2 zone. He is stuck between a rock and a hard place. Wayne Rosa stated Mr. Cheney got approval from the Planning Board after the zoning was changed. Chairman Hawkins stated Mr. Cheney convinced the legislative authority this change made sense and they changed it.
Michael Hoffman showed where the property was located on the zoning map.
Richard Shelton read from the following notes he had made:
CRITERION 1. Granting the variance would not be contrary to the public interest. Granting the variance would not threaten public health, safety or welfare.
CRITERION 2. If the variance were granted, the spirit of the ordinance would be observed because: The vision statement of the Newmarket Master Plan supports quality, thoughtful development that preserves our natural resources and enhances the aesthetics of Newmarket while creating a long-term tax base, which it does.
CRITERION 3. Granting the variance would do substantial justice because: There would be no general public purpose to gain by not granting the variance that would be outweighed by any loss to the individual as an injustice.
CRITERION 4. If the variance were granted, the values of the surrounding properties would not be diminished. It’s a matter of fact that these properties located at 81 Exeter Road consisting of two houses, two sheds and one garage in their various states of disrepair result in a diminished value to surrounding properties. By granting the variance with future improvements, the value of surrounding properties would be enhanced.
CRITERION 5. Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
A. Owing to special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in an unnecessary hardship because: considering the unique setting of the property in its environment of 5.29 acres with two houses, one garage and two sheds located on the East side of Exeter Road in the B1 Zone, bordering residential use to the South in the R2 Zone, has placed an unnecessary burden to develop this property in an orderly manner. The fact remains that this property has always maintained a residential use; the purpose of the zone is to bring in business use; and the safety features of the site will be enhanced. These conditions are unique to this property. The applicant has demonstrated throughout the presentation that without his request for a mixed use development, future development will not be viable. As this mixed use development with commercial space and limited number of studio-style apartments will benefit both the applicant in the development of the property and the Town of Newmarket to promote orderly development and protect the health, safety and general welfare of the population and will enhance the tax base. By granting the variance, a reasonable use of the property will be allowed.
Bob Daigle stated he agreed, in bulk, with what Richard Shelton said, but it flies in the face of the purpose of the ordinance. He asked if, as the adjudicating body, was it their place to say the ordinance, as written, is wrong. Richard Shelton stated that was why they were here. Chairman Hawkins stated it was for the Board to say whether he has presented sufficient evidence for a variance from the ordinance. It is to decide whether strict enforcement of the ordinance would be an unreasonable hardship.
Bob Daigle asked if it would be reasonable to postpone this a week or so, so they can get the rest of the information and correspondence. Right now, all they have is claims people looked at it and couldn’t develop it. Chairman Hawkins stated they had applicants before that made claims they had not found convincing. Bob Daigle stated, if they looked at the whole package, it would reinforce the fact it is a legitimate claim. He was reluctant to make a decision. Richard Shelton asked what more he would be looking for. He told them the size of the building. If they approve it, it goes to Planning Board, if they don’t, the applicant walks away. Bob Daigle said they could have a guy come in and say I really don’t want to sell it, but this is my good idea. Richard Shelton stated that was not for the Board to say. Bob Daigle stated, if the applicant had the paperwork to substantiate the claims, they could move forward. Richard Shelton stated the applicant’s attorney gave good responses to the five criteria. It’s all there, if you read through it. He has read it a number of times. He asked what more they need to look for. Bob Daigle stated it is easy to make claims. They are a Board that bases their decisions on evidence.
James Drago asked if there was designated parking for residential and commercial. Mr. Dewitt stated there would be. Chairman Hawkins stated that would be addressed in site plan review.
Attorney MacDonald stated there was a commercial realtor, Marsiello, and they could go back and see if they can find something from Marsiello on the ability to market the property.
He stated they have heard the applicant’s testimony and they have those two documents, the Appledore plan and the email.
Wayne Rosa stated, on the Appledore slide that was shown, they are crossing the stream. He asked why they would want to pursue that. Mr. Dewitt agreed stating to develop the whole property would be extremely costly. Restrictions on wetland crossings seem to get tougher every year. Right now the plan is to leave it alone.
Wayne Rosa stated he assumed they wanted residential uses for cash flow. Mr. Dewitt stated yes. What he does now, there is someone in the little house that communicates with him on the status of his property and he is able to do repairs. Mr. Dewitt does not live at the property. His plan is to have one unit, where someone lives at the property and takes care of it.
Chairman Hawkins stated the “slippery slope” aspect comes in, because, if any other applicant comes in to put in a mixed-use in the B1 zone, they would still have to convince the Zoning Board they have some unique condition on their property that causes a hardship. This is a very, very difficult lot. This application has an aura of hardship. Bob Daigle stated a lot of the lots around it are already developed. Chairman Hawkins stated there is a lot next to the drugstore that is vacant. It is impinged by the railroad tracks, not so much by wetlands. This lot before the Board tonight may be truly unique. The Cheney parcel was nothing like this. James Drago said approving this would not set any precedent, as there would be evidence given unique to each application. Chairman Hawkins stated this lot is unique.
Action
Motion: Chris Hawkins made a motion to approve the application for a Variance from Section 32-49 of the Newmarket Zoning Ordinance, to permit residential use in a B1 Zone, where residential use is not permitted, and from Section 32-233, Mixed Use Development Paragraph (b)(1), to permit a mix of residential and non-residential uses on one lot based upon the following findings:
CRITERION 1. Granting the variance would not be contrary to the public interest. Granting the variance would not threaten public health, safety or welfare.
CRITERION 2. If the variance were granted, the spirit of the ordinance would be observed, because the vision statement of the Newmarket Master Plan supports quality, thoughtful development that preserves natural resources and enhances the aesthetics of Newmarket while creating a long term tax base.
CRITERION 3. Granting the variance would do substantial justice, because there would be no general public purpose to be gained by denying the variance as any loss to the individual would be outweighed by any public purpose by denying the variance.
CRITERION 4. If the variance were granted, the values of the surrounding properties would not be diminished. With the current property, it appears that attempts are being made to maintain them, but they are in various states of disrepair, resulting in diminished value to surrounding properties.
CRITERION 5. Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
A. Owing to special conditions of the property that distinguish it from other properties denial of the variance would result in unnecessary hardship owing to special condition of the property, specifically being a very significant impingement on the wetlands, as well as steep slopes, that render only a small fraction of the property developable and that make, based upon evidence submitted by the applicant, a commercial-only use of the property highly unlikely based on the evidence presented.
Based on those factors, that distinguish this property from other properties in the area, denial of the variance would result in unnecessary hardship, because considering the unique setting of the property, as I have described it, and its environment of 5.29 acres and two houses, one garage and two sheds, located on the east side of Exeter Road in the B1 Zone, bordering residential uses to the south in the B1 Zone, has placed an unnecessary burden to develop this property in an orderly manner in strict conformance with the terms of the B1 Zone. The property has always been maintained as a residential use. The purpose of the zone is to bring in business use, which is, at least, partially accomplished by the application and safety features of the site will be enhanced in removing one of the two existing means of access. The applicant has demonstrated through the criterion that, without these requests for mixed use development, future development would not be viable, as I have already referred to. This mixed use development, with commercial space, with a limited set of studio-style apartments would benefit the applicant and the town of Newmarket to promote orderly development and protect the health, safety and general welfare of the population, as well as enhance the tax base and, by granting the variance, a reasonable use of the property will be allowed.
Having met the five parts of the variance criteria from Newmarket’s Municipal Code, being Section 32-49 and 32-233 paragraph (B)(1), the motion is made to approve the variances, as requested.
Second: James Drago
Vote: All in favor
Agenda Item #4 – Old/New Business
There was discussion of the importance of obtaining a variance, when necessary. When it comes time to sell a property, not having obtained a variance when one was necessary, could complicate the sale of property.
It was mentioned the Board has vacancies and interested parties are welcome to apply.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 8:06 p.m.
Second: Wayne Rosa
Vote: All in favor