Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
NOVEMBER 4, 2013
MINUTES
Present: Wayne Rosa (Vice Chairman), Richard Shelton, Bill Barr, Bob Daigle, Elaine Winn
Absent: Chris Hawkins (Chairman) excused
Called to order: 7:02 p.m.
Adjourned: 9:17 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review and approval of minutes: 08/05/13
Action
Motion: Bob Daigle made a motion to accept as transmitted
Second: Elaine Winn
Vote: All in favor
Agenda Item #3 – Regular Business
William D. Pothier – Public hearing for a Variance reference Section 1.05(B)(1)(c), of the Newmarket Zoning Ordinance. The applicant requests a Variance for a horizontal expansion to allow the existing foundation, flooring, and roof to remain in place. This renovation will involve relocating sections of the existing exterior walls to create alcoves (insets) on either side of the building to give the appearance of the separation of the buildings similar to what existed prior to the reconstruction of the boathouse and barn, while protecting the structural integrity of the sluiceway and providing adequate site safety. The lot is located at 8 Bay Road, Tax Map U2, Lot 356, R2 Zone.
Vice Chairman Rosa asked if all abutters had been notified. Diane Hardy answered they had all been notified.
Richard Shelton stated he had no problem with hearing the application. He had a few questions he would like answered. At the April 8, 2013 meeting, the Zoning Board denied part of the application on RSA 677:2. On May 13, 2013, the ZBA denied the Motion for Rehearing on RSA 677:3. That left the applicant under RSA 677:4 to appeal the Board’s decision to Superior Court and he never did. Richard Shelton asked whether all that gets thrown out now and they have to start anew. Diane Hardy stated this does raise legal questions. One of them is there has to be a material change in circumstance or in the proposal to warrant the new variance to be heard. The burden of proof is on the applicant to illustrate to this Board that there have been changes and what is being asked for here is not the same as what was asked for before. If the Board feels it is justified, a motion could be made to hear the case. There is a case called Fisher v. City of Dover, which says you cannot have a second hearing on a variance that has already been heard. The caveat is there has to be circumstances that have changed or it has to be materially different from what was originally applied for. Richard Shelton stated they had applied for a Special Exception and now they want a variance. Diane Hardy stated, in order to proceed with their plans, they would need to have both a Variance and a Special Exception. They did not meet the criteria for the Special Exception, so they requested a Variance and that was turned down.
Richard Shelton stated at the last meeting regarding this case, there was a Cease and Desist of any further development on that project until things got settled. Nothing has been settled and he can see it has been worked on. Diane Hardy stated she has been in consultation with legal counsel and they provided a reasonable amount of time for the applicant to get organized, so he could comply, and have given him the opportunity to come back to the Board before taking any kind of legal action. There is a stay on enforcement, until the Zoning Board makes a decision. The next step would be, if this was denied, where the Town would seek enforcement action.
Vice Chairman Rosa stated the applicant has requested a site walk. What they will do tonight is hear everyone, the applicant, the public, whoever would like to speak. The Board will not deliberate tonight. A date will be set for the site walk and, at the next meeting, the Board will deliberate. The applicant agreed to this procedure.
Attorney Scott Hogan represented the applicant. He went over the procedural history of the case. He submitted a cover letter with this application that went over the history and noted the Board had granted the variances from Sections 1.05(B)(1)(b), 1.05(B)(2)(c) of the Zoning Ordinance to allow part of the structure an expansion to be located within the 100 year floodplain. The Board granted the applicant’s request for Special Exception to allow portions of the structure within a setback to be enclosed or expanded upwards. The one part the Board denied was the request for a Special Exception from 1.05(B)(1) to allow the horizontal expansion. The section of the ordinance upon which the Board based that denial was 1.05(B)(1)(c) that states no other expansion, which reasonably fulfills the intended purpose, can be achieved in conformance with the ordinance. The one aspect of the requests made that was denied was for the horizontal expansion of the building, which was the connection between the two structures that enclosed the roofline and walls between the two of them. Following that decision, they received a letter from the Building Official regarding their request for permission to proceed with work on the project to put up siding, doors and windows to close it off to the elements. Mr. Pothier was trying to preserve his investment, so the elements could not affect it. He was past the warranty on the exterior siding, so he was looking for permission to make the building weather tight. The Building Official gave permission to proceed with doors, windows and siding. The Building Official asked that Mr. Pothier submit plans to the Town to show how the existing buildings would be modified to remove those portions of the building that have been horizontally expanded. That is the connection portion between the two structures. In response, Mr. Pothier engaged a building contractor to get an opinion letter about how to proceed with that directive. In the application for this variance, he attached the contractor’s opinion letter. This letter suggested strongly against the disconnection of the two buildings. The applicant then engaged a NH licensed engineer, Mike Sievert, and got an opinion letter from him regarding disengaging the buildings. Both the contractor and the engineer identified numerous concerns and detriments regarding the complete removal of the walls, flooring and roofing between the two structures. The most unique aspect of this project is that is sits atop a sluiceway, which is a large box culvert that comes out of the embankment. That was the primary driver of the design and reconstruction of these buildings. He stated the Board may remember, when discussing the possibility of separating the two structures, there being safety issues in having an open sluiceway in between. The design of the structures was done to maximum stormwater protection, to take it to the eaves and direct it in a designed way to the river.
Once the Building Official gave Mr. Pothier the letter asking for plans to show how they were going to separate the two structures, Mr. Pothier submitted the letter from his contractor and engineer and the Building Official contacted him with an idea that might be a reasonable compromise that would meet the concerns of the Board. He suggested they meet at the site with the civil engineer to discuss the options. They looked at various options and the suggestion that came out of that meeting from the Building Official was to modify the structures such that they would maintain the protection of the sluiceway, maintain the flooring that exists above and move the exterior walls in, so that from any outward vantage there would be the appearance of separation between the two buildings. This would have the appearance it had historically of two buildings, while protecting the sluiceway. Based on that meeting and the conversation of the Building Official, Mr. Pothier engaged his architect to design that suggestion.
Attorney Hogan stated in the initial application that was submitted for this meeting, the floor plan shows the “bump in” on each side. He then showed a rendering of what the buildings would look like when complete with the bump in on each side.
He stated the original structure was inundated with flood damage numerous times. Part of the relief the Board already granted was to raise the structure out of the floodwaters. The other aspect was the original structure’s foundation, which was a series of 55 gallon metal drums holding it up. In the reconstruction of this, there was significant expense and design to build a concrete structure that would protect the sluiceway and provide a box culvert. When you see this in person, you get an idea of the massive design considerations that went into reconstructing the building. This sluiceway has water passing through it every day. It is not just related to storm events. The original structures were eyesores and dilapidated.
He stated in the past, the building had a restroom facility that seemed to have its discharge directly into the river. He stated there were photos showing the original buildings and showing them in flood conditions.
He stated as the project was undertaken, the current design was what the contractor believed was the feasible way to design the project. That decision was made in the course of the reconstruction. Whether or not there should have been permission asked of the Board at the time, they are long past that now. When they were before the Board the last time, they asked for all of the relief and the only one that did not get passed was one of the requirements for Special Exception asking for the horizontal expansion of the building.
One of the preliminary legal issues he wanted to address was the Fisher v. Dover case. He has a case right now in the NH Supreme Court based on that case and the Brandt Development case. He was trying to apply the Fisher standard to a Planning Board decision. The case law in NH is clear that the Fisher case has only ever been applied to Zoning Boards granting variances. The standard is, if a Zoning Board denies a variance request, the applicant cannot come back and ask for the same relief again unless there is some material difference in the application. The thing in the present case that distinguishes his case from Fisher is that they have never asked for a variance from the provision in the Zoning Ordinance they are asking for the variance for tonight. They asked the Board for a Special Exception. There are Special Exception requirements. One of them the Board denied the last time. Instead of them being before the Board tonight asking for the Special Exception, they were asking for a variance from that Special Exception requirement. The first time they were here, they did that for another Special Exception requirement and the Board granted that one. The section of the ordinance, 1.05(B)(1)(c) is one of the Special Exception requirements that the owner demonstrates that no other expansion which reasonably fulfills the intended purpose can be achieved in conformance with the ordinance. They have never asked the Board for a variance from that section of the ordinance. He stated Fisher v. Dover does not apply in this case.
He stated the Board rendered the decision it did the last time they were here. They asked the Building Official for permission to put up siding, doors and windows to weatherproof the structure, and he gave them permission to do that. He then specifically said they need to submit plans to show how they will bring the building into conformity regarding the horizontal expansion. That is when they got the contractor’s opinion and the engineer’s opinion strongly recommending against the complete separation between the two structures. They submitted those to the Building Official. He suggested they meet and, at that meeting, he suggested the bump in proposal. Based on that, they engaged an architect and they designed the plans with the bump in design. He submitted those plans to the Building Official and his response was this design would be compliant with building and life safety codes. The design will significantly give the appearance of two buildings and be more aesthetically pleasing from an abutter’s perspective. Based on that response, they drafted the variance request.
He went over the five variance criteria.
The first criterion was granting the variance would not be contrary to the public interest. He stated they talked a lot about the fact there is the sluiceway, which goes to the Lamprey River. There is an immediate and obvious benefit now. The concerns of surface water quality are sedimentation, erosion and siltation. On the site now, when rainwater falls, if it falls on the roof, it is coming to the rooflines and is being directed in a naturally designed way through the lawns. Before it gets to the river, there are staked hay bales and erosion control fences. In terms of protecting and not being contrary to the public interest, this design provides the maximum protection of the river in terms of water quality issues. This is in the public interest to maintain the design on the site now, because it does provide the maximum protection to the Lamprey River. When you look at the dilapidated structures that used to exist there, there has been a substantial investment in the improvement of these structures and the property itself. The Town will eventually send the Assessor out and they will reassess the value of the property and there will be a substantially higher tax assessment and tax revenue. The enclosure there now, compared to cutting the two buildings in half so rainwater falls down on the sluiceway, provides an improved condition. The sluiceway and area around it is completely protected and management of stormwater is improved. It is a much safer condition than the original condition.
For the second criterion, the spirit of the ordinance will be preserved. The proposal provides the visual separation of the two structures that previously existed. In terms of the horizontal expansion, with the additional architectural aesthetic improvements that are achieved compared to the original condition of these structures, there is no question it is a perfect compromise. They are achieving the purposes of the ordinance providing the public and abutters the visual separation that used to exist with all the benefits in terms of safety and environmental protections.
For the third criterion, for substantial justice, the Malachy Glen vs. Town of Chester is the case everyone uses when referring to substantial justice. The rule the Supreme Court has given is the only guiding rule in determining whether that requirement is satisfied. It is any loss to the individual that is not outweighed by a gain to the general public is an injustice. As he argued under the prior requirement, there would be no gain to the general public by denying this variance request. There would be benefits. There would be substantial losses to the property owner. The contractor and engineer are clear saying there would be no benefit by providing the actual separation of the two buildings, but there would be significant financial and other losses to the property owner. They went to the contractor and asked for an opinion on how to accomplish what the Town asked them to do. The contractor said there are substantial detriments and no benefits. It would cost a significant amount of money. The engineer put his stamp on his letter and said the same things as the contractor and added concerns over the cost, the detriments that would result and the loss of benefits provided by the current design. There is no gain to the general public and significant, substantial losses to the property owner as a result of denying the variance.
For the fourth criterion, in granting the variance, the value of surrounding properties would not be diminished. This is one of the easiest criteria, given the amount of investment and substantial improvements that have been made to this property, there was significant additional expense by Mr. Pothier by coming up with a premium design to protect the sluiceway. There was a variety of options. The contractor’s letter talks about the unique construction issues with the sluiceway and the spans they were dealing with. If you go out and look at this project, you will get an idea of the amount of effort, design consideration and money that was spent to provide what is on the site right now to protect the sluiceway. Given the improvements, this will increase the value of abutting properties with the increase in assessment on this property.
For the criterion regarding unnecessary hardship, the Board granted variance relief the last time. They found there was unnecessary hardship, which means owing to special conditions of the property that distinguishes it from others in the area. In nineteen years of practicing land use law in NH, he has never seen a property like this that has this kind of sluiceway under it that passes into the river. The Board recognized the special conditions of the property the last time they were before them when they granted the previous variance request. The conditions include the unique configuration of the structures, the sluiceway under them, and the proximity to the river. This design provides a way to apply that horizontal expansion provision to this property in a way that achieves the purpose of the ordinance.
For the five criteria, they tried hard to respond to the Board’s prior decision, the response they got from the Town was to suggest they go down this road and come before the Board with this exact plan. They vetted this design with the Building Official prior to the meeting to see if there were any code issues.
Bill Barr stated last time this was before the Board, they agreed the five criteria were met and granted the variance for the 100 year floodplain. It seems like going forward it is a reasonable argument for Part C of the ordinance. He stated the primary concern last time was they were presented with a building plan that was approved by the Town and then presented with a building that did not conform to that plan. There was evidence to support that there was another way of constructing the structures that would reasonably fulfill the purpose. In this case, with the additional evidence, it seems that Part C may be no longer a valid reason to deny an application for a Special Exception. He asked if they had to vote on a variance in order to rehear a Special Exception, if there is significantly new evidence. It sounded to him like they were going to vote on a variance and that would be the vehicle to allow rehearing the Special Exception again. Attorney Hogan stated that was not correct. The request they made to the Board the last time included a request for a variance from one of the Special Exception requirements. It was clear they were within the floodplain. There was no way for them to approach the Board other than to ask for a variance. At the time, they presented their argument to say this was the only reasonable option they determined and the Board did not agree. They are now asking for a Variance from C. They believe the additional evidence and process they went through with the Town since then gives them enough evidence to meet the five variance requirements. If the Board agrees with their argument, it would be granting them a variance from that Special Exception requirement. The effect would not be to rehear the Special Exception request. If the Board believes the five variance requirements are met, it would grant the variance and that decision would say that Special Exception requirement is met through the variance. Bill Barr asked if it would not be necessary for a second vote to pass a Special Exception. Attorney Hogan stated it would be an up or down vote on the variance request they made. Vice Chairman Rosa stated, in other words, a Variance is a Variance and a Special Exception is a Special Exception. The applicant is applying for a Variance. Attorney Hogan stated that was right. The last time they specifically asked the Board for a Variance from one of the other Special Exception requirements and that is what they are doing now. The last time, the applicant felt he met the Special Exception requirements, the Board did not agree. Now they are asking for a variance based on the new information they generated since that time. Diane Hardy stated if the Board grants this Variance, the Special Exception is approved by default. Bill Barr stated since last time they voted specifically to deny the Special Exception. They never voted to approve the Special Exception. Diane Hardy stated it should state in the record what the implications are and the Board is in agreement with that. Bill Barr stated then it should be contained in the motion.
Bob Daigle asked what the dimensional differences are on the breezeway. They are headed in the right direction in complying with the original plan. Vice Chairman Rosa asked why they don’t return back to what they originally had. Attorney Hogan stated it was specifically a product of the meeting at the site with the Building Official and the engineer. A three to four foot bump in would provide adequate visual separation and you could have a code compliant sloped surface within each of the bump ins to direct stormwater away. He had submitted the plan from the architect to the Building Official to ask if it was building code compliant and he replied that it was. If there had been some other specification that was needed, they would have done it.
Bob Daigle stated in looking at the rendering, the roofline would not change. The bump ins would be there, but the roofline would extend to the outside wall of the new structures. Attorney Hogan stated that was correct. When they got the letter from the Town telling them they needed to comply with the Board’s decision regarding horizontal expansion, they solicited the contractor’s opinion. He had specific concerns over the roofline issues and structural integrity in terms of having a complete separation. The engineer reiterated and amplified the concerns that would be involved in carving the roofline completely away. Keeping the roofline intact is what provides the protection of the sluiceway from direct stormwater and the effects of sedimentation and erosion. It was a product of their opinions that led them to this compromise.
Diane Hardy asked about an architectural rendering of the elevation of what the structure was going to look like that was submitted to the Board this evening by the applicant. She found it interesting that it looks like a single family home, a Garrison with an attached garage. It is very similar to the home she lives in. For the record, she asked they clearly state what their intentions were for the use of this space. Attorney Hogan stated the Building Official was very clear in his response to them that, if at any point in the future there was any intent to make residential use of this structure, it would be a completely separate proceeding and request for a variance from the Zoning Board. They are very clear about the use aspects of this. It is an accessory structure. The look of it is the product of them trying to comply with the horizontal expansion. If there was ever to be a residential use or commercial use, it would be the subject of a subsequent Variance request.
Vice Chairman asked the Building Official if he would like to comment. Mike Hoffman, Newmarket Building Official, stated the alcoves set in to a large degree will create a moisture problem with snow accumulation and mold and mildew. It is problematic from a structural point of view. If the roof portions were removed, it would look very abnormal and it would create structural issues and concerns down the road from a moisture retention problem. If the roof was cut away it would be less attractive, but it would create structural and maintenance issues. He stated he thought this was a good compromise.
Vice Chairman Rosa opened a public hearing.
Michael Smith, 6 Bay Road, stated he and his wife had submitted written comments to the Board. Regarding the question of the Fisher case, he did not it see as clearly as Attorney Hogan does. He did not know whether this Board has taken advice from counsel on whether Fisher applies. The Board should, if they have not.
He was not sure why granting the Variance excludes any necessity for Special Exception. In the last proceeding, a Special Exception was granted for the vertical expansion of the building, because the only restriction that applied there was the 100 year floodplain. The applicant requested and received not only the Variance, but a Special Exception for the height expansion. He was not sure why all of a sudden a Variance gets him out of a Special Exception for horizontal expansion.
He stated on the Fisher issue, the Supreme Court stated, when a material change of circumstances affecting the merits of the application has not occurred, the Board of Adjustment may not lawfully reach the merits of the petition. If it were otherwise, there would be no finality to the proceedings before the Board of Adjustment, the integrity of the zoning plan would be threatened and an undue burden would be placed on property owners seeking to uphold the zoning law. The clear concern of the court and Fisher was having an orderly efficient process before Zoning Boards. This is for the benefit of members of the Board. They have volunteered their time. They should not have to hear the same case over and over. It is for the protection of the Town citizens, who are, as the court puts it, “Property owners seeking to uphold the zoning law”. They should not have to be constantly on the lookout for the latest little wrinkle on a proposal they thought had been finally resolved. To meet these objectives, an applicant should be required to put together all of the issues affecting his property in one application and not be permitted to bifurcate or trifurcate or quadruple the process. They should not be allowed to use two, three or four separate procedures. This is what the owner appears to be doing here, since this is his second “bite of the apple” and there are at least one or two more obstacles for him to overcome. This is not an efficient use of the Board’s time and commitment for the Town and it is not fair for the adjacent property owners.
He stated, under Fisher, this Board can only consider the application if there has been a material change of circumstances. In this case, there has not been a material change of circumstances, with respect to the property or the owner’s plans. His proposal is to change the building as it now exists, a building he cannot help but point out has been constructed in violation of the Zoning Ordinance. His proposal is to make what can only be described as a cosmetic change. It appears by the plans to be merely a 2 foot or so recess. That is not a very significant change from the plan that was before the Board back in January and in April. Since the plans do not show the measurements, it is not possible to be sure what they are. What is known for sure is the building will not look like the building that was included in the original building plans that were the basis of the granting of a permit.
He showed the original plans that were the basis for the granting of the building permit. It clearly shows two separate buildings. He showed a plan for the footprints of the buildings submitted with the building permit application. It clearly shows a very small connection between the two buildings. He showed a photograph of what was there now. It was one building. It is not like the plans that were originally presented and it should require a Variance, which should be looked at very, very carefully. He stated that photograph was taken from his condominium unit. He stated that is what they look at now and what they will look at from the rest of the time they live there, if they permit him to construct what he is proposing.
He stated what has been built is a significant deviation from the plans that were submitted with the building permit. The proposed change before the Board tonight continues to be a significant deviation from the original plans. This proposal is only a cosmetic change to the building that was built in violation of the permit. There has not been any material change to what was considered by the Board and voted on at its meeting on April 8. The owner’s justification for the variance is the significant cost of going back to the original plans, the significant cost of complying with what he told the Town his intent was in his original building permit application. The significant cost of undoing work that was done while blithely ignoring what was permitted by the Zoning Ordinance and by his building permit. That is not the Zoning Board’s problem. It is not the Town of Newmarket’s problem. It should not be the abutters’ problem. That is the owner’s problem for callous disdain for the ordinance and his permit. It reminded him of the story of the young man who killed his mother and father. He is brought to trial and he begs for mercy as an orphan. This is what is being done in this particular case. The problems were created by the building of this structure that was inconsistent with the permit as granted and the plans as filed.
He stated he had addressed the question of whether the Special Exception will have to be applied for. If the Board’s interpretation is correct and granting the variance gets him out of that, it is not an issue. But if it is an issue that will be another time he is going to be back in front of this Board.
He stated while the question of the applicability of Fisher is a procedural issue and the procedure really is to get everything out before the Board at once, so they can consider everything and make a decision and not have to come back again and again with minor changes. He did not want to downplay the significance of it in this matter. He did want to address the issue of the owner’s entitlement to any Variance for the building on this property. This proposal just does not meet the criteria for the granting of a variance. He wanted to specifically address two of the requirements. As to the spirit of the ordinance being observed, he must emphatically disagree with Attorney Hogan. What existed on the site previously were clearly two separate buildings. There were separate rooflines. Whether they were connected by an open catwalk or closed catwalk or whether there was an opening into one of the buildings from the catwalk, which there was some discussion about at a prior meeting, there were still two clearly separate and distinct buildings. The two buildings were clearly not a residence, but a barn and a boathouse. This is beginning to look more and more like a residence. He did not think this proposal in any way observes the spirit of the ordinance.
He spoke about the unnecessary hardship requirement. He acknowledges there are special conditions to the property. The examination does not end there. The issue is whether owing to these special conditions, there is no fair and substantial relationship between the purpose of the ordinance and application of those provisions to the property. That is straight from the statute for variances. He maintained that, while the 100 year floodplain may have impacted the vertical expansion and reconstruction of the building, it may have been appropriate for the Board to consider and possibly even to grant that variance. He is not addressing that, because that has been decided. Neither the special condition for that nor the sluiceway would prevent reconstruction on the original footprint of the buildings that were there. The sluiceway existed prior to the actions taken in connection with this recent reconstruction. It is primarily the excavation and connection with the reconstruction that has caused the expansion of the area beneath the new construction. It is such expansion that gives rise to any problems faced by the owner. Attorney Hogan showed pictures, you can see the sluiceway in one of his pictures. It was a relatively narrow space of open area for the water to come through. It was adequate for the water that comes through there. What is there now is a 24 foot wide sluiceway. That is not defensible. It is not appropriate. This expansion of the area beneath the new construction was caused by the owner’s own actions. Any safety issues were created by the owner by his disregard of the building permit. He could have built foundations and met the original footprint, had a narrower sluiceway and not faced these issues. All of the problems they talk about of cost are because of his actions. Under any criteria for determination of unnecessary hardship, the proposed use is critical. While Attorney Hogan says they now recognize that and that they will have to come back before the Board if they want to turn it into a residence, it clearly looks like a residence. It is probably going to be a residence. The Board should not have to make a decision regarding a variance until that is made very clear with a commitment from him that it will never be residence. That would not even satisfy his concerns about this. He stated the use must be a reasonable permitted use consistent with the Zoning Ordinance in order to meet the unnecessary hardship requirement. As stated by the owner in his presentation to the Board in January and repeated by Attorney Hogan in March, the proposed use here was as a residence. He is now backing off of that, but he questions whether you can rely on that. He asked since you could not rely on him to building the building in conformance to the permit that was issued to him, how can you be sure you can rely on him to follow through on his commitment to not use it as a residence. The property is located in an R2 zone. This is a single residency zone and there is already a house on this lot that is rented out by the owner. A second residence on the property is only permitted as an accessory building that has to be attached to the main residence. This building is not in any way attached to the main residence.
He stated the owner is able to get full enjoyment and benefit of the property without the necessity of any variance. He does not need to construct a new residence on the property to have a place to live. There is already a residence there, which he could occupy. He also owns at least one unit at 6 Bay Road.
Vice Chairman Rosa stated the discussion of a residential use does not pertain to the variance the applicant is requesting.
Mr. Smith asked what the proposed use was. Vice Chairman Rosa stated he assumed a boathouse and barn. Mr. Smith stated it was a boathouse and a barn, it does not look like either one of those now. He understood what Vice Chairman Rosa was saying, but he respectfully disagreed. He stated without knowing what the intended use is, the variance cannot be granted. Vice Chairman Rosa stated that is an enforcement issue. If he uses it as a residence it will be enforced, he can apply for Zoning Board relief, or he can take down the other house. Mr. Smith stated the wording in the statute ties the proposed use of the property into the issue of granting a variance.
Mr. Smith stated he has heard several times that one of the benefits of this is the property will have an increased value and increased tax revenue to the Town. He is not sure how the taxes are calculated in Newmarket, but his experience is a town develops a budget and allocates that out to all of the property owners. There is no increase in revenue to the town overall by his increasing the value of the property. It just reduces the amount that comes from someplace else. That is not a benefit to the town.
Rick Martineau, 6 Bay Road, stated they are here, because one individual ignored all of the rules and regulations that were presented to him, had a perfectly well laid out plan to build two structures, as planned and approved by the Town. They are back here tonight, because that individual chose not to follow those plans. He cannot imagine Mr. Pothier drove home one day to the site and found that his contractor had built a foundation for one building and said, “I can’t believe it, what were you thinking?” He stated he thought this happened by design. This whole discussion about residence was planned from the beginning. The approval of vertical expansion was a bad idea, because it affects people behind him who now cannot see the water. He hopes those people come to the Town for a tax reassessment and rebate. It affected, by his count, eight homes. He looks at a beautiful plan with a building that looks like barn, like the structure that was there, vertical siding, faux barn doors, now what is presented here today is grossly nothing like what you thought was going to be put on this property at the time. He stated a comment was made about keeping the roofline the same. He stated there were two separate rooflines and a juncture and a shorter roofline. Nobody was concerned then about moisture issues, snow removal, or what affected the property then. He stated he did not understand why those are issues now. The structural fix should be made. It should go back to what was originally approved. This is just gross misconduct by the owner. Why the Board has to deal with this is beyond him. This is asking for forgiveness later. The intent was there from the start, especially seeing what was built and what is being proposed now. The owner will be back. He asked what else would he do with a structure that size. He stated Mr. Smith asked a wonderful question about what the intent was for the building. Mr. Smith was not answered. In fact, it was talked around and then he thanked you and sat down. Attorney Hogan did not answer the question and he stated that was rude. It is implied that the intent of this building is to be a residence. There will be a precedent set that allows people to do this from here on out. It makes him wonder what the purpose of the Zoning Board is for people that are not going to follow the Town’s rules, guidelines and directives. He wondered where this would head for future expansion in town and what this says to them. He stated it says you can disregard what the Town says and the Town will let it go later. It was not fair to the Town. He stated he appreciates the Board’s time and what they do for the town. He hoped this gets thought out really carefully, because what happens after this is a bigger picture than what happens now.
Bernard Gordan, 6 Bay Road, stated Mr. Martineau put the major issues front and center. The purposes of having a Zoning Board is so people know what the rules are and they will follow them. This case is an instance of someone who does not follow the rules, then comes back and says he is sorry and besides that says they have already spent a lot of money. He stated he knows they should not use the word “filibuster”, Attorney Hogan went on for 47 minutes at the beginning and said repeatedly that Mr. Pothier had made a major investment. This Board had said several times, if you proceed, you proceed at your own risk. He recalls how clearly that was stated and, now, to have his attorney come forward and say he has spent a lot of money, that was Mr. Pothier’s decision. He knew full well when he came forward and built the building that was not in the original plan. When you look at the site at the site walk and you see this large picture window, it is remarkable. It would make a lovely fixture in a house, but it has no place in a barn or a boathouse. It is a charade to come before a Board and say he is sorry and had to make a change and he knew what the rules were and now he is an “orphan” because he spent all this money. He appreciates the Board’s time on this, but it is a charade and an injustice to the people in the town that they expect rules are going to be followed. He is a former teacher of government. He stated we have a system based on laws, so everyone knows what those are. There can occasionally be exceptions and when someone comes forward again and again and wants a variance and exception, the Board knows what that represents.
Alice Gianni, 6 Bay Road, stated her unit overlooks the house that is being built. She stated they came back at Thanksgiving last year and saw this big structure being built right against their property. She thought there must be rules about having this setback right against the fence at Bryant Rock. She found out there are setback rules and there was a barn and a boathouse. She may be the only one that disagrees, but she would rather have that old barn and boathouse. To her, it fit into what was there rather than this structure right up against their property. She did not think there was any way a Zoning Board would allow a structure like that, that is getting to be almost a “McMansion” being built up against their property. It is getting more and more grand. They have everything, but the American flag and a post box. It is a residence and a charade. She is talking about how he is going to come back and ask for a variance for a residence. She looked at the tape of the January meeting when Mr. Pothier spoke and he said it was going to be a residence and started talking about bunk beds. It is a residence. What they are hearing and they hear it all the time, someone does something wrong and then they say, “But look at the cost and look at how beautiful it is everybody” and then they build something more and come back saying, “But the cost!” So, then it is going to be “You let me building this McMansion or boat/barn McMansion, but now I can’t use it”. You can say that is not what is before the Board tonight, but you really cannot. You have got to, by law, take into account the proposed use is a reasonable one. She said Attorney Hogan today sort of evaded the question. He did not evade it on March 4 at the Zoning Board meeting when he said, “It was obvious that part of his (owner’s) intent in doing the improvements to these buildings was that it would be a residential use”. You can look at that meeting on March 4. It is a disservice to pretend that you do not know the use or say we will call the use a barn and a boathouse when we all know what the use is. It is death by a thousand cuts. She did not know how many meetings there have been, but if the Special Exception is granted they will be back again arguing this.
Attorney Hogan stated Mr. Smith brought up the issue of Fisher again and asked if the ZBA had received advice from counsel. He spoke to the Town’s Attorney, John Ratigan, himself and encouraged the Board to speak to him. He stated Mr. Smith said while we may not have technically applied for this variance before, the issues were similar. They have not applied for this variance before period. They have gone through the process as it is exactly laid out. They asked for Special Exceptions and Variances. When the Board did not grant one aspect of the Special Exception, they looked into complying with the Board’s decision, provided the letters from the professionals, went to the Building Official and he suggested this as a compromise, so they requested this. They have not evaded or gone outside of the process. This is the process. They did not technically apply for this variance before, they applied for a Special Exception. They are applying for that tonight. There is no second bite of the apple for it.
In terms of the abutters, in his practice he represents abutters most of the time. He has represented developers and municipal boards. Mostly, he represents abutters and he knows what their issues are. He could not understand, from an abutter’s perspective when people started talking about the view that is being blocked. He does not understand what aspect of a water view is being blocked by this proposal compared to what was there before. Aesthetically, architecturally from a code compliant perspective, these structures are, by far, superior to the dilapidated, 55 gallon drum foundation type structure that was there before. This sluiceway is exactly the same as it was, no wider, no bigger, it does not pass any more water, and it just has a different structure over it to protect it. When everyone walks out there, everyone will see that for themselves.
This is a matter of this person’s individual property rights to exercise them within the process that the Town provides. Regarding the statements saying they were evading or being dishonest about what the use is or that he was rude for not answering a question, in Mr. Pothier’s original application to this Board, he specifically put that he wanted to continue the historic residential use of the property. He said, when you went in those old structures, there were bunks and kitchen facilities and the bathroom that discharged into the river. This structure, as an accessory structure, a boathouse, may have had someone making boats and using the bunks to sleep and the kitchen to make food. Even if those were historic uses of the property, if there are issues of abandonment, such that someone could claim maybe you had those rights, but you do not have a vested right to them anymore, because there was a period of time in which those were abandoned, that was all talked about.
Given the immediacy of the issues that he had to deal with right now, the structure was wide open to the elements. They had to deal with the process they were in with the Town of Newmarket. There was no question from the very beginning of this process, Mr. Pothier was clear to this Board in writing and in his testimony that there were residential uses in this structure. He took offense at the implication they were evading or being dishonest or rude to the Board in their responses to those issues. He asked the Board over and over what the benefit was in going back to that substandard design, the dilapidated structures. He stated there was an analogy having to do with someone who murdered their parents. He did not understand what the relevance of that was.
There used to be two, separate dilapidated structures with an open catwalk to the sluiceway. No one has forwarded any argument about why that is a superior design to this one. Why that is in the public interest and why they should go back to something that is obviously a substandard condition.
Regarding unnecessary hardship, there was an argument that Mr. Smith made, in the context of owing to the special conditions of the property. Special conditions are directly resulting from the sluiceway. The really specific and unique construction considerations for a project like this are reasons why they are here.
He stated in response to safety issues created by the owner, the issues existed because of the prior condition, they have been improved by the owner in this design.
He stated regarding there is no increased revenue to the Town through increased property assessment is one he never heard before, that the budget is somehow backed into that. The Town assesses every property, determines the value and then you pay taxes based on that. If it is increased in value, you pay more taxes.
He stated regarding the implication that Mr. Pothier ignored the rules and regulations and that this is a charade, he has taken every step. There was a change in Building Officials during this project. The Building Official gave input. Saying that they are rogue people is not accurate. He asked why it made any sense to do that in any respect.
Vice Chairman Rosa closed the public hearing.
Vice Chairman Rosa stated the Board needed to set up a site walk and continue this to a date specific. The public is welcome to attend the site walk. Attorney Hogan stated any member who could not make it to the site walk has an open invitation to come to the property any time they would like. A member of the audience stated the Board could go to her unit at 6 Bay Road and view the property from her unit.
The Board decided to get a legal opinion on the procedure to issue the Special Exception discussed this evening.
It was agreed upon to have a site walk on Saturday, November 16, 2013 at 9:00 a.m. and the next meeting on Monday, November 25, 2013 at 7:00 p.m.
Kelli Hardy – Public hearing for a Special Exception relative to Section 7.03 to allow an accessory apartment. She is also requesting a Variance from Section 7.03(B)(4) to allow parking within the side setbacks, as the parking area is less 50 feet from the abutting dwelling units, and, as an alternative, a Variance from Section 2.02(C)(6) to allow parking in front of the property parallel to 5 South Street, between the front of the primary structure and the street. The lot is located at 5 South Street, Tax Map U3, Lot 153, M2 Zone.
Diane Hardy stated all abutters have been notified. She stated for the record there is no relationship between her and the applicant.
Robert Hardy, the applicant’s father, represented her. He thanked Mike Hoffman, Building Official; Diane Hardy, Town Planner; Sue Jordan, Administrative Secretary Building, Planning & Zoning; and Mr. Fornier, Town Administrator, from the Town of Newmarket for being very responsive through this whole process.
Mr. Hardy stated, in January, Kelli had just joined Exeter Hospital as a nurse and was looking for a place to live. She had rented in Newmarket in the past. They looked for a house and found 5 South Street. It had been used as a multi-family home illegally for at least 15 years. When they looked at the house, the kitchen and the upstairs floor were not vented properly. He spoke to the Building Official. If they were to go through the process to make this a multi-family home, it would need to meet life safety codes and building requirements. Kelli was going to apply for a multi-family dwelling, but the house and third floor really do not lend themselves to the parking constraints to have 2-4 families living there. They decided to go for an accessory apartment on the third floor. There is 600 sq. ft. of living space. He noticed an error on the square footage on the third floor. It looks like it is 720 sq. ft. of living space, when it is really 560 sq. ft. He will explain that as he goes along.
Vice Chairman Rosa stated that is a single-family house right now. Mr. Hardy stated that is correct. When Kelli bought the house, it was used as a single-family house.
Mr. Hardy stated, on the Special Exception, it is within the requirements to be within 300 sq. ft. and 800 sq. ft. It will be a one bedroom apartment. One of the units in the building will be occupied by the owner, Kelli Hardy. She will be on the first two floors. There will be two parking spaces per unit. He stated the Zoning Board requires a certain square footage allocation. It amounts to about 650 sq ft. You can definitely park four cars and they have submitted photos. There will be no substantial exterior changes. There is an entryway to the right of the house. If they get approval, they will put an entryway stairwell to the upper floor that will extend 10’ from the existing structure. Sight lines would not be impacted. They would put in fire safety balconies similar to what you see in the neighborhood.
He stated adequate water and sewer would be provided.
It is consistent with 1.05(A)(2). The home is currently a single-family use in an M2 zone.
They would like to ask for relief for parking under the Variance. There were two requested. They would like to have parking at the side of the house. That is their first choice. They have exhausted other avenues. They spoke to the Town Administrator to try to get access from the parking lot at the back of the Town Hall. The Town did not want to allow that. They had hoped to rent a couple of spaces from the Town in the lot, but that was not an available option. They did find people in town who were willing to rent spaces to them, but there is no permanency to that. They could sell the property and then they lose the spaces. The felt the best thing for them would be to allow the parking in the side. If that does not work, they would like to get a Variance to park in front of the house. Aesthetically, that is not as nice.
They felt there would be undue harm, if they were denied, because the house is in the M2 zone, which has multi-family consistent with what they are asking for. They submitted six or seven photos showing this from the immediate area showing houses similar to theirs in structure. They believe the past history of the house lends itself to a multi-family house and this would be structured in a more formal way than it was for both short and long term going forward. They would prefer to pursue this as an accessory apartment.
Bill Barr asked about the driveway being extended to the rear of the property. Kelli Hardy stated it would not go there. It would be to use the existing driveway on the side of the house. There would be two cars parked side by side and then two side by side behind those. They can fit four cars on the side. Richard Shelton stated that parking area has been there so long, it might be grandfathered. Diane Hardy stated for the Special Exception they have to show there are two parking spaces to meet the requirement. Mr. Hardy stated they want to make this as clean as possible and done by the book. He showed the photo of fours cars in the driveway. They are trying to avoid having a fifth space in the front, they do not want that. They are only looking for four cars to park. There was discussion about the parking regulations in site plan. Mr. Hardy stated they could not promise, but it is likely the apartment would only have one person in it. They would assume worst case would be two cars. Kelli Hardy stated the house currently has eight bedrooms, which lends itself to that many people living in the house. By adding the apartment, it decreases the bedrooms and decreases the number of people who could live there. In a college town, an eight bedroom home lends itself to a “party house”, which it has been in the past. If they put in the apartment, it can’t be that anymore.
Vice Chairman Rosa stated there is an existing condition with the parking. Richard Shelton felt it was grandfathered. If they can put four cars on the side of the house, the Board does not have an issue. Bob Daigle stated where they are applying for the accessory apartment they have to demonstrate they can do that. Richard Shelton stated they have done that.
Vice Chairman Rosa opened the public hearing.
Karen Cotton, 1 South Street, stated she is all for this accessory apartment and the parking. In the past in the 40 years they have been at their home, there have been a lot of people in and out of that house. It has been a party house. She feels that this is in keeping with the neighborhood. She fully supports this application.
Action
Motion: Bob Daigle made a motion that based on the evidence presented we grant a Variance to Section 7.03(B)(4) to allow parking within the side setback of the dwelling based on the fact that the existing driveway there can handle the use and it has been used in that fashion in the past
Second: Elaine Winn
Vote: All in favor
Vice Chairman Rosa read the requirements for the Special Exception for the accessory apartment.
For the square footage requirement, Mr. Hardy submitted a corrected copy of the apartment to the Board. The living space was 14’x 40’ instead of 24’x30’. That adds up to 560 square feet of living space. The Town has it listed as 600 square feet.
For the efficiency/one bedroom requirement, Bill Barr asked if the office had a closet. Mr. Hardy stated they do not know how the Town defines a bedroom. The office has a closet. They could remove it. They could also increase the door space to 6’ wide and not put on a door. Kelli Hardy stated she would prefer not to do that, if Newmarket defines a bedroom as a room without a closet. She would prefer to just remove the closet. Diane Hardy asked Mike Hoffman, the Building Official, if there is a definition in the building codes and there is not. The Town Assessor did tell her if there is a closet in the room, it is a bedroom, if there is not, it is assessed as a different use. There is nothing that really addresses that in the Town’s regulations. The problem is enforcement. Sometimes, it is a moving target with people moving in and out. Kelli Hardy stated even if you did view it as a two bedroom, it does not lend itself to any more people in the unit. They do not have the parking for more either. Diane Hardy stated there could be a condition regarding this. Mr. Hardy stated they would accept that. They would be willing to stipulate it is a one bedroom accessory.
The next item is one of the dwelling units must be owner occupied. This will be the case.
They already discussed #4.
The next was no exterior changes shall be made which significantly alters the appearance of the structure from the street. Mr. Hardy stated he mentioned the fire escape balcony in the front would be added and also an exterior stairwell going up to the third floor. Mr. Hardy stated there is an existing side entry into the house. They will reformat that structure. The fire balconies would be on the street side to be accessible for the fire department. Bill Barr asked if these are significantly altering the appearance from the outside. He stated he would say no, those were required on all structures now. As them come in for review, they are going to have to meet egress requirements. Mike Hoffman, Building Official, stated the fire rescue balconies are usually required by the Fire Department when the windows are above 20’ above grade. The theory is you can jump out of a lower window and survive. Everyone agreed this did not significantly alter the structure from the street.
Adequate water and sewer is provided, they are Town water and sewer. Tie-in fees will need to be paid.
Granting of the Special Exception would be consistent with 1.05(A)(2). Diane Hardy states this means they are not expanding vertically or horizontally on a non-conforming structure, which they are not doing.
Action
Motion: Richard Shelton made a motion that they grant the applicant the accessory unit at 5 South Street, Tax Map U3, Lot 153, M2 Zone with the conditions:
1. The accessory apartment shall be of one-bedroom only.
2. Any fire and safety issues shall be addressed through the Code Enforcement Officer/Building Inspector before it can be occupied.
Second: Elaine Winn
Vote: All in favor
Agenda Item #4 – Old/New Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Richard Shelton made a motion to adjourn at 9:17 p.m.
Second: Bill Barr
Vote: All in favor