Minutes

 NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING

DECEMBER 16, 2013

MINUTES

Present:            Chris Hawkins (Chairman), Diane Hardy (Zoning Administrator), Wayne Rosa (Vice Chairman), Bob Daigle, Elaine Winn, Bill Barr, Richard Shelton (Alternate)

Called to order:            7:09 p.m.

Adjourned:                   8:00 p.m.

Agenda Item #1 – Pledge of Allegiance

Agenda Item #2 – Regular Business

            William D. Pothier – Continuation of a public meeting for consideration of 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.

            Chairman Hawkins stated there are six Zoning Board members in attendance, five full members and one Alternate member.  He asked if there was anyone who did not feel like they were fully prepared to go forward with voting on the application.  Richard Shelton stated he was comfortable sitting out as the Alternate, but would like to present his findings.  Chairman Hawkins stated the bylaws say an Alternate can participate in deliberations, but cannot vote.  Diane Hardy stated that was correct.  Chairman Hawkins stated everyone on the Board, except for Richard Shelton would be voting on the application tonight. 

            Chairman Hawkins stated the evidence was closed two weeks ago and they are prepared to go forward with deliberation. 

            Richard Shelton read his own Findings of Facts for the five Variance criteria.  He read them in the order of Criterion 5, 1, 4, 3, 2:

            Criterion 5 - Hardship:  By its basic purpose, a zoning ordinance imposes some hardship on all property, by setting lot size dimensions and allowable uses.  As we have a unique setting of the property in its environment that had pre-approved plans prior to construction and that due to the vertical expansion relative to the breezeway and boat house, an expansion can be accomplished under Section 1.05(B), if met.   I find the proposed variance is one of convenience, not one of necessity.  What do we do now? Has prior relief been established on the expanded setback to 6 Bay Road?  Does the applicant need a Special Exception related to the expansion or not?  If they are now not needed, my finding on the variance, as we now have an unnecessary hardship created by not building as approved we must use “reasonable” use.  Being reasonable, in my opinion, would be to leave the roof in place and reduce the expanded breezeway walls back to the width, 5 feet as shown on the ground floor plan, referencing the approved building permit that was issued by the Town of Newmarket and signed by the Code Official on 10/15/12.

            Criterion 1 - The variance will not be contrary to the public interest, as it will not alter the essential character of the neighborhood or threaten the health, safety or general welfare of the public.

            Criterion 3 - Substantial justice is done by allowing modification to the expansion, as approved, and that the use be consistent with its past use as a boat house and barn and relief will be granted to convert the use of the expanded boat house into a private 2 car garage.

            Criterion 4 - The values of surrounding properties are not diminished: It’s a statement of fact that the improvements associated with the sluiceway and increased assessment to the property the values of surrounding properties would not be diminished.  

            Criterion 2 - The Spirit of the Ordinance is observed by allowing the expansion with modification, expressly stated, that the Ordinance does not permit two principal uses on a lot, that this lot has a principal residential use already by virtue of the fact that there is an existing residence on the lot and, while variance relief is supported in connection with rebuilding the structure for an automobile garage and barn use, it is not supported for a residential use.

            Bob Daigle stated the property was not supported for commercial use and the property is not zoned commercial.  He stated there has been mention of a mail-order type business being run from the property.  He stated that violates the intent of the ordinance.  This is a barn and a garage.  That is what should go in there. 

            Bill Barr stated there has been a substantial amount of evidence presented to support Criteria 1 through 4.  Criterion 5, the unnecessary hardship, is the hardest one for him to get through.  There has been so little evidence presented for the use.  Both ways of dealing with that criteria key on the fact that the use is reasonable.  They have been told the uses are barn and boathouse and residential and anything else that is permitted by the Zoning Ordinance.  He stated that is very vague.  That is like saying the structure needs to be judged independently of its use, because any use can be used consistent with the Zoning Ordinance after the fact.  Using that generality as a basis for unnecessary hardship is too general. 

            Elaine Winn stated two things were bothering her.  One is the word “appearance” in “The appearance of a separation of the buildings”.  The word “appearance” means it is not separated the way the applicant was told it should be.  They are just going to make it look like it is separated.  The other thing is he was told what had to be done and it did not get done and now the Board is supposed to back off.  She asked where their credibility was, if they do not make sure the applicant does things the way he was told to do them.  He has spent a lot of money trying to get around it instead of fixing it the first time. 

            Bob Daigle stated he kept going back to the recurring theme of residential use.  It strikes him as the applicant taking the approach of if he says it loud enough and often enough, then it is fact.  Just because they had maybe a little grill in there and a hole in the floor for a toilet doesn’t make it residential.  His own kids had a treehouse with a hose to it.  They slept in it occasionally and had water there.  It did not make it a residential use.  This is a barn and a boathouse.  What they are seeing there now is not a barn and a boathouse.  For that reason, he does not reach any kind of hardship potential.  Elaine Winn agreed. 

            Chairman Hawkins stated he sat down after the evidence was closed and took a look back through the case.  There is very significant documentary record that has come into this case from the original application almost a year ago up to now.  There are very extensive meeting minutes and a site walk.  He went back and put all of it together to make sure he covered everything that he thought was significant.  He put together some Findings of Fact and rulings that are very similar to what Richard Shelton had suggested.  He stated he would read them and, if the Board felt he was missing something or misstated something, they should let him know.  This is not necessarily the final statement.  The Board can vote and draft a final document if they wish.

Chairman Hawkins read his Findings of Fact:

The lot is located at 8 Bay Road, Tax Map U2, Lot 356, R2 Zone.

II.        FINDINGS OF FACT

            A.        Overview

• The Property is located within the 100 year flood plain on the north bank of the Lamprey River below Macallen Dam.

• The Property includes, both prior to the renovations and currently, a residence and a boat house/garage structure.

• Only single family uses are permitted in the R2 Zone under Section 2.10 of the Ordinance and the Table of Permitted Uses.  Other uses not pertinent to this application are permitted in the R2 Zone.

• The boat house and barn sat atop a sluiceway that drained storm water from Bay Road into the Lamprey River, for which the Town of Newmarket has an easement. *

• The two buildings were loosely connected by a plank walkway over the sluiceway.  The sluiceway was covered by a separate set of planks.

• The Property and sluiceway experienced significant flood damage in 2006 and 2007.  The Newmarket Fire and Public Works Departments, and numerous volunteers, made extended efforts to protect properties in the area from the flood waters.

B.        Demolition Permit – April 2012

• On April 9, 2012, Applicant applied for a permit to demolish a boat house on the Property.  The “boat house” consisted of two separate buildings that shared no common wall. There was a garage structure south of Bay Road, and a boat house or barn structure south of the garage.  The permit (2012-00130) was approved on April 16, 2012.

*Diane Hardy stated she did not believe the Town holds an easement for the sluiceway.It is her understanding that the water has always flowed through there and there may be some prescriptive rights related to drainage, but nothing in way of a formal easement.

Chairman Hawkins continued:

C.        Building Permit Application – October 2012

• Applicant submitted with his building permit application a set of plans prepared by an architect, including foundation, elevation, section, and framing plans.

• As the architect’s plans were not keyed to an existing conditions survey, it is impossible to determine definitively whether the proposed structure was confined to the footprint of the pre-existing structures.  From the information presented, however, that appeared to be the intent.  Specifically, the ground floor plan, elevations, sections, and roof framing plans, reflected that there would be two separate structures sharing no common wall and connected by a narrow enclosed breezeway. In addition, the ground floor and roof framing plans reflected that the garage was to be built at a slight but discernible angle to the boat house structure, which, based upon photographic evidence, was consistent with the configuration of the pre-existing structures.

• The height of the proposed building was not clearly indicated on the architect’s plans.

• The ground floor plan reflected a kitchenette and a half-bathroom.  No full bathroom or bedrooms were identified on the architect’s plans.

• The building permit application includes a question, “Are you in or out of a special flood hazard area?”.  The applicant responded “No” to that question.

D.        The Boat House and Garage As-Built – October-December 2012.

• The structures, as built, deviated from the plans submitted to the Building Official in connection with the application.  Specifically, (a) there was no breezeway; (b) the boat house and garage were directly connected and shared a common wall; (c) the garage was not at an angle to the boat house as reflected in the plans; and (d) the building was taller than the prior structure.  Instead of two loosely connected structures, the Applicant built one structure that was both wider (in the area where the breezeway was to be located) and taller than the prior structures, and the buildings portrayed in the drawings he submitted with his application.

Wayne Rosa stated the building was built at a slight angle.The Board agreed that had been done.

Bob Daigle stated he should point out there are three separate roof elevations.There is a roof elevation for the barn, one for the garage, and one for the breezeway.This is referring to the drawings submitted.Chairman Hawkins stated it was very helpful to go back and look at those drawings, when he was putting this together.

Chairman Hawkins continued:

E.   The Stop-Work Order – December 2012

• On December 3, 2012, in response to complaints by abutters, the Newmarket Code Enforcement Officer (“CEO” aka “Building Official”) informed the Applicant and his contractor that the structure then under construction “appears to have been expanded both horizontally and vertically without a Special Exception granted by the Newmarket Zoning Board of Adjustment … contrary to the Newmarket Code Title III Zoning Ordinance.”  The CEO informed the applicant that “the overall size of the building has increased … it appears that the building is taller than the previous buildings and some in-fill between the two buildings may also have occurred.”  The CEO informed the Applicant that all work on the Property was suspended until further notice.

F.The Applicant’s Special Exception Application – January 2013

• On January 4, 2013, the Applicant applied for a Special Exception to allow construction to continue.  As part of his application, the Applicant made the following statements:

• When he viewed the property in 2002 it included electrical lighting and power outlets, a point well pump, running water, 2 stoves, built-in bunk beds, and an old toilet and outhouse that emptied directly into the sluiceway, and thence into the Lamprey River.

• The stoves were apparently used for “fish-fries” that the previous owners hosted on the property in the summer and autumn.

• He was told by the prior owner that “in the old days”, her husband and his siblings would often sleep upstairs in the Boathouse.

• “In response to the 2006-2007 floods, the Boathouse was raised approximately five (5) feet to prevent future flooding with more frequent flooding events, and the rising sea levels”, although the roof height was “well below the maximum allowable height of 35 feet.”

• “In order to make the building safer, and structurally solid, the Boathouse and Barn have been rigidly connected (as per plans).”

• “Previously, the buildings had a ‘loose’ connection with power and water running between the buildings, however, the sluiceway was completely open and exposed to the possibility of someone falling between the two buildings and into the sluiceway.”

• He “kept the connector between the two buildings as a separate entity, and simply enclosed the open space.”

• He planned to make 8 Bay Road his retirement home.

• The “[h]istorical use has been a residence and small business, and structure would continue to be used as a residence and small business.”

• His proposed use is a reasonable one because “denial of the variance would not allow the owner to use the property for its intended purpose when it was purchased, and for what it has been used to date.”

• No plans showing enclosure of the “open space” adjacent to the breezeway, or a common wall between the boat house and the garage, were submitted with the building permit application.

• While the application was pending, the applicant retained legal counsel and the application was amended and resubmitted to include requests for two variances in addition to the special exception.  The variances related to the vertical and horizontal expansion of the property.

• Following hearings, the variances were granted and the special exception was denied. The basis of the ZBA’s actions appear in the meeting minutes for the meeting of April 8, 2013.  In sum, the reasons of denial of the Special Exception include insufficient evidence to satisfy criteria Section 1.05
  “Non-conformity”  (B) (1) © in that the owner failed “to demonstrate no other expansion, which reasonably fulfills the intended purposes.” It was determined that conformity with the requirements could have been achieved had the applicant followed the original plans submitted with the Building Permit application.

G.October 7 Application

• On July 10, 2013, the CEO lifted the suspension of building permit 2010-00130 for the purpose that the work would be limited to exterior elements such as doors, windows, siding, site stabilization and erosion control. The applicant was required to provide within thirty (30) days new plans showing how the building would be modified to bring it into compliance with Town regulations.  All work was to be completed within 120 days from the date of the CEO’s letter.

• On October 7, 2013, the applicant applied for a variance from Section 1.05(B)(1)(c) of the Zoning Ordinance, which provides:

1.05 NON-CONFORMITY.  This section specifies those rights to which non-conforming uses, structures and lots are entitled….

(B) Non-Conforming Structure.The following control non-conforming structures:

(1) Where an existing structure violates the setback requirements, horizontal expansion of the structure within the setback may by allowed if granted a Special Exception by the ZBA.The ZBA shall grant the Special Exception only if the following conditions are met:

…

(c) the owner demonstrates that no other expansion, which reasonably fulfills the intended purpose, can be achieved in conformance with this Ordinance.

• The specific variance request relates to the specific provisions of the ordinance upon which the Special Exception was denied in the applicant’s first application.

• The application states that the variance is to allow a more limited horizontal expansion of the structure.

• The applicant submits that the current application is not barred by Fisher v. City of  Dover, 120 N.H. 187 (1980).

• The details of the application and the attachments submitted therewith are contained therein and will not be repeated here, but the applicant states that the more limited horizontal expansion is intended to maintain protection of the sluiceway and forestall the potential health and safety hazard caused by permitting it to remain open, while maintaining a visible separation between the garage and boat house.

H.        ZBA Process

• The ZBA took written evidence from abutters and the applicant, and public hearings over two meetings.  Everyone who wished to comment was given an opportunity to do so.  The applicant was afforded an opportunity to present his case in chief, review written materials submitted by abutters, and to respond to issues and concerns raised by the abutters during the public hearing.

• The ZBA held a site walk on (November 16, 2013) which was attended by the applicant, his attorney, and several abutters.

III.       RULINGS

            Based upon the written material submitted, the testimony and evidence offered by the applicant and abutters, the view, the ordinance, and the personal knowledge and experience of the ZBA members with the subject property, the ZBA rules as follows:

            1.         The application is not barred by Fisher v. Dover as the applicant has submitted no prior application for a variance under Section 1.05(B)(1)(c) of the Zoning Ordinance.

            2.         The variance will not be contrary to the public interest as it will not alter the essential character of the neighborhood or threatened the health, safety or general welfare of the public.

            3.         The spirit of the ordinance is observed by allowing the expansion for the sole purpose of safely covering the sluiceway.  The spirit of the ordinance would be violated, however, if the applicant was permitted to make use of the garage and boathouse inconsistent with its prior use.

            4.         Substantial justice is done by allowing horizontal expansion for the sole purpose of safely covering the sluiceway.

            Wayne Rosa asked if he meant the floor and roof.  Chairman Hawkins stated, as he understands the application, it is to cover the floor. 

            Chairman Hawkins continued:

            5.         The proposed expansion would have no adverse impact on the value of surrounding properties.

            6.         The proposed horizontal expansion for the sole purpose of covering the sluiceway is a reasonable use.  In light of the fact that there is already a principal residential use on the Property, however, residential use of the boathouse and/or garage would be unreasonable and inconsistent with the letter and spirit of the zoning ordinance.

            Accordingly, the ZBA rules that the variance is approved subject to the condition that no residential use shall be made of the garage and/or boathouse structures, and the applicant shall comply with the Zoning Ordinance and Building Code, as directed by the Code Enforcement Officer.

            Wayne Rosa asked if they were talking about the floor protecting the sluiceway and moving it back to the original plan.  He proposed the applicant adhere to the building permit that he obtained in October 2012.  By that, he means moving it back to the 4’x5’ or 5’x5’ passageway through there, not the 5’x14’ that he is proposing.  He should install a floor for safety with the sluiceway and retaining the roofline as it is and no residential use.  Bob Daigle stated they would probably get feedback on that from abutters, but he felt it served the intent in creating a box culvert.  He stated he was not calling it a sluiceway.  He was calling it a box culvert, because that is what it is.  He has always maintained that was separate from the building.  The building happened to be on the box culvert.  He felt they could get that building back to the original plan and he would be happy with it.  The vertical expansion was necessary, because, in order to make use of it, it had to be out of the floodplain.  But, there was a plan in place that had a footprint that, at least, made an attempt at mimicking what was originally there.  What is there now is not that.  The roofline to keep the water off makes sense to him.  It does slightly change the look of the property, but it clearly defines there are two separate buildings.  Chairman Hawkins stated certainly the revised plan they received from the applicant looks an awful lot like a house and that is disconcerting.  Elaine Winn stated she totally agreed.  The Board told the applicant what had to be done and the Board should stick with that.  She asked if the Board does not stick with that, then what authority does the Board have?  Chairman Hawkins stated this would restore substantially the visual separation and keep it safe.  Richard Shelton agreed. 

            Bill Barr stated he did not feel there was a strong connection between the type of horizontal expansion it is, whether it is an open area that is enclosed by a roof and a floor, or if it is the outside walls of a structure.  He stated he was okay with either of those proposals.  He stated, as far as a use not being specified, he like the idea of specifying the use through restriction using that as the basis to create an unnecessary hardship.  He agreed these Findings of Fact is a good approach.  Wayne Rosa stated, when he went on the site walk, he did not see a passageway between the two buildings, he saw a room.  He appreciates Bill Barr’s opinion, but he saw a passageway on the building permit application in October and now he sees a room in between.  Bill Barr stated he saw what Wayne Rosa was saying. 

            Chairman Hawkins stated what Wayne Rosa has proposed is very reasonable and consistent with the evidence and the spirit and intent of the ordinance. 

            Bob Daigle asked, if the applicant wanted to use the area as a home office, would that be an acceptable use for this space.  Chairman Hawkins stated what would be permitted would be anything that is permitted in an accessory structure, as we sit here today.  Chairman Hawkins stated it was not a permitted use.  Diane Hardy stated it is not permitted, because it is not in the primary structure.  If it was in the primary structure, he could have an office.  Since this is an accessory building, he cannot.  Chairman Hawkins stated there would be no residential use allowed in that structure, because there is already a primary structure on the property.  Bill Barr asked, in order to change that, demolition of the existing primary structure would permit residential use in this one.  Chairman Hawkins stated they could also change the zoning ordinance or ask for another variance.  Wayne Rosa stated that would also need variances for setbacks and other items.  It would be a process.  Chairman Hawkins stated they are not “slamming the door” on that.  They are saying, as things stand today and on the evidence they have and with the Zoning Ordinance that exists, this is the ruling.  As far as other options, the applicant’s attorney can advise him. 

            Bill Barr stated they were going to, perhaps, vote based on the original drawing for the floor plan allowing the roofline to remain intact and to specifically restrict residential use, unless it becomes compliant with the ordinance.  Chairman Hawkins stated their ruling will be that it is prohibited.  If something comes up in the future that makes it a substantial change or there is a change in the law outside of the scope of what they are ruling today, other options are available.    

They are ruling on the evidence and what they have in front of them and the way the ordinance stands today. 

            Bob Daigle stated this addresses the concerns he had.  This never had a residential component to it at all. 

            Chairman Hawkins stated they could incorporate into the final ruling the plan to which Wayne Rosa referred when speaking of a passageway, which is on the ground floor plan, as submitted with the original application back in October 2012, sheet A2, as approved by the Building Official, at that time.  The plan to which Wayne Rosa referred as having a room is the plan dated September 7, 2013. 

            Bill Barr asked if it was appropriate to open the public hearing to hear from the applicant’s attorney on this.  Chairman Hawkins stated that was not appropriate.  The applicant may file for a rehearing, if they disagree. 

            Bob Daigle stated, to Mr. Pothier’s credit, he took something that was falling down and built something that is an asset to the town.  He may have gone about it wrong and the abutters have been complaining.  He would rather look at what is there now.  Chairman Hawkins stated to be fair, when you look at the abutters’ concerns, they boil down to the failure to observe the plan, as submitted, and the use.  He stated he thought they have reasonably addressed this and done their best with the evidence they have and the law as it stands.  They have put a lot of time into this application.  Taking into account the corrections and comments, he asked if there was anything else anyone wanted to add or note as part of the final decision.  Bill Barr stated the applicant has asked for a Variance to 1.05(B)(1)(c) and they discussed that granting a Variance to that section is essentially the same thing as granting a Variance for 1.05(B)(1) in its entirety.  Chairman Hawkins stated they had done that.  The rulings made in January and February are still there.  Bill Barr stated voting on 1.05(B)(1)(c) is the only action needed to relieve the applicant of the requirements of all of Section (B)(1).  Chairman Hawkins stated that is the only thing before them.  That is what they are ruling on.  There is nothing else pending and it is not their place to figure out whether there is anything else he needs to apply for. 

            Bob Daigle asked where they went from here.  They vote on this and, if they vote to grant the variance, he asked what they have to do to put together Findings of Fact.  Chairman Hawkins stated he takes what he has done, sends it to Diane Hardy and says to fill in the blanks and draft something that is consistent with their decision.  Diane Hardy stated the Findings of Fact and conditions will be in the minutes. 

            Bob Daigle stated it was concrete under the passageway area. 

            Chairman Hawkins proposed that someone make a motion to approve the variance subject to the condition no residential use made of the garage and/or boathouse structures, the applicant is to comply with the Zoning Ordinance and Building Code in all other respects, and be in compliance with drawing A2 from the application.  The drawing is dated October 8, 2012. 

            Richard Shelton stated he thought all of the criteria should be written up, before a final vote is taken.  There should be a separate vote on all five criteria.  Chairman Hawkins stated they could do that.  Richard Shelton stated someone should draw them up and vote at another meeting.  Bill Barr and Chairman Hawkins stated they thought they could vote tonight.  Bob Daigle stated, at the seminar he went to, they said, if you voted on each of the five criteria separately, you could have three to two on one, three to two on the next, and have problems.  So, they were advised not to vote on each point of law separately, but as a total package.

            Chairman Hawkins suggested he would go back through and read the criteria, then restate the motion he is suggesting they make.  As long as it is clear what the findings are in each of the criteria, he did not feel it was necessary to vote on each one.  Other Board members agreed.

            Chairman Hawkins stated these are the rulings upon which the motion will be based:

1.         The application is not barred by Fisher v. Dover as the applicant has submitted no prior application for a variance under Section 1.05(B)(1)(c) of the Zoning Ordinance.

2.         The variance will not be contrary to the public interest as it will not alter the essential character of the neighborhood or threatened the health, safety or general welfare of the public.

3.         The spirit of the ordinance is observed by allowing the expansion for the sole purpose of safely covering the sluiceway.  The spirit of the ordinance would be violated, however, if the applicant was permitted to make use of the garage and boat house inconsistent with its prior use.

4.         Substantial justice is done by allowing horizontal expansion for the sole purpose of safely covering the sluiceway/box culvert.

5.         The proposed expansion would have no adverse impact on the value of surrounding properties.

6.         The proposed horizontal expansion for the sole purpose of covering the sluiceway is a reasonable use.  In light of the fact that there is already a principal residential use on the property, however, residential use of the boat house and/or garage would be unreasonable and inconsistent with the letter and spirit of the zoning ordinance. Owing to the special conditions of the site due to the sluiceway (or box culvert) and floodplain, the property cannot be reasonably used in strict conformance with the ordinance and thus, an unnecessary hardship exists, which satisfies that criteria.

            Chairman Hawkins stated what he is proposing is someone make a motion based on those findings and rulings and the ZBA approve the variance subject to the conditions that (1) no residential use shall be made of the garage and/or boathouse structures; (2) The applicant shall comply with the Zoning Ordinance and Building Code in all other respects; and (3) the building will be altered, with the exception of alterations to the roofline, consistent with drawing number Sheet A2, dated October 8, 2012, that was part of the original application.

            Action

                        Motion:           Wayne Rosa stated so moved

                        Second:           Elaine Winn

                        Vote:               All in favor

Agenda Item #3 – New/Old Business

            None.

Agenda Item #4 – Adjourn

            Action

                        Motion:           Bob Daigle made a motion to adjourn at 8:00 p.m.

                        Second:           Wayne Rosa

                        Vote:               All in favor