Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
SEPTEMBER 22, 2014
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Elaine Winn, Richard Shelton (Alternate), Diane Hardy (Zoning Administrator)
Absent: Bob Daigle (excused)
Called to order: 7:00 p.m.
Adjourned: 8:10 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 01/27/14
Chairman Hawkins appointed Richard Shelton to replace Bob Daigle.
Action
Motion: Richard Shelton made a motion to approve the minutes of 01/27/14
Second: Elaine Winn
Vote: Wayne Rosa abstained due to absence
All others in favor
Agenda Item #3 – Regular Business
Real Estate Advisors/Walter Cheney – Public hearing for a Variance reference Section 3.03 of the Newmarket Zoning Ordinance, for property located at 1R Grape Street, Tax Map U2, Lot 206, R3 Zone. The applicant request a Variance to permit increased residential density to allow four units on less than two acres of land on an existing nonconforming lot that does not meet the current road frontage requirements of 100 feet.
Chairman Hawkins asked if the abutters were notified. Diane Hardy stated they had been notified.
Chairman Hawkins explained there were four members present this evening. There must be three affirmative votes, for a variance to be approved. It is up to the applicant whether he wishes to proceed tonight with a four member Board or wait until five members are present. Walter Cheney stated he would go forward this evening.
Chairman Hawkins stated the Board has received a corrected Warranty Deed, clarifying ownership of the property. Walter Cheney gave the Board a copy of the recorded deed.
Chairman Hawkins stated he received an email from Janet Lamontagne, 3 Grape Street, generally opposed to the project on the basis of additional traffic in the area and the four rental properties would be disruptive to the current property owners. He stated the public was welcome to look at it.
Chairman Hawkins stated he drove past the property. He did not go on the property, but took a good look at it from the street and sidewalk.
Walter Cheney, representing Real Estate Advisors, stated the property is in the R3 Zone. There is another R3 zone in town, but this one is in the New Village area. He indicated the locations of all of the duplexes in the area around his property on a color coded plan. He also showed the location of trailers, single family homes, triplexes, fourplexes, and a five unit building that were in the immediate area. He showed aerial photos. He went over the layout of area and showed where the various multifamily units were on the aerial photos. He went over a map that showed the locations of the abutters. The map shows one fourplex by his property and two more in the neighborhood.
He stated they calculated the density of the immediate abutters touching his property. What he is proposing with the fourplex is 29% less dense than the abutting properties. They took the nine properties, the number of units in those properties, the total acreage, then they took his property’s total acreage and did the math and his density is still 29% less than the abutters. He is putting 29% less units on his property than his neighbors have. He stated the last plan showed the new surveyed boundaries. It is a conceptual plan of what the fourplexes could look like and what the building could look like.
Mr. Cheney stated the granting of the variance would not be contrary to the public interest. The construction of a fourplex on Lot 206 will retain the character of the existing New Village neighborhood. Seven fourplexes currently exist. Lot 206 is currently serviced by the Town, but is underutilized in terms of the existing dynamics of the neighborhood and it would not be contrary to the public interest to provide a greater tax base, with less cost. The Town is presently servicing this lot and there would be very little additional cost to the Town with four additional units on this property. This is an in-town lot, within walking distance to downtown. It will increase the downtown uses. It is also within walking distance to the baseball field and the Lamprey River. To utilize something that exists (with infrastructure) would be in the public interest.
Mr. Cheney stated, if the variance were granted, the spirit of the ordinance would be observed. Since the Zoning Ordinance permits multifamily units in the R3 zone as a transition zone between the low density R1 zone and the more intensely populated downtown, a fourplex meets the spirit of the ordinance and provides a better utilization of the resources and the economics for the town, this being within walking distance to downtown, the Lamprey River and the playing fields.
Mr. Cheney stated granting the variance would do substantial justice, because based on the density requirements, it would be an injustice to allow the construction of a single family house on Lot 206 due to its location and the lot being surrounded by eight duplexes and one fourplex, which would make a single family house out of character with its surroundings. Since multifamily housing is allowed, by allowing a fourplex substantial justice would prevail, since seven fourplexes already exist within the New Village neighborhood. One is a few feet away from the property and one abuts the property. A fourplex brings similarity, while at the same time allows the Town to have better utilization of the lot.
Mr. Cheney stated if the variance was granted, the value of surrounding properties would not be diminished. The construction of a new fourplex will remain in keeping with the character of the neighborhood and increase the awareness and value of the surrounding area by drawing positive attention to the new and existing duplexes, triplexes, fourplexes and multifamily units that are within walking distance of the downtown, the recreation areas of the Lamprey River, and nearby playgrounds. They would be in a position to buffer, landscape and add many amenities that will increase the value of the other properties. By creating privacy for his lot, it creates privacy for all of the abutters. Since they are surrounded, anything they do to protect themselves will automatically protect their neighbors and increase their property values. He met with the neighborhood, before doing anything, to see what their desires were. He is open to what happens to this property, but he believes what he is proposing will be a true asset to everybody, the abutters, himself and the Town.
He stated, for unnecessary hardship, special conditions that distinguish this property from the other properties in the area are the shape of the property and how it is surrounded. If you envision a single family home in there, it would not be compatible to what surrounds it. It is clearly a unique situation that is inherent in the land. Chairman Hawkins asked Mr. Cheney to reiterate what the unique condition was. Mr. Cheney stated, if you look at the surrounding neighboring property and you look at his property, you can see how his property is surrounded. He has a great deal of land compared to everyone else. Most of the lots are 100’ x 100’ or less and he has over a half acre of land. The lot is completely surrounded by other lots. If you look at the existing single family houses in the neighborhood, they all back up to either single family houses or wilderness and they have large lots that are not surrounded. They have the duplexes and fourplexes across the street from them. His lot’s uniqueness is that it is surrounded by either duplexes or fourplexes. He went back over the color coded plan showing the locations of the single family homes, duplexes and multifamily units. He stated there are over 50 buildings in New Village.
He stated, having built neighborhoods and rented apartments in the past, the compatibility of people is an important factor in how the neighborhood gets along. Based on the shape of his property and the surroundings, a single family house would create incompatibility within the area. Either the single family house people will complain or the duplexes and fourplexes will complain. He does not see them as being compatible. For apartments where he allows people to have pets, they are only allowed, for example, in units on town lines or in units like where Twin Rivers is located. These are units that have wilderness and open spaces next to them. When the units are tight, they don’t allow it, because the dogs bark and the neighbors are not happy with that. If the neighbors have their own cats or dogs, it works. Compatibility, putting similar situations together, is in the forefront of his mind. That is what he has dealt with throughout his life. It is his experience.
The proposed use is reasonable, because Lot 206 is surrounded by a fourplex and eight duplexes on smaller lots, with six additional fourplexes located within a 200’ radius of Lot 206. It would be consistent to build a fourplex, as it would be in character with the abutting New Village neighborhood.
For Item (B) under the hardship related criteria, he stated the location of Lot 206 shows that it is surrounded by duplexes and fourplexes and a triplex and the property is greater in size than those properties and different in dimensional shape. The ordinance permits a single family house, which would be grossly out of character with the neighborhood and due to its location it could be incompatible, as such. A fourplex conforms to the neighborhood and is reasonable under the circumstances.
Chairman Hawkins opened the public hearing.
Norm Walker stated he was an abutter at 19-21 Cedar Street. He stated his property backs up to Mr. Cheney’s property, where the existing 6-unit garage is located. He indicated the location on the plan. He stated he owns half of the fourplex at 19-21 Cedar Street. The garage sits right on the lot line. He asked how setbacks would be addressed for the existing brick garage structure from his property. Chairman Hawkins asked Mr. Cheney what his intentions were regarding the existing garage. Mr. Cheney stated it is intended to remain and be incorporated to the fourplex. The owners will have garages. The units will be condominiumized and transferred to the condo owners. Whoever owns a condominium unit in the proposed building would own a share of the garage. Chairman Hawkins explained the location of the garage is grandfathered. If Mr. Cheney tries to move it or alter the footprint, that would be a different issue. As long as it remains where it is, the setbacks would not be affected.
Mr. Walker stated he was trying to understand how the rental or sale of a single family home would present a hardship vs. allowing Mr. Cheney to build a fourplex. He understands his points about density and the abutting units. He believes the Town came up with the current zoning to limit further density in the New Village area. When he has spoken with Ms. Hardy in the past, he was told that was the reason for the zoning. It was to prevent further density to give abutters some privacy, similar to the homes across the street on Cedar Street and the fourplex that was built previously. The zoning was put in for a reason. It needs to meet the requirements. This is a different situation, with a roughly 50’ right of way into Mr. Cheney’s property and the nine or twelve properties’ backyards are backing up to this lot.
Mr. Walker stated his other concern was the power that goes into that property goes across his property. He did not know if that was grandfathered. There is no easement on his property or on his own abutter’s property. He would like to know how Mr. Cheney would address the power coming onto his property.
Mr. Walker stated there is also quite a bit of drainage. There is one low area there. He wanted to make sure, if there was development back there, the drainage issue is addressed. There is a pretty big area of water on Mr. Cheney’s property and some of it is on his property, since he owns to the rear of the gravel driveway. This gave him the acreage to subdivide many years ago.
Mr. Walker was also concerned about the access and egress. It is one driveway for four units. He wanted to make sure that is addressed.
Mr. Walker also stated Mr. Cheney, in the past, put up arborvitae to give privacy. Fencing would be hard to do around the brick garage, since that backs right up to his property.
Chairman Hawkins stated there is a gray area between what the Zoning Board does and what the Planning Board does. If the Zoning Board approves this, it would go through Planning Board Site Plan Review. The Planning Board would ask a lot of questions. Instead of having the plan that is before this Board tonight, you would have a more detailed one showing the topography and it would show the high and low points on the property and the wet areas. The Zoning Board certainly hears his concerns and appreciates his comments. Questions regarding where the power would come in and where easements are located would go through the Planning Board and be highly relevant.
Mr. Walker asked if the Board could answer the question of hardship. Chairman Hawkins stated that is something the Zoning Board considers and they do take his comments under advisement. Once they get through the public comments, the Board will talk about that more directly.
Wendy Chase represented her parents, Jacques and Betty Gagnon, 22 Beech Street, Tax Map U2, Lot 192. She asked if the police and fire departments looked at this proposal. Chairman Hawkins stated they had not. She asked what the width of the access was on Grape Street. Chairman Hawkins stated, according to the plan the Board received, at the street it is 54.1 feet. A rough measurement of the length would be 35 to 37 feet. Mr. Cheney stated it is 35’ at the narrowest point. The road going into the golf course subdivision is 22’. Ms. Chase asked if there are plans to improve that or would it be dirt. Diane Hardy stated that would be part of the site plan review process. The Planning Board will look at public safety, they will consult with the police and fire chiefs and there are access requirements in the subdivision and site plan regulations. The minimum width for an access driveway is 22’ if it is for two-way traffic. They would have to put in drainage and, possibly, underground utilities. Diane Hardy stated she could review those regulations with her, if she wished.
Ms. Chase stated she was looking through the Zoning Ordinance and she read the “Purpose” section of the ordinance. She felt this proposal does not meet any of the listed standards under the section. The section, from which the applicant is requesting relief, mirrors the language under “Purpose” almost completely. Lessening vehicle congestion in the streets, preventing overcrowding of land, and avoiding undue concentration of population were some of the items.
Ms. Chase stated, to the criterion asking if granting this variance would be contrary to the public interest, that to grant this variance would be contrary. It violates the ordinance’s basic zoning objectives stated in Section 3.03. “Control of residential density is an important component in addressing many of the general purposes of this ordinance, including lessening of vehicles in the streets, preventing overcrowding of land and avoiding undue concentration of population.” There will potentially be eight vehicles coming and going from this narrow access on a daily basis. That does not include visitors. A fourplex on this substandard lot is the exact definition of overcrowding of land, from which the ordinance is designed to protect the residents of Newmarket.
Ms. Chase stated, to the criterion asking if this request was consistent with the spirit of the ordinance, the answer was no. The spirit of the ordinance provides for the public’s health, safety, and general welfare. One provision under Section 1.02 of the “Purpose” statement is to secure safety from fires, panic and other dangers. This brings to mind the standoff involving the firearms on Salmon Street that happened not too long ago. Anything like that or a fire or anything happening in this close proximity to the abutters would be very detrimental to all of them.
Ms. Chase stated, to the criterion asking would substantial justice be done by granting this variance, if the variance is granted, it would cause harm to the general public that far outweighs the benefit to the developer. The fourplex will be in such close proximity to the abutters, it will encroach on the privacy of the abutters and adversely impact the adequate sunlight and air circulation, which is also a specific objective under the General Purposes in the ordinance.
Ms. Chase stated, to the criterion asking if granting the variance would result in diminished values of surrounding properties, she was not an expert, an appraiser or a real estate agent, but common sense tells her that an overcrowded, substandard lot is going to adversely affect the value of her parents’ home when they go to sell it.
Ms. Chase stated, to the hardship criterion, there is no hardship. The applicant has the right to develop this lot with a single family home, just like the many surrounding single family homes on Beech Street and Cedar Street. She respectfully requests the Board not grant this variance. It is an attempt to overdevelop a substandard lot to get more “bang for the buck”, which is understandable, but it is at the expense of the abutters and the quiet enjoyment of their property.
Ms. Chase thanked the Board for serving the town. She stated they have a hard job and a thankless job and she gives them all credit, but she hopes they do not grant this variance.
Chairman Hawkins asked Diane Hardy for clarification on whether duplexes or single family homes were permitted in this zone. Diane Hardy stated, in the R3 zone, single family and duplexes are permitted provided you meet the maximum density requirement, which permits two units per acre.
Robert Madea, owner of 7–9 Grape Street, stated his lot was one lot west of the access. He stated right now his duplex abuts this lot as an open field, which is quite attractive. He stated he does not own the lot and the owners have the right to do what they want with their properties. He did not encourage the use of that property to turn into an overcrowded lot against the ordinances of the zone, by putting a four unit building in there, not even knowing how many bedrooms per unit. He stated it was overcrowding and against the zoning. He did not encourage the Board to approve this. It also decreases his property value, in going from a property with open space behind it to one with an overcrowded unit on that property. Grape Street is basically a one way street. It is a two way street, by law, but from the access point on that property, the people who are going to be leaving that area will drive right past his house. It will increase traffic on that road. His street is popular with children. There are a lot of small children. There are some rental units. It is attractive to people with small children. They do play out in the street. The kids have plastic tricycles and things like that. To increase the traffic on that road could be an accident waiting to happen.
Mr. Madea stated, as far as the services Mr. Cheney mentioned the Town provides to that property, he did not know of any services the Town provides. He stated the Town plows Grape Street and provides water and sewer. He did not know the justification for saying they will not be placing an undue burden on services. For his neighbors, the narrowing of the access for snow removal and plowing will cause the snow to be pushed into his neighbors’ backyards.
Mr. Madea stated he was also concerned about the drainage. From his experience, New Village was built mostly on clay and does not drain well. He and his neighbors experience water in their basements right now. If not developed properly that could force additional water onto his property or his abutters’ and cause additional havoc in their basements. He does not encourage the approval of this development.
Nathan Porter, 26-28 Beech Street, asked if the Board had walked around New Village. He stated he is talking about a character issue. This is about putting up a four unit rental building in the middle of New Village. He asked how that fit the character of the neighborhood. All the other issues have been discussed, the children and the congestion. Right now, it is already too congested. His biggest thought is about where this is being proposed after hearing about fourplexes and how a single family home would not fit. There are at least five single family homes closer than the fourplex that Mr. Cheney recently built there. There is no hardship. He has lived there twelve years and it has been a joy to him to watch new young families buying those duplexes. There will be renters in this building. He did not see how this is better for the character of the neighborhood. He asked the Board to walk around the area before taking a vote. He did not see the hardship. Mr. Cheney has a right to develop the property, but he is asking for something different than what is allowed.
Bob MacDonald, 1 Grape Street, located at the entrance to the property stated he rents a garage unit from Mr. Cheney. He approached him when he found out he was purchasing the property. When this was owned by the previous owner, they did not care about plowing and would push snow wherever they needed to push it. That is a common issue in an area like this. His daughters live in the house he owns now. It is a duplex. The issues, as far as the wetlands, are a big concern. They are not seeing the full plan at this meeting, just a conceptual plan. From his standpoint, putting four condos in there, if it is done right, would not be hurting his property. He thinks the entrance to the lot, under the next process, can be corrected. He wished there was more information that could be put forth tonight where they could see a whole plan and the issues.
Walter Cheney stated, on the setback of the garage, it is what it is. If someone does not like the brick of the garage, when they go through the Planning Board process, he could plant evergreen trees on his property.
Mr. Cheney stated he never said this would be rental property. The intent is for condominiums. He cannot guarantee they will not be rented.
He stated the proposal at the present time is for two bedroom units. That could change.
He stated he has not addressed the power and drainage, as it is too early in the process. He explained he has to go through this Zoning Board process to understand if they are allowed to build the four unit building, which they believe would be in the proper character of the neighborhood. If they receive a variance for this, then they would have to address all of the issues mentioned. That is the way the process is set up. They cannot plan something, when they do not yet know they have permission to build.
Mr. Cheney stated his properties speak for themselves and they would do all of the necessary things to satisfy whatever they have to do to go through the process.
Chairman Hawkins stated he is inclined to ask for some more information before they go forward in considering the merits of the proposal. He would like to ask for input from the emergency services and the Director of Public Works about the placement of the driveway, the overall safety considerations that are part of 3.03 (A) in terms of vehicle congestion, overcrowding and public safety in general. He would also like to ask Diane Hardy to do some research on how the Zoning Board has addressed other applications for variances in the New Village area for increased density, if there are any. He would also like a site walk and the public would be welcome to attend. He did not go onto the property when he was out there, as he did not have landowner permission.
The Board decided to have a site walk on Saturday, October 4, 2014 at 9:00 a.m.
Chairman Hawkins stated he is leaving the public hearing open, so the public can comment at the next meeting on any new information that may come in. He would like to continue this hearing for about 30 days.
Action
Motion: Elaine Winn made a motion to continue to a site walk on October 4, 2014, at 9:00 a.m.
Second: Wayne Rosa
Vote: All in favor
Action
Motion: Elaine Winn made a motion to continue the hearing to October 20, 2014, at 7:00 p.m. either in the Town Council Chambers or the Auditorium depending on availability
Second: Wayne Rosa
Vote: All in favor
Richard Shelton stated the applicant has a Constitutional right to request a fourplex. It is not in the Zoning Board’s purview to offer anything less. The Board cannot say they will give him two units, when he is asking for four. His variance is for four and that is what stands. Chairman Hawkins stated that was correct. The Board is ruling on the application before them. Diane Hardy stated the applicant could reapply for two, if he wished.
Chairman Hawkins reminded the Board they could not discuss this outside of the meeting.
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Richard Shelton made a motion to adjourn at 8:10 p.m.
Second: Elaine Winn
Vote: All in favor