Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT
OCTOBER 20, 2014
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Zoning Administrator), Bob Daigle, Elaine Winn, Richard Shelton (Alternate)
Called to order: 7:00 p.m.
Adjourned: 8:36 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 09/22/14
Action
Motion: Richard Shelton made a motion to approve the minutes of the previous meeting
Second: Elaine Winn
Vote: Bob Daigle abstained due to absence
All others in favor
Agenda Item #3 – Regular Business
Real Estate Advisors/Walter Cheney – Continuation of an application 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 applicants 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 requirement of 100 feet.
Chairman Hawkins asked Bob Daigle, who was excused from the previous meeting regarding this application, if he had an opportunity to review the minutes. He stated Bob Daigle had attended the site walk. Bob Daigle stated he had read the minutes and viewed the video of the meeting. He felt prepared to go forward with sitting on the Board for this application. Chairman Hawkins asked Walter Cheney if he had any objection to Bob Daigle sitting on the Board for this application. Walter Cheney stated he did not have an objection to that. Chairman Hawkins stated Richard Shelton had been appointed at the last meeting to sit as a full Board member for this application, as the Board has a full member vacancy at this time.
Chairman Hawkins stated the Board had received a number of written materials from the applicant that are part of the record.
Chairman Hawkins stated the public hearing was still open from the last meeting. He asked Walter Cheney if he had anything he wanted to add or elaborate on, this was the time to do that. Mr. Cheney did not wish to add anything at this point.
Chairman Hawkins asked if anyone from the public wanted to make any further comment.
Wendy Chase spoke on behalf of her parents, Betty and Jacques Gagnon, 22 Beech Street, who are direct abutters. She thanked the Board for doing a site walk. She stated she did not think the variance should be granted. It does not meet all of the criteria for a variance. The townspeople voted for these ordinances to protect themselves from development that causes overcrowding of land, undue concentration of population, and congestion in the streets. All of these things are listed in the purpose statement of the Zoning Ordinance. The ordinance is designed to protect the rights of landowners. She did not feel that this application met the spirit and intent of the ordinance or that hardship had been established. The applicant cannot demonstrate that the property is burdened by the zoning restriction in a manner that is distinct from other similarly situated properties. There are duplexes surrounding this property, therefore, special conditions cannot be established. The applicant must establish that there is no other reasonable use of the property that would comply with the zoning ordinance. He is allowed to develop this lot and put a home on it. The applicant cannot establish the proposed use will not be contrary to the public interest or spirit and intent of the ordinance. The variance will unduly and, in a marked degree, conflict with the ordinance such that it violates the ordinance’s basic zoning objective. It says in the Purpose Statement, it is designed to control residential density, including lessening vehicle congestion in the streets and preventing overcrowding of land. This will add a lot of congestion to the streets there. It does not pass the test.
Nathan Porter, 26-28 Beech Street, stated he was opposed to the variance for many of the same reasons. He believed the current building code came about as a response to the high density building that was occurring at the time, much of it impacting the New Village neighborhood. He understands a majority of abutters are opposed. He hoped their wishes carry weight with the Board. He saw no compelling need to adjust the existing code. Mr. Cheney bought the property understanding that.
There were no other comments and Chairman Hawkins closed the public hearing.
Bob Daigle asked if they were dealing with a frontage variance, as well as the density. Diane Hardy stated it is a nonconforming lot, in that it does not have 100’ of frontage. They are not asking to subdivide the lot. The Board is only voting on the density requirements for a multi-family dwelling.
Bob Daigle asked what the acreage for the area was. Chairman Hawkins stated the two lots were a little over a half acre. Diane Hardy stated the area conforms to the minimum lot size, but it does not conform to the residential density requirement for additional units. There cannot be more than two units per acre. In order to have four units, he would have to have two acres of land.
Bob Daigle asked what the size of the units would be. Walter Cheney stated they would be approximately 1200 sq. ft.
Bob Daigle asked Walter Cheney to elaborate on why he felt four units was a good fit for that lot. Mr. Cheney stated the reason for the four units was due to how the lot is surrounded. For a single family home, that whole area would became the owner’s land and they would not want anyone on it. If it is a duplex, it is a similar situation. They each would have half of the land. If you make it a four unit building, it becomes diversified. Four families will live there and you don’t know which neighbor is in your yard. No one bothers anyone, if someone is out there walking on the land. This is a total neighborhood with people coming and going. Some sides are rented and some owners live there. The whole community is mixed. If someone takes ownership of this land and decides they are going to keep everyone off of it, it will be a nightmare for everybody, including the person who owns it and the police to try to enforce it, because every time a new tenant moves in, they will have to explain what they can do and can’t do. It doesn’t work in reality. There are also seven fourplexes in the immediate area. This is the largest lot in that whole neighborhood. Four units make economic sense for him and for the Town. It better utilizes an in-town lot. It is better for the downtown. In the process, they get rid of two nonconforming uses (lots). They will be incorporating the garages into the four units. You couldn’t have two units and give them each a three car garage. It is much more realistic to divide the garage units among four units.
Elaine Winn stated she spent the day on this application. She read Section 3.03(A) of the Zoning Ordinance which states, “Purpose. Control of residential density is an important component in addressing many of the general purposes of this Ordinance, including lessening vehicle congestion in the streets, preventing overcrowding of land, avoiding undue concentration of population, facilitating adequate provision of public facilities, utilities and services, assuring proper use of natural resources, and contributing to community character and quality neighborhoods.”
She also stated 3.03(B) states, according to the Dimensions Table, there is a maximum residential density and (C) states, on the Open Space Design section, this does not permit an increase of residential density. It does not say anything about if you have a problem with the land or not enough land and you want a variance from that or you have something on the land. It says “The standard for residential shall apply regardless of the pattern of development.” To her, that says just because you have one little space in the middle of a dense area doesn’t mean you have to fill it in. It was suggested this land should be for a one family home and there are a lot of one family houses almost across the street. There are three in a row. She did not see the hardship. Chairman Hawkins stated that was why he was here for a variance.
Bob Daigle stated he went back to the R3 Zone description. It states it is a transition between the low density residential and the more intensively developed districts around the village area. This is right in the middle and he is having trouble wrapping his head around how this is a transition, when it is right in the middle. This is a mixed density area. This adds to the uniqueness of that lot, because it is on the periphery, not in a transition zone, it is right in the middle of the neighborhood.
Chairman Hawkins said one of the things Mr. Cheney states, in the new documents he submitted, that there is an inconsistency with the definition of the R3 District allowing greater density and then the Dimensions Table restricting him, in the instance of this lot, to a single residence. He wanted to point that out as an argument Mr. Cheney is making.
Elaine Winn stated the area is already dense. Adding a four unit is not going to lessen the density. Chairman Hawkins stated it was dense before the Zoning Ordinance came along. New Village was pretty much built out. Bob Daigle stated there has been a fair amount of infill, too, around the peripheries.
Chairman Hawkins stated Mr. Cheney had pointed out you really cannot have further development in New Village unless you tear down existing structures. That is the reality of where the Zoning Ordinance is at. Bob Daigle stated, in order to get to the densities the ordinance allows, if you start tearing things down, you are in the process of changing the overall dynamics of that neighborhood. The density is already higher than what is permitted by the ordinance. Chairman Hawkins stated he thought what Elaine Winn was pointing out was the ordinance seems designed to freeze the density where it is. Elaine Winn stated that was the spirit of the ordinance.
Bob Daigle stated, when you read what the R3 District is for, it is a transition. If it was on the edge of the district, that would be more of a transition. This would be smack in the middle. He stated he was torn. Elaine Winn stated a single family house would be a transition.
Chairman Hawkins stated there is such a mix of density in that area. That is part of the unique character of the area. There is such a mixture of different styles and densities.
Bob Daigle stated he did not think, in that little triangle, there were any single family homes. They are all duplexes. Chairman Hawkins stated that particular block formed by Grape Street and Beech Street are all multifamily homes. The single family homes are across the street and then there are some triplexes. It is a diverse area, in terms of the densities.
Wayne Rosa stated he understood what everyone was saying, but he would like to point out the benefits and try to address some of the abutters’ concerns. What he noticed on the site walk is you have an electrical and utility mess there that would certainly benefit from this, by cleaning that up. The way it exists right now, he could possibly use it as a storage area or for parking. It could be used as an expanded use, which he did not feel would be a benefit to the neighborhood. There would be an increase in taxes paid to the Town. To address the abutters’ concerns, he did not think there would be an increase in traffic. The lot currently has a six-car garage. It might increase to eight cars, but he did not feel that would be a traffic problem. He believes a four unit fits with the neighborhood. He just heard it is diverse. He did not think this was out of place with the neighborhood.
Bob Daigle stated he knew this wasn’t to do with the Zoning Board, but wanted them to keep it in mind that the lot is large enough, even though it is only a half-acre, to take care of onsite drainage. If this is sent to the Planning Board, he thought they should send a recommendation to the Planning Board that Mr. Cheney should work with abutters to screen, as necessary. He felt Mr. Cheney was willing to do that.
Richard Shelton stated the hardship was the area. He did not think you could develop it for a single family home, unless you build a home with twenty rooms and rented them out. When they went on the site walk, they saw four big trees there, with the wires running through them. One of them is dead. Any big storm could clean out all the wires and then Grape Street is without power for who knows how long. He stated if they granted the fourplex, it would be within their right. The Master Plan wants development within walking distance of the downtown. He thinks this meets the criteria, because of the density with the other properties surrounding it. He is utilizing much less land for the building than the surrounding properties. He thought it met the criteria. He stated the Board should approve it.
Chairman Hawkins stated that, if he understands Richard Shelton correctly, he is saying it is consistent with the spirit of the ordinance, because there are so many other fourplexes. Richard Shelton stated there are about seven duplexes and a couple of fourplexes around the property. Chairman Hawkins asked Richard Shelton if it changed his thinking at all that those fourplexes were put in place not under the current zoning ordinance. Richard Shelton stated it did not change his way of thinking.
Bob Daigle stated what made it a neighborhood was the similarity of uses. He stated the thought process behind a fourplex would keep similarity in the neighborhood. He asked if a triplex would cause more of a hardship than a fourplex. That is a hard one to get your head around. Chairman Hawkins stated the way the issue of hardship is addressed in the law is that there is some condition of the property that makes it unique relative to other properties in the district. This property is larger than the other lots and Mr. Cheney said he would be using only 30% of the land area, which is less dense utilization than other properties in the area. It is difficult, depending on how strictly you interpret the issue of condition of the property to tie that to a fourplex. Elaine Winn stated to put up what is already existing in the area does not control the density. Chairman Hawkins stated that is the issue with the spirit of the ordinance. The spirit is no increased density beyond what is permitted in the Table. Elaine Winn stated she used to be the secretary for the Zoning and Planning Boards in Hampton Falls and one thing she learned was no house was ever built on any lot in Rockingham County whose taxes ever covered the cost of educating the children who live in that house. Chairman Hawkins stated he understood that. Richard Shelton stated that was not something before the Zoning Board. Bob Daigle stated someone could argue that a 1200 sq. ft. building is a starter home. The Census would probably bring that into question also. Typically 1200 sq. ft. is a starter home.
Chairman Hawkins asked the Board what the unique condition of the property was that gets them to a fourplex in this instance. Richard Shelton stated the applicant could go in there now and take out the trees, relocate the utilities at great expense and then could not afford to build a single family home. Chairman Hawkins asked wasn’t that his risk when he bought the property. He had no guarantee that he would get a variance. Richard Shelton stated the property was for sale for quite some time. The abutters could have purchased it. Bob Daigle stated a duplex would be more palatable for the abutters. He understood what Mr. Cheney was saying about a duplex and the ownership issue becoming more defined. A triplex minimizes that issue. People will be rotating through there and it is more conducive to a neighborhood feeling.
Richard Shelton asked Chairman Hawkins what his position was at this point. Chairman Hawkins stated he was in the middle. He thinks it would be helpful to have the discussion develop further. If they all keep an open mind, they will get to a consensus at some point.
Bob Daigle suggested discussing the five criteria.
Bob Daigle stated he did not think that granting the variance would be contrary to the public interest. Mr. Cheney has demonstrated that it could exist harmoniously with the conditions that are there. Chairman Hawkins asked if everyone was okay with the public interest criterion. Everyone stated they were.
Bob Daigle stated he thought granting the variance would do substantial justice. The infrastructure in that area was recently rebuilt and should be able to accommodate the proposed development. There would be more users on the system distributing the cost of managing the system. Developing that lot would do substantial justice. The Board agreed.
Bob Daigle stated he did not think the value of surrounding properties would be diminished. There would be landscaping improvements and Mr. Cheney would do what was necessary to address the drainage, although he did not see any major drainage issues there that could not be handled. With some landscaping, the property would be consistent with others, so he finds it hard to imagine that the values would be diminished. Chairman Hawkins stated he did not recall that being an issue with abutters.
Richard Shelton stated Criterion #5 was the most difficult. The Zoning Ordinance imposes some hardship on all property, by setting lot size, dimensions and allowable uses. As the R3 zone minimum lot size is one half acre and the applicant has less than two acres and less than 100 foot road frontage, the applicant has shown that, to remove the large trees on the lot, one of which is dead, and removing the existing pole the electric and telephone lines are on and to relocate them at no expense to other property owners that they service and to develop this land with a single unit is unreasonable, as this lot is much larger than the abutting lots totaling 2.28 acres and total of twenty units, with a density of 4514.4 sq. ft. per unit. The applicant’s request is for a fourplex on the lot reflecting the area density of 29% less than the immediate neighborhood. The density of the building he is proposing is much less than the density of the surrounding properties by that 29%. The hardship has been observed.
Bob Daigle stated, in looking at the unnecessary hardship and the criterion that states no fair and substantial relationship exists between the general public purpose of the ordinance and the provisions and the specific application of that provision to the property. This comes back to the question of why a fourplex was selected. He followed the rationale for not selecting a duplex. There is a fourplex in front of it.
Chairman Hawkins stated he is hearing having a fourplex makes a lot of sense, it makes economic sense and having a fourplex is consistent. He is having a hard time connecting that to the ordinance and to the condition of the property that gets you to a fourplex.
Bob Daigle stated the second part to the hardship criteria is whether it reasonable. It is reasonable, but he didn’t know if the logic was there as presented.
Richard Shelton stated, on the second part, Mr. Cheney has shown special conditions of land for which a variance is sought is reasonable, as the proposed use of the land for a fourplex residential unit in the surrounding adjacent area, where there are no single family homes and, in a marked degree, will not alter the existing character of the neighborhood. Even if he failed on the first, he would surely pass with the second part. Bob Daigle stated failing on the “A” section, they would go to the “B” section, which states, “If the criteria of subparagraph “A” are not established an unnecessary hardship will be deemed to exist if and only if owing to the special condition of the property that distinguishes it from other properties in the area, the property cannot be used in strict conformance with the ordinance, and a variance is therefore necessary to enable reasonable use of it.” He stated that was even harder to conform to. Chairman Hawkins stated that was why they changed the criterion to have a part “A”. No one was able to get a variance, it was too hard. Chairman Hawkins stated he interpreted part “B” to say if you can make a use of your property within the ordinance, then you cannot get a variance. He did not think Mr. Cheney wanted to go there.
Wayne Rosa stated the key to him was the last line of one of Mr. Cheney’s submittals “…in a marked degree will not alter the existing character of the neighborhood”. Wayne Rosa stated a single family home would be out of character.
Chairman Hawkins stated he agreed in terms of character of the neighborhood and consistency. He was still stuck on the special condition aspect. Bob Daigle stated the special condition he sees is the fact it is a nonconforming, interior lot. It is probably the last lot that can be developed there. It is surrounded by duplexes, triplexes and fourplexes. To put something in there that is not one of those three would not be consistent with the neighborhood. Elaine Winn stated it does not have to be a fourplex.
Diane Hardy stated it is a “pork chop” shaped lot and it has reduced frontage and it is the only one in the entire neighborhood. It is something that is unique. The question is how does that lead to a four unit complex.
Wayne Rosa stated the utility lines are unique. Those do come with the lot. It is a feature of the lot, even though it is manmade. It will take great expense to separate all of that. Bob Daigle stated he did not know if it applied to the uniqueness of the lot. Chairman Hawkins stated he did not know how that would get them to four units. He agreed the power lines look like a mess and the trees need attention. There are power lines going through the limbs of the dead tree. Bob Daigle stated that was a PSNH issue, they own the lines to the meter. There are many lots with wires clipping a corner or something similar. Wayne Rosa stated he didn’t mean so much that, he was looking at the problem it presents to developing that lot. He counted four of five properties that come off of those lines. They would all have to be done.
Chairman Hawkins stated the other thing in terms of the spirit of the ordinance is there is a tension between what the ordinance provides and what the existing condition of the area is.
Bob Daigle stated, to the spirit of the ordinance, he hears what the abutters have been saying. They are used to dealing with an empty lot there and, if it was his backyard, he would be a little concerned about what is going in there. The fact of the matter would be that he does not own the lot, Mr. Cheney owns it. Chairman Hawkins stated he has rights to do what he can do consistent with the law. In an effort to continue to narrow it down, he was not overly concerned about vehicular congestion, in this case. He was not overly concerned with overcrowding. The lot is bigger and there is (will be) less (development) as a percentage basis of that lot. Mr. Cheney made some very good points about comparing the concentrations of population. That is persuasive. He did not know about the aspect of walking to downtown. It was not particularly compelling. He stated a larger concern was they like to think in terms of the precedential effect. Every application is considered on its merits, but they try to be mindful and consistent with their approach. He asked if they grant this, does the Board feel comfortable they can distinguish this from other cases, if the (there is) difficulty is established (in establishing) the criterion of hardship. They denied an application, in the past, where there was a condition of slopes on the property in the back and what was being requested was a relief from side setbacks. It was denied, because they did not think there was a sufficient connection between the condition of the property and what was being requested. They were just not related to each other.
Elaine Winn stated the ordinance went in after this area was built to control density. She stated, if he could do this, anybody else could. Diane Hardy observed there is no land left in that area. Wayne Rose stated that may be a precedent, but there are no other neighborhoods quite like New Village in town. Bob Daigle stated that may even include surrounding towns. It was built as mill housing.
Richard Shelton stated he spent a lot of hours just researching all of the decisions that have gone to Supreme Court regarding cases in New Hampshire. Nowhere could he find one similar to this. This is the first one he has come across and he spent a lot of time looking at them.
Chairman Hawkins stated they had asked for an opinion from emergency services and received no response. He interprets that to mean they have no position.
Diane Hardy did some research on other applications for variances in New Village and whether there was anything relevant. Diane Hardy stated she went through all of the properties in the R3 District and found only one variance that was allowed for a density waiver. It was in 1998 for the house next door to the L&M Variety Store on Elm Street. The house was a duplex at 51 Elm Street. The applicant applied for a variance to allow a third two bedroom unit and it involved the reconstruction of the building. Mr. Mastin, the owner, had stated at the time his intent was to upgrade the building to make the appearance more desirable to the abutters and the general public. He had gone on to state given the ordinances in effect at the time the improvements were not possible. The renovations would allow off-street parking, which was not available at the time. He had stated the lot was grandfathered, was less than ¼ acre, and had been a lot of record for a number of years.
Diane Hardy had done research to find out when this particular ordinance was adopted. She looked at the 1984 ordinance and there was a reference to this area, not as an R3 District, but a “TR” Town Residential zone. The original zoning density for that area was six units per acre. That was changed in 1996 to the current two units per acre. So, there was a period of years when this area did allow a higher density.
Bob Daigle stated Section 2.11 says the R3 District is for transition. He is not seeing a lot of transition there. Diane Hardy stated there is no place to transition to, because it is all developed. Bob Daigle stated that also applies to the spirit of the ordinance, because it is specific to the R3 District. He was less concerned with that than linking the hardship of the fourplex to the uniqueness of the lot.
Bob Daigle stated a lot of towns are dealing with this. It is called infill. The city of Portsmouth is seeing a lot of it. People are infilling lots rather than striking out in new areas.
Chairman Hawkins stated Mr. Cheney had referred to smart growth guidelines in the supplemental materials in his application. Diane Hardy stated that was located in the newly updated Existing Land Use Chapter of the Master Plan. Chairman Hawkins explained the Master Plan does not control the specific provisions of the ordinance, but it might help give the Board some further information. It could give them some insight. Diane Hardy looked the information up in the Master Plan. Bob Daigle stated it might help give the Board a sense of direction. Chairman Hawkins read the material in the Master Plan relating to smart growth. He stated he was looking at the Master Plan policy guide on smart growth, which says, “Smart growth is not a single tool. It is a set of planning principles that can be blended together with unique local and regional conditions to achieve a better development pattern for a unique sense of community and a vibrant downtown, mixed uses, and housing choices through downtown revitalization, preservation of natural and cultural resources, by adopting environmental overlay districts and architectural design standards for Route 108, local land conservation, well defined wildlife corridors…”
Wayne Rosa read, “Smart growth is about tailoring choices for individual settings, retrofitting communities to offer diverse choices in terms of housing types and prices.”
Chairman Hawkins stated this is very general. Chairman Hawkins stated he did not know if that added a lot, but it was worth looking at.
Diane Hardy stated there is a section on redevelopment, growth management, and infill development. Chairman Hawkins read, “Infill development, in its purest form, is the development of land that has been bypassed, remains vacant and/or underutilized. Infill development can occur anywhere that a parcel of land is not sufficiently being used compared to the surrounding land use. It is frequently used in housing strategies to provide affordable housing or to fulfill the needs of various types of housing. Infill development plays a critical role in the conservation of land, by the reuse of obsolete buildings within built up areas for further construction. This adaptive reuse of a community can enhance the creation of village or municipal centers by connecting neighborhoods back together and providing an alternative to sprawl. Closely related to infill development is the concept of revitalization. While infill development focuses on underutilized land or parcels, revitalization more often addresses the issues of building design or building use. Implementation of both infill development and revitalization can strengthen community function through the efficient use of existing infrastructure and buildings.”
Wayne Rosa asked how this could be used toward a decision. Chairman Hawkins stated it is guidance, something helpful. It is not an ordinance. This is stated too generally. The terms of an ordinance are what control. In terms of things when you are exercising judgment, it is helpful. It informs you. Infill development is an accepted mode of development under certain conditions.
Bob Daigle stated what would typically happen is, after the Master Plan is adopted, Planning Board would go back through and look at zoning ordinances, subdivision and site plan regulations and make changes, to make them consistent with the Master Plan. This gives us a direction as to where the Planning Board would be looking toward going. Diane Hardy stated the recent adoption of the M2-A zone last year by the Town Council, which was recommended by the Planning Board, was an attempt to encourage infill development in areas adjacent to the current M2 zoning district.
Wayne Rosa asked if that could be applied to the spirit of the ordinance. Diane Hardy there is a question of whether this proposal is consistent with the spirit of the ordinance and the Master Plan is the legal basis for the ordinance.
Chairman Hawkins stated part of what he struggles with pertains to the limits of their jurisdiction. It is not the Zoning Board’s job to say whether something is a good idea. That is a Planning Board function. Bob Daigle stated the idea of infill goes toward at least one of the aspects of hardship. This is a nonconforming lot that is underutilized and they have a proposal that is reasonable to the overall neighborhood, but is out of compliance with the strict interpretation of the Zoning Ordinance and, therefore, with the spirit of the ordinance. Chairman Hawkins stated you can’t have something consistent with the spirit that is inconsistent with the letter, when the spirit is expressed to freeze the density where it is. The more he thought about it, when you apply that strictly in this case, you are really saying the spirit of the ordinance was applied that strictly. In this instance, you have an underutilized property that cannot be utilized in a way consistent with the character of the neighborhood. Maybe that is not the right way to think about the spirit of the ordinance in this particular instance.
Chairman Hawkins stated to take a look at Section 3.03(A). “Control of residential density is an important component in addressing many of the general purposes of this Ordinance including lessening vehicle congestion...” He did not see vehicle congestion being an overriding factor in this instance. For “…preventing overcrowding of the land…”, the applicant has shown that this particular piece of land will be less densely crowded, on a percentage basis, than other existing properties in the area. It is the largest lot in the immediate area. He did not see an undue concentration of population for the reasons that Mr. Cheney suggested in his analysis of the densities in the various areas. Even if it is two or three people per unit, he did not see a serious overcrowding of the area. He did not see a particular impact on public facilities. He did not see another ten or twelve people causing a problem with the public facilities. He did not see a particular impact on utilities and services. He did not see an impact on natural resources. There are no wetlands. Wayne Rosa stated there was a key phrase at the end that states “,,,contributing to community character and quality neighborhoods”. Chairman Hawkins stated it would not make sense for anyone to build a structure that would detract from the neighborhood character or reduce the value of surrounding property. So, we are back to density. Wayne Rosa stated a four unit is actually contributing to the community character.
Chairman Hawkins stated maybe the condition is the fact that you have this lot that is underutilized relative to the other lots to the area. It is totally underutilized, except for the garage structure. He stated, by utilized, he means in terms of its development. It has some value as open space, but Mr. Cheney owns it and he has rights to do something with it.
Richard Shelton stated, if they approve it, the existing commercial use goes away. That is an asset.
Bob Daigle stated he keeps going back to 2.11(A) that says it serves as a transition between low density residential and the more intensely developed areas in and around the Village area. That would be consistent with the purpose of the R3 district, which is to act as an area where you could have varying densities, as opposed to strictly low density. In the Table of Uses in R3, multi-family residential is an allowed use. Chairman Hawkins stated you could put a nursing home or bed and breakfast there.
Bob Daigle stated he was thinking it was not contrary to the spirit of the ordinance. It works within the framework of what is down there now. His sticking point is still how to connect the uniqueness of that lot. It is a nonconforming lot in the middle. How do you connect that to a fourplex? He stated there is a thread going there now, with the fact that the Planning Board is looking at infill and opened up the discussion of what would be appropriate uses for a lot like that, given the fact there are fourplexes and triplexes right around it. Then, it makes it more palatable.
Chairman Hawkins stated sometimes you have infill, because a property is neglected. Bob Daigle stated if someone developed it as infill and drops a single family home in there, it would not be as good for the neighborhood as a duplex or triplex. Chairman Hawkins stated it would be consistent with the ordinance, but not consistent with the neighborhood.
Elaine Winn stated she did not think a fourplex fits. She had no trouble with it being a duplex or a triplex. It is denser with the fourplex. It makes the ordinance useless.
Richard Shelton stated it was hard to say that the fourplex does not meet the criteria, when the density is a lot less on that lot than the surrounding properties. If the unit he was building was making it greater, he could see saying they were not going that way. He has proven that the size of the building he wants to put up is much less dense than the surrounding properties by 29%.
Elaine Winn stated it said two units per acre. It does not have enough land for four units. Chairman Hawkins explained the question was whether there was something about it, some unique condition that justifies a deviation from that.
Bob Daigle stated none of the lots down there have enough land to meet the ordinance. Elaine Winn stated they were built before the ordinance. Bob Daigle stated that was correct. Chairman Hawkins stated every time they grant a variance, there is a certain level of tension. That is the purpose of a variance, to give relief from what the ordinance says under what the Board thinks are appropriate circumstances.
Chairman Hawkins asked whether, under these circumstances, is it an evisceration of the purpose of the ordinance to grant the variance in this case. Bob Daigle stated if they were going through and actually increasing the density in comparison to the surrounding lots, then it would be a problem. The math has demonstrated that this lot is less dense than the surrounding lots. There will be more open space associated with this lot than most of the other lots.
Chairman Hawkins stated the unique condition of this property is its underutilization on account of its shape and location relative to other lots in the area. Bob Daigle stated that was a big part of it. Chairman Hawkins stated having a fourplex, while it is inconsistent with the permitted residential density, it is consistent with the character of the area.
Richard Shelton stated he did not think they had any problems on Criteria 1, 2, and 4.
Action
Motion: Richard Shelton made a motion on unnecessary hardship that no fair and substantial relationship exists between the general public purpose of the ordinance provisions and the specific application of that provision to the property. The Zoning Ordinance imposes some hardship on all property by setting lot size, dimensions and allowable use. The R3 Zone minimum lot size is now one half acre and the applicant’s lot is less than two acres and less than 100’ road frontage. The applicant has shown, after you remove the large trees on the lot, one of which is dead, remove the existing pole that the electric and telephone lines support and relocate them at no expense to the property owners that they service and to develop this land with a single unit is unreasonable, as this lot is much larger than the abutting existing individual lots of 2.2 acres, in total, with twenty units with a density of 4,514.4 sq. ft. per unit. The applicant’s request for a fourplex unit reflecting an area density of 29% less than immediate neighborhood, indicates the hardship been observed. The proposed use is a reasonable one, because the applicant has shown that due to the special conditions of the land for which the variance is sought (for) the proposed use of the land as a fourplex residential unit, is reasonable, (as) in the surrounding adjacent areas, there are no single family homes, and, in a marked degree, (the proposed use) will not alter the existing character of the neighborhood.
Action
Motion: Criterion 1 - The variance will not be contrary to public interest, as there will be no harm or adverse effect to the public and, by granting the variance, the public benefit will be well served, with the additional taxes to the Town’s tax base
In Criterion 2, if the variance were granted, the spirit of the ordinance would be observed. It would not alter the essential character of the neighborhood and would not threaten the public health, safety, and welfare of others.
In Criterion 4, if the variance were granted, the values of the surrounding properties would not be diminished. As this property is unique in its setting, this lot is located, more or less, in the center of an area bounded by Grape, Beech, and Cedar Streets and surrounded by residences of seven duplexes and two fourplexes the surrounding properties would not be diminished.
Richard Shelton stated, as far as #3 goes, they have to approve it before they can grant a variance anyway.
Richard Shelton stated he had conditions. Chairman Hawkins told him to continue.
Richard Shelton continued:
If the Board approves this, (it is) with conditions:
1. There shall be no financial obligation incurred on the abutting property owners associated with removing and relocating of the power and telephone lines to their properties.
2. The Building Inspector, in conjunction with the power and telephone companies will have final approval of relocating the lines (see #1) and an easement shall be given to the companies to maintain their lines on an as-needed basis.
3. The six-bay building shall cease to exist as a commercial use.
4. The six-bay building will be part of the condo ownership for their exclusive use only and shall not be utilized by others.
5. The existing entrance of Cedar Street shall be eliminated.
6. The driveway shall remain private and under the ownership of the condo association.
Wayne Rosa suggested adding:
7. When this is sent to the Planning Board, the ZBA reminds them to work with abutters for proper screening.
Richard Shelton added: 7. When this is sent to the Planning
Board, the ZBA reminds them to work with abutters for proper screening.
Second: Wayne Rosa
Action
Motion: Richard Shelton made a motion to approve the application for a Variance reference Section 3.03 of the Newmarket Zoning Ordinance to increase the residential density for a fourplex unit with less than the required 100 feet of road frontage on Grape Street. The property is located at 1 R Grape Street, Tax Map U2, Lot 206, R3 Zone, with the following conditions:
1. There shall be no financial obligation incurred on the abutting property owners associated with removing and relocating of the power and telephone lines to their properties.
2. The Building Inspector, in conjunction with the power and telephone companies will have final approval of relocating the lines (see #1) and an easement shall be given to the companies to maintain their lines on an as-needed basis.
3. The six-bay building shall cease to exist as a commercial use.
4. The six-bay building will be part of the condo ownership for their exclusive use only and shall not be utilized by others.
5. The existing entrance of Cedar Street shall be eliminated.
6. The driveway shall remain private and under the ownership of the condo association.
7. When this is sent to the Planning Board, the ZBA reminds them to work with abutters for proper screening.
Second: Wayne Rosa
Chairman Hawkins wanted to make sure, for the record, the unique condition of this property that goes with the hardship is the underutilization and configuration and location, as an interior, pork chop lot relative to other properties in the area that are dissimilar. From his view, what makes it consistent with the spirit of the ordinance in this particular and specific instance, is the character of the uses in the immediate area, including several abutting properties being fourplexes and every other use in this particular block being a duplex. He stated it was a very unique set of circumstances, a unique property and unique, certainly in Newmarket, possibly in the Seacoast, as well. Those are the issues they are focused on.
Richard Shelton stated the only thing he found that was somewhat similar was that a building someone wanted to put in was going to impact the setbacks and it was thrown out. He could not find court decisions the same as this.
Vote: Wayne Rosa, Chris Hawkins, Bob Daigle, Richard Shelton in favor
Elaine Winn opposed
4-1 in favor
Bob Daigle stated they still had to go through the Planning process.
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 8:36 p.m.
Second: Elaine Winn
Vote: All in favor
Chairman Hawkins thanked the Board for their work on this case and the high level discussion they had.