Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
NOVEMBER 17, 2014
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, Elaine Winn, Richard Shelton (Alternate), Diane Hardy (Zoning Administrator)
Called to order: 7:20 p.m.
Adjourned: 8:24 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes – 10/20/14
The approval of the minutes were postponed to the next meeting.
Agenda Item #3 – Regular Business
Jessica & Chris Placy - Public hearing concerning a request for three variances and a special exception. The first variance references Section 7.03(B), which states an accessory apartment must be contained entirely within a single family residence. This proposal is for an existing detached garage to be demolished and replaced with a new detached structure containing only the accessory apartment. The second variance is from Section 7.03(B)(1) to permit 807 sq. ft. of finished living area, where 800 sq. ft. is allowed. The third variance is from Section 7.03(B)(5), which states no exterior changes shall be made which significantly alters the appearance of the structure from the street and this proposal involves the construction of a new accessory apartment structure. The applicants are also requesting a Special Exception reference Section 7.03 Accessory Apartments. All of these sections are contained within the Newmarket Zoning Ordinance. The property is located at 20 Dame Road, Tax Map U2, Lot 300, R2 Zone.
Chairman Hawkins appointed Richard Shelton to sit in for the vacant full Board member seat.
Jessica Placy and Scott Laban, Jessica’s father, were present. She stated the purpose of the request was to provide a residence for Jessica’s father and mother, when they come to help with her new baby.
Scott Laban stated the plan was to tear down the existing garage, which he thought was a commercial building at some point in the past. He showed pictures of the garage. He stated it was pretty dilapidated and an eyesore. He stated it was important to them to do as little as possible to change the essential character of the lot. They would like to replace the garage with another structure that looks better and is, basically, on the same footprint.
For the criterion to not be contrary to the public interest, he stated he did not think it was contrary to the public interest. They are taking a building that was commercial, in a residential neighborhood, and tearing it down. It does not conform to any setback rules now. They are going to try to make it come closer to conforming. It should fit within the residential character of the neighborhood.
For the second criterion for the spirit of the ordinance, he stated it was well within the spirit. He stated it was paradoxically more in the spirit of the ordinance than it would be if they were trying to conform more closely to the written rules. The purpose of the R2 District is to provide a transition between low density residential land and the more intensely developed districts. This property is right on the border of B1 District. There is a property right across the street that has more than one dwelling on it. It is not all that out of character with the neighborhood.
For the criterion regarding substantial justice, he stated they were replacing a bad structure with a nicer one. They anticipate they will be using this when they come to visit. He could see them moving down from the rough winters in Vermont for a few weeks at a time. When they become unable to care for their rather large house and property in Vermont, they would move down here. The tradeoff for the free babysitting they do now for his daughter and husband would be they have to take care of them in their old age.
He stated it would be administratively easier if they built this accessory apartment attached to the current dwelling. It would take them down to one variance. There are a number of reasons why that is not advisable in his view. He showed a photo of the current dwelling’s basement, which shows a large “hunk” of granite sitting in sand. It also shows the water line on the wall, where they have had trouble in the past. Structurally, adding to that would not be wise. Aesthetically, it would not be a credit to the neighborhood. They could put a 20’ x 40’ accessory apartment on there and it would be a low pitched roof rectangle, which would take up most of the yard and be a real detriment to the community. Instead of looking at green space and a nice, New England cottage, people would be looking at what would look like a nursing home wing extending to an ugly garage. This proposal would be a whole lot more preferable.
He stated they had a drawing of how it fit on the property. The current garage sits kind of cock-eyed, so the end closest to Dame Road has a 25’ setback from the edge of the lawn. It is not clear where the property line is. There are no pins there. The overhead map of the lot shows a line drawn, but it is an approximation. The side of the current building that sits further from Dame Road is much closer to the road. Their plan is to pivot the footprint on a corner, so it brings both of those square to Lamprey Street and 25’ back from the road. It will look nicer. The setback from Dame Road is not a problem. They would have the two parking places that are required.
He stated, in terms of square footage, the phrase in the requirement is “family living space”. The computer, when calculating family living space, does not count stud walls, closets and showers. If you count it that way, the area comes to 795 sq. ft. He did not want the Board to think they were being “cute” with the requirements, so he put the shower back into the calculations, which brings it just over 800 sq. ft. to 807 sq. ft. This building is essentially on the same footprint as the existing garage, with a pivot.
Chairman Hawkins stated that what the Board likes to do is to let the applicant finish their presentation, then the audience may make comments, then he can address anything or comment further on anything.
The Board had been given four letters at the meeting. They are identical with different abutters’ signatures.
Diane Hardy stated all abutters listed were notified.
Wayne Rosa asked if there was going to be a full basement. Mr. Laban stated they do not know. They were told they would not know until someone started digging. It will probably be crawl space.
Joseph Scascitelli, 22 Dame Road, stated he did not receive a notice, but he is an abutter.
(NOTE: The applicant did list the property at 22 Dame Road, U2 299, on the abutters list. The applicant put the wrong name and mailing address next to it, which was for the property on the other side of Lot 299, which was Lot 299-1, belonging to Craig Sawyer. When they looked up their abutters in the book, they looked at the information line for 299-1, instead of 299. On the top of the abutters list page of the ZBA application is: “The determination of abutters is the responsibility of the applicant. This list will not be reviewed for compliance with statutory requirements.”)
Diane Hardy stated the onus was on the applicant to provide a list of abutters. The Town takes no responsibility if it is not correct. Bob Daigle asked if this should be continued. Chairman Hawkins explained to the audience the concern regarding this issue. Chairman Hawkins stated the applicant did list lot 299. They picked up the wrong owner information. Diane Hardy stated Mr. Sawyer at 24 Dame Road is not an abutter. Richard Shelton stated the abutter who did not get notified, but is present, could state that the Board could go forward with the hearing. It would be different if he was not here. Mr. Scascitelli stated he has seen the information in the application and he is aware.
Chairman Hawkins stated other people may not have been notified. Diane Hardy stated they could check the list. Diane Hardy reviewed the list and lots for the remaining abutters were listed. The rest of the lots listed were correct. She mentioned when someone is not sure if a lot is an abutting lot, she always advises them to err on the side of caution.
There was a question of the definition of an abutter, regarding a lot located diagonally across from the Placy’s property, Lot 294. Diane Hardy checked the State RSA. She stated under RSA 672:3, Abutter, is defined as “Any person whose property is located in New Hampshire and adjoins and is directly across the street or stream from the land under consideration by the local land use board.” It goes on regarding cooperative housing, mobile home parks and others. Elaine Winn asked if the street wasn’t there would the properties touch. They Board felt they would not and this lot did not abut.
Chairman Hawkins summarized what had just occurred. A question came up about notice. The person who did not receive a legal notice is here and told the Board he had no objection proceeding with the meeting, because he had an opportunity to look at the application documents. A question arose whether Lot 294 is an abutter. Having looked at RSA 672:3, the determination has been made that lot is not a direct abutter. If the road did not exist Lot 294 would not touch Lot 300. The Board will consider that not to be directly abutting. The Board will proceed with the application.
Chairman Hawkins asked if there were any further comments from the audience about the application.
Krista Zurek, 8 Lamprey Street, stated she had two concerns. Her family thinks the idea of an in-law apartment is lovely. They are more concerned about the future renters. If the present owners decide to sell, this could be used as any type of rental. She has a friend in Hampton who told her they can have places designated as in-law only and cannot be rentals. If that could be done to this place, that it could only be used as a non rental property, then she is less concerned. Her understanding is this Board cannot dictate if this is a one year or two year lease, it is up to the owners how long to lease. She stated the applicant stated water in the basement was a concern and they did not want to attach to the house. She bought her house in 1990. It initially had some water problems, but not a lot. As houses were put in around them, they have had more problems with water in the basement. They had to put in a whole system to stop that problem. Her other concern was that another small house close to theirs could impact their home.
Joseph Scascitelli, 22 Dame Road, stated Jessica and Chris are excellent neighbors. It is a nice, quiet neighborhood. They appreciate that. His concern was similar to Krista’s about the use of the property should Jessica and Chris decide to move. They have had issues in the neighborhood with late night parties. They are concerned young students would live there and they would invite a lot of people over. The in-law apartment seems like a nice thing for the parents to live close to them. He asked if the access to this would be on Lamprey Street or would it continue to be on Dame Road. Chairman Hawkins stated he just heard the applicant state it would be the same access.
Mr. Laban stated his days of hard partying were pretty well over. The future use of the property was germane. The definition of accessory apartments in the Zoning Ordinance does not specify what it could be used for, but it anticipates it being rented by someone. It states it would help homeowners utilize excess space to generate revenue to help with costs of the home. Current zoning does not preclude that. He stated they tried very hard to be thoughtful to the neighborhood, keeping as much green space as possible and designing a home that is in character with the New England neighborhood.
Jessica Placy stated there is already a concrete slab there. She understands the concerns about future use. They are building this as a commitment to stay there and make that their family residence.
Chairman Hawkins stated typically the part of the criteria that hangs the Board up is Number 5A regarding the special conditions of the property that distinguish it from other properties in the area. He asked what the special conditions were on the property that distinguish it from other properties in the area that would cause an unnecessary hardship if the variance was denied. Mr. Laban stated there are a couple of items. Nothing is conforming. The principle residence is too close to two sides of the property and the driveway is actually on another neighbor’s property and another neighbor’s shed is on their property and the old garage is too close to the road. The property starts off being nonconforming all the way around. The only way to attach this would be to go to the Lamprey Street side. The soil conditions would make that problematic given the condition of the basement of the original house. It would cause a hardship on the lot, as well as the neighborhood. It would use up almost all of the yard. The thing that is unique about this property is that it already has a structure on it. If it did not, it would not be a project he would undertake. Unlike most properties, they are not altering anything very much by changing an existing structure to a new structure. They have not altered anything in terms of buildings. It is not possible to do an accessory apartment in terms of the building conditions and the aesthetics.
Jessica Placy stated there is an existing main residence. In addition to the flooding in the basement and there is a rock there. That would be the side of the house they would have to add on to. The other sides are too close to the road or too close to an abutter. Additionally, if you look back through the permits for her house, the entire house is not over the basement. Maybe the back two thirds are on the basement and the front is just hanging off. At some point, whatever they build the front part of the house on lost its structural integrity, so the front part of the house was sinking. At some point they had to re-shore the front of the house. She does not have a huge amount of confidence in the house. Additionally, when people did wiring or plumbing, they had drilled holes through the main support joists. They had to go in and sister those back up. In the walls, none of the electrical is up to code. It is not a structure you want to invest in adding on to, when you can build a stable house that is up to code and is reliable.
Tom Swiatek, 8 Lamprey Street, stated, regarding the water issue, between his property and the Placy’s property, there is a Town sewer with a full manhole cover, not on the road, but set into the grass in the gully between the two houses. He was not sure it functioned correctly. It is six inches out of the soil maybe to catch flooding in that space. He would like to know what its function is. Chairman Hawkins recommended he call Public Works and ask them.
There were no further comments and Chairman Hawkins closed the public hearing.
Richard Shelton stated the hardest thing the Board needed to overcome was nonconformity 1.05(A)(2). He stated they spent a year on a similar project on Bay Road. There was a building on it that was remodeled and they had to deny that, because it did not meet the criteria. He would like to see this go in, but until the Board can change 1.05(A)(2) their hands are tied.
Bob Daigle stated he had a problem with there being no way to attach the new structure to the existing. He stated it was clear in his mind that the purpose of the attachment to the building is you have more control over what is in the building. For example, parties that are closer in proximity to the landlord. He was having a problem in that it is so far away. He liked the idea of their use of it, but he did not think the ordinance allows for it.
Chairman Hawkins stated this was so similar to a denial they had given on Bay Road. Wayne Rosa stated this is similar to the Jarosz application, except he redid an existing building. This proposal is for a new building. That is the difference. Chairman Hawkins stated they did approve it, but, if it was before them now, he would vote against it. Richard Shelton stated he had denied that one originally.
Wayne Rosa stated he was all for accessory apartments. He would encourage people to build them. The problem he has is 1.05(A)(2), there shall be no increase in the number of residential units on the lot. He believes they could add to the existing building.
Bob Daigle stated part of his concern is the owner of the property says they do not have a lot of confidence in the house they are in, there are electric and plumbing issues. They should put money into that instead of an apartment. This says they could build up the value of the property and then get out.
Richard Shelton stated the applicant had said there was an adjoining lot with two residences on it, but that would be at 7 Lamprey Street. The main house was built in 1925 and the other house was built in 1940. That predates zoning by 40 years.
Chairman Hawkins stated 1.05(A)(2) applies to nonconforming single family homes. Single family residential use is not prohibited in this zone. This section of the ordinance does not apply to this application. The structure is not in a district where single family residential use is prohibited.
Diane Hardy stated it is a nonconforming lot where the existing use is permitted. The garage is a nonconforming structure on the lot. It does not meet setbacks. The house does not conform, because it does not meet setback requirements. Chairman Hawkins stated this request would make the garage conforming. The house will continue to be nonconforming.
Bob Daigle stated this would require separate water and sewer service. He did not think this application keeps the spirit of the ordinance. He stated he did not see what made the lot so unique that there was a hardship. They are going to be putting a slab or concrete floor with frost walls. They are going to have to go through the same effort they would to attach it to the main building, in terms of foundation requirements. There is no hardship on that. Chairman Hawkins stated the hardship has to be linked to a condition of the property that makes it different from other properties in the area. It falls into a number of sweet spots of applications the Board has denied in the past.
Bob Daigle stated he loves the idea, but he understands what the ordinance was trying to do was to set it up with the least impact to the Town. An attached unit would have all the services in through the main house, there is no need for a separate water and sewer service.
Chairman Hawkins stated if it was in the main house, you would not run into the problem of future student rental.
Bob Daigle stated ten years from now someone could condominiumize the lot. Now they have two units.
Richard Shelton stated he applauded the idea of remodeling the corner of that street, but zoning restricts it.
Bob Daigle stated they should have an accessory apartment ordinance and an in-law apartment ordinance.
Action
Motion: Bob Daigle made a motion that they deny the application, because it fails (to meet) Criterion #2, because the proposal is contrary to the spirit of the ordinance and that it is not attached and could be susceptible to future abuse and is inconsistent with the purpose stated in the ordinance and that the applicant, in response to Criterion #5, did not demonstrate an unnecessary hardship in that the level of effort needed to construct the proposed plan is similar in effort to building an attached unit
Second: Richard Shelton
Vote: All in favor
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 8:24 p.m.
Second: Wayne Rosa
Vote: All in favor