Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
MAY 4, 2015
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, Jonathan Kiper, Richard Shelton (Alternate)
Called to order: 7:00 p.m.
Adjourned: 8:19 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 03/30/15
Action
Motion: Bob Daigle made a motion to accept the minutes as transmitted
Second: Richard Shelton
Vote: All in favor
Agenda Item #3 – Regular Business
Newmarket Mills, LLC/Harry Wesson - Public hearing for an application for Variances from Section 4.05(B)2 of the Newmarket Zoning Ordinance, for a roof mounted sign and Section 4.05(B)(3) to allow two signs for both “Butcher’s Choice” and “Newberry Farms”, at 66 Main Street, Tax Map U2, Lot 57, M2A.
Chairman Hawkins stated they have received a request from the applicant to continue this application to May 11, 2015.
Action
Motion: Bob Daigle made a motion to continue this application to May 11, 2015 and take it up at their meeting that night
Second: Richard Shelton
Vote: All in favor
Kyle Barnett/Maury K. Barnett - Public hearing for an application for a Variance, from Section 7.03(B) of the Newmarket Zoning Ordinance, to permit an accessory apartment on the second floor of a detached garage, where the requirement states that it be contained entirely within the detached single-family residence. The applicant also requests a Special Exception reference Section 7.03 of the Newmarket Zoning Ordinance, to permit an accessory apartment if all conditions are met. The property is located at 48 Elm Street, Tax Map U2, Lot 207, R3 Zone.
Chairman Hawkins stated this application had come before the Zoning Board on March 30, 2015, and, at the applicant’s request, it was continued until they got a complete, five-member Board.
Kyle Barnett stated he was representing his father. Kyle Barnett is a resident, at 48 Elm Street. He stated the scope of the project would be to finish the second floor of the detached garage to an accessory apartment. No exterior changes will be made, with the exception of updated windows and siding. The building is already there, so the look of the property will not change. He is building the apartment for himself, so he can be close to his elderly father. He will need more and more help over time to maintain the property and his health, so as his father grows older, he can help him. He asked if the Board wanted him to go over his responses to the five criteria. Chairman Hawkins stated they had all read his responses, but this was his opportunity to present any evidence he wished. He did not have to read it to them, but if he had any additional comments, they were happy to hear it. Kyle Barnett stated he did not have any new information. Everything was outlined in his application.
Chairman Hawkins asked if all abutters had been notified. Diane Hardy stated yes.
Chairman Hawkins opened the public hearing.
Earl Van Bramer, 46 Elm Street, stated he was the closest neighbor. He thought it was great Mr. Barnett wanted to take care of his father. He had no issues with this application. It is an existing dwelling. He did not see what difference it made to the Town if it was not attached to the primary structure. He stated, for Kyle Barnett, it made a big difference, and he was for it.
There were no other comments from the public.
Chairman Hawkins closed the public hearing.
Wayne Rosa asked Mr. Barnett to describe the interior of the building. Mr. Barnett stated it was an empty shell. There are some tools in it. It was insulated by the previous homeowner. It has lights and an electrical panel. The second story is bare to the studs. To his knowledge, it has never been used as a living quarters. There are no sinks or toilets or water and sewer hookups.
Bob Daigle stated his major objection was that it flies in the face of the spirit of the ordinance. If they were to allow this, anyone with a garage in town would be open to making it an accessory apartment. He did not see anything in the response to hardship that points to this being a very unique situation that would make the Board want to consider it. This is a regular house lot with a garage on it. It does not rise to the level where the Board could grant a variance.
Wayne Rosa disagreed. He stated he knew they had an application last fall, where someone wanted to take a building down and build a new building on Dame Road, as an accessory apartment. He knew the ordinance said an accessory apartment should be in the primary structure, but that is the reason these people were here. That is why you apply to get a variance. If they take these applications case by case, they should not be worried about setting a precedent. He was in favor of this application. This utilizes an existing building and he did not see a problem with this. Chairman Hawkins asked what the difference would be between the Dame Road application and this one. Wayne Rosa stated the Dame Road applicants wanted to take the building down, change the location a bit, and enlarge it, when they had an opportunity to build onto the existing house instead.
Bob Daigle stated he would be significantly more inclined to look on this favorably, if the applicant asked for relief from density. He is just shy of what he would need to put two units on the property. It is almost ¾ of an acre. He would rather look at that, as opposed to eviscerating the accessory apartment definition. There is a reason why they have that in there, as an attached unit. It would be a better application for a variance to go for a second unit on the lot.
Chairman Hawkins stated they also had the application on Bay Road, which got rejected.
Richard Shelton stated the application is extremely well written. He felt that granting the variance would not be contrary to public interest. Surrounding properties would not be diminished. Unnecessary hardship does not exist. The spirit of the ordinance would be observed criterion is more in line with the Master Plan Vision Statement to support quality, thoughtful development that preserves our natural resources and enhances the aesthetics of Newmarket, while creating a long term tax base. He researched the surrounding towns. Stratham allows one apartment within a single family dwelling or garage that may be separate from or attached to the main dwelling. Durham has it within the primary structure or it meets the locational and dimensional requirements for accessory structures. Only one accessory dwelling was allowed. In Criterion 2 regarding the spirit of the ordinance, our ordinance is restrictive than the surrounding towns. It states under 7.03(B), “The accessory apartment shall be contained entirely within the single family residence”. It is his position not to approve the application. The Planning Board should look at updating the ordinance to be more in line with surrounding towns.
Wayne Rosa stated he agreed. In other towns, you can have a detached unit. These people are here for a variance from that aspect. That is what the Board does. It look at granting variances.
Richard Shelton stated, if they grant this, they will see a flood of these and Bay Road would come back again after the Board spent a year on that. Wayne Rosa stated the Board cannot penalize this applicant, because of that. He agreed the ordinance should be changed.
Chairman Hawkins stated affordable housing is not as big an issue in Newmarket as it is in Stratham. The cost of a house in Stratham is exorbitant. Bob Daigle stated, in Durham, everyone is looking to get in on renting to students.
Chairman Hawkins stated they should go through the criteria. He asked what the sense of the Board was for Criterion #1.
Bob Daigle stated he did not think it was contrary to the public interest. There are a number of duplexes there. He stated Criterion #2, the spirit of the ordinance, is the one that is an issue, because of the language in the ordinance. It is very specific. To grant this is to fly in the face of the ordinance, as it is written. If you look at allowing things that is contrary to the written ordinance, than it is kind of contrary to public interest, too. The ordinance is designed to protect the public interest.
Chairman Hawkins stated he thought of the accessory apartment ordinance as preventing what amounts to a subdivision of a lot that otherwise could not be subdivided.
For Criterion #2, substantial justice, Richard Shelton stated they cannot approve this one, until they rule on the other four criteria.
Chairman Hawkins asked if any Board members saw a negative impact on surrounding properties. The Board all stated no.
Chairman Hawkins asked about the criterion regarding hardship. What is being presented as the hardship is the ordinance. There is a regulation that applies to the property that prevents the applicants from using it the way they would like. All property is subject to regulations. He was not satisfied that the applicant had carried the burden of proving unnecessary hardship the way it was defined in the criteria. He did not see a condition that distinguishes the property from others in the area. Reasonable use is possible, as a residential use. He tends to agree it is the second and fifth criteria that pose the biggest problems and trying to distinguish it from previous similar applications that were denied.
Bob Daigle stated an option was, if he approached the abutter to the rear and picked up a ¼ acre. He could have two units with the density allowance. Chairman Hawkins stated he did not know. They can only look at the application before them right now.
Wayne Rosa stated he had a problem comparing this to Bay Road. There were other issues with Bay Road. That building had been allegedly shifted, it could have been enlarged, and there were a lot of unknowns. Richard Shelton stated it was still detached. Wayne Rosa stated to say that was the only problem with the Bay Road applications is unfair. They have to treat each application separately, as they come in.
Chairman Hawkins stated they granted the variance on Bay Road, but made a condition of no residential use. He agreed every application has to be viewed on its own merits. They are not bound by precedent, provided they have principal reasons to distinguish one application from another. He did not see compelling evidence here, particularly the unnecessary hardship.
Wayne Rosa stated this does not infringe on anyone else’s properties. It is somewhat in the middle of the lot. Bob Daigle was surprised it had not been finished to some extent up there.
Diane Hardy stated the Planning Board was currently working on updating the Housing section of the Master Plan and there will be discussion of what needs changing in the ordinance at the next Planning Board meeting. She will bring this to their attention.
Zachary Taylor stated he was here to assist Kyle Barnett and his father, with the application. He stated regarding Criterion #2, their understanding was, from reading the ordinance itself, the intent was the restriction of unnecessary construction in the area adding additional units to a property. Multi-family is allowed in that zone and the zone itself is an intermediary zone. It is almost encouraged, to a certain extent, to provide affordable housing. It was more in the spirit of the ordinance to propose to provide the accessory unit within an existing structure, as opposed to going through the process of expanding the existing dwelling. They could expand the footprint to add the unit, but it would be unnecessary construction, where they could just utilize the existing structure. They felt it was more in the spirit of the ordinance to utilize what they had.
Wayne Rosa stated there is a certain amount of control with the square footage of an accessory unit. In the future, another Board could control this, so if there is a fear of two houses on a lot, that could be kept under control with the square footage.
Diane Hardy stated the Planning Board is updating the Housing Chapter of the Master Plan. At one of the earlier meetings, they discussed the aging of the community. The average age is older now and the Town needs to make provisions for the growing elderly population. The new planning trend is, instead of segregating people in elderly housing projects, the people are allowed to age within the community. The buzz words are “aging in place”. Accessory apartments is one of the mechanisms that helps families to be able to age in place. This is a good example, where there is an elderly father who is getting on and may need a little bit more assistance to live independently. This type of a housing situation, co-generational housing, provides an opportunity for people to age in place. This is certainly consistent with current thinking and planning. As the Planning Board discusses changes to the ordinance, she thought there would be more opportunities for people to age in place, rather than move to other locations later in life. Bob Daigle stated they are going through this now with his own family. They are building an attached unit onto his brother’s house for his parents. The Windham, Maine ordinance requires it to be attached. They had to acquire some land to make it work.
Chairman Hawkins stated the ordinance, as it is written, is kind of a blunt instrument. It is categorical and clear. It does not give you a lot of wiggle room. You have to work really hard to get a variance from these things. Maybe what is needed is something more attenuated.
Action
Motion: Bob Daigle made a motion to deny, because the application, as submitted, is contrary to the spirit of the stated purpose of the ordinance, which specifies that it shall be attached and because the application failed to define those aspects of the property which makes it unique and different from others thereby defining the unnecessary hardship
Second: Richard Shelton
Vote: Richard Shelton, Chris Hawkins, Bob Daigle - Aye
Wayne Rosa, Jonathan Kiper – Nay
Motion passes
Chairman Hawkins explained the appeal process.
Edwin Aviles - Public hearing for an application for a Variance from Section 3.04(B) of the Newmarket Zoning Ordinance, at 7 Plains Road Mobile Home Park, Wadleigh Falls Road, Tax Map R5, Lot 68-A7, R1 Zone. The Variance would permit a setback of 12’+/- from the road for a cement pad (already poured) and a new mobile home, which will replace an old mobile home, which has been removed and was located 28’ from the road. A 40’ setback from the road is required in the R1 Zone.
Derek Durbin, a Land Use Attorney in Portsmouth, represented the applicant. Attorney Durbin stated they are requesting a front setback variance of 12’ +/-, where 40’ is the minimum required under the ordinance.
Attorney Durbin stated this was an “after the fact” application. There is a cement pad and mobile home actually sitting 12’ from the road right now. He stated, if you look at the tax map he included in the application, the Board will notice many of the lots immediately surrounding Mr. Aviles’ lot were pretty small and many are narrow. The homes and structures on those lots are also close together. It was his understanding there were multiple primary structures on some of those lots, making it even densely populated with structures.
Attorney Durbin stated, about ten years ago, a fire did strike Lot 68, the lot next door. This is also Mr. Aviles’ property, as well as the home on it. This fire struck immediately behind where the home he owns is located. In between that, there is a shed. Mr. Aviles also had a shed very close to that shed. When the fire hit this neighboring property, it actually did spread and damage the shed and the home on Mr. Aviles’ property. Out of concern this could happen again in the future, Mr. Aviles approached the Building Official to discuss his plans to relocate the primary structure on his lot, moving it closer to the road. Also, he voluntarily agreed to tear down the shed behind his home, which was close to the abutting property, just to decrease the risk of fire spreading to that.
Mr. Aviles did file a demolition permit application in 2013. In 2014, in October, he filed for a building permit, which was issued for the cement pad. At the time he filed his application, he did not depict how far from the road the pad would be, so there may have been some confusion in the conversations he was having with Mr. Hoffman about exactly where this would be located. He proceeded with putting the pad in, not knowing he needed to seek variance relief. He did not think Mr. Hoffman knew it was going to be as close as what he was proposing. It was an honest mistake, where both parties thought it was something else being agreed upon.
Attorney Durbin stated they were seeking an after the fact variance. Otherwise, he felt it would have been a fairly straightforward application.
Wayne Rosa stated he was confused and asked if they could go over the lots. He asked if Attorney Durbin was referring to the trailer lots within the trailer park or the surrounding lots. Wayne Rosa asked, when he said the shed was on the other lot, was he referring to the lot within the mobile home park. Mr. Aviles stated the mobile home park has seven units. The home they are working on is the one next to the Hayes property and the Hayes property is right across from their driveway. There are three homes within the driveway by the Hayes property. Wayne Rosa stated all the sheds and lots they referred to are within the mobile home park. Mr. Aviles stated that was correct.
Bob Daigle asked who pays property tax on the land. Mr. Aviles stated he did. Mr. Aviles stated there are seven homes. Out of those seven, he owns six. One person owns their own home.
Chairman Hawkins asked when the fire happened. Mr. Aviles stated it was easily ten years ago. Diane Hardy stated the Town records show it in 1997. Bob Daigle stated the Newmarket Fire Department responded to a fire in one of the homes, but it was a stove that had caught fire. That was three or four years ago. There was a lot of smoke damage to the unit. Chairman Hawkins asked Attorney Durbin if the fire referred to in the application as having occurred “recently” was the one in 1997. Attorney Durbin stated that was correct.
Mr. Aviles stated the home they replaced was one that had deteriorated and aged quite a bit. It should have been condemned a long time ago. They tried taking safety into consideration more than anything else. He apologized to the Board. He stated this was not meant to move the pad to a different spot other than for safety reasons.
Attorney Durbin stated it would not be contrary to the public interest or spirit of the ordinance to grant this variance. The decision was made for safety concerns only. There was no other gain. He did demolish a shed, which he did not replace. This does make it more conforming, despite the nonconformity they are bringing forward tonight. The essential characteristics of the neighborhood would not be altered by moving the cement pad closer to the road. When you look at the site line down Wadleigh Falls Road, it does not fall out of conformance with the other structures that are close to it. Visually, it blends in with the surrounding area. If you were to move the structure to comply with the ordinance, you would be very close to the neighboring structures, which defeats the safety purpose.
He stated substantial justice would be done, by granting the variance. Weighing the hardship to the applicant and denying the variance vs. any perceived public benefit that would be realized by denying it, he believed the hardship does weigh in favor of the applicant. He has made an honest mistake and had legitimately gone forward thinking this was okay to do. There is some financial detriment, if this was denied. He did not see any public interest in denying it. There is a public interest in eliminating the safety risk.
There would be no diminishment of surrounding property values. He did not think there was any effect at all, one way or the other. If anything, the argument could be made there is some marginal benefit by moving the structure closer to the road, by eliminating the safety risk.
For the unnecessary hardship test, he believed there were special conditions to this lot that make it unique. The lot is extremely small, with a mobile home park, which makes it unique. With the current configuration of structures in that area, it cannot be used in strict conformance with the ordinance. Looking at the other hardship test, he looked at the “Purpose” clause of Article 3.04 and it states, “The proximity of a structure to the road affects the character to the neighborhood, encourages or discourages pedestrian activity and blocks site distances for cars at intersections and driveways.” This is the driving purpose of why they would require a 40’ setback from the road. If you look at each component of that purpose statement, a lot of it is driven by not wanting to create an obstruction. Also, if you are located closer to downtown, you want to encourage pedestrian traffic, you want sidewalks and not have structures where people are walking to and from town. This case is dealing with very minimal pedestrian traffic in front of the property. Bringing the structure closer to the road, brings it more in line with another structure to the left. It will blend in better and would not change the line of sight or vision. The use being proposed is a reasonable one, which is a single family home. That has been the traditional use of this property and it would continue to be used in that respect.
Chairman Hawkins stated it was important for the Board and applicant to understand, in the past people have said they talked to the Code Enforcement Officer/Building Official or that he had the opportunity to see that they were not in compliance with the approved plan. The burden is on the applicant to comply. They cannot rely on the Code Enforcement Officer to figure out what they may or may not be doing wrong. He wanted everyone to understand that the Code Enforcement Officer is not always there. He was not saying anything about this applicant and Mr. Hoffman stated this was an honest mistake and he has no reason to believe that is was not. But, not everyone is as scrupulous. He did not want any applicant to believe they can throw a “fast ball” by the Code Enforcement Officer and that makes it okay. He wanted to make that point. Attorney Durbin stated he understood and agreed. Chairman Hawkins stated the best thing anyone could do is come in to the Code Enforcement Office before they start a project and make sure they have a checklist.
Attorney Durbin stated Mr. Aviles told him he did come in ahead of time. What happened was Mr. Aviles did not have a plan for it. It was a conversation held at the property. The location did not translate somehow. Chairman Hawkins stated the applicants should provide a plan to the Building Official.
Chairman Hawkins asked if all abutters had been notified. Diane Hardy stated they had.
Chairman Hawkins stated they did have a note with a message from a next door neighbor, Theresa Hayes, who was concerned the trailer had been moved closer to her property. Diane Hardy stated the note was from December 4, 2014. The note was from the Administrative Secretary in Planning, Zoning and Building Safety, who had taken the call from Mrs. Hayes, to the Building Official.
Chairman Hawkins asked if the fence along the road in front of this trailer was preexisting. Mr. Aviles stated the fence on the road had been there for a while. It has not been moved. Chairman Hawkins asked if there was a plan to move the fence. Mr. Aviles stated he had no objections to move it.
Chairman Hawkins stated they cannot determine if the trailer is closer to Ms. Hayes’ property, because there is no existing conditions plan. Diane Hardy stated they do have a photo. Wayne Rosa stated they have a survey. He did not know why the surveyor did not delineate the property lines. By moving the trailer forward, he thought it encroached more on Ms. Hayes’ property. The driveway to the back is sort of at an angle. Chairman Hawkins stated you could see that in the photo, too. Wayne Rosa stated, when you move ahead, it looks like it encroaches on Ms. Hayes’ property. It is almost on the edge of the road.
Richard Shelton asked if the applicant had a measurement for a side setback from the Hayes’ property. Mr. Aviles stated he was pretty certain it did not encroach. The unit that was there before was the same distance away from the property line. He did not believe they encroached the Hayes property or the driveway at all by moving it. Richard Shelton stated he did not think it encroached either. You can still distinguish the old location. The side setback did not seem any less. Wayne Rosa disagreed. If you move that trailer closer to the road, the distance to the side decreases.
Attorney Durbin stated they were not aware of any encroachment into the side setback. Chairman Hawkins stated their surveyor did not note the boundary. Diane Hardy stated this could become a problem for him.
Wayne Rosa stated a demolition permit was issued on October 8, 2013. A building permit was issued about a year later, on October 15, 2014. The pad was done after that. Attorney Durbin stated that was correct. Everything was taken off the property, including the shed. Chairman Hawkins asked if the existing pad was removed. Mr. Aviles stated there was no pad, it had been on cement blocks. Mr. Aviles stated, during that year, he had become ill from Lyme Disease. He was unable to do anything for a while and then the contractor he had hired did not work during that time. He stated he took a lot of responsibility for the confusion, because the confusion came during that period that he took sick and the timeframe that lapsed during the period of demolition of the home and and putting in the pad.
Wayne Rosa stated this goes back to another problem, which is grandfather status. The ordinance is vague. There is no timeframe defined for abandonment. Diane Hardy stated the State law is 24 months. Attorney Durbin stated the structures were moved from their original location. Grandfathering did not apply.
Bob Daigle stated it looked to him, when he drove up there, they kept the building parallel to the road and just moved it closer. He would be surprised if one corner was not over the property line. Wayne Rosa stated he didn’t know about that, but it is certainly closer. Diane Hardy stated this should be addressed, because it will come up in a title matter and cause problems if the property is conveyed. Attorney Durbin stated they could come back if it is determined that this becomes more nonconforming.
Chairman Hawkins stated there are two issues. One is if it encroaches into the setback and also whether it is actually on the Hayes property. Mr. Aviles stated, if that was the case, the old home would have been the same. Wayne Rosa stated that was not correct. According to the plan he submitted, they moved the trailer straight forward, which only stands to reason it is closer to the line. Mr. Aviles stated the end of the unit nearest the Hayes’ line was pretty much the same distance as the old one. He stated he was very certain of that.
Wayne Rosa stated his thoughts were to deny the application. He asked if they could tell him he would be okay to move it back to the original location. Chairman Hawkins stated, if he stays in the footprint of the prior structure, then he is not in the Zoning Board’s jurisdiction. Chairman Hawkins asked if it was in their authority to request the applicant provide a boundary survey. Diane Hardy stated there could be an encroachment on the adjacent property and it would be a hardship to that property owner, because a real estate sale could be held up because of it.
Mr. Aviles stated there is an existing fence that he had put up. It is a white picket fence on the Hayes property side. He did not believe the fence is on the Hayes property. He paid for the fence and he put it up. Durbin stated the Board did make a preliminary finding that there is not sufficient data regarding the side property boundary and whether there is encroachment or whether that fence actually delineates the boundary. He asked if they could bring something forward to the Board that identifies that side boundary. Chairman Hawkins stated he is inclined to agree and continue this for thirty days. The application is incomplete without the side property boundary delineated. They need a stamped plan from a surveyor. Mr. Aviles stated the fence has been there for the last 40 years. Chairman Hawkins stated he appreciated what he was saying. Fences and boundaries are frequently in different places than you think they are. They need a definitive statement from a surveyor. The property could be sold, then they would do a warranty deed and end up with a big problem in a courtroom. It is much better to get a survey and the applications is incomplete without it.
Wayne Rosa asked if it would be easier to move it back to its original location. Attorney Durbin stated there was a public safety concern moving it back. The fire did spread when it was back there. Mr. Aviles stated he could put another pad in, but the old pad will still stay there. Wayne Rosa stated they could take it out.
Chairman Hawkins suggested they continue this for thirty days to give time for a survey to be done. Mr. Aviles stated he had a hard time getting a surveyor and they are extremely busy. Thirty days might not be sufficient. He asked for sixty days.
Action
Motion: Richard Shelton made a motion to continue the Aviles application to July 6, 2015 so he has time enough to get a boundary line survey
Second: Bob Daigle
Vote: All in favor
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Jonathan Kiper made a motion to adjourn at 8:19 p.m.
Second: Wayne Rosa
Vote: All in favor