Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
JUNE 15, 2015
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, Jonathan Kiper, Richard Shelton (Alternate)
Absent: Steve Minutelli (unexcused)
Called to order: 7:00 p.m.
Adjourned: 7:52 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 05/11/15
Action
Motion: Richard Shelton made a motion to approve the minutes
Second: Wayne Rosa
Vote: All in favor
Agenda Item #3 – Regular Business
Waterway Realty LLC - Public hearing on an application for two (2) variances to allow the subdivision of an existing 19.96 acre lot into two tracts: (1) a 4.00 acre tract to remain with the existing structures, and (2) a 15.96 acre tract for future development. The property is located at 310 Wadleigh Falls Road, Tax Map R-5, Lot 85, R-1 Zone. The following variances have been requested:
1. A variance from Section 2.09 (B) of the Newmarket Zoning Ordinance, to permit four (4) units on the 4 acre lot in the R-1 Zone, whereas only one single-family unit is permitted under current zoning. (there is a clarification of this item contained in the following minutes)
2. A variance from Section 1.05 (C) (1) to allow a boundary adjustment on a non-conforming lot, which does not bring the lot into closer conformance with the Ordinance.
3. A variance, from Section 3.03(B) of the Newmarket Zoning Ordinance to allow four units on a four acre lot, where, under the maximum residential density requirement of ½ unit per acre, eight acres of land would be required. The lot is located at 310 Wadleigh Falls Road, Tax Map R5, Lot 85, R1 Zone.
Chairman Hawkins went over the history of this application. The applicant applied for the first two variances and a Zoning Board meeting was held on May 11, 2015. They heard evidence and the Zoning Board took a site walk to the property. The applicant withdrew the original application and resubmitted. He then requested the third variance.
Chairman Hawkins asked if abutters had been notified. Diane Hardy stated they had.
Chairman Hawkins appointed Richard Shelton to sit on this application.
Tim Lavalle, James Lavalle Associates, represented the applicant. He stated this property is unique in that the old Walker homestead existed as a two family home, for as long as they can figure out. They do not know if it was built that way or converted 100 years ago. The second building has existed as a two family home since 2007, when they put the larger addition on the side of it. All of the structures are clustered into one area on the property. There is plenty of parking. He answered all of the criteria at the previous meeting. They feel this is a unique property. They looked at trying to separate the two structures and, going by current regulations, it made more of a mess of the lot lines. They felt this was unique and the layout would give them a hardship.
He stated the proposal is to subdivide off four acres, so they can do an open space development on the rest of the property. Four acres adequately contains everything there. There is plenty of room for septic systems. There is municipal water there.
Chairman Hawkins stated the Board has read the written material. He stated this is the opportunity for the applicant to tell the Board everything he would like the Board to know. He wanted to make sure he had every opportunity to give all of the information to the Board he would like considered.
Mr. Lavalle read the criteria and expanded on it.
He stated it would be in the public interest, because it would allow the continued use that has been going on there. It does not change the appearance of the property.
They feel the spirit of the ordinance is to keep things not too closely spaced in that zone, so it is not like downtown. The structures exist within the proximity to one another, as they are. Putting a four acre lot around them does not change the appearance of anything.
They feel this would do substantial justice, because it would allow them to continue to use the property, as before.
It will not affect surrounding property values adversely, because it is already there. Whether it is on four acres or one hundred acres, the buildings are still clustered in a four acre size area. There will be no change in appearance.
The hardship is the uniqueness of the property. Everything is down in one corner of the property clustered together. Four acres adequately handles this.
It is a unique lot. For a twenty acre lot, it is not very wide. They looked at splitting it, trying to get each structure the required frontages and requirements. It did not do anything other than put imaginary lines in some very odd shapes. If they are approved for the four acres, it will be clustered together nicely.
Chairman Hawkins opened the public hearing.
No comments.
Chairman Hawkins closed the public hearing.
Bob Daigle asked, if he had a twenty acre parcel, what makes this unique for the Board to have to grant three variances to add two additional lots to the subdivision. He was thinking of impact on the school system and a variety of things. He was trying to figure out all of the aspects of the property that make it unique. If you look at the plan, the line submitted is wetlands. He wondered why that line could not be extended out and eight acres used to eliminate one of the variances needed. The wetlands are undevelopable anyway. There would be two less houses with kids in the school systems. That is part of the purpose of the Zoning Ordinance. He stated he was trying to figure out if the applicant has made an adequate case for the uniqueness of the parcel. He did not see that it would be a problem to extend the boundary into the wetlands.
Richard Shelton stated, in 2006, there were ten single family permits issued and no accessory apartments or multi family. In 2007, there were two single family, no accessory apartments or multi family. This duplex in question never came before the Zoning Board for a variance. He asked who issued the occupancy permit for a duplex. The first year it was taxed as a duplex was 2008. He recently had a conversation with the Building Inspector at the time, Daniel Vincent. Mr. Vincent stated, when the new addition was built, the old section of the building would be removed and there were notes on the plan relating to that. The Tax Assessor added it as a duplex in 2008, but it had never been approved. It seemed to him the Board would have to approve a duplex, before they can vote on anything or tell them to get rid of the old section. Diane Hardy stated the first variance is because it is a single family zone and there are four units on it. Two of them are grandfathered. One was an accessory apartment and the fourth one was with the understanding that the other unit would be removed. Why that did not happen, she did not know. Richard Shelton asked if they could approve four units without voting on the fourth unit. Diane Hardy stated the very first variance would do that. He is asking for a variance to allow the four units to exist as they are. Bob Daigle stated it is phrased that they are asking for four units to exist on a single lot. Diane Hardy stated the first one is the use. Right now only single family housing is permitted. You have four units, so that is a nonconforming lot. Bob Daigle stated they should be asking for a variance to allow four units on a single lot and not have the acreage. The acreage comes in within #3. Diane Hardy stated it was intended that this would allow four units on the current lot, not the future lot. This variance is to allow it on the entire tract. So, ignore the phrase “on the four acre lot”, it is misleading.
Chairman Hawkins asked, if they are changing the language of what is being applied for, is that a substantive change that requires renotice. Diane Hardy stated she did not believe it was. The intent was to allow the four units that currently exist. That requires a variance, because it is not a permitted use. Multi family is not permitted in R1. Chairman Hawkins stated the purpose of the first variance is to approve what is there today on a 19.96 acre lot. #3 would be the area variance. There is a use variance, a boundary adjustment variance and an area variance.
Bob Daigle stated putting the four units on the 20 acre parcel was fine. It is a bookkeeping item, at this point. It is nothing the applicant did. He stated it was an error on the Town’s part. Plans were submitted with a note to demolish the building. We can’t prove that. It is what it is and it can be easily corrected. Chairman Hawkins stated they have Dan Vincent’s memory, but the plans mentioned are not in hand. The applicant for that addition no longer owns the property.
(Variance #1)
Action
Motion: Bob Daigle made a motion to grant a variance to allow four units on Tax Map R5, Lot 85, R1 Zone, where only a single family unit would be permitted under the current zoning
Second: Wayne Rosa
Vote: All in favor
Diane Hardy clarified this was on the entire 20 acre lot as it stands now. Chairman Hawkins agreed and clarified the motion is based on what was presented, not what was worded in the notice.
Bob Daigle stated regarding variance #2, until they have the maximum density, it is premature to discuss that.
The Board moved on to Variance #3.
Bob Daigle stated he looked at this as a blank slate asking what would be allowed if all of the zoning requirements were met. He had not seen any evidence presented that they could not extend into the wetlands and get an eight acre lot to make the four units on a single lot compliant and still preserve the uplands area for development.
Mr. Lavalle stated they could create an eight acre parcel with the 75’ or 100’ tail that goes to the back of the property. One of the larger reasons for not doing this was that, to the south of this property is a parcel of open space and to the north and to the east are other parcels of open space. By doing so, it is possible they would cut off the ability to add all of those open spaces together. There was a discussion of which properties abutted.
Diane Hardy stated, for the future development of that lot to be an open space subdivision, a factor considered by the Planning Board is, if the lands are contiguous. One of the criteria for granting an open space development is if it is minimizing fragmentation of open space and provides for the continuity of open space.
Richard Shelton stated it was hard for him to allow four acres for these units. It will be more nonconforming. They just granted the applicant the four units. They have to have the land to go with it. They need eight acres.
Bob Daigle stated he would like to see eight acres, but there is not enough of a plan here to determine it and visualize it.
Chairman Hawkins stated he hears the Board bouncing between the spirit of the ordinance and unnecessary hardship criteria. Richard Shelton stated he did not see any hardship on the Board’s part. He has the land and the Board can give him eight acres. What he does with the rest of the land is not the Board’s business.
Diane Hardy showed the Board the tax map of the area to help reference the property’s location. They tried to determine what surrounding land was officially open space land.
Wayne Rosa stated it was not the Board’s job to redesign, but he asked Mr. Lavelle where the land that was valuable to him for development was on the tax map. Mr. Lavalle indicated the location, as well as setbacks from septics, buildings, and wetland.
Richard Shelton stated he needed eight acres. There is plenty of land. Wayne Rosa agreed.
Chairman Hawkins stated the area variance really drives the boundary adjustment. He considers them together. He agrees with the applicant in terms of the public interest. There would be no physical change to anything. You are just moving lot lines. He does have a problem with the spirit of the ordinance, particularly 1.05(C)(1), which specifically prohibits any change to a boundary line that does not bring a lot more closely into conformance with the ordinance. The variances that are being requested take a nonconforming lot and make it less conforming. Right now it is on twenty acres. Based on his sense of the discussion, the Board has not seen sufficient evidence to justify a variance from that requirement, at this point. He did not see substantial justice as being an issue, because there is no physical change on the property. He did not see a burden to the public and there is some potential benefit to the applicant. He did not see an impact in this application, leaving aside the future subdivision which is in the purview of the Planning Board, on surrounding property values. He was having a problem with the fair and substantial relationship with the purpose of the ordinance. The applicant is looking to increase the density on what is technically an overcrowded lot. Although it is a big lot, four residential units is still relatively an overcrowded lot relative to other lots in the area. He did not see the configuration of the property as being unique in the area. Lots 80 and 89-1 are similar in configuration. He feels this is the general sense of the Board. The Board agreed.
Bob Daigle stated he had no qualms with the idea that four acres is adequate to support those residents. If they would put four more acres into open space that is contiguous to the other open space land, that would help him grant the density variance. The public benefit is there. The general welfare of the community is improved if the open space is all connected. Diane Hardy stated that could be a condition of approval. Richard Shelton stated as long as they end up with eight acres. Chairman Hawkins stated he gets nervous when the Board starts drawing lines on maps, because that is not their purview. Wayne Rosa stated he did not disagree, but he did not see how that solves anything.
Mr. Lavalle stated the Board is having a hard time looking at this without plans showing the back of the property, the open spaces and so forth. He appreciates that. They are in a Catch-22. They cannot subdivide this and go to Planning Board until the second variance is heard. The Board is having a hard time looking at that one without looking at the third. The applicant would like to ask for a continuance to give the Board more information on the back of the property and maybe look at adding more area to this lot. It would be in their best interest to ask for a continuance and reconfigure this. He will bring in a larger plan with the whole thing and clearer setbacks.
Richard Shelton stated it is a hard point to grasp to grant these, when there are twenty acres there. What happens on the remainder is not this Board’s business. They have to go by the Zoning Board regulations. The applicant has to show more land to go with the four units.
Diane Hardy stated they could show the eight acres charted out with the back portion of the property.
Action
Motion: Richard Shelton made a motion to continue this meeting to a date specific with more information that can come before the Board, so they can have a better understanding of the subdivision
Second: Wayne Rosa
Chairman Hawkins stated he would entertain that for a couple of reasons. Primarily, they have potential of achieving benefit for the Town, by enhancing the continuity of the open space corridor. He stated he is a stickler for procedure and rules. He would like Mr. Lavalle to come in with his best case and best evidence and put it in. He did not want to open the door to further continuances and have this get done in a piece meal fashion. The applicant has heard the Board’s comments and he has the benefit of that, so he should give his very best case. He would be reluctant to grant further continuances unless something new comes up. Mr. Lavalle stated he understood. He stated two weeks would be sufficient for him.
The Board decided on the date of June 29, 2015, at 7:00 p.m. This was added to the motion.
Chairman Hawkins stated he will reopen the public hearing, if members of the public show up.
Vote: All in favor
Agenda Item #4 – Other Business
None.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 7:52 p.m.
Second: Wayne Rosa
Vote: All in favor