Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT
JULY 13, 2015
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Zoning Administrator), Bob Daigle, Jonathan Kiper, James Drago, Richard Shelton (Alternate), Steve Minutelli (Alternate)
Absent: Bill Barr (excused)
Called to order: 7:00 p.m.
Adjourned: 7:37 p.m.
Agenda Item #1 – Pledge of Allegiance
Chairman Hawkins welcomed new Alternate member Steve Minutelli and new full Board member James Drago. Neither will be sitting for the application being heard this evening. He appointed Richard Shelton to sit in on this application, as he has sat for the previous three meetings on it.
Agenda Item #2 – Review & approval of minutes: 06/15/15 & 07/06/15
Chairman Hawkins asked the Board if they would defer the minutes to the next meeting and the Board agreed.
Agenda Item #3 – Regular Business
Waterway Realty LLC – Continuation of a 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 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.
2. 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.
The applicant, Brian Colsia, requested to speak before his representative began his presentation. Chairman Hawkins allowed him to speak.
Mr. Colsia stated he represented Waterway Realty, LLC. He stated he has been in business 42 years. He has built 5000 rehabs and 1000 homes. He stated this is “no difference” to him being before a Zoning Board, he has been a hundred times. He stated they “were blessed” to have a lawyer on this Zoning Board.
He stated he brought two recent court cases with him that do not pertain to this, but they are very similar.
He stated he has two people he sends to auctions and they do a lot of research before they bid on property.
He said he went to Town Hall and the office personnel told him the buildings sat on two acres and eighteen acres was in current use and he would have to pay the 10% to get it out of current use.
Before he bought the property, he went and looked at the buildings and walked the land. He has built a thousand homes and he has twenty streets he has named. He stated his “thing” is, when he goes to bid, he looks at liens of record, he looks at taxes, he looks at the property and what he can yield out of the property. He figured the units were sitting on two acres and he walked the eighteen acres and felt he could get a subdivision on the high side of it. If he went with the request to make this an eight-acre lot, it would not make sense to do a subdivision. The road would cost $400,000 and the land would be worthless after putting the road in. With eight units, the Town would be getting eight taxpayers, with affordable housing.
Of the two cases he brought with him, one was from Pelham. It was about a 4500 sq. ft. split (level) that had three units in it. It had a five-bedroom unit, a two-bedroom unit in between, and it had a one-bedroom unit up top. It was zoned for two-family only. Three-family homes are not permitted in Pelham. The Town gave the “guy” permission to put a meter on, they gave him an eight bedroom septic system, and there was a letter from an abutter. They never acted on it, so the Town was not making him go through Zoning Board. They are going to do a Special Exception and grant it.
The other court case is one he “just did” in Manchester. He needed 5000 sq. ft. to build. It was 500 sq. ft. short. He stated, because it was next door to the ex-mayor, the ex-mayor brought “everyone in the world” and they denied it. He took it to court and he has a lot now.
He had another lot on the other side of town that was 1000 feet short. He got the three-family variance.
He stated he was saying “They were fortunate to have a lawyer on the Board, because understand he was not a stupid man, even though he only graduated halfway through the ninth grade. He has eight lawyers and two of them do specialize in this. They are Andy Sullivan and Roy Tisley, from Bernstein and Shur. This is not the way I want to go. I take this decision very seriously and you know, once you make your decision and, if you deny me, the next thing I’m going to do is, once you make your decision, the next thing I’m going to do is ask for a ten day appeal and you are going to deny me again and then the Town is going to spend some money, because I’m going to go to court and I’m going to ask for attorneys’ fees. Not the way I want to go. I’m trying to be honest and up front.”
He said that the office personnel had given him the current use information on the property. He relied on it and bid on the property. He stated, “But understand, if it takes me a little longer, six, eight months, and seeing somebody in court, that is not a problem. But I am not looking to go that way, I am looking to just get my value out of what I paid.” He stated, “If you guys wanted that lean-to down, you should have put it as a note in the building plans. You are relying on a Building Inspector…on his knowledge of an old Building Inspector, that I had a problem with, and I was instrumental in getting him terminated, because he said he was going to slip and fall and sue the Town when I went to the Town Administrator.”
Tim Lavalle, Lavalle Associates, represented the applicant. He gave an overview of the property. This property existed with two two-family homes on it. They got the variance for that.
At the last meeting, they were discussing four acres vs. eight acres and they did not have an entire plan. He had a plan that showed the whole thing they were lacking last time. The plan showed two scenarios. One shows a two-acre lot, which is where the structures exist. The current use is on the rest of it. The second sheet of the plan shows the surrounding properties. To the northwest is property controlled by the NH Audubon Society, as well as to the rear of the property. To the east side are two open space parcels. Their proposal is to create a two- or four-acre parcel around the buildings. The buildings and property are unique in all of the structures are in front within a two-acre parcel. The rest of the land drops into some low fields and then comes back up high again. This property, when looked at for an open space development, is where the Town’s regulations lean, as it allows for an open space piece to connect and make one large tract of open space. If they did a two-acre tract around the homes, with an open space development, they could block out approximately thirteen acres of land for open space.
Also shown on the plan is a four-acre scenario.
At the last meeting, they discussed what it would look like with eight acres. You can see clearly, looking at the four-acre scenario and doubling it, you would cut off the Loiselle conservation piece that abuts the other piece of conservation land.
He stated it would be a benefit to the Town to allow a smaller lot with this, so the bulk of that land that would go with the house would not be in private ownership and would end up in an open space scenario for conservation. The property has plenty of area for septic systems in the front. There are really no wetlands to speak of near the structures. There is municipal water. The sewer system does not go that far down Wadleigh Falls Road. This is an existing and unique situation where the houses and the barn are to the front of the property. Putting a private owner out on the remaining land would not benefit the Town in any way. It would be a benefit to allow this to go into an open space development.
He stated they feel the criteria for the variance proposal are met. They are only utilizing two acres. Property values would increase by allowing a larger open space development and it fits in nicely with the Town’s intent for the open space and to try to make them contiguous.
He stated they have gone over the five criteria before. He touched on them and stated they did not feel they would adversely affect the public or decrease any property values in the area. They felt it would do the opposite.
He stated, in the two-acre scenario, there were approximately thirteen acres to be blocked out for open space. There would be slight changes, as this has not gone through Planning Board yet.
He stated, in closing, if the Board felt they needed to add a restriction that this be an open space development, they would not be opposed to that.
He stated they did not think there were any abutters or townspeople opposed to this.
Chairman Hawkins opened the public hearing.
No members of the public were present. No comments.
Chairman Hawkins closed the public hearing.
Chairman Hawkins opened the floor for deliberation and discussion among the Board members.
Bob Daigle stated he was confused with the four-acre proposal. There was an extra line on the plan. He asked if that was a buffer line along the long straight-leg extension. Mr. Lavalle stated it was. Chairman Hawkins stated it was the 50’ wetlands setback. Diane Hardy stated it was supposed to be a 75’ setback around the perimeter of the open space development. Bob Daigle stated they just didn’t draw it out.
Bob Daigle stated, looking in terms of raw land, he did not see the need to grant any of the variances requested. When the applicant makes his case, economic viability can be entered into the discussion for the uniqueness of the property. The Board did not hear anything about that earlier. They just heard tonight that he cannot make it viable. He would like to know more about that, because he can see the wetlands and see what he is trying to do, but the case was never made that part of the hardship was the economic viability of the project. With eight units on there, he is wondering if six units could make it viable. He has not seen any economic breakdown at all that says this is their break-even threshold, this is their profit margin. Those types of economic analyses should have entered into the discussion of the uniqueness of the parcel. They have not been presented. They have just dealt with the wetlands. Right now, on the evidence presented, he did not have any basis on which to judge the economic impact. Chairman Hawkins clarified that Bob Daigle was stating this on the basis of hardship. Bob Daigle stated Chairman Hawkins was correct. He has seen a fairly reasonable plan, but, if the applicant is going to lose money on it and it is not viable, it could get into the discussion of economic hardship. Right now, that concept has not been developed as evidence. No evidence has been presented to that effect.
Richard Shelton stated he was not looking at a subdivision, he was looking at the buildings that were there and the area to meet the zoning that the applicant needs. He stated he needed to be convinced, to a reasonable degree of certainty, that it is consistent with the Town’s Zoning Ordinance, which will be hard to do without showing what the hardship is. The burden is on the applicant to prove this point.
Jonathan Kiper stated he thought, if it was a six-acre lot, and he wanted a variance for that it would be different, but there is definitely eight acres available there. Chairman Hawkins asked him to clarify if he was addressing hardship. Jonathan Kiper stated he was addressing the spirit of the ordinance. Chairman Hawkins stated they had talked about this last time, too.
Richard Shelton stated, if the applicant was granted the eight acres that was allowed, then it would reduce his subdivision from eight lots to six lots. It is viable then? He has not seen any facts or figures, so he did not know. Chairman Hawkins stated there is no evidence one way or the other.
Bob Daigle stated, based on the evidence presented, he did not see enough hardship on this lot to grant the variances. He was not convinced.
Chairman Hawkins stated he outlined his views at the last meeting and he has not seen anything tonight to make those change. His view was very similar to what Bob Daigle and Richard Shelton expressed and what Jonathan Kiper expressed about the spirit of the ordinance and the burden of showing unnecessary hardship. It is in the record from the last meeting.
Chairman Hawkins stated this was their fourth meeting addressing this issue, they have taken a site walk, they have given the applicant lots of opportunities to present information, and this has been a pretty complete hearing.
Bob Daigle asked if they wanted to vote on one or the other. Chairman Hawkins stated he thought the second variance drove the first one. Bob Daigle agreed. Chairman Hawkins stated he did not see a scenario where they were going to grant one and deny the other, given the facts and circumstances of this application. As long as it is clear on the record what the motion is, he will take them in any order.
There were several minutes where the floor was still open, but there was no discussion, and Bob Daigle worked on the wording of motions.
Bob Daigle verbally rough outlined a motion to deny the variance request for relief from the conditions of Section 3.03(B) that would allow four units on four acres where eight acres are required, because the applicant failed to: (1) provide evidence that the lot could not be developed in compliance with the ordinance; (2) established hardship for the lot; and (3) that the variance is contrary to the spirit of the ordinance. He then made his motion.
Action
Motion: Bob Daigle made a motion to deny the variance request for relief from the conditions of Section 3.03(B) that would allow four units on four acres, where eight acres are required, because the applicant failed to provide evidence establishing hardship that the lots could not be developed in compliance with the ordinance and that the variance is contrary to the spirit of the ordinance
Second: Richard Shelton
Vote: All in favor
None opposed
Action
Motion: Bob Daigle made a motion to deny the variance of Section 1.05(C)(1) for the reasons already stated (above regarding the variance from Section 3.03(B))
Second: Richard Shelton
Vote: All in favor
None opposed
Brian Colsia left the meeting at this point, at 7:36 p.m. Mr. Lavalle stayed.
Chairman Hawkins stated for the record that the applicant has thirty days to file a request for rehearing. They should refer to RSA 677:2 and speak to their attorney.
Agenda Item #5 – Other Business
Diane Hardy reminded the Board they had a scheduled ZBA meeting on August 31, 2015.
Chairman Hawkins stated the NH Municipal Association and NH Office of Energy & Planning does Zoning Board member training. The Town will pay the registration fee and mileage and notices will be sent to ZBA members when announced.
Agenda Item #6 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 7:37 p.m.
Second: Wayne Rosa
Vote: All in favor