Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
AUGUST 31, 2015
MINUTES
Present: Chris Hawkins (Chairman), Bob Daigle, James Drago, Jonathan Kiper, Richard Shelton (Alternate), Steven Minutelli (Alternate), Diane Hardy (Zoning Administrator)
Absent: Bill Barr (Alternate), Wayne Rosa (Vice Chairman) both excused
Called to order: 7:01 p.m.
Adjourned: 7:53 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review and approval of minutes: 06/29/15, 07/06/15, 07/13/15
For the purpose of the Aviles application, Chairman Hawkins appointed Richard Shelton and James Drago.
06/29/15
Action
Motion: Bob Daigle made a motion to accept as transmitted
Second: Richard Shelton
Vote: All in favor
Steve Minutelli and James Drago abstained, as they were not at that meeting
07/06/15
Action
Motion: Bob Daigle made a motion to accept as transmitted
Second: Richard Shelton
Vote: All in favor
Steve Minutelli, James Drago & Jonathan Kiper abstained, as they were not at that meeting
07/13/15
Action
Motion: Richard Shelton made a motion to accept the minutes of the July 13, 2015 meeting
Second: Bob Daigle
Bob Daigle stated, on page 5, he wanted to reinforce something. In the first paragraph, where it says “Bob Daigle stated it was a hardship” and he wanted to change it to read “Bob Daigle stated Chris was correct”.
Richard Shelton stated he was fine with that amendment.
Vote: All in favor
Agenda Item #3 – Regular Business
Edwin Aviles – Continuation of 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.
There will also be a public hearing for an application for a Variance from Section 3.04(B) of the Newmarket Zoning Ordinance, requested by Edwin Aviles, at 7 Plains Road Mobile Home Park, Wadleigh Falls Road, Tax Map R5, Lot 68-A7, R1 Zone. The Variance would permit a side setback on the westerly side of 2.7 feet, where 25 feet is required in the R1 Zone.
Chairman Hawkins stated Mr. Aviles was at a previous meeting for the variance for the road frontage. A suggestion had been made that he should take another look at whether he also needed a side setback variance and it turned out that a second variance was necessary, as well. The application was amended to include that variance. New public hearing notices were sent to the abutters. Diane Hardy stated they also sent a notice to one abutter that had not been included on the applicant’s abutters list for the first meeting, with a letter explaining both variances.
Derek Durbin, an attorney from Portsmouth, represented Edwin Aviles. He stated the impetus behind getting the survey done was there was a question of whether the mobile home was located over the abutter’s property line. Mr. Aviles had a boundary survey done and it shows he is 2.7’+/- off that boundary. This question did not arise as a result of any complaint from the abutter, it was just a concern. A fence that was there had been taken down and the abutter wanted to make sure it went back up and also that there was no encroachment. He had an email from that abutter supporting this project. He gave copies to the Board.
Chairman Hawkins stated he had asked James Drago to sit in place of Wayne Rosa. Mr. Drago has read the application and has seen the property and feels he is prepared to sit for the application. Attorney Durbin stated that was acceptable to them.
He stated he did not want to rehash the whole background of this application. Chairman Hawkins stated the Board has read the application carefully and this was the applicant’s chance to tell the Board whatever he would like them to know.
Attorney Durbin stated in 2013, Mr. Aviles filed for a demolition permit to take down the structure that existed on the lot at that time. The structure was well within those setbacks, so it was encroaching. On the recent survey, it showed the original structure was back further from the road and further from the Hayes property boundary than the new structure. Mr. Aviles then applied for a building permit to put in a cement pad. He met with the Building Official and he believed the Building Official knew where he was putting the pad. There were no plans submitted and the permit was approved. It was later determined, when a site inspection was done, that it did encroach on the setback. There was some miscommunication or misunderstanding about the placement and process. So, that is how they got to this point. This is a structure that exists right now, it is noncompliant, and they are asking for relief.
Attorney Durbin showed the survey to the Board. He showed where the mobile home was previously located and the current location. He showed where a shed had been located. The shed had been taken down. He stated this mobile home is part of a mobile home park. There are seven mobile homes there. He showed the location of the abutting Hayes property.
Attorney Durbin stated they are seeking two variances, one for the front setback and one for the side setback. The front of the new mobile home is about 10½+/- feet from the road, where 40 feet is required. The side setback is 2.7 feet, where 20 feet is required. The old mobile home was about 23 feet from the road. The closest point to the side setback was about 8 feet. It was a preexisting nonconforming structure. They do not have the status now to locate in the same footprint. They did not put it back in that location was because the shed for the mobile home behind this one was located closely enough to that where Mr. Aviles felt it was a fire safety hazard. There was a fire several years ago in the mobile home on Lot 6, in back of the lot in question tonight. The fire touched the shed and the Lot 7 mobile home that had been in that original footprint.
He stated the mobile home removed from Lot 7 had been in a state of disrepair. It needed to be replaced and the idea was to try to bring it further away from the Lot 6 mobile home and the only way to do that was bring it closer to the road, due to the physical constraints to the property. The way you enter the property, you go in between the mobile homes. It is like a horseshoe of mobile homes around a wide entrance with a turnaround. The mobile home in question on Lot 7 would be to the right as you go in.
Attorney Durbin stated, when you try to bring this into compliance with the ordinance, you end up locating the mobile home in that entranceway. If you try to bring it toward the back, if you configured it a certain way, you might be able to comply with the ordinance although looking at it and trying to scale it on the plan, it looks like you would overlap with a portion of the mobile home in back on Lot 6. It is not feasible to locate it in compliance with the ordinance. If you locate it further back, you would still need relief.
Jonathan Kiper asked if they had a building permit for the rebuild. Ed Aviles stated they had a permit for the pad. He stated there was a misunderstanding on his part. He stated a mobile home is a mobile home. It comes prefab. He did not realize he needed a building permit for the mobile home. They did get one for the slab. Jonathan Kiper asked if the location of the slab was part of the permitting process. Attorney Durbin clarified that the precise location was not identified on any attachment. It was simply discussed on site. They are not pointing any fingers. The Building Official and the applicant had met on site and it was thought there was a mutual understanding. It was later realized the pad’s location was noncompliant. Chairman Hawkins stated the Building Official had looked at an old image of the site on Google Earth and saw the original pad was in a different location. The Building Official had thought it was going in the same footprint. He realized the pad was in a different location and that is when everything came to a stop.
Attorney Durbin stated he would address the variance criteria.
He started with the public interest criterion. The public interest would not be served, by denying the variances being requested. The location was moved closer to the road and the Hayes property boundary, due to the fact that Mr. Aviles wants to avoid a fire hazard. It is a new structure, so it is an improvement on the property. He went through the history earlier. They believe it would be in the public interest to locate the structure in its proposed location.
The placement of the pad and home will be consistent with the spirit of the ordinance. It was his understanding that the imposition of setbacks are to protect light, air and space between neighboring properties. If you look at the Purpose section in 3.04(B), it talks about sight distances, with a front setback. If there is enough space in the front setback, so when cars are turning or passing by they can see other cars, it does not become a traffic hazard. The ordinance also talks about being consistent with the general development scheme. In this case, there is ample sight distance pulling in and out. He went there himself the other day. He had an opportunity to speak to Ms. Heath and Ms. Hayes, two abutters. They are in support of the variances. They feel when they are exiting their own properties, the mobile home location is not an issue.
He stated, if you were to enter the property, immediately to your left is Lot 1 with a mobile home. It is located 6’+/- from the road. He showed the location to the Board on the plan. It is clearly not an issue. They believe the site distance is sufficient. They believe light, air and space are protected. The Hayes have a road or right of way called Plains Drive which runs along the affected boundary. There is quite a bit of space between the structures. This does not impact Ms. Hayes and she gave him permission to represent that before the Board.
The neighborhood is a hodgepodge of development. The mobile home park is its own neighborhood. The other properties around it are not part of any development scheme. It was not a subdivision put in by one developer. The structures are located different distances from the road and from neighboring properties. In that respect, it would be consistent with the spirit of the ordinance and protect the essential characteristics of the area. It would not have any impact at all. This is a benign request.
Substantial justice would be done. There is no public benefit by denying the relief being sought by Mr. Aviles. There would be a financial hardship, which is obvious, if he deals with another fire. It would be a detriment to move that mobile home further back.
There would be no diminution of surrounding property values. It would be hard to say there would be a decrease or increase either way. If anything, it is a site improvement, so it may slightly boost surrounding property values.
Literal enforcement of the ordinance would result in unnecessary hardship. He believes the application meets both of the hardship tests. There are special conditions associated with the property that distinguish it from other properties in the area. Many of these he has already gone over. The structure that existed prior to this one was noncompliant under the ordinance. The home on Lot 6 is located in such a way that it would be too close if they moved the new mobile home back. It looks feasibly impossible to try to move it back. There is not enough space. He showed the plan to the Board and explained the locations. If they move the new mobile home back, the trailers would be too close together. It may not even be possible to move it back. They would be touching or almost touching. There are those constraints to the property. The entranceway would have also have issues if the mobile home was moved.
The proposed use is a reasonable one, it is a single family home and it relocation on the site continues the use of the property as a mobile home park. This is a park in the middle of a residential area. There are unique considerations with respect to that.
The pad site cannot be used in strict conformance to the ordinance, because you cannot move the mobile home back. There is not enough room to do so, without squeezing the mobile home to the rear, which poses a hardship.
He requested the Board grant the variances.
Chairman Hawkins opened the public hearing.
Brian Colsia, owner of property at 310 Wadleigh Falls Road, stated it appeared to him that a site visit was done by a Building Official and the pad location was shown. If a building permit was issued and the pad was not located in the proper location, he would think it would fall on the Town or the Building Official. That should have been sought out before he was allowed to put the pad in and he thought it should sit where it should sit. Attorney Durbin asked where his property was located. Mr. Colsia explained where it was.
There were no other comments.
Chairman Hawkins closed the public hearing.
Chairman Hawkins asked for a signed copy of the survey for the file. Attorney Durbin gave him a signed copy.
Richard Shelton stated, at the previous meeting, they went over the five criteria and the only big issue the Board had was the lot line issue on the west side at the Hayes property. That is what triggered this meeting.
Action
Motion: Richard Shelton made a motion addressing the side setback issue of 2.7’, where 25’ is required in the R1 zone. This mobile home park has been in existence for many years. It would appear that all of the units on the property would not meet the dimensional requirements, as shown in the Dimensions Table. As the property abutter, adjacent to the location of the pad, has cited, by letter, they have no issues and although the previous pad location was not conforming and the present location was not conforming, that they (the ZBA) approve the side setback.
Second: Bob Daigle
Chairman Hawkins stated he had a question about the fence between the mobile home and the road. That fence has not moved. Attorney Durbin stated most of the fence had been taken down and not put back up. He ran into Ms. Hayes and she said the property has not been maintained since Mr. Aviles was going through the zoning process and the fence has not been put back up. He stated it will be replaced in the same location. Mr. Aviles stated about 30’ had been taken down out of 200’. The 30’ section will be put back in the exact same location. Chairman Hawkins stated the Board can note the fence should go back in the same location, as he was concerned about site distance.
Chairman Hawkins stated they are voting on the variance for the side setback. If there was no further discussion, then all those in favor of approving the variance based upon the information presented both in writing and verbally by the applicant for the side setback, please signify by saying aye.
Vote: All in favor
Action
Motion: Richard Shelton made a motion on the whole project. The applicant, in prior and recent testimony, has established beyond a reasonable doubt that life and safety issues have been addressed by the relocation of the pad, the surrounding property will not be diminished, literal enforcement of the ordinance will result in unnecessary hardship, it will not be contrary to the public interest, and the spirit of the ordinance will be observed. The location of the cement pad 10.5 +/- feet from Route 152, where 40 feet is required, and the side setback on the western side of the property line of 2.7 +/- feet where 25 feet is required. ` Substantial justice will be done. The property is located at 7 Plains Road Mobile Home Park, Wadleigh Falls Road, Tax Map R5, Lot 68-A7, R1 Zone. The side fence should be replaced that had been removed.
Second: Bob Daigle
Vote: All in favor
Waterway Realty LLC – Request for rehearing for the following variances, which were denied on July 13, 2015 by a vote of the Newmarket Zoning Board:
Two 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 were requested and denied:
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.
Chairman Hawkins stated that he, Bob Daigle, Richard Shelton and Jonathan Kiper will vote on this request for rehearing, as they have been involved with the application from the beginning.
Chairman Hawkins stated, whenever the Board receives a request for rehearing, the Board goes back and reads all of the minutes, and thinks about the site walk. The site walk in this instance took at least an hour, if not longer.
He stated he looks at the tax map, the ordinance, and everything else and tries to look at all of those things with fresh eyes.
The first thing he noticed was the GIS tax map the applicant got on-line was not 100% accurate. The GIS map does not show Lot 83, which is owned by the Kwaks, and Lot 84 is split into two pieces. What is shown on the GIS for the applicant’s lot is accurate. Diane Hardy stated the GIS mapping has not been updated, but the tax maps have been, and the tax maps show the current conditions in the area. Chairman Hawkins stated he would like to make the most recent update of Tax Map R5 part of the record, so the record is complete. The inaccuracy of the GIS map has no impact on this application. The most significant difference is the tax map shows Lot 83.
Chairman Hawkins stated the applicant’s attorney’s letter, appeared to reflect a misunderstanding. The attorney appeared to argue about the variance to maintain four residential units on the property, but the Board granted that variance. This ratified the existing and nonconforming conditions that are there, because there was nothing in the Registry of Deeds or the Town’s file that would give a subsequent purchaser of this property comfort that the existing non-conforming conditions were authorized by the Town. The Board granted that variance. That takes off the table the arguments raised in Paragraph 1(A) in the attorney’s letter, and also the arguments in Paragraph 1(C) about the former Code Enforcement Officer. Whatever the former Code Enforcement Officer said or did not say is irrelevant, the Board granted the variance related to those issues, so that is just a non-issue.
Chairman Hawkins stated what they are left with are the two issues under which the Board denied the other requests for variances, for the subdivision of the property (and the maximum residential density) and the moving of the lot line. The Board denied those variances due to the applicant’s failure to satisfy the hardship and spirit of the ordinance criteria.
Richard Shelton stated they needed to set the record straight on an issue. In the attorney’s request for a rehearing, he has the structures located in the southwestern corner of the lot. They are in the southeastern corner. The attorney also stated, prior to purchasing the property, the applicant spoke to a Town employee and he was told the structures sat on two acres of the property and eighteen acres were in current use. He stated, to clarify, the structures sit on 19.96 acres and eighteen of those are in current use. Chairman Hawkins stated it is one big lot, with eighteen acres of it in current use.
Chairman Hawkins stated there are several points with respect to the issue of hardship. The Board had reminded the applicant several times that the burden of proof is on him to show they have satisfied the criteria for a variance. The issue of hardship, as he reads back through the minutes, was primarily an argument of economic hardship. The NH Supreme Court has not published an opinion on economic hardship since 2009. The statute was amended in 2010. It is not clear whether economic hardship is a legally viable argument anymore. Assuming for purposes of discussion that it is, the Board was told by the applicant that the cost of cutting in a road for that lot was approximately $400,000.00. The Board was given no backup for that, no pro formas, and no comparisons of costs alternatives. That was just a number the applicant put out there.
Chairman Hawkins then stated in the attorney’s letter, the assertion is made that the applicant is being deprived of an economically viable use of his property. He has four (legal) residential rental units on the property now.
Chairman Hawkins stated he did not see where there has been a deprivation of economically viable use of the property. He did not think there was enough evidence submitted to satisfy the criteria of hardship. Bob Daigle stated he had made that point and it was reflected in the minutes. Chairman Hawkins stated Bob Daigle had made that point repeatedly.
Chairman Hawkins stated the other big part of the hardship argument is the property is unique relative to others in the area. That was stated by the applicant, but there was no specific proof of it. When he looks at the GIS map or the current R5 tax map, that argument is contradicted by the evidence. The applicant’s lot is Lot 85, which is a roughly rectangular lot that goes back from the road and is impinged upon by wetlands, particularly in the back portion of the property. Those same conditions apply to Lot 84, Lot 87, Lot 81, Lot 80 is also very similar, and the Loiselle property at Lot 91-2 and the elderly housing property at Lot 89-1. The Loiselle property and the elderly housing property are different in shape, but they are similarly impacted by wetlands. The applicant’s property is not unique relative to other properties in the area. That part of the criteria has not been satisfied.
Chairman Hawkins stated the Board had gone on a site walk and had a chance to observe the conditions on the neighboring properties and they were very similar. The Board saw these conditions on the neighboring properties and they are similar from one lot to the other.
Chairman Hawkins stated, referencing the spirit of the ordinance, the argument addressed in the attorney’s letter talks about fragmenting wetlands. That is not the only issue. The ordinance says that boundary changes are not permitted, unless they bring the lot into closer conformance to the ordinance. He stated Richard Shelton had mentioned this issue several times at the previous meetings. Chairman Hawkins stated the General Purposes of the Ordinance are talked about in Section 1.02, for lessening vehicle congestion, preventing overcrowding of land, and preventing undue concentration of population. The Board is entitled to consider all of those factors when they consider a variance. With the proposal that was on the table, with potential for future development, it was determined that to grant the variance would be contrary to the spirit of the ordinance in the sense of bringing into play factors, such as overcrowding and vehicle congestion, which they are entitled to consider. The applicant presented no evidence of any kind to address those factors.
Chairman Hawkins stated, for all of those reasons, there is no basis for reconsideration. His thought was to deny the Request for Rehearing.
Bob Daigle stated he agreed 100%. He had reread the minutes and the attorney’s letter. He asked if the attorney had a copy of the draft minutes when he prepared this response. Chairman Hawkins stated he believed no attorney would write a letter such as the one presented unless he had read the minutes. Diane Hardy stated she had provided the minutes to Mr. Colsia within the statutory deadline. Bob Daigle stated he read the minutes, then he read the attorney’s letter and, in some areas, it is like the attorney took things from two different sources. He did not see anything in the attorney’s letter that prompted him to feel the Board erred in any fashion. In reading the minutes, he felt they were very clear in what they were expecting and what they did not see. He did not see anything in the documentation that suggested there was any reason to reconsider this.
Jonathan Kiper and Richard Shelton agreed.
Action
Motion: Bob Daigle made a motion to deny the request for reconsideration (for the above stated reasons)
Second: Richard Shelton
Vote: Chris Hawkins, Bob Daigle, Jonathan Kiper, Richard Shelton in favor
Chairman Hawkins stated there is a 30-day appeal period. The applicant should check with his attorney regarding his appeal rights. He stated to the applicant to please consult with his attorney for the definitive advice.
Agenda Item #4 – New/Old Business
None.
Chairman Hawkins stated he talked to John Ratigan today and he was happy to come and do a ZBA training session, so the members do not have to go all the way to Concord.
Diane Hardy stated the NH Municipal Association has a Law Lecture series and there will be one series held in Newmarket this fall. The Town can cover the registration. They will held on October 14, 21, and 28 here in the Newmarket Town Hall at 7:00 p.m.
Chairman Hawkins asked Diane Hardy to try to coordinate schedules to have John Ratigan come to talk to the Board.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 7:53 p.m.
Second: Richard Shelton
Vote: All in favor