Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
FEBRUARY 29, 2016
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, Jonathan Kiper, James Drago, Steve Minutelli, Diane Hardy (Zoning Administrator)
Absent: Richard Shelton (Alternate), Bill Barr (Alternate) both excused
Called to order: 7:01 p.m.
Adjourned: 7:52 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 09/14/15
Action
Motion: Bob Daigle made a motion to accept the minutes as submitted
Second: Wayne Rosa
Vote: All in favor
Agenda Item #3 – Regular Business
Chairman Hawkins changed the order of the agenda and moved the Lorentzen application to be the first item.
Rachel & Per Lorentzen - Public hearing for an application for a Variance from Section 7.03 Accessory Apartments, of the Newmarket Zoning Ordinance to permit utilizing a portion of the first floor as an accessory apartment, with the second floor remaining as owner occupied. The property is located at 213 Bay Road, Tax Map R1, Lot 4-2, R1 Zone.
Attorney F. X. Bruton, Bruton & Berube law firm, represented the applicants. Val Shelton, Appledore Real Estate, was also present for the applicants.
Attorney Bruton stated the 4,800 square footage figure in his introduction was not accurate. The tax card shows accurately 5,640 sq. ft. of built livable area, with 1,074 sq. ft. of unfinished livable area for a total of 6,722 sq. ft. of possible livable area. The house is massive. It looks odd when you drive by it. It is very, very big and is horseshoe shaped. It sits on 8.2 acres. It also has a massive basement of 2,751 sq. ft. The structure is very large.
In 2001, the prior owner obtained a Special Exception, to allow for an accessory unit. At that time, the owner had anticipated using the space above the garage, which is the space he had characterized as 1,074 sq. ft. above. At that time, the ordinance provided the accessory apartment could take up 50% of the structure. Now the ordinance limits it to 800 sq. ft. In this case, it is a hardship, because it does not really reflect the size of the structure. In smaller structures that might be appropriate. That limitation would create a lot of waste in this situation. To put it into context the space they are looking at, because portions of the first floor were carved off to remain with the second floor use, there is about 1500 sq. ft., which is about 22% of the structure. So, if they were under the old rules, they could go up to 50%. He wanted to put that into context, in terms of what they are asking for.
The request is for a variance, because they cannot meet the 800 sq. ft. criterion.
There will be two parking spaces per dwelling unit. The parking will be 50 feet from the abutting owners. There will be no change to the exterior of the structure. It will have no effect on the neighborhood. There is adequate water and sewer.
It is interesting to note, in the ZBA minutes for the previous Special Exception for the property, there were some abutters who came and raised some issues. There are no abutters here tonight, because his clients have already met with the abutters and they understand the scope of the project. Presumably, they are not here, because they do not object and that was his understanding when his clients met with them.
For the criterion regarding public interest, they think this is a reasonable request given the size and mass of this structure. It is consistent with the intent to allow an accessory apartment in this zone. Certainly, given the size of the property and existing house, granting the variance will continue to protect the health, welfare, and safety of the neighborhood.
The purpose of this zone is to protect the rural, unspoiled character of the area. They do not think granting the variance will have any negative effect at all. At the end of the day, granting the variance will not alter the essential character of the locale, which is the test regarding public interest.
The second criterion is regarding whether this is in the spirit of the ordinance. This is a suitable use for the area, particularly in light of the configuration of the building, which lends itself to the use proposed. It is also an appropriate use of the land. One thing that happened when this structure went up for sale was no one could really utilize it in a way they wanted to. When you walk through this horseshoe-shaped building, it was awkward, because it already seemed detached and separate from the other part of the building. In fact, the property sat for a long period of time without movement in the market. It eventually sold.
The test, with respect to the spirit of the ordinance, is whether the granting of the variance will unduly and to a marked degree conflict with the ordinance, such that it violates the ordinance’s basic zoning objectives. They respectfully suggest that it would not. The public would be protected. There is no change to the structure and the size of the property lends itself to this use.
With respect to the substantial justice test, that is a benefit/burden test whether the benefit to the applicant outweighs the burden to the public. In this case, they respectfully suggest there would be no burden to the public at all. The property is very large. It would be occupied, potentially, by the same number of vehicles and people. The benefit to the owners is that they can use this building in a way that it agreeable for them and consistent with the intent of the zoning ordinance to allow accessory apartments in this zone.
The fourth test is whether granting the variance will diminish the surrounding property values. There will be no alteration to the property. The abutters were consulted and do not seem to object. The property is already permitted to have an accessory unit. The increase in size will not increase the density and characteristic of this property. If the variance is granted there would be no diminution of surrounding property values.
The final test is unnecessary hardship. He believed it would be a hardship, in that the space is so large and disconnected as it sits. In a different type of case, the ZBA was permitted to look at the structure and how big it was and granted relief and they feel that is applicable here. The space would go to waste and, in the context of a unit already approved there, denying the variance would be unnecessary, where all of the other elements would exist. Just increasing the amount of size this unit could be would not create any negative effect. There is no relationship between that restriction and trying to protect the interests of the zoning ordinance.
He stated, if it is a reasonable use, given the context and the things he just described, they ask the variance be granted.
Valerie Shelton, owner of Appledore Real Estate, stated they have been practicing real estate for over 22 years. Their focus is the Great Bay area. They are located in Newmarket and sell a lot of property along Bay Road in Newmarket and Durham. She represented the seller of this property, Peyton and Judy Carr, who had purchased it from the bank in 2004. Prior to their purchase, the property was on the market for 871 days. It started at a listing of $959,900 and the Lorentzers purchased it for $601,000. Obviously, it was a very difficult property to sell. When the Carrs purchased it, they tried to address some of the idiosyncrasies and non-marketable characteristics of the property and they did improvements of about $300,000. Their term of ownership was between 2004 and 2015. The Carrs decided to retire and move in 2013, which is when they first put it on the market. They put it on the market, at that time, for $985,000. They thought that was a reasonable and justifiable price, given the square footage of the property. Typically, that is how real estate is valued. It is based on location, land, value and square footage. This has pretty substantial square footage, taking into account the walk-out basement that is not finished, as well as the unfinished space over the three car attached garage. From that time period until the sale in November 2015, the property was on the market for 382 days. At one point, they had taken it off the market, because someone wanted to rent it and they wanted the cash flow. It ended up selling for $648,700. Oddly enough, the area along Bay Road and Great Bay, because of the taxes associated with these properties, is not appealing to families trying to move into Newmarket. The taxes are very high. The market is traditionally an empty nester, an active retiree, or perhaps a second home from the New York or Boston markets. This is the case of the current owner.
She has been involved with many of the sales around the area. The abutter to the east and north of this property are the Popovs. All of that land is under a conservation easement in perpetuity. There will never be a residential abutter to the east and north of the subject property. The abutter to the west is a realtor. If he had an issue relative to this proposed use, she would think he would be sitting here tonight. To the south across the street is a twenty acre parcel they sold a few years ago. It is a waterfront estate parcel. It currently is utilized by two grandfathered houses rented on that property. The current owner is from California. If they choose to build here, it would be an estate parcel, where they would build on the waterfront, close to 1500 to 2000 feet off of Bay Road.
The other thing relative to the value is the property is overtaxed relative to its market value. That has been proven twice now. By allowing this permitted use, they can bring the value back up to something more consistent with the current assessed value. The concern is that using the property as it is and the current market value based upon the past two sales, creates a basis for abatements in that area. Being able to redevelop this property into something of a higher and better use would be in the best interest of the community. The assessed value is $825,300. The abutting property is $446,300. The property next door is 2,981 sq. ft. for comparison. A substantial investment was made into this property that is not relative to what they have found to be the market value with the current conditions of the property. This was their most challenging project.
Wayne Rosa asked if the area they would like to make into the accessory apartment was finished. Attorney Bruton stated it was. The only thing that would happen would be to block off the staircase. He indicated the area on a plan. They would create an entranceway.
Bob Daigle asked if any improvements were done with the previous Special Exception. Attorney Bruton stated no. Bob Daigle stated he could see there was already a kitchen. He asked if the second floor had a kitchen. Attorney Bruton stated there was a kitchen. Valerie Shelton stated all of the plumbing was up there. Attorney Bruton stated there is a first floor kitchen and there is plumbing on the second floor. They have not separated out a kitchen area. That area for the previous accessory apartment was above the garage.
Bob Daigle asked, if they have not acted on something for this many years, is it still legal. Diane Hardy stated they did not act on the application or implement it. Attorney Bruton stated there are new laws that clarify that for variances and special exceptions. They give you two years, unless that relief was used in a Planning Board application, then they give an additional six months. That is why they are here. Typically, accessory apartments require a special exception. He stated, oddly enough and not to complicate things, the law will be changing in June of 2016 to allow, by right, everything you have already provided for in the criteria for special exception. The new law will allow you to provide a cap on the limits.
Bob Daigle, to clarify, stated they were taking two actions. They were giving relief on the square footage requirement and then they have to rule on a special exception. Attorney Bruton stated that was not the case. He stated it is a little convoluted. He stated you are not allowed to ask for a variance for a “prong” of a special exception. If you cannot satisfy the special exception, you have to ask for a variance to allow the accessory apartment. It is just a different application. If he had his way, he would ask for a special exception, with an exception to that one provision, but he cannot. He has to ask for a variance for it. When he asks for this variance, it is the same thing as asking for the “prong”, but he has to do it this way legally.
Bob Daigle asked if an application to create a duplex create more revenue than an accessory apartment. They have the square footage and the acreage. Attorney Bruton stated they could have brought a duplex application in, but they wanted to limit it to this relief and use. If they found they wanted to do that, in the future, they could come back and ask for that.
Wayne Rosa asked if the owners were going to occupy the residence. Attorney Bruton stated they were moving into this structure.
Chairman Hawkins stated there was no one present for public comment. He called the public session of the meeting closed.
He stated notices were sent to abutters.
He stated Richard Shelton sent a letter in with comments on the application, where he is generally in favor of the application. He was not able to attend the meeting tonight and was not sitting as an Alternate for this application.
Chairman Hawkins stated he is in favor of the application. It is an enormous house. It is very different from every other property in that area. The style is very unusual and it is a unique property.
Action
Motion: Bob Daigle made a motion to grant the request for relief, because it not contrary to the public interest, in that it will help stabilize property values in the area, which as Ms. Shelton said, it will not sell for the assessed value. The spirit is observed, because a Special Exception was granted earlier, by a different Board, so it meets that intent. Substantial justice is done for the owner and helps justify the evaluation on the Town side, so it helps justify the tax revenue the Town is going to receive. And the hardship criteria is met based on the information that the sales history presented by Ms. Shelton for the property that the property itself is a hard property to sell and this just stabilizes the values in the whole area.
Second: Wayne Rosa
Vote: All in favor
Kyle & Maury Barnett - Public hearing for an application for a Variance from Section 3.03(B) of the Newmarket Zoning Ordinance, to permit a second living unit (Duplex) to be added to the existing single-family home, where the lot’s size is .7 acres and the allowed density in the R3 Zone is 2 units per acre. The property is located at 48 Elm Street, Tax Map U2, Lot 207, R3 Zone.
Chairman Hawkins stated the applicant was not present. They have submitted what is among the most comprehensive applications they have seen. It is well over 100 pages and has lots of detail and photographs.
He stated they can take up the application, as submitted, and, if there are specific questions they cannot answer, just continue the application.
Bob Daigle stated they have been before the Board before and everyone on the Board then was in agreement they could grant them some relief, if they put in an attached unit, which is what this application is.
Diane Hardy stated abutters were notified.
Chairman Hawkins stated there were no members of the public present, so he called the public hearing portion closed.
Bob Daigle stated there was no square footage determined on the proposed addition. He attempted to calculate it from the design submitted. He stated the living area they are proposing to build is 45’ x 28’. That would be 1,260 sq. ft.
Chairman Hawkins stated they are adding a one car garage and a master bedroom and bathroom.
There was confusion as to whether this was an application for an accessory apartment or a duplex. The applicant was not asking for a special exception from Section 7.03 for an accessory apartment. He was requesting a variance from Section 3.03(B), which is residential density, to add a second living unit to the single-family residence, which would make it a duplex.
Chairman Hawkins asked Diane Hardy to contact the applicant or, if he was watching this meeting, to come down now. They would like to know what the square footage is for the proposed additional living space. They would like to have some explanation on how it is derived from these drawings.
Action
Motion: Bob Daigle made a motion to continue to March 28, 2016
Second: James Drago
Vote: All in favor
Agenda Item #4 – Other Business
Diane Hardy stated the Planning Conference was tentatively scheduled for April 23, but she received a notice stating it had been postponed, with a date to be announced.
Chairman Hawkins reminded everyone the Town elections were coming up on March 8 and encouraged everyone to vote.
There was discussion of the new law regarding accessory apartments that is very close to being passed. There may need to be changes made to the Zoning Ordinance. One item that will change is there can be no limitation on the number of bedrooms. They can limit the square footage. They cannot stipulate which unit will be owner occupied. Chairman Hawkins stated he understands the purpose of the law, but it hits communities like Newmarket very hard.
Agenda Item #5 – Adjourn
Action
Motion: Wayne Rosa made a motion to adjourn at 7:52 p.m.
Second: James Drago
Vote: All in favor