Zoning Board of Adjustment
February 8, 2010
Approved February 22, 2010
Members Present: Katheryn Holmes, Chair; Helen Wright, Vice-Chair; Steve Russell; Barbara Richmond; Peter Fichter ; Alex Azodi, Alternate; Sue Russell, Alternate; Harry Seidel, Alternate
Ms. Holmes called the meeting to order at 7:02 p.m.
Since there were no hearings scheduled, the ZBA members moved into a work session.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of December 14, 2009 and made no corrections.
Ms. Wright made a motion to accept the minutes of December 14, 2009. Ms. Richmond seconded the motion. All in favor.
Building Site Review
Ms. Holmes encouraged the ZBA members to visit the building project located on the O’Brien property on Old Bay Point Landing. She said the visit will help the members correlate the project’s square footage [on paper] with the actual building size. There was discussion about the project when it was presented to the ZBA. Ms. Holmes said the Town Code Enforcement Officer is keeping an eye on the project.
Ms. Russell pointed out that the zoning ordinance specifically refers to “maintaining the character” of the Town and applicants applying for a hearing should adhere to that when presenting their projects.
Ms. Holmes said Newbury does not have a historic preservation regulation to protect the older buildings from destruction and many of the building projects on Lake Sunapee have replaced existing buildings and homes that carried a great deal of history.
There was discussion about the status of the old “cottages” and the regulations governing any renovations to them, such as a new roof, interior changes, wall repairs, etc. Mr. Seidel said, according to the Town Code Enforcement Officer, structural work done to a cottage – such as a new roof – may be considered a renovation and subject to the International Residential Code 2006. Mr. Seidel said if the building carries the classification of being a “historic building” the aforementioned regulations do not apply. He said there is a process involved in getting a building designated as historic.
New Variance Criteria
RSA 674:33 I (b) Requirements for a Variance
The ZBA reviewed the new requirements for granting a variance for applications and appeals filed on or after January 1, 2010 per RSA 674:33 I (b), which reads as follows:
- The zoning board of adjustment shall have the power to:
(b) Authorize, upon appeal in specific cases, a variance from the terms of the zoning ordinance if:
(1) The variance will not be contrary to the public interest;
(2) The spirit of the ordinance is observed;
(3) Substantial justice is done;
(4) The values of surrounding properties are not diminished; and
(5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
(A) For purposes of this subparagraph, “unnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area:
(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and
(ii) The proposed use is a reasonable one.
The ZBA members discussed the differences between how a variance request was considered under the old variance requirements – the “use” variance (Section 16.7.2.1) and the “area” (dimensional) variance (Section 16.7.2.2) – and how a variance request will be considered under the new requirements (see above).
Mr. Russell indicated that he and Ms. Russell attended a conference on the new variance requirements and noted that the lawyers presenting at the conference concluded that the emphasis in the new variance will be on “reasonable use”. Defining “reasonable use”, as it applies to each applicant, will be the task before the ZBA. Mr. Russell added that the conference lawyers pointed out that establishing “reasonable use” could also be done by the applicant, and if the applicant has unlimited resources, such as a corporation, “reasonable use” might be proven when, in fact, the project in question may be detrimental to the Town. Mr. Russell added that the conference lawyers suggested that ZBA members enact a provision in their towns’ ordinance that require applicants to pay
for Town counsel to review all documents prior to a ZBA hearing.
Ms. Holmes said that the process in Newbury precludes an application of that magnitude coming before the ZBA. She said an applicant with that large a large project would first be sent to the Planning Board for a site plan review. The next step would be an application for a hearing before the ZBA. At the hearing, the Newbury zoning regulations would be applied to the project and each case will be individually determined. She said each member of the ZBA would examine the application and consider the “spirit” of the regulations along with the other determining factors.
Ms. Holmes said the new variance requirements gives the ZBA guidelines, but lacks definition. She said applicants will have to show that the variance is not contrary to public interest, the spirit of the ordinance is observed, substantial justice is done, the values of surrounding properties are not diminished, and literal enforcement of the ordinance would result in unnecessary hardship. She said each applicant will have to present their evidence and give the ZBA significant reasons why the five criteria have been met. Then, she said, the ZBA will deliberate.
Mr. Azodi said his understanding of the new variance criteria #1, “The variance is not contrary to the public interest.”, specifically the language that reads, “…contrary to the public interest or injurious of public rights, the variance must ‘unduly, and in a marked degree’ conflict with the basic zoning objectives of the ordinance…” is that being contrary to the public interest means it is also against the ordinance. The two are intertwined.
Also, he said establishing “hardship” under the new variance will require substantial evidence. There was discussion concerning various examples of “hardship”. Ms. Holmes concluded that “the spirit of the ordinance” will be left up to the ZBA to interpret.
Ms. Wright said her understanding of the variance changes was that they had nothing to do with Section 16.7.1 [The variance will not be contrary to the public interest.]. She said the changes relate to Section 16.7.2, which covers the distinction between an “area” (dimensional) variance and “use” variance. The new variance language does not distinguish “area” or “use”. She said the rest of the criteria used to determine a variance remains the same as it was.
Application for a Variance
The draft of the document “Application for a Variance” was reviewed by the ZBA. Ms. Wright said the information in the draft was taken from materials published by the Office of Energy and Planning (OEP) titled “The Board of Adjustment in New Hampshire, A Handbook for Local Officials”.
Mr. Fichter noted that the new variance criteria eliminates Sections 16.7.2.1 and 16.7.2.2 in the Zoning Ordinance, and asked if a change will be made to the March 10, 2009 Zoning Ordinance to reflect the new language. If not, he said, an applicant could be confused if he/she used the March 10, 2009 Zoning Ordinance as a guide.
There was discussion concerning the differences between the language in the March 10, 2009 Zoning Ordinance, Sections 16.7.2.1 and 16.7.2.2, and the new language contained in the draft “Application for a Variance”. A suggestion was made to have the Land Use Assistant inform applicants of the variance language change when meeting with them concerning an application for a hearing.
There was further discussion about the new criteria language contained in the “Application for a Variance” regarding clarity, intention, definitions, and interpretation.
There was general discussion concerning “public rights” and “private rights”.
Ms. Richmond said common sense also comes into the deliberation process of the ZBA. She referenced the OEP, which advocates common sense and simplicity when considering each specific case. She said it is up to the ZBA to consider each case individually, apply the zoning ordinance, use common sense, and make an informed decision.
Ms. Russell emphasized that the ZBA must use their combined trained common sense.
Ms. Holmes asked the ZBA for additional suggestions concerning the “Application” draft. Suggested changes were noted and Ms. Wright will produce a second draft, incorporating the suggestions, and will distribute same to the ZBA members for review.
Newbury Zoning Ordinance
There was discussion concerning changing the Zoning Ordinance to reflect the new variance language, notifying the Planning Board of same, and the timing involved. It was noted that the deadline has passed to get a Warrant Article prepared for the Town Meeting in March.
Ms. Holmes noted that the State of NH changed the variance. Ms. Wright agreed, saying the OEP information clearly says that the State’s new variance language [that replaces the existing “area” and “use” regulations] takes precedence over the Town’s existing variance regulations. It was agreed that the only change necessary in the March 10, 2009 Zoning Ordinance was the deletion of Sections 16.7.2.1 and 16.7.2.2, and the insertion of Criteria #5 of the new variance requirements.
There was general discussion concerning how state-mandated changes to the zoning ordinance are incorporated into the Town’s Zoning Ordinance. Ms. Holmes noted that, moving forward, the Land Use Assistant will have to inform applicants that Sections 16.7.2.1 and 16.7.2.2 are no longer applicable and provide the applicants with a copy of the new variance criteria.
Tom Vannatta, Chair of the Newbury Planning Board, was invited by Ms. Holmes to participate in the work session meeting. Mr. Vannatta told the ZBA that the deadline has passed for the Planning Board to reconstruct the variance in the Zoning Ordinance. He said the new variance supersedes the Town’s regulations and recommended that the ZBA “default” to the state-mandated new variance, which is based on state legislative decisions. He said the issue is now a legislative directive from the state. He recommended providing a copy of the new criteria to anyone making an application for a variance. Additionally, he suggested adding an addendum to the current zoning ordinance referencing the new variance criteria. He said the change could be made collectively between the Planning Board and ZBA.
Mr. Azodi brought up the topic of process –specifically the procedure involved when the state makes changes to the town’s regulations. He asked if those changes (which take precedence over the local regulations) automatically incorporated into the Town regulations. Mr. Vannatta said the ZBA and the Planning Board should meet twice yearly to establish processes to ensure that both boards are aware of mutual concerns and procedural needs.
Ms. Holmes concluded that future applications for a variance will include a separate handout that lists the new variance criteria. Mr. Russell noted that the handout will not clarify anything for the applicant and that the new criteria are very ambiguous.
Mr. Vannatta noted that the ZBA must interpret the criteria’s meaning as each application presents itself. He said state legislative-generated regulations are typically vague in language, requiring interpretation when applied to specific cases. He recommended consulting with Town Counsel for guidance on the criteria interpretation if needed.
Ms. Wright said the OEP has legal assistance available at no cost. She recommended visiting the OEP website at www.nh.gov/oep.
Ms. Wright made a motion to adjourn. Ms. Richmond seconded the motion. All in favor.
The meeting adjourned at 8:50 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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