Zoning Board of Adjustment
July 14, 2014
Approved September 8, 2014
Members Present: Peter Fichter, Chair; Steve Russell, Vice-Chair; Harry Seidel, David Blohm, Members; Alex Azodi, Alternate.
Mr. Fichter called the meeting to order at 7:02 p.m.
Mr. Fichter appointed Mr. Azodi as a voting member for this meeting.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of December 11, 2013 and made no corrections.
Mr. Seidel made a motion to accept the minutes of December 11, 2013 as presented. Mr. Russell seconded the motion. All in favor.
7:15 p.m.: Continued from 6/9/14- Mark & Morag Bamforth/agent: Thomas Cunningham, for property located at 240 High Meadow Road, Newbury, NH, will seek a Special Exception as provided for in Article 18.7 of the Newbury Zoning Ordinance to permit the following: Construction of a detached garage outside of the building envelope to avoid disturbing existing views on the ridgeline as described in Article 18.0. Newbury Tax/Lot Map 030-211-346.
Mr. Fichter opened the hearing. Mr. Fichter informed the Board that he received a letter from Mark & Morag Bamforth stating that they have withdrawn their application.
Mr. Blohm made a motion to close the hearing due to the applicant’s withdrawal of the application for a Special Exception to permit construction of a detached garage outside of the building envelope to avoid disturbing existing views on the ridgeline as described in Article 18.0 on Tax/Lot Map # 030-211-346. Mr. Seidel seconded the motion. All in favor.
7:15 p.m., Society for the Protection of NH Forests, property located on Mountain Road, Newbury, NH, will seek a Variance from the requirements of paragraph 9.9.3 to permit the following: To allow a portion of the developed parking area to be placed where there are slopes over 25%. Newbury Tax Map 022-136-450.
7:15 p.m., Society for the Protection of NH Forests, property located on Mountain Road, Newbury, NH, will seek a Variance from the requirements of paragraph 2.2.3 to permit the following: To allow SPNH, a commercial recreational facility, to not collect fees. Newbury Tax Map 022-136-450.
7:15 p.m., Society for the Protection of NH Forests, property located on Mountain Road, Newbury, NH, will seek a Special Exception as provided for in 5.4.5 to permit the following: To allow a “Commercial Recreational Facility” within a residential zone. Newbury Tax Map 022-136-450.
Mr. Fichter suggested that the Board hear the two applications for variances first and then hear the application for a special exception.
The Recording Secretary called for a Point of Order, noting that the Public Notices for both variances were incorrect. She added that the Board could not hear either application for a variance since both variance applications had been publically noticed incorrectly.
Significant discussion followed.
Mr. Fichter suggested that the Board proceed with hearing the application for a Special Exception, since that application had been properly noticed. He reviewed the hearing process with the applicant, and the applicant agreed to proceed as suggested.
Mr. Fichter introduced the Board and reviewed the hearing process again with the applicant and members of the public.
Notice is hereby given that the Newbury Zoning Board of Adjustment will conduct a public hearing on the following proposals on Monday, July 14, 2014 at the Town Office Building at 937 Route103 in Newbury, NH: 7:15 p.m., Society for the Protection of NH Forests, property located on Mountain Road, Newbury, NH, will seek a Special Exception as provided for in 5.4.5 to permit the following: To allow a “Commercial Recreational Facility” within a residential zone. Newbury Tax Map 022-136-450. Copies of the applications are available for review during regular business hours at the Newbury Town Office building. Business hours are as follows: Monday, Tuesday, Thursday, and Friday from 8 a.m.-noon.
Aaron Wechsler, Aspen Environmental Consultants LLC, agent, presented to the Board.
Mr. Fichter noted that there was no indication in the application regarding the location of the parking lot.
Mr. Wechsler said the Society for the Protection of NH Forests (SPNHF) requested a plan for a parking lot following reports of increased parking along Mountain Road by hikers accessing the Andrew Brook Trail. He said the expected use of the parking lot is from dawn to dusk, every day. The lower portion of the lot will be paved but the remaining part will not. A gravel road will provide access to the upper portion of the lot. He added that SPNHF does not want to plow the entire lot in the winter since it is believed that the trail usage is not that high at that time. Mr. Wechsler said the plan calls for 33 parking spaces, but will probably end up being 28 spaces.
Mr. Russell asked about the traffic data research that SPNHF used to determine the size of the parking lot. Mr. Wechsler said SPNHF received complaints about the number of cars parked on Mountain Road by people accessing the Andrew Brook Trail.
Mr. Fichter asked if this proposed parking lot will eliminate that problem. Mr. Wechsler said that he met with town officials and the Highway Administrator and the conclusion was that there will still be cars parked along Mountain Road but SPNHF will be providing off-street parking.
Mr. Azodi asked about the lighting and paving of the lot. Mr. Wechsler said the lot will be for seasonal use only and it will not be fully paved because SPNHF does not want to plow it in the winter. He added that there is no lighting that will affect any of the abutters
Mr. Seidel noted that he walked the site and said there is a 15% grade to gain access to the upper parking lot. He said the access road to that lot should be paved since a gravel drive will result in a lot of erosion. He added that since the application is for a commercial entity in a residential zone, there is a requirement to ensure acceptable erosion control.
There was further discussion regarding why the project was proposed, the validity of the traffic data, and signage.
Mr. Russell said the project should have a traffic flow study and based on the data from that study, a determination of the scope of the project could be determined. He added that the lack of hard data regarding traffic affects the Board’s ability to determine if this project is the right scope.
There being no further questions from the Board, Mr. Wechsler addressed Articles 16.6.1 – 16.6.5 of the zoning ordinance:
16.6.1 That the use will not be detrimental to the character or enjoyment of the neighborhood by reason of undue variation or undue violation of the character of the neighborhood because: A parking lot on an otherwise wooded lot, which will be used for access to recreational hiking trails should not be detrimental to the character or enjoyment of the neighborhood.
Mr. Seidel asked if there would be no change in view for the abutters who currently view woods. Mr. Wechsler said there will be a change but there will be woods around a gravel lot.
Mr. Seidel asked if there would be a tree buffer. Mr. Wechsler said the tree cutting would be kept to a minimum. He added that there will be a different view for the abutters than what they have now but it won’t be like looking at a paved commercial parking lot.
16.6.2 That the use will not be injurious, noxious, or offensive and thus detrimental to the neighborhood because: A parking lot on an otherwise wooded lot, which will be used for access to recreational hiking trails should not be detrimental to the character or enjoyment of the neighborhood.
16.6.3 That the use will not be contrary to the public health, safety or welfare by reason of undue traffic congestion or hazards, undue risk to life and property, unsanitary or unhealthful emissions or waste disposal, or similar adverse causes or conditions because: This is not a change in use since the hiking trails already exist, so there should not be any change in the amount of traffic. This will improved public health and safety by providing a safe off-street location for parking.
Mr. Fichter asked if SPNHF intends to place trash collection containers on the site. Mr. Wechsler said SPNHF has not addressed that possibility.
Mr. Blohm questioned whether this parking lot would become a local hangout, especially because of the lack of lighting. Mr. Wechsler said SPNHF does not get involved with patrolling their other parking lots.
Mr. Seidel questioned the location of the handicap parking space. Mr. Wechsler said the spot is for a handicap van and that it is a town site plan regulation.
Discussion followed.
16.6.4 The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the proposed use and the location of the site with respect to the existing or future street giving access to it, shall be such that it will be in harmony with the neighborhood. The location nature and height of buildings, walls, and fences will not discourage the appropriate development and use of the adjacent land and buildings or impair the value thereof. In this regard, the Board may impose the following safeguards in addition to the applicable requirements of this Ordinance, including, but not limited to the following: The area will continue to be used for hiking so there is no change in use other than moving the parking off of Mountain Road. There are no proposed buildings,
roads (driveway only), fences, landscaping, etc…
16.6.4.1 Front, side or rear setbacks greater than the minimum requirements of this Ordinance; Increasing setbacks for this project should not be required and given the limited area and site configuration it could potentially make the project impractical to build.
Mr. Fichter noted that the required setbacks are 15-feet from the side and 30-feet from the front of the property.
16.6.4.2 Screening of parking areas or other parts of the premises from adjoining premises or from the street by walls, fences, planting or other devices; There are no manmade screens being proposed for this project (walls, fences, etc…). Wherever possible, trees will remain in place around the parking lot to maintain the rural character of the area.
16.6.4.3 Footprint or lot coverage; The parking lot and access drive have been designed to be as small as possible while providing a reasonable amount of spaces for the public.
16.6.4.4 Modification of the exterior features or appearance of the building; There are no buildings being proposed with this project.
16.6.4.5 Limitation of size, number of occupants, method or time of operation or extent of facilities; There are no set operation times as this will be an open, unattended parking lot. However, given the proposed use (for a hiking trail) it will most likely be used from dawn to dusk.
16.6.4.6 Regulation of number, design, and location of drives or other traffic features; There is only one two-lane access drive proposed for the parking lot and the location of the curb cut is the only place it can go given the limited frontage and stream location.
Mr. Fichter asked about the purpose of the two-lane access drive. Mr. Wechsler said it will have two purposes: (1) the driveway is a long one and it is a narrow road; and (2) this will serve as an access point for SPNHF’s logging equipment.
Mr. Fichter asked if SPNHF plans to log the property. Mr. Wechsler said SPNHF does forest management as part of its normal operations.
16.6.4.7 Off street parking or loading spaces beyond the minimum requirements; We have provided the maximum amount of spaces as practicable for this site.
or
16.6.4.8 Control of the number, size, and location of lighting and signs. We are not proposing any lighting for the project as it should only be used during the day. We have not determined the design, size, content, or location of a sign yet, but it will simply point out the entrance to the parking lot and trail head.
16.6.5 Operations in connection with such a use shall not be more objectionable to nearby properties by reason of noise, fumes, odor, or vibration, than would be the operation of any permitted uses in this district which are not subject to special exception procedures because: While the location is changing from the side of Mountain Road to an off-street area, the amount of people using the trail should not be significantly impacted by simply building a parking lot.
Mr. Seidel noted that the direct abutter is a boarding facility for animals.
There being no further questions from the Board, Mr. Fichter opened the public portion of the meeting.
Katheryn Holmes, chair of the Newbury Conservation Commission (NCC), said SPNHF presented their concept for a parking lot to the NCC two years ago but the plan at that time had not carried an engineering plan. She asked why the proposed project falls into commercial use if SPNHF is not charging for parking or trail fees.
Mr. Fichter said there is nothing in the ordinance that applies to the specific situation that SPNHF is proposing.
Elizabeth Ashworth, 195 Mountain Road, a direct abutter, said she has lived at this address for 17 years. She said SPNHF communicated with her when they applied for a driveway permit. Following that, she said there has been no communication from the organization. She shared photos with the Board showing the 15-foot side setback and the proximity to her home. The photos indicate that the proposed parking lot would look directly down on her property. She raised concerns about potential vandalism and the lot being an open invitation for loitering. She noted that there have already been campers and camp fires across the street in areas that do not permit those activities. Ms. Ashworth also expressed deep concern regarding the potential for the parking lot to become an
after-hours hang out that will have no supervision or policing.
Bonnie Hater, 195 Mountain Road, suggested that SPNHF relocate the parking lot to the 7-acre parcel they own further down Mountain Road. She added that there is more road frontage on that site. Mr. Wechsler said he was told by SPNHF that that location was not an option.
Ms. Ashworth said there are numerous dogs off-leash on the Andrew Brook trail and said lots of stray dogs wander into her yard, drawn by the outside exercise areas for her pet sitting/boarding business. She said that would increase if the public had access from the proposed parking lot. She asked if SPNHF was offering to poop scoop and pick up the resulting trash. She added that the configuration of the lot will make it impossible to monitor and police the activities of the public. She expressed concern that there would be underage drinking on the premises and resultant irresponsible behavior.
Mr. Azodi noted that Ms. Ashworth’s objections support Article 16.6.5.
The Board further reviewed the photos of Ms. Ashworth’s house, the location of the proposed parking lot, and the violation of privacy that would result.
Mr. Fichter questioned why the lot could not be made smaller. Mr. Wechsler said SPNHF originally wanted a lot for 40 parking spaces, realized it was not possible, and settled on a lot for 33 spaces. He added that the trail head must be moved and SPNHF understands that but moving the trail head won’t solve the parking problem.
General discussion followed regarding alternative locations and configurations for the parking lot.
Mr. Russell suggested putting in a gate to minimize after-hours activities. Mr. Wechsler said SPNHF does not have the necessary personnel to dedicate to manning a gate.
Ms. Ashworth noted that the proposed parking lot will have an absentee owner.
Ms. Holmes added that translates into a real potential for increased demands on the town’s fire and police support.
There being no further comment from the Public, Mr. Fichter closed the public portion of the meeting and went into deliberations.
Mr. Fichter called for a break at 8:57 p.m.
The Board resumed deliberations at 9:01 p.m.
Mr. Blohm said the points raised by the abutters are compelling. He said if the parking lot is not properly placed there is a major issue of it becoming an attractive nuisance.
Mr. Seidel agreed, adding that the proposed lot has the very real potential of becoming a so-called party central destination. He said the abutters and neighbors must be protected. He expressed concern that a commercial entity would be placed within a designated residential zone.
Mr. Russell said he was sympathetic to all of the opinions expressed regarding the proposed project. However, he noted that the issue of the abutters’ loss of privacy was significant. Also, he cited concern over the after-hours use of the lot noting the unpredictability of people’s behavior.
Mr. Azodi said the parameters of Article 16.6.5 have not been met by the applicant. He added that the loss of privacy and loss of security by the abutters must be considered. He agreed with Mr. Seidel regarding the placement of a commercial entity within a residential zone.
Mr. Fichter said he agreed with all of the Board’s opinions and expressed appreciation for the depth of SPNHF’s work on this proposed project. However, he said the downside for the residential neighborhood would be significant. Also, the potential nuisance factor and the unpredictability of people’s behavior made for compelling reasons for concern.
There being no further comment from the Board, Mr. Fichter called for a motion to vote.
Mr. Seidel made a motion to vote on SPNHF’s application for a Special Exception as provided for in Article 5.4.5 to permit a “Commercial Recreational Facility” within a residential zone. Mr. Russell seconded the motion. All in favor.
Mr. Blohm voted to Deny the special exception from Article 5.4.5 because of the public nuisance factor and the loss of privacy to the abutters.
Mr. Seidel voted to Deny the special exception from Article 5.4.5 because it does not meet the criteria set forth in Article 16.6.5.
Mr. Russell voted to Deny the special exception from Article 5.4.5 because it does not meet the criteria set forth in Article 16.6.5.
Mr. Azodi voted to Deny the special exception from Article 5.4.5 because it does not meet the criteria set forth in Articles 16.6.5 and 16.6.1.
Mr. Fichter voted to Deny the special exception from Article 5.4.5 because it does not meet the criteria set forth in Article 16.6.5.
Mr. Fichter advised Mr. Wechsler that there is a 30-day appeal period in which an abutter or party of interest may appeal the Board’s decision(s). Mr. Fichter added that a Notice of Decision will be mailed within seven days.
Mr. Wechsler said he would contact his client, SPNHF, to find out if SPNHF wishes to withdraw their application. He added that he will inform the Board regarding SPNHF’s decision by close-of-business on Thursday, July 17, 2014.
Mr. Blohm made a motion to adjourn. Mr. Russell seconded the motion. All in favor.
The meeting adjourned at 9:14 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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