Newton Board of Appeals
P.O. Box 38
Newton, N.H. 03848
Meeting
June 20, 2006
I. Call to Order: Chairman McElroy called the meeting to order at 7:30 PM.
II. Roll Call
In attendance were Chairman Tom McElroy, Vice-Chairman Alan French, Dana Allison, Bradley Cardoso, Alternate Charles Melvin. Alternate Ken Pelletier arrived late. Absent: Jack Kozec. Minutes were transcribed and typed by Secretary Jeannette Clark.
III. Acceptance of Minutes
A motion was made by Mr Allison to accept the minutes of the May 16, 2006 meeting as written. Second by Mr French. Vote: unanimous. Motion carries.
IV. Public Hearings:
A. Continuation of Public Hearing for Ronald J. Pica, Sara Realty LLC, Whispering Pines Campground, Map #05-001-05…
To act on the request for appeal from the Aquifer Protection Ordinance, Section XVII, Paragraph 4g, dealing with non-conforming uses. The Applicant is requesting a variance from the prohibition against expansion of non-conforming uses. Map #005-01-005
Abutters present: Jay Montoni, Augustin Medeiros, Rob Peterson, Marie Tolman;, Robert A. Johnson, Brian Cheney, David S. Tremblay
Guests: John J. Ryan, Attorney for Mr Pica (Hampton, NH)
Robert A. Francis, Environmental Consultant (EnviroSense, Inc. of Londonderry, NH) NH licensed professional geologist, with 18 years experience in water supply development/groundwater contamination issues…
Mr & Mrs James Baker, residents of Newton, living on Country Pond
In the absence of Mr Kozec, Mr Melvin was made a voting member.
Mr Robert Francis addressed the Board, stated his credentials, and explained that his company had been retained by Mr Pica to review the proposed expansion and assess its potential to adversely impact either groundwater quality or quantity. Based on their initial review, they recommended that Mr Pica make some modifications to the proposed expansion’s parking areas, to improve the collection of incidental car-related leaks, which he has done by adding to his plan the installation of an impermeable textile fabric underneath the parking areas, and also by installing or planning to install oil/water separators. They did not find any other significant potential groundwater related issues associated with
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the expansion. So, they concluded that the proposed expansion appeared to protect, preserve, and maintain the quality and quantity of groundwater present at the campsite. There is no consumptive use of groundwater. All will be returned back to the site, so there’s no net loss of groundwater.
They also assessed whether the proposed expansion would pose more or less of a potential threat to groundwater quality or quantity than would other permissible uses. They used residential housing as a benchmark for comparison, as that would be permissible under current zoning. A residential septic would have greater discharge that what would be associated with the campground (washing machines, dishwashers, home maintenance items such as fertilizer, etc). These would not be associated with the proposed expansion. The proposed expansion would not present any more potential threat to groundwater quality or quantity, and very likely much less, than would be presented by residential development.
(Their letter report was made available to the Board last month.)
Attorney John Ryan, Hampton, NH
Mr Ryan wanted to lightly touch on some aspects of the application. In 2001, the Town and Mr Pica resolved a lawsuit that the Town had brought against Mr Pica. The issue: how many sites in pre-existing non-conforming uses there were. The agreement with the Town, which was signed by all parties, stipulated that the number of sites was limited to 80 (70 permanent, and 10 transient sites). Later(2002), Planning Board approved a site plan which showed the 80 pre-existing sites, a new residence, recreational building, and a swimming pool. The 2001 agreement stipulated that Mr Pica would not come before the Town for any new sites till 5 years after the date of that agreement. That lasted until November 2005. Subsequent to that date, Mr Pica went to the Planning
Board for the 38 new sites, part of the new site plan, plus a recreational area associated with that plan. The Planning Board would not act on that unless a variance on the Aquifer Protection Ordinance was first obtained. They are correctly in front of the Zoning Board of Appeals on this issue. (Letter dated May 24, 2006 with explanation sent to Chairman of the ZBA). If Mr Pica is able to obtain this Aquifer Protection Ordinance variance, he must then go back to the Planning Board. The Planning Board will make an initial decision as to whether the proposed expansion needs any further variance under Section XIX, 2 of the Town Ordinance. They will also deal with issues related to site plan, etc. Here, we are limited to this one provision in the Town Ordinance. That section in the Town Ordinance was put there so as to be sure non-residential developments that pre-existed that Ordinance would not be allowed to be expanded because of
the potential threat to the Aquifer water supply presented by commercial developments such as gas stations, or other types of commercial/light industrial developments that
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have Aquifer-related impact. The Town would not want to have those types of uses expanded in an Aquifer protected area. In this case, we have an expansion of that residential use. The question before the Board is whether that expansion of that non-conforming residential use would cause harm to the Aquifer supply. The report of the hydro-geologist proves that there would be no impact at all in the Aquifer in this area.
Attorney Ryan reminded the Board that there was the issue of the Five Criteria that he had also explained in the package that the Board received.
He proceeded to explain, to as to refresh the Board, and that the Public in attendance would hear.
1. Real Estate Appraiser ‘Stanhope Associates’ concluded that 38 sites would have no adverse impact. The closest abutter was 500’ away.
2. September 2005, Chester Rod & Gun Club vs the Town of Chester, the Court made the rule that in order for the Zoning Board of Adjustment to find a variance request contrary to the public interest, or injurious to the public rights of others, the variance must unduly & in a marked degree, conflict with the ordinance such that it violates the Ordinance’s basic objective to a degree that it threatened the public health, safety and welfare.
3. Boccia vs the City of Portsmouth (2004) The Court classifies this type as a use variance. The test as to whether a hardship exists is 2-fold: first, whether the Ordinance interferes with the landowners reasonable use of the property, considering the unique setting of the property…and secondly, whether there is fair and substantial relationship existing between the general purposes of the Ordinance and the specific restriction upon the property. Here, it is clear that there would be no injury to the public or private rights of others based upon the scientific analysis presented. This is a reasonable use of
the property. It is consistent with the natural expansion of the campground in terms of its unique setting, its long history as a campground, and these 38 sites would fit in to the unique setting of this property. There would be no adverse effects.
4. There would be no adverse impact to the water supply, from a scientific empirical point of view. It would do substantial justice.
5. This is not contrary to the spirit of the ordinance. The ordinance was written to insure that non-residential or other uses not permitted in the underlying zoning district would not be expanded to the detriment of the water supply. Here, the use is residential in nature, and again will not have any adverse effect on the Aquifer.
By this, we feel that we satisfy the Five Criteria requested.
Attorney then entertained any questions.
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The 38 additional sites would be his limit forever…
However, this is not the question, the question is the Aquifer Protection.
The only commercial aspect is that Mr Pica charges for usage of his residential area…
Here, Mr Pica is asking for a variance to go to the next step.
Mr French reminded everyone that we are here for the Aquifer Protection.
The floor was open to Abutters:
Rob Peterson, resident of Winmark Road, speaking for residents, who had addressed the issues in writing (passed out to each member of the Board)… He approached with his own interpretation to the same topic.
In 2001, he was approved for 80 sites. That’s not what was there, but a substantial increase.
He read the Town Zoning Ordinance.
NH Planning and Land Use Regulation guide, he read about the ZBA’s part in this process. He felt that the phrase ‘unnecessary hardship’ should be identified in this case. There is no hardship. There has been considerable expansion. It has operated a viable business for 5+ years under the current plan (still subject to a walk-through, for compliance).
There is no unnecessary hardship, under this interpretation.
He then gave the viewpoint of the residents on the 5 elements that must be met (5 Criteria). The residents feel that this is now “a residential area with a large campground. Any further expansion will transform the area into a large campground area, with some residents. No longer Residential A!
Public interest: it must benefit the public interest! This benefits Sara Realty and the new campers, not the residents themselves, or even the existing campers.
Hardship is for the Abutters’…
This is not natural expansion…The Planning Board has already determined that to be true.
Substantial justice? This issue is merely a discussion of the wants of Sara Realty. It does not even constitute minimal justice! This is a substantial injustice to the people of Newton and beyond, who look to the Ordinances to protect the Aquifer.
The spirit of the ordinance is to keep the great resource clean and available forever. Certainly, expansion in this Zone is contrary to the Ordinance.
The opinion of the Conservation Commission – “We should not do it!”
In the eyes of the Abutters, Sara fails to satisfy any of the grounds for a variance, not all of them. “The Board cannot possibly grant this variance!”
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Jim Baker, Ridge Road, interested resident living on Country Pond…
Mr Baker lives on the point, across from the campground. He is very much concerned with the great impact this increase of population would have on the quality of the water. Has there been any analysis on this?
Mr French explains that this Board, at this time, is concerned with sub-surface water. He referred to the report of the hydro-geologist. He also explained that the Criteria was for the Applicant, not the Abutters! “No matter how we say this, we can’t ‘sugar-coat’ this enough to satisfy everyone.” We are concerned with the Aquifer Protection, not the expansion…
Bob Johnson, resident of Wenmark Road
Expressed his concern about the effect on the property values… He suggested that an independent analysis should be done by someone of the Abutters’ choice, not theirs…
Mr Allison inquired as to when the Aquifer Protection Ordinance was adopted by the Town… Research… No date found!
Discussion of Section XXIII – special exemption for lots of record… “permitted use”… need to distance ourselves from expansion…
Review of the Criteria:
1. Value of surrounding Properties will not be diminished. All voted that the Criteria was satisfied.
2. Contrary to public interest… All voted that the Criteria was satisfied.
3. Simplex Use variance Criteria: All voted that the Criteria was satisfied… The Applicant has shown the Board that he has taken the steps necessary to protect the groundwater…
If the Abutters would like to have their own hydro-geologist give an opinion, they have a 30-day appeal period… Both parties have the right to appeal the decision…and that the 30 day period starts with the decision tonight…
Mr Pelletier, Alternate ( & not voting this evening), was not satisfied, however, as there were no “Operation & Maintenance Plans” for the stormwater systems. This is his area of expertise…and he feels that there has not been enough evidence provided. He would really like to see O&M plans. Mr McElroy informed him that this discussion took place last month, in his absence. Much of this information is also provided in the blueprint…and the packet that Mr Pica provided.
Discussion of the oil/water separator…
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4. Substantial justice: Three voted that the Criteria was satisfied, two (Mr Melvin, and Mr French) said “not satisfied”… Majority…
5. Not contrary to the spirit and intent of the ordinance: Four voted Satisfied, one (Mr Melvin) Not Satisfied. Majority.
Mr Allison makes a motion to grant the variance from prohibition of non-conforming uses within the Aquifer Protection Zone under Section XVII, 4g. Second by Mr Cardoso. Vote: 4 in favor, 1 (Mr Melvin) opposed. Motion carries. Variance granted.
At 8:55 PM, Mr Allison makes a motion to close this hearing. Second by Mr Melvin. Motion carries. Hearing is closed.
B. Continuation of Public Hearing for Coleman McDonough,
125 Development NH Corp
to act on request for appeal from the Zoning Ordinance, Section XIII, Paragraph 1, dealing with location on lot. The Applicant is requesting a variance from the dimensional requirement, to reduce the 200’ setback to 180’ where it abuts another Zone. Map #014-01-001-1.
No Abutters present.
Explanation of plans which include the proposed building, the 200’ setback, 20’ easement, and the proposed “no disturbance” easement….
Review of the Criteria:
1. Surrounding property values: Satisfied, unanimous.
2. Contrary to public interest: Satisfied, unanimous.
3. Boccia Area Variance Criteria: Satisfied, unanimous.
4. Substantial justice: Satisfied, unanimous.
5. Contrary to the spirit: Satisfied, unanimous.
Mr Allison makes a motion to grant the 20’ variance on the sideyard 200’ structural setback according to the ZBA plan by Civil Construction Management dated January 2006, JOB # 05137, pending the receipt of a (engineer) stamped plan, signed and dated by the Chairman of the Zoning Board of Appeals. Second by Mr French. Vote: unanimous. Motion carries.
At 9:25 PM, Mr Allison makes a motion to close this hearing. Second by Mr Melvin. Vote: unanimous. Motion carries. Hearing is closed.
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C. Public Hearing for Susan Cassidy-Zipkin of 58 Wilders Grove Road, Newton, to act on the request for appeal from the Zoning Ordinance, Section V, Paragraph 3, dealing with location on lot. The Applicant is requesting a variance from the sideline setback in order to replace the existing cinderblock chimney with a larger masonry chimney.
Map # 002-04-012
No Abutters present.
Mr Tulley Zipkin addressed the Board. The chimney is pulling away from the house, and does not draw correctly. It needs to be replaced. To replace it correctly there is a need to expand, and expand also to put in a fireplace. The abutters wrote letters (which were not put on file, or read by the Board) in favor of this replacement.
The Zipkins need 2 variances: side and 65’ from the center of the road…
Review of the Criteria.
1. Surrounding property values: Satisfied, unanimous.
2. Contrary to the public interest: Satisfied, unanimous.
3. Boccia Area Variance(limited lot size): Satisfied, unanimous.
4. Substantial justice: Satisfied, unanimous.
5. Contrary to the spirit: Satisfied, unanimous.
Mr Allison makes a motion to grant 2 variances: 1. a side lot line variance (3.9’ from the property line), and 2. distance from the center line of the road variance, as shown on Plot Plan, Tax Map #002-04-012, 58 Wilders Grove Road by Civil Construction Management, dated 06-15-06, as long as the new chimney is no nearer the road than the old one. Second by Mr Melvin. Vote: unanimous. Motion carries.
The 30 day waiting period was explained.
At 9:38 PM, Mr Melvin makes a motion to close the hearing. Second by Mr French. Vote: unanimous. Motion carries.
D. Public Hearing for Richard LeClaire for property owned at 9 Pond Street, Newton, Map # 010-02-015. The Applicant is requesting a variance from the Zoning Ordinance Section XIX, dealing with the expansion of a non-conforming lot, and also from Zoning Ordinance XXVII, Paragraph 11, dealing with the size of an accessory apartment.
Abutters: William & Kelly Lightizer, of 7 Pond Street.
Mr LeClaire explained that he was the owner of a non-conforming lot (due to size), which is apparently a lot of record, on which there are currently 6 structures. Three of these structures, which have been there for more than 20 years, already non-conforming from lot line setbacks.
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Mr LeClaire is proposing to remove totally all these structures, and all the debris from the property and put one conforming building on the lot, which would meet all criteria except lot size. It would certainly be a major improvement to that area. It will not be on the same footprint, but will be about the same size as all of the 6 structures together.
Mr LeClaire informed the Board that he was currently on the Planning Board, and that this Board was in the progress of changing the size of the accessory apartment. Mr LeClaire stated that he would be well within all those new guidelines. However, where that is not in place yet, he was here for a variance. It will be going to the Town next March. The new proposal is for 800 sq. ft.
Mr Melvin informed everyone that he was on the Planning Board when those guidelines were implemented. It was done purposefully so that they could not be appealed to the ZBA, but only to the Superior Court.
Review of the plans… It was noticed that Mr LeClaire did not have a stamped Certified Plot Plan, which was a requirement of the Board.
They would not accept the Plan of the Sanitary disposal system. They needed a ‘certified’ plan by an engineer, not hand drawn, with all the exact measurements. He told them that this plan was on record downstairs. The plan had already been approved for a 500 sq. ft. accessory apartment, and it was on file with the Town. He would need to have his engineer redo the plans, with all the specifications and measurements. The plans need to have the building, but not the accessory apartment. Mr French reminded Mr LeClaire that only ‘owner occupied’ residences could apply for an accessory apartment.
Mr LeClaire stated that he was building for the future. The Board reminded him that he could only build an accessory apartment if it was for “his future”, if he were occupying the structure. It was not allowed if the building was to be sold. The owner/occupant at that time would need to apply for the accessory apartment.
Mr LeClaire was also reminded that a sliding glass door was not an egress, that it needed to be a regular doorway.
Mr Allison makes a motion to deny the variance for the accessory apartment over 500 sq. ft. because the Zoning Board of Appeals has no jurisdiction over this, as per Section XXVI, item 16. Second by Mr Melvin. Vote: unanimous. Motion carries.
Kelly Lightzer, abutter form 7 Pond Street, spoke to the Board about her concern of water in the spring. The fact that not one of the existing buildings on the property had a foundation and water drained on to her property each spring, caused her concern. However, now with a foundation, would that redirect the water? Will the new construction
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increase the levels of water that already come into her basement? Or would that change? Where would the water go?
Mr LeClaire explained the drainage system that he was proposing…that the water would be going to the left back corner of the property. He also said that there was no standing water on that property.
Mr LeClaire was reminded that he needed a ‘stamped’ plan with all the buildings and setbacks, drawn by the engineer, stamped by the engineer.
It cannot be on this plan.
Mr Allison makes a motion to continue this hearing on lot size to July, when the Board will have the proper Certified Plot Plan. Second by Mr McElroy. Vote: Unanimous. Motion carries.
V. OLD BUSINESS
a. Ferrandi issue? No new hearing.
b. Mr Allison had indeed been sworn in for another 3 years.
VI. NEW BUSINESS
There is no new business at this time. Each Board member had a copy of Planning Board minutes and budget statements.
VII. ADJOURNMENT:
A motion was made at 10:15 PM by Mr Allison to adjourn. Second by Mr French. Motion carries. Next meeting to be July 18, 2006 at
7:30 PM.
Respectfully submitted,
Jeannette S. Clark, Secretary
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