Newton Board of Appeals
P.O. Box 378
Newton, N.H. 03858
January 16, 2007
I. Call to Order: Chairman McElroy called the meeting to order at
7:30 PM.
II. Roll Call:
In Attendance were Chairman Tom McElroy, Dana Allison, Bradley Cardoso and Alternate Charles Melvin. Absent: Vice-chairman Alan French, Jack Kozec, and Alternate Ken Pelletier. Minutes were transcribed and typed by Secretary Jeannette Clark.
Mr Melvin was made a voting member, in the absence of Mr French.
Motion made at 8:05pm by Chairman McElroy. Second by Mr Cardoso.
Vote: Unanimous. Motion carries.
III. Public Hearing for Nancy (Fields) Cheney for property owned at 9 Highland Road, Newton, N.H. 03848 (Map # 011-10-09-1)
In attendance: Attorney Sumner F. Kalnan (representing the Applicant), Dennis Quintal (Civil Construction Management, Inc), and Abutters: James LaConte, Nicholas Degruttola III, and Heather Eichert.
Attorney Kalnan opened the hearing with a statement. He stated that Nancy Fields Cheney was the owner of the lot, which meets the requirements for the State septic, but that it does not meet all the requirements for the Town of Newton, as far as setbacks from the wetlands. He stated that Mr Quintal would explain the decision-making process that he went through. What they were here for was an Area Variance. He handed out a packet of information to all the members and Abutters. He explained that the materials were set-up as in the Boccia case, which are the requirements for an Area variance. On the face were the elements under Boccia that are necessary to be considered in granting this variance.
As it exists, the lot is a pre-existing non-conforming lot. It is vacant, does not have a building on it, has a septic design which has been approved by the DES, meeting all their requirements for setbacks, wetlands, etc. What Mr Quintal has done is designed the optimal location for the building and the septic. He was able to satisfy the setback for the septic system, but not for the building. Review of State setbacks. Newton is Ok with the septic setback, but not OK with the building in relation to the wetlands.
Quick review of the contents of the packet presented.
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Mr Quintal began his presentation by stating that he had become involved when he was approached to see if the lot was buildable or not. It’s an existing lot of record (1.68 acres). He began by looking around and checked out the wetland. He identified the wetland (shown on his plan in green). He checked the drainage and the constraints of placing a septic system and a dwelling, and thought he had a couple of options, but limited options. He had to meet Town requirements as far as frontage, distance from the center of the road , distance to the property line, and distance to the wetland. This did not give him a buildable area for a dwelling. He explained the many options, and decided that whichever way he went, he would need a variance of some kind.
Mr Quintal explained that he was showing the building as L-shaped because the house could be build either way. It didn’t make a difference, they would still always be 25’ from the wetlands. He would always have a 25’ conflict with the wetlands. He reviewed the Town Zoning regulations, stating that he couldn’t understand why the side setback requirement as 25’ and more for the distance to the wetland. Because this regulation needs to be dealt with, this is the reason why they are before the Board tonight, to try to get a waiver.
Health Officer has reviewed and accepted the Plan. State has also approved the Plan.
Mr LaConte asked the distance from his lot line to the house. Mr Quintal calculated – 112 feet. The wetlands would not be disturbed, and the drainage
should not change, as the property will be revegetated.
This is the location which would minimize the impact to the wetlands.
Mr Melvin inquired about the size of the foundation. Mr Quintal explained that he had it drawn as 24’x 44’and about the same size in the other direction.
He explained that this was a proposed structure. Someone would buy the lot and build a house within the ‘envelope’ presented. They wouldn’t be any closer than 25’ from the wetlands.
Mr Allison inquired as to when this became a lot of record. It was in the 1950s. That was pre-zoning, since zoning came in 1973.
Mr Melvin inquired about State regulations and repositioning the house and septic. Regardless, the house couldn’t be placed anywhere else without some kind of variance.
No other questions.
Attorney Sumner Kalnan continued his presentation.
He moved directly to a letter in the packet dated September 25, 2006, from James H. Long, a Certified Professional Soil Scientist, to him and to Dennis Quintal. In the letter, Mr Long, after his analysis of the wetlands, said that, “It is NHSC, Inc. (The Commons at Kent Place, 202 Kent Place, Newmarket, NH) opinion that the construction of a single family residence, that maintains a twenty five foot vegetated buff should not have any negative impacts on the adjacent wetland system. The area should be well marked before construction starts, to ensure no encroachment on the wetland.” In the paragraph above that, he describes the wetland that is being dealt with here is ‘classified as a
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palustrine broad leaved deciduous forested system that is seasonally flooded or saturated. The soils are poorly drained. This type of wetland is very common in New Hampshire, and to our knowledge there are no rare or endangered species. Main functions of this wetland would be flood storage, nutrient attenuation and wildlife habitat. The location of the proposed house would still leave a twenty five foot buffer to the edge of the wetland and would not adversely affect these wetland functions.” Newton does not differentiate between wetlands. It’s 50’ across the board. The point is, this is a pre-existing lot of record. Zoning came along after this lot was created. We’re here to see what effect this zoning ordinance will have on this
particular lot, which we see has a problem, and without a variance we can’t put a house on it. That’s a pretty serious problem. That’s why we’ve come to you, the Board of Adjustment, to look at the lot, look at the zoning, and then the burden is on us to show you that public health, safety, and welfare would not be impaired if you were to grant this particular variance, under these particular, unique circumstances.
That brings us to Boccia. Review of the elements of Boccia, an area type variance, as they pertain to the property being discussed. We’re not asking to put an industrial use in a residential zone, but a use that goes along with how the Town is zoned. The problem is the area, and how we meet the criteria, particularly the distance from the wetland to the structure.
Review of the letter from Diane Foley, Coldwell Banker Residential Broker, located in Portsmouth, N.H., where she states that “development of the property at 9 Highland Street can only enhance the value of said property and the homes in the surrounding neighborhood.”
Discussion of the meaning of ‘taking’ of the property.
This is a unique situation. Mr Quintal did a fine presentation. There is a letter from Mr Quintal in the packet, reiterating the conclusion that the lot is unique because of its configuration.
Attorney Kalnan reviewed the Criteria answers for the Board. He said that they were seeking a variance, which would make the lot buildable, and not adversely affect the public health, safetly and welfare, and that he felt that they had met all the elements for a Boccia type variance.
Mr Melvin inquires about putting stipulations on the variance.
Attorney Kalnan replied that it was okay, if they were reasonable and doable.
Mr Laconte said that his only concern was the water, standing water and the water that overflowed into his driveway.
Mr Melvin suggested making another buffer zone… probably 15 feet from the wetlands… that, once the foundation is staked-out, and an additional 10 feet from the house, the remaining 15 feet should not be cut down. The vegetation should all be left there…a natural buffer zone.
Mr Quintal could not go along with that 100%, as there are a lot of big pine trees that could cause damage to the house if a great storm passed through
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(like this ice storm of yesterday). He suggested re-vegetating or replanting rather than leaving all those tall pine trees.
Discussion on filling of wetlands.
There were no more questions.
The Board reviewed the Criteria.
1. The proposed use would not diminish surrounding property values.
Vote: All in favor (4 Yes)
2. Granting the variance would be of benefit to the public interest.
Vote: All in favor (4 Yes)
3. Area variance: Denial of the variance would result in unnecessary hardship to the owner:
a. Yes (4)
b. Yes (4)
4. Granting the variance would do substantial justice;
Vote: Yes (4)
5. The use is not contrary to the spirit of the ordinance.
Vote: Yes (4)
The five Criteria have been met.
A motion was made by Mr Allison to grant a variance of a 25’ setback from the wetlands as shown on the Sewage Disposal Plan for 9 Highland Street, dated 9-29-06 (revised date), so that no part of the building shall be nearer than 25’ from the wetlands (that includes gutters, roof overhang, & everything) and the area shall be well marked before construction starts, to ensure no encroachment on the wetlands. Second by Mr Melvin. No further discussion. Vote: Yes (4)
Motion carries.
A motion was made by Mr Allison to close the Hearing. Second by Mr Melvin. Vote: Yes (4). Motion carries.
IV. Acceptance of Minutes
A motion was made by Mr Allison to accept the minutes of the December 19, 2006 minutes as written. Second by Mr Cardoso. Vote: Unanimous. Motion carries.
V. Old Business
a. Review of latest legal expenses for White Fence case
b. Budget… New? Or Old???
VI. New Business
None
VII. Adjournment
A motion was made at 8:15 pm by Mr Allison to adjourn. Second by Mr Melvin. Vote: Unanimous.
Next meeting to be February 20, 2007 at 7:30 pm.
Respectfully submitted,
Jeannette S. Clark, Secretary
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