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ZONING BOARD OF ADJUSTMENT Tuesday, July 11, 2017 at 7:00 p.m. Town Council Chambers, Town Hall 8 Newmarket Road, Durham, NH MINUTES

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These minutes were approved at the September 12, 2017 meeting. ZONING BOARD OF ADJUSTMENT Tuesday, at 7:00 p.m. Town Council Chambers, Town Hall 8 Newmarket Road, Durham, NH MINUTES MEMBERS PRESENT: OTHERS
These minutes were approved at the September 12, 2017 meeting. ZONING BOARD OF ADJUSTMENT Tuesday, at 7:00 p.m. Town Council Chambers, Town Hall 8 Newmarket Road, Durham, NH MINUTES MEMBERS PRESENT: OTHERS PRESENT: Vice Chair Chris Sterndale Tom Toye, Secretary Mike Hoffman Joan Lawson Peter Wolfe, alternate Audrey Cline, Code Enforcement Officer/Health Officer Victoria Parmele, Minutes taker I. Call to Order Vice Chair Chris Sterndale called the meeting to order at 7:00 pm and said he d be serving as Chair in place of regular ZBA Chair Sean Starkey. II. Roll Call The roll call was taken. III. Seating of Alternates Chair Sterndale said Mr. Wolfe would be seated as a regular member for the meeting. IV. Approval of Agenda There were no changes made to the Agenda. V. Election of Officers Chair Sterndale noted that election of ZBA officers had taken place at the June ZBA meeting. VI. Public Hearings A. CONTINUED PUBLIC HEARING on a petition submitted by MJS Engineering PC, Newmarket, New Hampshire on behalf of Eric & Amber Sirles, Rochester, New Hampshire, for an APPLICATION FOR SPECIAL EXCEPTION in accordance with Article XIII, Section and Article IX, Section (B) of the Durham Zoning Ordinance to construct a new septic system within the 125-foot wetland setback. The Page 2 property involved is shown on Tax Map 12, Lot 9-12, is located at 12 Mathes Cove Road, and is in the Residence C Zoning District. Chair Sterndale said the ZBA would hear from members of the public as part of the continuation of the public hearing on the application. Mr. Wolfe noted that Mike Sievert of MJS Engineering, who was representing the applicant, was a friend. But he explained as he had at the June ZBA that he didn t think he needed to recuse himself for this application. Mr. Sievert said he d provided updated information on the septic plan, and a larger overall site plan. He provided details on the updated plan, and noted that the leachfield had been moved so that it now met the 50 ft side yard setback requirement. He said the applicant therefore was present just to get approval for the Special Exception application. He noted that at the June ZBA meeting, there was a question about whether the house could be slid to the southwest over into a corner, where they could get the leachfield into a triangular area where it would meet the 125 wetland ft setback requirement. He spoke in detail about having looked into this possibility, with additional test pits and 6 ledge probes, and he noted that this information was laid out on the updated plan. Mr. Sievert explained that the ledge probes showed that the ledge there was at 0-10 ft, which didn t meet the requirement that there needed to be an average of 18 inches of soil over ledge before a modified leachfield system using fill could be allowed. He noted the measurements to ledge, as determined by the 6 ledge probes. He spoke in detail about other possible areas to move the leachfield to that also wouldn t work because of ledge. He said after going through this analysis, he was still saying that the wetland setback requirement couldn t be met, and that the area proposed was the best location for the leachfield. He noted that a question was asked at the previous meeting about whether the applicants could do a 3-bedroom house instead. He explained that this would mean that even though the leachfield could go down to 175 sf in size with a 3-bedroom house, it would still impact the 125 ft wetland setback. He also said if the configuration of the house was changed, ledge would be involved. He said if there was a smaller footprint, the grade of the driveway would need to be raised up in order to get up to the house level, and said this would increase the impacts on the wetland. He also said this would mean the applicant would need to get a Conditional Use permit from the Planning Board, He said the house and the leachfield had been located in the best place, and noted, as he had previously, that putting the leachfield on the slope was good for dispersion purposes. Mr. Sievert said another comment from the last meeting was that the applicant was planning to build the largest house in the neighborhood, and that this would overwhelm the other properties. He referred to the lot area comparison table he d provided, and using Page 3 the numbers in it explained that this was not the case. He said what was proposed was a reasonable use, and said it was the last house to be built in a subdivision that dated back to 1966, prior to the existence of the wetland regulations. He said the footprint was a bit bigger because it would be a one-story house, and noted that all of the other houses in the subdivision had two stories. He said the house would have a low profile including a drive under garage, and would fit into the neighborhood. Mr. Wolfe asked if the Conservation Commission needed to be notified about what was proposed. Mr. Sievert said yes, because it was a Conditional Use application in regard to the driveway being constructed through the wetland conservation overlay district. There was discussion about Section B 7 All other state, federal and local approvals required for the septic system have been obtained and B 8 Where site review is required, prior approval shall be obtained from the Planning Board, as they related to the correct review process to be followed. Mr. Wolfe asked about possibly putting in a second story and decreasing the footprint. Mr. Sievert said even if the footprint was smaller, there would still be that triangle of land where the ledge was located, so the leachfield couldn t be moved up there. He spoke in detail on this. Chair Sterndale asked if there were any members of the public who wished to speak for or against the application. Fenton Groen, Groen Construction, said he would be doing the construction. He spoke in detail about the energy saving aspects of the project, and said it would an attractive, energy efficient house. He also explained that there would be yards of blasting material as a result of the blasting that would be done, and said it would be used as the base for the driveway, etc. He said impacts to the site outside of the building envelope would be minimized. Mr. Wolfe asked if the blasting regulations the Planning Board used would be followed for this project. There was discussion. Mr. Sievert said he d look at them, and said he wasn t sure that what would be required should be as restrictive as what was required concerning blasting in the downtown. Mr. Sirles said a lot of time had been put into trying to minimize the amount of blasting that would be done, and said they just planned to do blasting for the garage area and storage area. Rob Wade, 16 Mathes Cove, said he was an abutter who lived down slope. He said he wasn t necessarily against what was proposed, after having reviewed the video and Minutes of the June meeting, but said he had some questions. He said one question was in regard to criterion #6, and said he had some concerns about possible damage to surrounding properties including his own as a result of what was proposed. He asked what would happen with the water that would now go downhill toward his property, and noted that the area was already wet in the spring. He asked if the water would travel that far, and if so, how that would be addressed. Page 4 Mr. Sievert explained in some detail why the proposed Clean Solutions septic system was an excellent system for this type of lot. He noted that because of the treatment process there could be an 85-90% reduction in the size of the leachfield, and that the effluent would almost be drinkable, especially if an ultra violet treatment system was used at the end of the process. He also noted that the 50 ft setback requirement in regard to Mr. Wade s property had been met, and said the best location for the system had been chosen, given the ledge, etc. on the property. Chair Sterndale said he thought this application came down to criteria 2, 3 and 4, concerning reasonable use. He asked if there was a better location for the septic tank where the house was proposed, and Mr. Sievert said no. Chair Sterndale also asked how small the house would have to be to reach the maximum possible setback. Mr. Sievert said the answer wasn t straightforward. He said this was the best location for the septic system, and said changing the size didn t provide any additional setback. He said the ledge at the surface was the issue. Ms. Lawson asked if it would be possible to blast an area in the southeast corner of the site for the leachfield. Mr. Sievert said no, and noted again the requirement that there be a minimum of an average depth of 18 inches of soil above an impermeable surface, which couldn t be done in that area. He spoke further, and explained that even if that requirement could be met, another problem was that the leachfield would be located at the high point of the property, which meant that either pumping would need to be done or that the house would need to be raised up. Mr. Toye said a question still to be answered was whether the septic system effluent would impact Mr. Wade s property. Mr. Sievert explained how the effluent would be treated sufficiently by the time it got to Mr. Wade s well. Mr. Wade said his concern was about the quantity of water that would be coming into the wetland that abutted his property and possibly spilling onto his property. Mr. Sievert explained in detail how this would not happen, and where the runoff would go. Peter Wolfe MOVED to close the Public Hearing. Joan Lawson SECONDED the motion and it PASSED unanimously 5-0. The Board first deliberated concerning Article IX, Section (B) Requirements for Individual Nonconforming Vacant Lots in the WCO and SPO Districts Criteria to be met 1. The lot upon which the exception is sought was an official lot of record, as recorded in the Strafford County Registry of Deeds, prior to the date on which this Article was posted and published in the town. 2. The use for which the exception is sought cannot be carried out on a portion or portions of the lot which are outside the Wetland Conservation Overlay District or Shoreland Protection Overlay District without undue hardship. 3. Due to the provisions of the Wetland Conservation District or Shoreland Protection Overlay District, no reasonable and economically viable use of the lot can be made without the exception. 4. The location and design of the building(s) and all structures shall provide for the maximum setback from the reference line consistent with reasonable use of the property considering the Page 5 size, shape, slope, and natural conditions of the lot including, but not limited to, soils, flood hazard areas, and wetlands. 5. The design and construction of the proposed septic system will, to the extent practical, be consistent with the purpose and intent of this Article. 6. The proposed septic system will not create a threat to individual or public health, safety and welfare, such as the degradation of ground or surface water, or damage to surrounding properties. 7. All other state, federal and local approvals required for the septic system have been obtained. 8. Where site review is required, prior approval shall be obtained from the Planning Board. Chair Sterndale said it was established at the last meeting that criterion #1 was met. He also confirmed with Ms. Cline that #7 was in conflict with state law, so could be ignored. Mr. Hoffman said the applicant s engineer had demonstrated how #2 had been met. Ms. Lawson agreed. Mr. Wolfe noted that the ZBA was told that putting in a smaller house wouldn t make a difference. Concerning criterion #3, Chair Sterndale said it was conceivable that a different use could be created on the lot, but at considerable economic sacrifice. Ms. Lawson noted that Mr. Sievert had described the various tradeoffs involved, which wouldn t balance out well, for example, the driveway, and said this got into what was reasonable and should be considered as well. Concerning #4, Chair Sterndale said the question was whether the maximum possible setback was being provided, given the reasonable use that had been identified, and ZBA members said yes ZBA members agreed that criteria #5 and 6 were met, noting that a Clean Solutions septic system was proposed. He asked concerning criterion #8 whether the ZBA wanted to place a condition on its approval. There was discussion about the wording in Section B 8. ZBA members had no issues with criterion #8. Chair Sterndale summarized that there was consensus among ZBA members that all of the section B criteria had been met. The Board next deliberated concerning: Article IX A. Special Exceptions. Criteria for the Granting of Special Exceptions. 1. That the use will not be detrimental to the character or enjoyment of the neighborhood by reason of undue variation from the kind and nature of other uses in the vicinity or by reason of obvious and adverse violation of the character or appearance of the neighborhood. 2. That the use will not be injurious, noxious and thus detrimental to the neighborhood by reason of any of the causes stated in Part B. of this chapter. 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 or property, unsanitary or unhealthful emissions or waste disposal or similar adverse causes of conditions. 4. As to all nonresidential uses subject to site review by the Planning Board or Technical Review Committee pursuant to RSA 672 through RSA 677, that written approval by the Planning Page 6 Board or Technical Review Committee of the applicant's site plans must be on file with the Board of Adjustment. Board members reviewed these criteria. There was discussion about what Part B referred to under criterion #2. Chair summarized that there was consensus among ZBA members that all of the criteria were met. Mr. Wolfe spoke about the conditions the Planning Board had put in place concerning blasting with the Orion site plan application. He said this perhaps was more than what was needed for this application. He suggested that a pre-blast survey of at least 250 feet out would be good, as would checking after the blasting to see that nothing was harmed. There was further discussion, including discussion about whether more detailed blasting provisions had been adopted by the Planning Board in its site plan regulations. There was discussion about whether to defer to the Planning Board on the blasting issue. Mr. Hoffman said the blasting issue wasn t what the Special Exception was about, and said he was uncomfortable with the ZBA addressing it. He said he thought it was more appropriate for other regulatory bodies and regulations to deal with it. Ms. Lawson agreed. Mr. Wolfe said he could understand that perspective, and said he just didn t want the blasting issue to be overlooked. Chair Sterndale asked if sending a note to the Chair of the Planning Board on the blasting issue would be sufficient, and Mr. Wolfe said yes. Mike Hoffman MOVED that the Zoning Board of Adjustment approve a petition submitted by MJS Engineering PC, Newmarket, New Hampshire on behalf of Eric & Amber Sirles, Rochester, New Hampshire, for an APPLICATION FOR SPECIAL EXCEPTION in accordance with Article XIII, Section and Article IX, Section (B) of the Durham Zoning Ordinance to construct a new septic system within the 125-foot wetland setback as depicted in the drawings provided by MJS Engineering dated 7/5/17. Tom Toye SECONDED the motion and it PASSED unanimously 5-0. B. PUBLIC HEARING on a petition submitted by The Riverwoods Group, Exeter, New Hampshire on behalf of Land Options, LLC, Portsmouth, New Hampshire, for an APPLICATION FOR VARIANCE from Article XII, Section of the Durham Zoning Ordinance to construct an ADA compliant walkway/ramp within the 100-foot frontyard setback to Route 108. The property involved is shown on Tax Map 11, Lot 8-0, is located at 56 Dover Road, and is in the Office Research Route 108 Zoning District. Attorney Sharon Cuddy Somers said a formal application for the project would be coming forward to the Planning Board soon. She said Riverwoods planned to use a portion of the barn and a portion of the main house as a marketing center for the proposed Riverwoods development. She said they planned to make substantial renovations to the barn, and to utilize 1200 sf of the main house. She said in order to use these spaces, and especially because of Riverwoods clientele, there needed to be ADA compliant access to the barn and main house. She explained that these structures were already within the front yard setback, so there was no other choice than to encroach into that setback with the proposed ADA compliant access system. Page 7 Engineer Jeff Clifford provided details on the existing conditions on the site. He noted that everything currently was in the 100 ft front yard setback, and said what was proposed would be as well. He described the deck and system of walkways that were proposed, including an ADA compliant ramp to enter both buildings. He said the existing noncompliant ramp would come out. He explained that the parking would be slightly reconfigured but said the amount of pavement would not be expanded and in fact would decrease. He said overall there would be a decrease in impervious surface of about 400 sf with the deck, walkways and extent of paving. He noted that stone would be placed under the decks, and he described landscaping that was proposed. He explained how the decks would be elevated, and said drainage would go underneath them. Attorney Somers reviewed the variance criteria and how they were met with the application. She said no decrease in the value of surrounding properties would be suffered because the applicant was proposing a very minimal change to the existing improvements, which already encroached into the 100' front setback. She said the applicant intended to remove the existing pavement in the area of the proposed ramp/walkway, which would create better site conditions than what existed now. She also said creating ADA compliant access to the property would allow the property to be more easily utilized for permitted uses, and would actually enhance the value of abutting properties. She said granting the variance would not be contrary to the public interest because improvements already existed within the 100' front setback. She said the applicant merely sought to create an ADA compliant link between the two existing buildings, and said there would be no further encroachment into the 100' setback. She also said that due to the proposed removal of pavement, the site conditions would improve and therefore would serve the public interest. She said there would be no alteration of the essential character of the neighborhood by the construction of the walkway/ramp, and said it would not threaten public health, safety or welfare. Attorney Somers said owing to special conditions of the property that distinguished it from other properties in the area, denial of the variance would result in an unnecessary hardship. She stated that no fair and substantial relationship existed between the general public purpose of the ordinance provision and the specific application of that provision to the property, because pursuant to the provisions of RSA 674:33(V) this variance application did not require that the ZBA make a finding concerning the hardship criteria. She said the application proposed the construction of an ADA compliant walkway/ramp, which constituted a reasonable accommodation under the terms of the statute. She said the walkway/ramp would be used by prospective residents of Riverwoods who used assistive devices (such as walkers and canes), and said the application therefore met the criteria that the reasonable accommodation was necessary for persons who regularly used the premises. She said the application also met
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