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BOARD OF ADJUSTMENT Powered By Docstoc
					                                                                                                   BOA Draft minutes of
                                                                                            April 8, 2009 see minutes of
                                                                                   May 6, 2009 for corrections/approval




                                              BOARD OF ADJUSTMENT
                                                Rye, New Hampshire
                                               Minutes of April 8, 2009
                                              Town Hall Meeting Room
                                                      7:00 PM


Members Present: Chairman Frank Drake, Vice-Chair Ben King, Jay Nadeau, Shawn Crapo,
Ray Jarvis.

Also present: Susan Labrie, Zoning Board Administrator.

Chairman Drake opened the meeting at 7:10 p.m. and conducted the Pledge of Allegiance.

     Continued from March 11, 2009:

1.   The Saunders Trust (owner), Rye Harbor Realty LLC (applicant), for property located at 160 and 175 Harbor
     Road, and is shown on Tax Map 9.2, Lots 20 and 22. Case # 09-09.

                 160 Harbor Road, Map 9.2, Lot 20:
                 Request variances and a special exception to remove the existing nonconforming parking
                 lot, storage container, and septic system and construct four freestanding, single family,
                 condominium dwelling units each being no more than 28-ft in height and each having a
                 dwelling footprint of not more than 2,200-sf. Property is located in the Single Residence
                 District/Coastal Overlay District.


                 Variance requested from Article II, Section 203.1 and Article II, Section 202.4 to permit the
                 construction of four residential dwelling units on a lot where multiple residential dwellings are not
                 permitted.
                 Variance requested from Article II, Section 202.3 to permit a density greater than permitted by the
                 ordinance.
                 Variance requested from Article II, Section 203.3F to permit construction of four single family
                 dwelling units on a lot having a total of 1.82 acres and 241 feet of frontage on a town road where 1.5
                 acres of lot area and 150 feet of frontage per dwelling is required.
                 Variance requested from Article III, Section 301.7B to permit surface alteration within the 100-ft tidal
                 buffer from the salt water marsh on the southerly side of Harbor Road.
                 Variance requested from Article VI, Section 603.2 to permit the removal of a nonconforming
                 commercial parking lot and replacement of the existing improvements with four nonconforming
                 residential dwelling units and a septic system serving tax map 9.2, Lots 20 and 22.

                 175 Harbor Road, Map 9.2, Lot 22:
                 Requests variances and a special exception to remove the existing nonconforming restaurant building
                 with accessory storage buildings, storage containers, dumpsters, parking lots and septic system and
                 replace the existing uses with four freestanding single family, condominium dwelling units, each being
                 no more than 28-ft in height and each having a dwelling footprint of not to exceed 1,582-sf. Property is
                 located in the Business District/Coastal Area District.

                 Variance requested from Article II, Section 210.1 and Article II, Section 202.4 to permit the
                 construction of four residential dwelling units on a lot where multiple residential dwellings are not
                 permitted.
                 Variance requested from Article II, Section 202.3 to permit a density greater than permitted by the
                 ordinance.


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                Variance requested from Article II, Section 210.3G to permit construction of four single family
                dwelling units on a lot having a total of .97 acres and 260-ft of frontage on a town road where 1 acre of
                lot area and 150 feet of frontage per dwelling unit is required.
                Variance requested from Article III, Section 301.7B to permit surface alteration within the 100-ft tidal
                buffer from the salt water marsh on the southerly side of Harbor Road.
                Variance requested from Article VI, Section 601 to permit construction on a nonconforming lot in the
                Business Zone having an area of .97 acres where the minimum lot size of one acre is required.
                Variance requested from Article VI, Section 603.2 to permit the removal of a nonconforming
                commercial building and replacement of that building with four nonconforming residential dwelling
                units.

Chairman Drake stated that at the last meeting there was some confusion over the condominization of
things that do not exist. He stated that Section 503 of the Zoning Ordinance applies to condominium
conversions of existing dwelling units. The dwellings do not exist at this time, so Section 503 does not
apply.

Attorney Peter Loughlin, speaking on behalf of Rye Harbor Realty, LLC, stated that Chairman Drake had
struck the Special Exception at the last meeting and he did not plan to readdress the issue. He said the
Board’s concerns have been; “If this is approved, what guarantee is there that what is presented will be
constructed?” The Declaration part of that is probably more critical of the site plans and the architectural
elevations in terms of the Board being guaranteed than what is approved will be built. The Board may not
want to tie it to Condominium Documents. The goal is to have adequate protections in place, to guarantee
what might be approved.

Chairman Drake stated that there is value to the documents. However, because of the type of project
being proposed, common septic and common grounds shared between the properties, the Documents may
prove valuable in of themselves, not necessarily relevant to the ordinance tonight.

Member Nadeau said t it’s a bit confusing because the Board has to determine whether the request is
granted before the individual structures on two lots, which would then be possibly an illegal subdivision,
which this Board can’t do. The Planning Board would do.

Chairman Drake commented that the Planning Board can’t do it but Zoning Board can. It would go for site
review and subdivision approval, which, he believes, condominium projects have to go for.

Member Crapo asked if it is considered a subdivision or multiple units on a lot.

Chairman Drake stated that the State, maybe not the Town, considers condominiums a subdivision.

Member Crapo clarified that 503 does not apply because that is converting existing units. He asked if they
are able to by-pass that and build condos from the ‘get go’ or build them and attempt to convert them.

Chairman Drake referred to the Hemingway Project, stating that they received the developmental right to
build something ‘similar’ to what was built. Then, without any condominium portion at the BOA level, went
before the Planning Board to obtain sub-division approvals and condominium approvals. He continued that
he is unsure, from review of the minutes, that they came back and did a post-building 503 application.
They did it all as a development project.


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Member Jarvis asked for clarification on the base point.

Chairman Drake replied the density is larger than the lots would allow.

Member Jarvis also asked for clarification on the condominium issue.

Chairman Drake explained that in the course of the previous meeting, all parties agreed, that the request
for variances pertaining to the Special Exception for condominiums was struck, for both pieces of land.

Attorney Loughlin stated that a presentation was made to the Board on March 11th and summarized the list
of variances being asked for. He said the Applicant is asking for relief from the density, to allow more than
one unit per lot, the frontage and lot size, set back from the marsh and also the right to remove and replace
non-conforming buildings. At the prior meeting, they provided the Board with a letter, sent on January 21st,
a 19 page letter with 20 exhibits. They introduced aerial photos, charts showing land usage within 600 feet,
site plans, existing conditions and proposed conditions, with architectural elevations. Since the meeting,
they have submitted condo declarations, condominium by-laws and detailed condominium plans, for the
various models. Attorney Loughlin stated that they were trying to come up with more detail, to address the
Board’s concern that if the project is approved, what is approved will be built.

Attorney Loughlin presented photos to the Board showing what the project will look like, in its
environment, once completed. They also presented plans showing architectural details of the dwelling
units. Attorney Loughlin went over the floor plans and site plans, which were submitted to the Board. He
pointed out that the requested details on the water and sewer shutoffs were on the plans.

Eric Weinreib, from Altus Engineering, explained the details of the water and sewer lines/shutoffs to the
Board.

Attorney Loughlin presented the Board with an email from the Department of Environmental Services
(DES), concerning the Shore land Protection Approval. The email states that the project has DES approval
and permits are in the process of being issued.

Attorney Loughlin highlighted the Summary of Impacts of Proposal: At 175 Harbor Road, the existing lot
coverage, under the Rye Zoning Ordinance, is 30,514 square feet (72.3%). The proposed lot coverage,
under the Town’s Ordinance, is 8,888 square feet (21.1%). Impervious coverage, under Town’s regulations,
now exists at 30,514 square feet and the proposed will be reduced to 8,884 square feet. A major change
will be to the Shore Land Protection primary setback line, from 11,617 square feet of impervious material,
between the parking lot, the concrete patio and the building. That will be reduced to 2,600 square feet. At
160 Harbor Road, the impervious surface is reduced from 14,964 square feet (18.7%) to 9,004 square feet
(11.2%). Attorney Loughlin addressed previous questions, about the height of the dwellings, by pointing
out the height computations on the plans. He explained that each of the units is below the 28 foot height
above sea level requirement.

Member Crapo referred to Note 4; “Driveways and walkways are considered pervious, as they are
constructed with pavers.” He pointed out that pavers are impermeable.


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Attorney Loughlin replied that it is his understanding that under the Rye Zoning Ordinance pavers are
considered to be permeable.

Mr. Weinreib stated that the intent would be to use a densely graded stone underneath, which would have
a higher porosity than a densely graded gravel. He then went on to explain the pavers.

Attorney Loughlin presented to the Board an analysis of school enrollment figures, showing the impact on
the Town’s schools. He explained that based on previous history of Harbor Road, this project will have few,
if any children. Also included in the analysis is information on taxes presently at 160 – 175 Harbor Road and
the estimated assessed value of the proposed development.

Attorney Loughlin continued by quoting Vice-Chair King, from the previous meeting: “The test is the
benefits sought by the applicant, cannot be obtained by some other method reasonably feasible. The
benefits sought by the applicant here is not to put two mansions here. The benefits sought by the applicant
is to put a condominium there, so we have to determine whether there is some other reasonably feasible
way to put a condominium complex there, or to put a complex of rentals. The task before us is to
determine, broadly stated, whether the project is reasonable, whether it is consistent with the character of
the neighborhood. And along that line, I point out that right next door you have condominiums, so I don’t
think that you have to say oh, that you can put up some ostentatious mansion there instead. We have to
look at what is before us and determine what is or is not reasonable”.

Attorney Loughlin went on to state that he feels this is exactly what the basis for the Boccia test is. He
explained that there were four cases on the Boccia test. The first, even before the Boccia case, was the
Bacon versus Enfield case. In that case, the Applicant wanted to put in a 5x4ft shed attached to the house
to house a propane heater. This was on the lake side of the home. It was decided that the Applicant could
put the heater in a different location. The Court determined that the applicant could get the results they
desired, even without a variance relief, the relief is not necessary. This was a prelude to the Boccia case,
which involved a request for a 100 room hotel, needing six area variances. It was determined, by the Court,
that the Zoning Board was to determine if the application was reasonable. The Board was not obligated to
determine if a 65 room hotel was more appropriate. That was not the question before the Board. The
third case was Vigeant versus Hudson. The Plaintiff was challenging the grant of a variance. He read; “The
Plaintiff questions whether the ZBA can require an applicant to agree to a different variance or except an
alternative to the property, such as, building fewer units of multifamily housing then what the Applicant is
proposing”. The Court said; “ZBA focused on whether an alternative use for fewer dwelling units was more
suitable. In the context of an area variance, however, the question whether the property can be used
differently from what the applicant has proposed is not material”. Attorney Loughlin pointed out that a
couple of Board Members stated exactly that at the last meeting. The fourth case was Malachy Glen versus
the town of Chester. This case focused on the second test of Boccia. The Court said; “Under the second
factor, the ZBA, must look at the project as proposed by the Applicant and may not waive the utility of
alternative uses in consideration of a variance application. If the proposed project could be constructed
such that an Area Variance would not be required, the burden is on the Applicant to show that these
alternatives are cost prohibited”. Attorney Loughlin read; “The trial Court recognized that in order to
comply with the Zoning Ordinances, the Plaintiff would have to reduce its project by more than 50%. This
would result in financial hardship. Such a reduction is the only alternative to the project, given the
configuration of the property. Therefore, we conclude the record is sufficient for the trial Court to find, as a
matter of law, that there was no other reasonably feasible method of effectuating the proposed use
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without obtaining an Area Variance”. He commented that some of the members of the Board had some
questions about the financial hardship aspect of it. He stated that he does not feel that it is necessary to
get into that with this application. They satisfy the requirements under Boccia for the financial hardship.
When you look at the way the cases have been decided, the Boccia test has ‘muddied’ the waters of
financial hardship. Attorney Loughlin went on to state that using the test, as spelled out in these cases ,
the Board should look at the proposal that is before them and determine if it is feasible. Attorney Loughlin
said he feels the Boccia Test is needed in this case; however, it is a very awkward test to apply. The House
of Representatives has passed House Bill 446 which essential eliminates the Boccia Test and defines
hardship on a modified Simplex standard, which preserves the initial 4 conditions for variance. Also, the
test states that no fair and substantial relationship exists between the general purposes of the Zoning
Ordinance and the specific application of the ordinance to the property. The proposed use is otherwise a
reasonable one. Attorney Loughlin stated that he feels that they meet the Simplex Test. The Ordinances as
applied to this property do not have a fair and substantial relationship to the property. He went on to state
that the real test that needs to be applied in this case is: “whether given all the special conditions of
improving the density of the surrounding land uses and given the positive impacts of the property on the
environment, in terms of traffic reduction, pavement reductions, and positive tax generation, is the
proposed use a reasonable one”.

Attorney Loughlin submitted to the Board a proposal of Possible Stipulation/Conditions, which he prepared
to help address some of the concerns of the Board and abutting neighbors, that what is approved will be
built. Also, the concerns over the time it will take to finish the project. He read from the plan, “All
construction shall be in accordance with the following Site and Architectural Plans: Condominium Site Plan
of the Moorings at Rye Harbor for Rye Harbor Realty, LLC, prepared by Altus Engineering. Condominium
Floor Plans for the Moorings at Rye Harbor for Rye Harbor Realty, LLC, Units N1 – N4, S1 – S4, prepared by
Altus and B.E. Batson Design and the Architectural Elevation and General Specifications that are prepared
by B.E. Batson Design.” He stated that security in an amount to be determined by the Town Engineer, and
in a form satisfactory to the Board of Selectmen and Town Counsel, shall be posted prior to the issuance of
any building permit (other than a demolition permit) for construction of improvements on the property to
ensure completion of the construction of the following: pavement removal and installation of the leach
field, in accordance with the NHDES Permit. The individual septic system for each unit shall be completed
before the issuance of a certificate of approval. Individual certificates shall be withheld until such time as
the septic tank and pumping system for each individual unit has been approved by the Town. Security in an
amount approved by the Town Engineer to ensure that if the project is abandoned for sixty (60) days, or
the inactivity for sixty (60) days, which creates problems with dust or erosion or results in hazardous
conditions, the Town may loam and seed the site, erect any fence or other barriers or take other action as
may be necessary. He then stated that this proposal is to eliminate any doubt that the Applicant is not
committed to building the project as presented to the Board.

Member Crapo asked if this would eliminate Section 5, pages 15-16 of the Condominium By-laws and
Declarations, that have to do with the design and plan approval. It appears that there will be no more
choice on design of plans. He asked if these were obsolete.

Attorney Loughlin responded that what he should have read, on The Proposed Stipulations/Conditions,
was; “The exterior of all buildings shall reflect the materials and dimensions shown on the Architectural
Plans. Changes to the design or appearance of exterior elements shall not be permitted unless the Building
Inspector, in consultation with the Chair of the ZBA, determines that the proposed change will not have a
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material effect on the appearance. Any change in the appearance not approved by the Building Inspector,
in consultation with the ZBA Chair, shall be permitted only with the approval of the ZBA”.

Member Crapo stated that all of that seems in direct opposition to what we have here. In particular, the
troubling clause on page 16 - B; “In the event The Moorings at Rye Harbor has not approved of any plans,
specifications or other materials within (15 or 30) days of receipt, the proposed plan shall be deemed to be
approved”. Conceivably you could have one person buying the whole development, and staying silent upon
themselves, or a couple of interested developers, that remain silent, than they are condoning whatever
plans that are before them. The remainder of the Section has a similar tone; “In the event that no legal
action is brought against the owner of any newly constructed unit challenging compliance of these
covenants within 30 days of substantial completion of the exterior of any unit, there shall be established a
conclusive presumption that the unit complies with the Declarations”.

Attorney Loughlin explained that it is in compliance with the condominium requirements and there is other
language that talks about the Town’s requirements. He stated that on page 15 – 5B; “No construction of
any kind shall commence on any unit. Nor shall any exterior addition or change or alterations be made to
any unit structure. Nor shall utility lines be erected or installed, until plans for the full drawing have been
approved in writing by the Moorings of Rye Harbor, and any amendments thereof, if required, are
approved by the Rye Board of Adjustment.”

Member Crapo commented it states that if no one meets to approve it, then it is accepted.

Attorney Loughlin replied that’s as far as the Condominium Associations is concerned, not the Town of Rye.
The Town of Rye requirements cannot be waived. He explained that it is pretty standard language in
Condominium Associations.

Jim Nadeau, Rye Harbor Realty, stated that he has an understanding of what the Board is expecting, of the
project, and what they are looking for. He clarified that they are trying to make sure that if someone wants
to ‘tweak this or that’ that it’s in keeping with what the Boards expectation is and they understand that if it
is changed, they have to get the Boards permission.

In summary, Attorney Loughlin summarized that in the case of the Saunders Property, the relief that is
being requested should be granted, if the Town has the opportunity to:

        1. Make the land uses in the neighborhood more consistent.
        2. Dramatically reduce the traffic impacts on the neighborhood.
        3. Dramatically reduce the amount of pavement and buildings within the primary 50 foot
           setback in the comprehensive shoreline protection district.
        4. Improve the quality of surface water running into the harbor and salt marsh.
        5. Allow development at a density consistent with other neighborhoods in the same general
            area and zone.
        6. Increase the value of surrounding properties.
        7. Not be contrary to the public, but will be consistent with the spirit and intent of the
           ordinance and increase the tax revenue of the town.


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He stated that the application meets the Simplex test, the Boccia test and the common sense test and
should be approved.

Chairman Drake asked for more questions or comments from the public.

Attorney Tim Phoenix, representing Saunders Trust, stated that they are in full support of the project.

Mae Bradshaw, 106 Harbor Road, questioned the placement of the oil tanks to the dwellings.

Eric Weinreib, of Altus Engineering, answered that they would be in the garages of the units. They would
not be buried.

Phil Winslow, 100 Harbor Road, expressed his concern that the project will be developed on a timely basis,
and the architectural design and materials presented will be used. He also expressed a concern that the
units will be used as monthly or weekly rentals, causing an increase in traffic in the area.

Vice Chair King responded by stating that under the Rye Zoning Ordinance, the applicant has one year to act
on the variances that the Board grants. If the applicant does not act, within the one year period, they must
return to the Board. There is a strict timeline in the Rye Zoning Ordinance. Also, any variances that may be
granted will make reference to the plans that were submitted to the Board. Any structure must be
constructed pursuant to the plans. If they are not the Code Enforcement Officer and Building Inspector
take action.

Chairman Drake clarified that the applicant must be ‘vested’ in the project within one year. It is a
substantial amount of investment and process in the project. It is not completion.

Member Crapo asked if this project would be one building permit or eight individual permits, with the
permits having an expiration date.

Building Inspector Labrie answered that separate permits will be issued for each unit and can be renewed
for an additional year.

Member Nadeau addressed the concern of the renting of the units. He stated that perhaps Attorney
Laughlin would add a restriction to the By-Laws that the owners do not rent out their units.

Jim Nadeau, of Rye Harbor Realty, LLC, responded that the covenants stipulate that no short term rentals
will be allowed. He would be comfortable with adding ‘not less than six months’.

Chairman Drake read a letter from Patricia and Stephen Foss, 45 Fairway Drive:

Dear Members of the Board:

        We own property at 122 Harbor Road and have owned it for many years. The character of Harbor
Road is unique within the Town and should be maintained.


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       We are aware of the proposals to replace Saunders with Condominiums. While evolution is going
to happen, we are adamantly against using multiple variances for monetary gain.

        The purpose of variances is to mitigate hardship that runs with the land. They are not meant to
provide increased profitability by expanding use, beyond the Zoning Ordinances voted on by the citizens of
Rye.
        Whatever density and building envelope, which can be supported on the land in accordance with
current building rules, is all of the change that should be allowed.

                                         Sincerely yours,
                                         Patricia & Stephen Foss

Mae Bradshaw commented that she cannot comprehend how putting four units on ‘lovely’ open space is
supportive of the Zoning Ordinance requiring one acre zones. The role of the Board is to try as best they
can to support the zoning ordinances.

Chairman Drake stated that the role of the ZBA is to allow a relief valve to properties that may be effected
in a way that is unfair, unreasonable, unjust or what is conceived as a hardship, upon that property because
it has some uniqueness to all the properties that are otherwise effected by the Zoning Ordinance.

Vice Chair King commented that Building Inspector Labrie enforces zoning ordinances, the Board grants
exceptions.

Member Crapo stated that the age 62 restriction is the only difference, in having this apply to Section 401,
the newly created RCD. This was specifically planned and voted on towards allowing this type of density to
be built. In the true spirit of what was created in the Zoning, that Section should be applied here. This is a
completely different standard and this was specifically created by the voters, for complexes with this
density.

Chairman Drake responded that it is not being proposed as a Retirement Community Development and if it
doesn’t have all the criteria to be one, then it isn’t one.

Member Crapo explained that conceivably they could have said they wanted to do an RCD and requested a
variance from the age 62.

Attorney Loughlin stated in order to have an RCD you must have 10 acres of land. The Town’s people voted
for the RCD because it protected the open space.

Member Crapo commented that the Town voted in legislation that says in order to have more than 4 units
on a parcel of land, you must have 10 acres total.

Chairman Drake replied that it is an error of law to try and apply a section of the ordinance that doesn’t fit
the proposal. That would be a legal error that the Board would be making. He commented that you can,
however, talk about spirit and intent.


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There was discussion on the site plans of the project.

Chairman Drake asked Mr. Weinreib to comment on photographs of the south parcel, along the marsh,
with a high tide of 10 feet.

Mr. Weinreib stated that during the full moon, there is a spring tide which is higher than average tides. He
pointed out on the photograph, the flooded areas and where it ends. He also pointed out the 100 foot
setback for the development. He presented another photo of the property shown from a different angle.
He explained that this is a normal occurrence during spring tide. He further explained that all units are
designed to be above the flood plain.

Chairman Drake asked for further comments or questions from the public.

Hearing no further comments, Chairman Drake closed the public hearing.

Vice Chair King started by stating that he supports the project. He acknowledged that there are a number
of variances requested, but feels that they are all reasonable. He does not feel that granting any of the
variances will have a negative impact on the abutters or the Town of Rye. Nor would it diminish the
property values. He also stated that the project is more in keeping with the neighborhood than what is
currently there. He feels the applicant has done an admirable job in addressing the concerns raised at the
last meeting and submitting plans that give greater comfort as to the structures that are going to be placed
there.

Member Nadeau said he respectfully disagrees with Vice Chair King. He stated that Attorney Loughlin did a
fantastic job outlining Michael Boccia versus City of Portsmouth and the test the Board has to follow. The
case set forth the new guidelines with regards to unnecessary hardship. However, the Supreme Court
actually reversed and remanded that matter. The court claimed that it was unclear from the record,
whether the Applicant had shown that there was reasonably feasible alternative methods to implement the
proposed use without undo financial burden to the land owner without the need for variances. He further
explained that Attorney Loughlin stated that he was not going to address the financial hardship to any
extent. Member Nadeau went on to say that without that testimony and the Applicant satisfying the
burden of proof to show the benefits sought could not be achieved by some other method reasonably
feasible for them to pursue. He does not feel that the Applicant has not satisfied their burden of proof
under the Boccia versus City of Portsmouth, hardship test. He stated that he is not in favor of the
application as presented.

Member Crapo stated that he read through the master plan. In particular there is a Section that discusses
whether some business and commercial zones should be rezoned residential. It was the finding that there
was value and need for business and commercial zones and there are plenty of residential alternatives to
those business zones. In speaking to the spirit of our Zoning, that, combined with the sentiment drawn
from the RCD Section, as well as Attorney Loughlin’s basic analysis of how these four cases he listed are
supposed to apply towards the hardship, would lead one to believe that any given developer should come
in with the most massive project they can because the Town can’t look at any alternative use of the land.
He commented that he hopes that is not what the Supreme Court is trying to say. There has been a history
of years of voting in different zoning changes. Many zoning changes have been put into place, the acre
restriction and the RCD as well. Most of those changes that have been put in place over the last few years
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are usually reactionary by the Town and reflected by the Town’s people, when they propose the zoning. He
stated that they look at areas and say “what has happened in the Town and how the different areas been
developed and how do they look. Is that what we want? Or do we want to legislate away from that?” He
said that we have legislated away from ‘row house’ look that exists at Wallis Sands. We have legislated
away from the small lot areas of Jenness Beach. There was testimony tonight of trying to be in keeping
with the neighborhood. That is inconsistent with the fact that the Zoning is trying to steer things towards a
master plan purpose of not recreating the errors of the past in improperly sized subdivisions. He
summarized that given those parameters and the amount of relief that is requested, and the fact that this is
not a straight residential zone and the intense use; he cannot get past any semblance of thinking it is a
reasonable twist of the Zoning to put this much bend in the law.

Member Jarvis stated that if he lived in that area, he would be concerned over the inability of the Town to
control the pace of development and the type of development. He quoted the master plan page 3-2, “It’s
vital to remember the Board of Adjustment’s role in the planning process. Developers request for variances
in special exceptions must not be granted unless they reinforce the wishes of the Master Plan, where it can
do so without unduly denying property owners the right to reasonably use their land and without causing
harm to neighbors. The Board of Adjustment must adhere to the letter of the law. Allowing fringe cases to
deviate from the Master Plan on a case by case basis, allows for the sort of piece mail creep that
undermines our planning efforts”. He stated that this is not a fringe case, which automatically makes it not
to be able to be granted. He went on stating that he does not see how it promotes the general welfare.
Also, he does not think the alternative types of development have been explored. The size of the proposal
and the number of variances are such that this would not promote the general welfare. He does not
support the project at this time.

Vice Chair King asked for clarification on the deviation of the Master Plan that causes such concern.

Member Jarvis read from the master plan: “Rye’s land use policies will be fair and good for the quality of
the community as a whole. Our decisions will support balances of choice, convenient and safe security
conservation in extensive community”. He stated that he did not feel that the proposal, on this parcel of
land, contributes to the general welfare of the community.

Vice Chair King responded that this is a residential complex that will be situated next to another residential
complex. This would be more consistent with the current character of the neighborhood then putting
another restaurant there. He continued that you are taking a structure that has a waste facility behind it
and you are removing that waste facility. The site, altogether, will be more attractive and cleaner than
what is there now. This is in an area with scenery and environmental concerns. He believes this project
will be more environmentally sound then what is there now. He stated that he cannot see, aside from the
temporary inconvenience that will arise during construction, how what is presented will be negative in any
way for the Town of Rye.

Member Crapo stated that in Section 102 the 5th item, on the purpose of Zoning, the Ordinance is designed
to prevent the overcrowding of land and avoid undo concentration and population. He commented that
this proposal seems to be in direct opposition.

Member Jarvis stated that you could improve this parcel of land in multiple fashions. He is not convinced
that in this fashion, with this crowding and this number of variances, over this length of time, this is the
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                                                                                      April 8, 2009 see minutes of
                                                                             May 6, 2009 for corrections/approval




best way to go about it. He would like to see what the alternatives are and whether that would be better
for the Town.

Chairman Drake stated that he thought the Court had sent the message back to the lower courts and
Boards of Adjustment; “You have to look at the reasonableness at the proposal before you”. He expressed
his concern of the rational that there may be other uses that may be more reasonable. He urged the Board
to not have that be part of their rational to reject the proposal. The Board must judge to look at the
reasonableness of the idea, in the context of the land that it is working in. Do not reject this because you
think there are more reasonable uses. Have some other grounds for it.

Member Crapo stated that at the first meeting he had mentioned the two mansion alternative. As he had
stated earlier, he believes combining the Master Plan, as well as, the charge to the Spirit of Zoning, he is not
considering the alternatives; he is considering the changes that were made making one acre zoning and
making density issues to the forefront. He feels that is where his decision is being based.

Member Nadeau replied that the way he looks at it, the Board needs to apply the Boccia versus City of
Portsmouth test, the second prong; the benefits sought cannot be achieved by some other method
reasonably foreseeable for the Applicant to pursue other than an Area Variance. In the same holding, the
Court remanded, based on the economic factor. This was asserted in the first meeting. He commented
that they want to maximize the dollar value they can get for this property. He continued that he is not
saying, by not being in favor of this project that he would not be in favor of any condominium conversion
on the property. Why not 2 or 3 units? He does not feel that they have satisfied the test of Boccia versus
City of Portsmouth. However, he does agree with Vice-Chair King that redevelopment of the property is
needed.

Member Jarvis stated that he could not answer the question, “The benefit sought by the applicant cannot
be achieved by some other method reasonably feasible for the applicant to pursue other than by the
requested Area Variances”, if he does not consider the other methods.

Member Nadeau commented that those are the guidelines that you follow. He agrees with Member Jarvis.

Member Crapo commented that the Board is trying to decide what the benefit the Applicant is seeking. No
one has stated it. The Board has not analyzed that. He also commented that, a course he has taken on
Zoning Law instructed that you could lose or win cases at the Supreme Court, as you argued zoning, if it was
not supported by the Master Plan of the Town. The Master Plan of the Town has intense bearing on
whether or not a zoning piece is enforceable.

Chairman Drake stated that the question that they use is, “The benefits sought by the Applicant cannot be
achieved by some other method reasonably feasible for the Applicant to pursue, other than by the
requested variances”. He commented that this is a judgment call. He pointed out that this is a permitted
use of the land. It’s not in a commercial zone. It is a business district, any use that is permitted in a
residential district is allowed. He also commented that the Board needs to keep objective not subjective,
with an eye on the Zoning.

Attorney Loughlin requested to speak to the Board.

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                                                                                    April 8, 2009 see minutes of
                                                                           May 6, 2009 for corrections/approval




Chairman Drake reopened the public session.

Attorney Loughlin spoke in reference to Member Nadeau’s concerns about the financial hardship test. He
stated that the financial hardship can be addressed and that the Applicant has satisfied that. He offered
testimony to the Board.

Vice Chair King stated that the testimony should be heard, otherwise, it will come in for a Motion for
Rehearing.

Chairman Drake stated that he would allow public testimony strictly on the question, “The benefit sought
by the applicant cannot be achieved by some other method reasonably feasible to the applicant to pursue,
other than by the requested variances”.

Attorney Loughlin stated that the benefit that the Applicant is seeking is to develop the four units of
housing on each side of the road. The reason the Vigeant and Malachy Glen case were cited was because
the Court found that if you had to reduce the project by 50% to comply with the Wetlands Ordinance that
in itself would be a financial hardship. He continued that in this case, the project that is being presented
results in a reduction greater than 50%. He stated that after the Boccia case, the Court decided to return
and said that;”What we meant to say in Boccia was , that you had to consider the application before you
and the unnecessary hardship, the financial difficulty, financial problem, financial disincentive, if the
variance could not be granted”. That is the case here. The effect on this property’s value, without a
variance is dramatic. He commented that the 13 unit facility, which was shown to the Board, was not
pursued because they felt it did not meet the other tests for reasonableness. They felt that the 4 units on
either side were in keeping with the neighborhood. There is no question that if this proposal had to be cut
in half, it would cause a financial hardship to the Zechel family.

There was discussion on the Vigeant and Malachy Glen case in relation to the hardship test.

Member Nadeau addressed Attorney Loughlin stating that on 160 Harbor Rd., South lot, it was submitted
that the assessed value for that one piece of property is three hundred and ten thousand dollars.
Speculation is that you will be able to get between 1.5 to 1.7 million dollars per unit. There is no way a
court would say that if the Board denies that they would be financially harmed.

Attorney Loughlin responded that the assessed value on that property is artificially low, as compared to
other properties on Harbor Road, based on the fact that it was assessed on the income basis.

Member Crapo stated that he can’t help but think; does the Zoning Ordinance intend to have 8 units on
that size lot? He feels that is what is before the Board. Is it the Spirit of the Ordinance?

Attorney Loughlin responded that the Spirit of the Ordinance has to apply to the entire Town of Rye. The
job of this Board is to deal with the application of the Ordinance to this particular piece of property. When
you apply it to this particular piece of property, it is a reasonable application.

Member Jarvis stated that his concern is not the profit that would be made on the project, but the effect it
has on the neighborhood and the Town and are there any alternative paths. The development of a
condominium development may be the best way to go.
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                                                                                       April 8, 2009 see minutes of
                                                                              May 6, 2009 for corrections/approval




Vice Chair King expressed that he is starting to follow Member Nadeau’s point. The cases that you cited do
not support the proposition that with any project, if you cut it in half, automatically it’s a financial hardship
by a matter of law. He asked why the project would not be viable if there were three structures on each
lot.

Attorney Loughlin responded that it is a question of what can be done reasonably and financially. The
expense to develop a site, such as this, to take away 25% on each side would make this financially very
difficult. You have to consider at what point it is feasible to go through the process of development. He
stated that the decision made by the Developer was that four units would justify purchasing the property.

Mr. Nadeau, the Developer, explained that the proposed assessed values are potential values once the
units are built. He has no guarantee that he will build a unit. A buyer could have a unit constructed by
another builder. That is profit he does not see. The profit he makes on the project is two units if he sells
the pads. He continued that he has incurred costs in the past six months. He has the costs of going before
the Board and the Planning Board, the permits, the carrying cost once the property is obtained, the
infrastructure costs, the risk factor and the cost of the land. It would take three hundred a square foot cost
to construct the units. He feels that Attorney Loughlin presented his financial burden.

Tom Kane, 241 Washington Road, stated that he does not understand how the Board can say that you have
to look at a project and you can’t reduce the number of units or look at options about units. Anyone can
design a project to require a certain number of units for it to be financially feasible.

Attorney Tim Phoenix, on behalf of the property owners, read from the Malachy case: “The ZBA may
consider the feasibility of the scaled down version of the proposed use, so it must be sure to also consider
whether the scaled down version would impose financial burden on the land owner. This factor examines
whether there is a reasonably feasible method or methods of effectuated proposed use without the need
for variances”. The issue of burden has been adequately addressed. Four units are in keeping with the
density of other homes in that area. There are setback variances; however, the restaurant is closer than
the proposed project. The septic system and other environmental issues will be made better by this
project. There will be better shore land protection. There will be far less traffic by hundreds of trips per
day. There will be less noise, less smells, etc. He summarized by saying that while the financial impact is a
factor it is not the factor. You need to take the financial aspect and wrap it around in comparison to what is
there and what is in the neighborhood. On an overall basis this is a reasonable project.

Hearing no further comments, Chairman Drake closed the public hearing.

Chairman Drake stated that he wanted to make it very clear that the proposal would be conditioned with
the layout, the elevations, floor plans, engineering drawing, site plan and the environmental setback lines.

Vice Chair King stated that Attorney Phoenix did an excellent summary of presenting the property’s virtues.
He is satisfied with Mr. Nadeau’s answers. He feels they have struck a balance. He does not see any
negative impact with the project. He continues to support the project. He feels that the Applicant’s
explanation as to why there are 4 on each side as opposed to a smaller number was very persuasive.




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                                                                                    April 8, 2009 see minutes of
                                                                           May 6, 2009 for corrections/approval




Member Jarvis stated that the project seems to be reasonable given the improvements in the land and how
the land is used. He is not convinced that a better alternative exists. He would tend to support the project
at this time.

Member Crapo explained that he is still considering the Spirit of the Zoning and the changes made to the
zoning, to get away from the concept of in keeping with the area. He feels the voters of the Town have
made changes to move away from some of the existing layouts and structures.

Vice Chair King responded that in the Supreme Court case, Belanger versus City of Nashua, one of the
factors to determine whether or not to grant variance relief, is whether the proposed relief is consistent
with the character of the neighborhood.

Chairman Drake agreed that how a proposal fits in the neighborhood, in the context of the surroundings, is
a critical component of its success or failure.

Member Nadeau feels that the applicant has not met the burden to show that there is no other reasonably
foreseeable alternative.

Chairman Drake requested the Board to vote on all of the variances requested as a bundle. All questions
will apply to every variance.

Chairman Drake asked the Board:

        1.   Could the variances be granted without diminishing the value of abutting properties?

                        Ben King – Yes
                        Jay Nadeau – No
                        Shawn Crapo – No
                        Ray Jarvis – Yes
                        Frank Drake – Yes

        2.   Would granting the appeal not be contrary to the public interest?

                        Ben King – Yes
                        Jay Nadeau – No
                        Shawn Crapo – No
                        Ray Jarvis – Yes
                        Frank Drake – Yes

        3. Would granting the permit do substantial justice?

                        Ben King – Yes
                        Jay Nadeau – No
                        Shawn Crapo – No
                        Ray Jarvis – Yes
                        Frank Drake – Yes
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                                                                                 BOA Draft minutes of
                                                                          April 8, 2009 see minutes of
                                                                 May 6, 2009 for corrections/approval




4. Could the variances be granted without violating the spirit of the ordinance?

               Ben King – Yes
               Jay Nadeau – No
               Shawn Crapo – No
               Ray Jarvis – Yes
               Frank Drake – Yes

5. Are there special conditions affecting the property?

               Ben King – Yes
               Jay Nadeau – No
               Shawn Crapo – Yes
               Ray Jarvis – Yes
               Frank Drake – Yes

6. If so, are the variances needed to enable the applicant’s proposed use of the property given
   the special condition?

               Ben King – Yes
               Jay Nadeau – No
               Shawn Crapo – No
               Ray Jarvis – Yes
               Frank Drake – Yes

7. The benefit sought by the applicant cannot be achieved by some other method reasonably
   feasible for the applicant to pursue other than by the requested variances?

               Ben King – Yes
               Jay Nadeau – No
               Shawn Crapo – No
               Ray Jarvis – Yes
               Frank Drake – Yes

8. Therefore, are there special conditions which exist that the literal enforcement of the
   ordinance results in unnecessary hardship?

               Ben King – Yes
               Jay Nadeau – No
               Shawn Crapo – No
               Ray Jarvis – Yes
               Frank Drake – Yes




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                                                                                         BOA Draft minutes of
                                                                                  April 8, 2009 see minutes of
                                                                         May 6, 2009 for corrections/approval




Motion made by Vice-Chair, King, to approve the application of Rye Harbor Realty, LLC to variances as
advertised pertaining to property located at 160 Harbor Road, Map 9.2, Lot 20, and property located at
175 Harbor Road, Map 9.2, Lot 22, the Zoning Board granted all the variances for all parcels as a bundle.

The variances are granted subject to the following conditions:
        Substantial construction must begin on both 160 Harbor Road parcel and the 175 Harbor Road
parcel within one year, or the applicant will have to seek relief from the Board.
        The construction must be completed pursuant to the architectural drawings submitted April 8,
2009, pertaining to unit N1, N2, N3, N4, S1, S2, S3, and S4.
        The condominiums must be constructed pursuant to condo site plan A and B, prepared by Altus
Engineering dated April 3, 2009 and submitted April 8, 2009.
        The condominiums must further be constructed pursuant to condo four, floor plan A1, A2, A3,
A4, A5 and A6, prepared by Altus Engineering dated April 3, 2009.

The variances are also subject to the following conditions:
        1. All conditions set forth, in the document marked, Possible Stipulations and Conditions,
           submitted by Attorney Loughlin on behalf of the applicant and made a part of the record.
        2. The construction must fully comply with the, Summary of Impacts of Proposal, submitted
           April 8, 2009 and made a part of record. In addition to the condition set forth, in the
           Summary of Impacts of Proposal, the pavers for the property must be permeable.
        3. The applicant agrees that the property once constructed will not be allowed for rental
           purposes where the rental is for the duration less than six months in length.

Seconded by Member Jarvis.

Motion passed. Vote 3 to 2. Jay Nadeau and Shawn Crapo opposed.

Motion made by Jay Nadeau to adjourn at 10:04 pm. Seconded by Ben King. All in Favor.



Respectfully submitted by,
Dyana F. Ledger




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