ZONING BOARD OF ADJUSTMENT
Town of Greenland  Greenland, NH 03840
575 Portsmouth Avenue  PO Box 100
Phone: 603.431.7111  Fax: 603.430.3761
Website: greenland-nh.com
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MINUTES OF THE BOARD OF ADJUSTMENT PUBLIC HEARING
Tuesday, October 16, 2012 – 7:00 p.m. – Town Hall Conference Room
Members Present: Lizbeth Cummings, Brian Hutchinson, John Samonas
Members Absent: Chair Chris Halligan
Late Arrival: Ron Gross (7:10 p.m.)
Staff: Myrick Bunker – Building Inspector
Vice Chair Samonas opened the Board of Adjustment meeting at 7:00 p.m. and a roll call was taken. The
Vice Chair announced the procedures of the Zoning Board of Adjustment, stating that a quorum was
present and the meeting was being recorded.
Vice Chair Samonas explained to the applicants that although three (3) ZBA members were present,
another member was going to be late. He continued that with three (3) members present, applicants
would need a unanimous decision from the Board; it would be the applicant’s decision if they wanted to
be heard, or wait for the additional member to arrive.
NOTE: Approval of the minutes was done prior to the first hearing. The applicants for 49 Sleepy Hollow
opted to wait for the arrival of the additional ZBA member.
1. Application for a Variance: 10-12 Fish and Game Road [Map U5, Lot 26], Zoning – Commercial A
Article XVIII, Section 18.7, Subsection 18.7.2 of the Zoning Ordinance
Owner/Applicant: Jeff Apsey
Owner/applicant is seeking a Variance to remove an existing non-conforming building and construct
a new building that is partially within the 75’ wetlands setback.
Mr. Apsey addressed the Board, explaining a small corner of the proposed building is located in the
wetlands setback. He stated that he could get a permit to rebuild the building that was destroyed by
fire, but also wanted to remove the non-conforming building and create one structure. Mr. Apsey
informed the Board that if they denied his request, he would be forced to rebuild in the location of the
building that burned. He continued that based on the way the property currently exists it is completely
non-conforming.
It was Mr. Apsey’s feeling that the proposed structure would benefit the abutters because it would be
further away from them, providing a greater buffer. There would also be a benefit to the environment
because it would be further away from Rt. 33 and the wetlands, and he would not be building in the
water table. He felt it made sense to combine the buildings and build a single structure that would be
more conforming. Mr. Apsey also stated that the existing structure is unsafe—the foundation is
collapsing due the amount of water in the area.
Mr. Apsey closed the review of his application, stating that it was Board’s decision to either have him
rebuild a non-conforming structure, which is what he would be forced to do if the variance were denied;
Board of Adjustment Public Hearing Minutes - Page 1 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
or grant him the variance and allow him to bring it into greater conformity. He continued that if he were
forced, he could make the proposed building a little smaller.
Vice Chair Samonas asked Mr. Gross, late arrival, if he had heard enough of the discussion to make a
decision. Mr. Gross as well as other Board members agreed he had heard the majority of the
presentation.
Vice Chair Samonas opened the meeting to public comments. Matt Berkowitz, 6 Fish and Game Road,
asked about the intended use of the building. Mr. Berkowitz is responsible for maintaining the
driveway; his main concern was the traffic up and down the driveway. Mr. Apsey responded it would be
used for dry storage of construction vehicles, equipment and tools. In addition, there would be power
to the building and possibly water from a hose. There will be no rentals or office on site. Mr. Apsey was
unsure of the hours of operation; the hours varied when he would be dropping equipment off at the
building.
Frank Hansler, 542 Portsmouth Avenue, asked what the building would look like. Vice Chair Samonas
explained that the Zoning Board did not have architectural control; the more detailed plans would come
under the purview of the Planning Board. What was before them was a variance for the placement of
the building. Mr. Hansler gave the Board a history of the parcel. He concluded by stating he had
tremendous reservations about the property due to the water table.
Vice Chair Samonas asked if there were any other comments. There being no further comments, he
closed the public hearing and returned to the Board for discussion. Mrs. Cummings stated that had this
been a lot of record as of March 12, 2002 (adding that part of the Zoning Ordinance needs to be
addressed), the applicant would be requesting a special exception and not a variance. Mr. Gross asked
why the building was being relocated to the proposed location. Mr. Apsey responded that the current
location was non-conforming. The proposed structure will be on a slab on top of crushed stone,
approximately 4’ in depth. Mr. Gross suggested changing the size of the building to fit within the
footage and he would not need a variance. The Building Inspector agreed; Mrs. Cummings disagreed.
She agreed that Mr. Apsey could rebuild what had burned down, and if the other building fell down, he
could rebuild that. However, the deed states it’s a non-buildable lot. Mrs. Cummings did not object to
what Mr. Apsey was planning, but felt the building could be done within the footprint by resizing.
MOTION: Mrs. Cummings moved to deny the variance as requested by Mr. Apsey to construct a new
building, located at 10-12 Fish and Game Road, partially within the 75’ wetlands setback. Seconded –
Mr. Gross.
DISCUSSION: Vice Chair Samonas clarified that the Board was not making any determination based on
the definition in the deed, but the existing hardship to allow a small portion of the proposed building
outside the building envelope. He agreed that with a small change in the size, Mr. Apsey would not need
to be before the Board.
Mrs. Cummings reviewed the criteria for the Board:
1) Granting the variance would not be contrary to the public interest: The major concern was that there
are other uses. The public interest is to try and allow owners to do what they want within the
ordinance.
2) The spirit of the ordinance is observed: Although the applicant is trying to use the land the way it
should be as well as trying to get the proposed building into conformity within the setbacks, there
are other ways.
Board of Adjustment Public Hearing Minutes - Page 2 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
3) Granting the variance would do substantial justice: Granting the variance may cause problems for
the people adjacent to the lot if water were brought to that parcel, and there are other ways to
accomplish this.
4) The surrounding property values will not be diminished: Property values would be diminished; even
though it is now a commercial zone, there are still houses within the area; having a great deal of
traffic in and out might cause a decrease.
5) Hardship: There is nothing unique about this property that says there cannot be a 2,500 square foot
building. There is a very large area that can used to meet the requirements and be away from the
wetlands and setbacks. As a result, there is nothing about this piece of property that would create a
hardship.
6) Use: The use is reasonable within the commercial zone.
MOTION: Mrs. Cummings moved to deny the variance as requested by Mr. Apsey to construct a new
building, located at 10-12 Fish and Game Road, partially within the 75’ wetlands setback. Seconded –
Mr. Gross; all in favor. MOTION CARRIED
2. Application for a Special Exception: 49 Sleepy Hollow [Map R6, Lot 26A]
Article XVIII, Section 18.7, Subsection 18.7.2 of the Zoning Ordinance
Owner/Applicant: Scott Baker
Owner/applicant is seeking a Special Exception to construct a 24’ x 30’ garage within the 50’
wetlands setback.
Jamie Long, GCA Geo Environmental (formerly NH Soil Consultants), representing the owners, addressed
the Board. Mark Taylor, their builder, was also present. They are proposing to build a barn/storage area
within the setback. The completed project will be within 18’ of the edge of wet, and approximately 35’
away from a potential vernal pool located on the property. A building permit was granted before the
potential issue with wetlands was discovered. Mr. Hutchinson stated that he walked the property, and
it was dry and tough to find water.
The barn, used for storage, will be a single story structure with storage trusses; there will not be a paved
driveway. In addition, there will be power in the barn, but no water.
The applicant distributed revised plans to the Board. Vice Chair Samonas thanked the applicant for
providing plans that were clearer.
Mr. Gross commented that there was no soil scientist stamp on the plans, which is not required by the
Board at this time. Mr. Long is also a NH Wetlands and Soil Scientist; he will stamp the copy of the final
plans. Mr. Gross was concerned that the play area was not moved to the center of the property. The
applicant explained that they don’t want to remove the trees in that area, which are red oaks.
Addressing Mrs. Cummings about the vernal pool, Mr. Long stated that he did the original delineation of
the subdivision, and that the vernal pool was not manmade. Had it been manmade, the applicant would
not need to request a special exception.
Vice Chair Samonas opened the hearing to public comments. There being none, he closed the public
hearing and returned to the Board for discussion. Mr. Hutchinson stated that he had walked the
property. In order to move the play area, it would have to be closer to the deck and you would have to
remove the trees. Mr. Gross commented that the Board had come up against tougher cases before and
had to deny requests. It was his feeling that there were options available to the applicant. Mrs.
Cummings reminded him that this is a special exception. If the applicant were requesting a variance, it
would not be granted. The special exception is an easier requirement for approval and the applicant
Board of Adjustment Public Hearing Minutes - Page 3 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
doesn’t have to show hardship. In addition, one of the requirements it meets is to be a lot of record as
of March 12, 2002.
MOTION: Mrs. Cummings moved to grant the special exception to construct a 24’ x 30’ barn within the
50’ wetlands setback as shown in the drawing dated October 9, 2012, Project No. 12021, subject to
stamping by a certified wetland scientist. Seconded – Mr. Hutchinson.
DISCUSSION: Vice Chair Samonas stated that because the request is for a special exception, the request
is not an unreasonable one. The wetland is not obvious and the pond is closer to the road. Therefore,
this is a reasonable request and the appropriate location for a barn.
1)
2)
3)
4)
The property is an official lot of record as of March 12, 2002.
The barn should not be too close to the side property line.
Building the barn within the jurisdictional wetland setback area meets the requirement.
To build the barn would not be economically feasible without cutting down the trees.
disturbance will not be more than 3,000 square feet.
The
MOTION: Mrs. Cummings moved to grant the special exception to construct a 24’ x 30’ barn within the
50’ wetlands setback as shown in the drawing dated October 9, 2012, Project No. 12021, subject to
stamping by a certified wetland scientist. Seconded – Mr. Hutchinson; three (3) in favor, one (1) against
(Mr. Gross). MOTION CARRIED
3. Application for Variance: 47 Newington Road [Map U9, Lot 73]
Article XVIII, Section 18.7.1, Subsection “A” of the Zoning Ordinance
Owners: Carol Dane, Paula Estabrook
Applicant: Gary Flaherty
Owners and applicant are seeking a Variance to permit a septic system within the 75’ wetlands
setback in a Jurisdictional Wetland area.
Gary Flaherty, representing the owners, addressed the Board. They are requesting relief from the 75’
setback to 60’ for a leach field. He stated that prior to the Town Meeting in March, all setbacks went by
the State requirements of 50’. There is an in-ground pool on the property; State setbacks are 35’ to an
in-ground pool from a leach field. The system has failed and is leaking some effluent. The existing leach
field is a dry well; the new system will be a pump system, and will be 3.5’ out of the ground finished
grade. Mr. Flaherty has stamped the plans as a certified designer, allowing him to do wetlands
delineation. The tank will be a new 1,600 gallon tank with a 500 gallon pump chamber and 2” line into
the D box, stone and pipe system.
Vice Chair Samonas opened the hearing to public comments. There being no further comments, he
closed the public hearing and returned to the Board for discussion. The house is currently two (2)
bedrooms, but the owners are considering increasing to three (3); load calculations support this. There
is city water at this location.
There was concern among the Board members of placing a septic system in the buffer zone, which is
very different than a building that does not store hazardous material. Greenland has one of the largest
aquifer protection zones. The issue is placing a septic system within the buffer on a lot that drains to the
bay. Suggestions from the Board included making the system longer and narrower, or going smaller to a
two (2) bedroom system.
Board of Adjustment Public Hearing Minutes - Page 4 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
Vice Chair Samonas allowed discussion from Paula Estabrook and Carol Dane, owners. They told the
Board that they would be giving up their gardens to install a new septic system and hired an engineer.
There is 1.5 acres of land, some of which borders the wetlands. They would be willing to go back to a
two (2) bedrooms in order to prevent the septic going into the buffer zone.
Vice Chair Samonas questioned Mr. Flaherty about a waiver from the State’s 35’ requirement. Mr.
Flaherty responded that the owner did not show a hardship and a waiver would not be granted. Vice
Chair Samonas also asked if there was anything that could be done to make the leach field more
protected. Mr. Flaherty stated that the 35’ vegetated buffer strip at the rear of the property would
remain undisturbed. The Board suggested that the system be moved 15’ closer to the pool. The system
would be 40’ from the pool and still meet State requirements.
MOTION: Mr. Gross moved to deny the application for a septic system within the 75’ wetlands setback in
a Jurisdictional Wetland area. Seconded – Mrs. Cummings.
DISCUSSION: The Board felt that the septic system could be moved to a reasonable space. The owners
are attempting to take a bad situation and make it better. This could be done meeting the requirements
of the ordinance.
1) Granting the variance would not be contrary to the public interest: When the residents voted in
March 2012, they clearly said they wanted a 50’ or 75’ setback, depending on the type of wetlands.
The system is doable outside the 75’ setback.
2) The spirit of the ordinance is observed: Denying the request will keep the septic system out of the
wetland setbacks, which is in the ordinance.
3) Granting the variance would do substantial justice: The septic system is doable without a variance.
4) The surrounding property values will not be diminished: They won’t be diminished, but will be
improved due to a working system.
5) Hardship: The Board realizes there is a failed system. There are systems available that would meet
the requirements. Moving the location is also an option.
MOTION: Mr. Gross moved to deny the application for a septic system within the 75’ wetlands setback in
a Jurisdictional Wetland area. Seconded – Mrs. Cummings; three (3) in favor, one (1) opposed (Vice Chair
Samonas). MOTION CARRIED
4. Application for a Variance: 1407 Greenland Road [Map R21, Lot 45], Zoning – Commercial C
Article IV, Section 4.3, Subsection 2 of the Zoning Ordinance
Owner/Applicant: AmeriGas Propane LP
Owner/applicant is proposing to expand the pre-existing building to include a 23’ x 25’ addition
within the 75’ setback from the State right-of–way.
Nick Holmes, attorney from Nelson Kinder and Mosseau, Brad Hughes, AmeriGas District Manager, and
Dave Emanuel, Emanuel Engineering, were present. Attorney Holmes addressed the Board. The
present building was originally constructed in 1978 and is a gateway property into Town—it’s one of the
first things people see as they enter Greenland from Portsmouth. The only major change in the
property since 1996 was the relocation of the driveway. The proposed addition will be in the area of the
old driveway. Attorney Holmes continued that this is part of a major renovation for an old, tired
building, which is an eye-sore. They’re hoping to make it more attractive for all involved.
Board of Adjustment Public Hearing Minutes - Page 5 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
Mr. Emanuel explained that they had met with the Building Inspector and Circuit Rider. A building
permit could not be issued due to the lot being a non-conforming space. A brief discussion regarding
parking took place. The new square footage of the building would increase the required parking spaces.
The leach field is located on the Portsmouth side of AmeriGas; they are interested in connecting to the
forced main that runs across the front of the property. They will not need to increase the size of the
leach field: the present one is designed for 1,000 gallons per day. The leach field, which is the original, is
designed to be a 30’ x 75’ butterfly system.
Mr. Hughes explained the intention of the expansion is for storage space of files and supplies. Right
now, they are storing files on the warehouse dock. Mr. Hughes indicated he will also be adding staff and
drivers due to a recent acquisition and merging of district offices. There will be no demolition of the
present building; they will be adding a “new face” to the existing building.
Mrs. Cummings asked if Division VI had been contacted about the proposed changes. Mr. Emanuel
explained they were on AmeriGas property. Mrs. Cummings had a conversation with a representative in
Division VI earlier in the day; she suggested to Mr. Emanuel that he may want to touch base with
Division VI if the variance and special exception were granted.
Mrs. Cummings deferred to the Building Inspector regarding the denials based on Article XVIII.
AmeriGas was given two (2) denials for the wetlands on the northerly side and southern side; only one
denial was addressed. Mr. Emanuel explained that the wetlands were contiguous, which was not clearly
indicated on the drawings reviewed by the Building Inspector. The lot is 3.8 acres in size between
Greenland and Portsmouth, and is bounded by a 17-19 acre parcel to the north owned by Fliteline
Sunoco. The area is surrounded by wetlands.
Mr. Emanuel stated that the addition will be built on existing pavement. The pavement plan has not
been finalized; they are proposing a net decrease impervious. The intent is to remove a portion of the
pavement and improve the parking; it was suggested by Mrs. Cummings that the Planning Board would
help with this part of the plan.
Attorney Holmes stated that the addition would be perfectly in line with the existing building. The new
building will be metal, but the front roof line will be raised. They will essentially be screwing new metal
skin over the existing skin.
Vice Chair Samonas opened the hearing to public comments. There being none, he closed the public
hearing and returned to the Board for comments. Mr. Gross stated that he would rather see the
addition go out rather than up.
MOTION: Mrs. Cummings moved to grant the variance to Section 4.3, Subsection 2 of the Zoning
Ordinance to allow the expansion of the pre-existing building to include a 23’ x 25’ addition within the
75’ setback from the State right-of–way, as outlined on the Emanuel Engineering Project No. 12-085,
revised September 25, 2012. Seconded – Mr. Gross.
DISCUSSION: Mrs. Cummings stated that when she initially reviewed the AmeriGas information, she was
very negative to this application. She thought it was a State requirement to be 75’ away from the line;
this is a Town requirement. She continued that this property is perfectly in tuned within the setback.
Board of Adjustment Public Hearing Minutes - Page 6 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
1)
2)
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4)
5)
Granting the variance would not be contrary to the public interest: The existing building is less than
beautiful. The applicant should not be penalized because the Town decided on a 75’ setback after
the existing building was in place.
The spirit of the ordinance is observed: The building should not be on top of things, especially a State
road, because the State has the ability to extend the roads. Thus, the reason for the 75’
requirement.
Granting the variance would do substantial justice: This has been discussed, and there is no reason
why the space can’t be used.
The surrounding property values will not be diminished: The surrounding properties are probably in
the same conditions and setbacks as AmeriGas.
Hardship: If the special conditions were followed, it would create an unnecessary hardship. This is a
unique piece of property with a building on it, and surrounded by wetlands. Regardless of where
the building is located, it would be within the setbacks. The proposed use is reasonable.
MOTION: Mrs. Cummings moved to grant the variance to Section 4.3, Subsection 2 of the Zoning
Ordinance to allow the expansion of the pre-existing building to include a 23’ x 25’ addition within the
75’ setback from the State right-of–way, as outlined on the Emanuel Engineering Project No. 12-085,
revised September 25, 2012. Seconded – Mr. Gross; all in favor. MOTION CARRIED
5. Application for a Special Exception: 1407 Greenland Road [Map R21, Lot 45], Zoning – Commercial C
Article XVIII, Section 18.7, Subsection 18.7.2 of the Zoning Ordinance
Owner/Applicant: AmeriGas Propane LP
Owner/Applicant is proposing the addition of a 23’ x 25’ structure to the pre-existing one-story
building, which is located entirely within the 75’ setback from Inland Jurisdictional wetlands.
Attorney Holmes did not wish to speak to the special exception as many of the points had been covered
in the previous discussions. He did ask to go on the record that as a condition of approval they would
agree to cut back the pavement significantly to increase the buffer zone.
MOTION: Mr. Gross moved to grant the special exception as requested by AmeriGas Propane LP, 1407
Greenland Road, from Article XVIII, Section 18.7, Subsection 18.7.2 of the Zoning Ordinance, allowing
them to add a 23’ x 25’ structure to the pre-existing one-story building, which is located entirely within
the 75’ setback from Inland Jurisdictional wetlands. Seconded – Mrs. Cummings.
DISCUSSION: The Board would like a minimum of 575 sq. ft. of impermeable surface removed. They are
also requesting vehicles no longer drive around the building, there be no further expansion and trucks
are not allowed to park on the left hand corner of the building. The situation that is now incorrect
should be improved to protect the bog.
AMENDED MOTION: Vice Chair Samonas moved to amend the motion to add “the applicant must
remove a minimum of 575 square feet of pavement”. Seconded – Mrs. Cummings.
DISCUSSION: There must be a substantial improvement to the property.
AMENDED MOTION: Vice Chair Samonas moved to amend the motion to add “the applicant must
remove a minimum of 575 square feet of pavement”. Seconded – Mrs. Cummings; all in favor MOTION
CARRIED
AMENDED MOTION: Mrs. Cummings moved to further amend the motion to add “the special exception
is granted for any and all wetlands on the parcel”. Seconded – Mr. Gross.
Board of Adjustment Public Hearing Minutes - Page 7 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.
DISCUSSION: The amended motion will cover the two (2) denials issued by the Building Inspector for all
the wetlands on the entire parcel, where only one (1) denial was addressed.
AMENDED MOTION: Mrs. Cummings moved to further amend the motion to add “the special exception
is granted for any and all wetlands on the parcel”. Seconded – Mr. Gross; all in favor. MOTION CARRIED
DISCUSSION: Mrs. Cummings reviewed the criteria.
1.
2.
3.
4.
5.
6.
7.
There will be no hazard to the public or adjacent lots.
There will be no detriment to the property, however, parking may need to be tweaked.
There will be no greater demand on municipal services.
There will be no increase in stormwater runoff due to the amendments.
The property was a lot of record as of March 12, 2002.
This is not a prohibited use; it is an addition to a commercial building.
The proposed design and use is well within the requirements.
AMENDED MOTION: Mr. Gross moved to grant the special exception as requested by AmeriGas Propane
LP, 1407 Greenland Road, from Article XVIII, Section 18.7, Subsection 18.7.2 of the Zoning Ordinance,
allowing them to add a 23’ x 25’ structure to the pre-existing one-story building, which is located entirely
within the 75’ setback from Inland Jurisdictional wetlands. The applicant must remove a minimum of 575
square feet of pavement. The special exception is granted for any and all wetlands on the parcel.
Seconded - Mrs. Cummings; all in favor. MOTION CARRIED
11. Approval of Minutes: Tuesday, September 18, 2012
MOTION: Mrs. Cummings moved to accept the minutes of Tuesday, September 18, 2012. Seconded –
Mr. Hutchinson; all in favor. MOTION CARRIED
12. New Business
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ZBA Application: Revisions to the application were discussed.
MOTION: Mrs. Cummings moved to approve the ZBA applications as presented. Seconded – Mr. Gross;
all in favor. MOTION CARRIED
13. Adjournment
MOTION: Mrs. Cummings moved to adjourn at 9:33 p.m. Seconded – Mr. Hutchinson; all in favor.
MOTION CARRIED
NEXT MEETING
Tuesday, November 20, 2012 – 7:00 p.m., Town Hall Conference Room
Respectfully Submitted: Charlotte Hussey, Secretary to the Boards
Approved: November 20, 2012
Board of Adjustment Public Hearing Minutes - Page 8 of 8
Documents used by the Zoning Board of Adjustment during this meeting are on file with the original minutes.