City of Portsmouth, New Hampshire Board of Adjustment, 15 Feb 2022

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2.15.2022 Board of Adjustment

A

I think if they were wise, they would have excuse me good evening. Everyone.

B

Welcome to the first meeting of the month for the board of adjustment in portsmouth.

B

We have a miscellaneous schedule this evening. I have a an announcement first in case of its.

B

Abuse to anybody uh right off the bat here and that that the 53 green street project, which is.

B

On our agenda for this evening will not be heard this evening because it is on hold.

B

Not withdrawn not postponed it's on hold because the parties have agreed amongst themselves to.

B

Take it to court that doesn't mean it can't come back to this board, which it may so. I would.

B

Recommend that all of us on the board keep all the materials that we've uh assembled over the months.

B

uh Just in case, that is the outcome, but uh as as of right now it's on on hold, so I apologize.

B

For the late notice, but mr sith gave me the lotus as quickly as he could this afternoon.

B

And uh that's that's where we are on that particular item. So moving on to the items on the.

B

Other items on the agenda. The first item is the election of a vice chair and uh I'd, be open to.

B

Nominations, ms eldridge, I would like to nominate jim lee. He has experience his life is property.

A

Land real estate- and I think he would be a very good coach here- all right. Thank you. Is there a.

B

Second, to that sucker. Thank you second, thank you, mr mantle. Is there are there any other.

B

Nominations any other nominations, apparently not. Okay. Nominations are closed. uh We'll take a a vote.

B

On that election I'm gonna pass on mr lee, but accept the nominee it was grinning. I took that.

B

Is that is that a yes I'll be shameless and vote for myself? Thank you. Thank you, mr ross. I vote for.

B

Miss eldridge, yes, miss rogerson. Yes, mr mantle, yes and I vote yes as well. Thank you and thank.

B

You thank you, mr lee greetings. Take on that on the challenge here: okay,.

B

So moved some done and the good news is you're going to get to sit in the chair.

B

Just so little heads up very soon this evening.

B

Okay, the next item of business- and I guess before we do this- I should announce the general.

B

Ground rules- oh good, mr mcdonald's, here. Thank you good.

B

The way we conduct our business is that the applicant presents to the board.

B

The board comments on it ask questions: if necessary, we open the public hearing, the.

B

Speakers in favor speak first, the speakers against speak next and then we have.

B

Then we have a call for two for or against and uh then the hearing is closed and we take a boat.

B

Now we ask that the presenters limit themselves to 15 minutes.

B

And if necessary, ask that that isn't sufficient. We ask them to request an additional five minutes.

B

Before they begin to speak, that's important and the book and the vote and excuse me the board.

B

Will vote that request up or down? uh Secondly, when other speakers come up, two four are against.

B

I mean excuse me four and four are against. We ask them to make their comments within five minutes.

B

And then, when we get to the two four are against, which is the last round. We.

B

Don't have a time limit, but we asked people to be conscious of uh everyone's time and and stick.

B

Strictly to the main points of the argument, and if it strays too far off I'll, have to ask you to.

B

Wrap up your comments within a couple of minutes, so that's how we that's how we do things and I'd.

B

Like to ask mr stith, if he would uh address the zoom aspect of our meeting, mr smith, sure.

B

Thank you um for those participating on the zoom call. If you would like to speak to an application.

C

First, wait till the public comment portion of the meeting is before us and then you can use the.

C

Raise hand icon on the zoom feature to indicate that you would like to speak and wait for the.

C

Chair to call on you- and we will unmute you, so you can make your comments. Thank you very much.

B

Okay, excuse me uh having having done that. Let's, like let's move to the second item on the agenda.

B

Which is the approval of minutes of the last meeting, which was january 18 this year? 22.

B

Do we have any comments, corrections questions about those minutes any and if not, I have one.

B

Philly minor, oh I'm sorry miss madison. Yes, yes, it says that the it references this meeting is.

D

Being held on february, 2nd 2022., so yes thank you and um other than wanting to make my sound.

D

Yourself, sound more articulate than I am, I think that's the only correction.

C

It's like yikes.

B

Anybody else I hit okay, I had I had one picky comment and it's on page sixth, the uh in the.

B

Third, paragraph down the second, uh the third to the last line, the last word in the and this.

B

Was this is from mr rossi? I believe uh the word relegated doesn't seem to fit within that sentence.

B

Mr rossi dude, can you get it? Can you get what I'm pointing at and tell us what what I don't think.

B

That was probably the word you used. I did not use that word um of course, at this point in time, I.

E

Don't remember exactly what I said, but the gist of what I was asking is whether the owners knew that.

E

It had been maybe designated or agreed to that it was not uh to be further developed. Okay, yeah! No! I.

B

That I figured from the context that that's what it was uh so I'm gonna, I'm gonna, ask mr smith to.

B

Check back with miss brawl joanne, who does a wonderful word, a wonderful job on these uh to.

B

Check check back against the tape and and put the appropriate word in there. Thank you. Anybody else.

B

She did her usual fine job on these minutes. Okay, is there a motion to uh approve the minutes? Will.

B

That minor change so moved. Thank you, mr lee. uh Second, on the motion to approve the minutes. Second,.

B

Ms eldridge, thank you. Those those in favor voice vote will do all right. Okay, thank you done.

B

Next, we move to uh old business item a reads as follows: matthew, beale and heidi medlen. Please.

B

Correct my pronunciation: if that's wrong, let 242 leslie drive request a one-year.

B

Extension to the variance for our dimensional standards granted on february 24th 2020.

B

Is there a any discussion on this? If not, is there a motion.

B

Ms margerson, I would move to grant the extension. um The zoning ordinance allows for a one-year.

D

Extension as long as the application is made before the expiration- yes, thank you, yeah and the.

B

Yes and the menu memo explained this situation is: uh is there a second to that motion? Please.

B

Yes, ms ms eldridge, thank you. Okay, any discussion on the motion. If not.

B

I would like to let me call the uh the role this is to make that uh the.

B

Official request to postpone them, uh mr lee. Yes, mr rossi, yes, miss eldridge, yes, ms margerson, yes, uh mr.

B

M mcdonald's here: yes, yes and mr mantle, yes, and- and I both yes as well. Okay, thank you all! That's.

B

Done: okay, let's move along we've already made the announcement I'll make it again regarding the.

B

53 green street project, which has uh been before this board since about august. I think.

B

Quite a long time anyway, uh the parties are choosing to uh take it out of our hands at.

B

The moment and take the issue to court uh so therefore it is put on, is put on hold.

B

As of right now and again, I just request that everybody keep their material. That's been.

B

Provided to us on that question in case it comes back to us so that takes care of old business.

B

Excuse me: let's, uh let's move on to new business, the.

B

Oh, I'm sorry yeah look going too fast here. uh The next question. The next item is item c, and this on.

B

I I have to recuse on this, so, mr lee, nothing like right out of the box here. uh Do you want? I mean if.

C

You want, do you want us? Are you more comfortable just staying there, I'm fine! Okay! Thank you.

F

Is he far enough away? What's that, is he far enough away.

F

Oh yes, all right, so item c on the agenda is a request of evan c maloney and jill maloney.

F

Owners and duncan mccollum applicant for the property located at 39, lincoln avenue.

F

And requesting an equitable waiver of variants for approval of a previously constructed treehouse.

F

Which requires the following one: a variance or equitable waiver from section 10.573.20.

F

To allow a zero foot rear yard, where eight feet is required and a five foot left side.

F

Yard for eight feet is required, said property is shown on accessory map 135.

F

Lot 17 and lies within the general residence, a gra district lu-21-213.

F

And who is here to speak to this application good evening? My name is duncan mccallum. I'm an attorney.

G

I represent the applicants. Evan and jill maloney live at 389, lincoln avenue, as the vice chair.

G

Just mentioned what we're seeking this evening is a variance allowing them to basically allow.

G

The treehouse to remain where it is, even though it would otherwise be in violation.

G

Of the setback requirements, uh it's required to be eight feet. uh Eight feet uh from the.

G

Eight feet from both the front from the both the rear and side property lines and.

G

Instead of that, it is sitting right on the back property line and it is within about.

G

Eight feet of the side, property line, so we're asking for variance, variance or variances or.

G

In the alternative equitable waiver to allow the trade house where it is because it has already.

G

Been built now, the background is as follows: my clients, the maloneys, bought the property in.

G

October of 2020 and after they got settled in uh sometime in the spring or early summer, 2021.

G

They decided that they wanted to build a recreational area for their eight-year-old son.

G

In the left rear of the property where they had ample space in which to do it.

G

So they hired a landslide landscaper and a designer to look over the property and.

G

See what could be done and the designer and, in addition to recommending some child's teepees.

G

And some other play things. She recommended a tree house. There are other tree houses in the area. She.

G

Sold them on the proposition that was quite, that would be quite a quaint idea, and so they.

G

Decided that they would adopt your suggested suggestion and build a treehouse in the rear.

G

uh They hired a contractor who was experienced he's uh reputed. uh His name is john ratchek.

G

You will be hearing from him later on in the evening. He has built tree houses all over.

G

Portsmouth and all over all over the seacoast area. I want to emphasize that in this regard, my.

G

Clients, the maloneys were relying on professionals. The designer has about five five years experience.

G

I shouldn't say: five years experience she's been self-employed for five years as a designer and.

G

Has experience her husband is a landscaper and, as I just mentioned, the contractor was actually.

G

Going to build the treehouse has built them all over all over this all over the city. Now.

G

A fact that I didn't include in my statement of facts in my memorandum, which I didn't include.

G

It because I didn't think it was necessary, but it's sort of become appropriate, because I've.

G

Seen some of the letters that some of the residents of the town have been writing in.

G

My clients contacted their neighbors ahead of time and said and told them what they were going to.

G

Do uh ask them if it was okay and asked for their input, they actually brought some of the name, their.

G

Direct neighbors, they brought them in onto their property, they showed them where the treehouse was.

G

Going to be put- and they explained what they were going to do and at the time the neighbors said.

G

That's fine! That's fine! The contractor whom you're going to be hearing from later on this evening. He.

G

Spoke to them too, and he's going to tell you what he he's going to tell you what his interaction.

G

With them consisted of but the bottom line is my clients and the contractor told the neighbors. What.

G

They were going to do and the ones that they spoke to said it's fine, the rear neighbor at his request.

G

Requested that a wooden screen be built in the back for in the interest of privacy.

G

And so my clients, the maloney, said fine. We will do that and they did it at their own expense. So.

G

That is the background and I think, in light of some of the correspondence that I've seen.

G

That's coming in on this particular application. I think that I think it's important to.

G

Mention that one of the neighbors who's now complaining even said it was fine at the time.

G

So my clients were trying to be good citizens and do everything right at some point. My client.

G

Jill maloney was told by somebody she heard from somebody you're supposed to have a building permit.

G

So she applied for a building permit. Then she heard from the building inspector who said.

G

You don't need a building a permit. You don't need one for this. According to the international.

G

Builders code: it's not required because this is a structure now at that point, you might have thought.

G

That if there was anything wrong with placing that tree, that tree house on that spot in the property.

G

Where it stood, you might have thought that the building inspector would have mentioned it at that.

G

Time and instead he said nothing, there's nothing said about it, violating any setback, requirements.

G

There was no mention of any setback requirements. uh He just said you don't need a building.

G

Permit you're all set, so it came as a kind of a rude surprise to my clients. A couple of months.

G

Later, when they got a letter from uh mr memo from mr stith saying uh you're in violation.

G

uh If you've read my memo, you see the you've seen the explanation. uh Mr smith said that uh well the.

G

International building code is one thing, but also what has to be taken into consideration is the.

G

Zoning ordinance and its setback requirements. We submit that if that was the case, the building.

G

Inspector should mention it at that time. The design once the news got uh not got, got back.

G

To them um about this development, the designer and the contractor were shocked. I have a letter.

G

I'd like to pass out to the members of the board from the designer who isn't here tonight.

G

In which she says in substance,.

G

She's been self-employed in this business for five years and she's never previously had a problem.

G

Like this, the contractor who's going to speak for himself in a few minutes that will tell you.

G

The same thing that he's never encountered this sort of problem and it never occurred to him that.

G

This might be treated as a structure which required a setback requirement.

G

So, moving on what we are asking for this evening,.

G

Is an equitable waiver allowing the allowing the treehouse to stay where it is.

G

Or to um or in the alternative, or perhaps an addition there, too of variance now, let's take the.

G

Equitable waiver first, the doctrine of equitable waiver, is something that I like to refer to as.

G

The doctrine of dr devana's mistake I like to use that term because I think it is more descriptive.

G

Of what the doctrine actually is, and it promotes ease of understanding the purpose of the doctrine.

G

Is if in as in this case, if a structure is built or if the property owner or his agents.

G

And lieutenants make a mistake in placing in placing a structure at the wrong place, so that is.

G

In violation of the setback requirements or any of the other dimensional requirements imposed by the.

G

Zoning ordinance and if, if the mistake was made in good faith and if it's not doing any harm the.

G

Structure may be allowed to stay there. Well, in this case, it was a completely honest mistake. My.

G

Clients were relying on experienced professionals to do the job right and they had no reason to.

G

Think otherwise and again you might have thought that if there was anything wrong with what they.

G

Did and where their professionals were placing the tree house, you might have thought the building.

G

Inspector would have mentioned it and so for that uh I've outlined the criteria for granting.

G

Of an equitable waiver in my memorandum of law.

G

And they are not difficult, they're not difficult to understand. The violation was not noticed.

G

Or discovered until after the structure was substantially complete, that's true. It was an.

G

Honest mistake: that's true! No diminution of value of the surrounding properties. I can't imagine.

G

How I can't imagine how this uh this could result in any the diminution of.

G

Any properties in the area there are, there are other tree houses in the neighborhood.

G

uh And I haven't heard anybody complain so far that any of those other treehouses are causing a.

G

Diminution and value for the property- and there is no evidence in this case to think that this.

G

One will and there's a balancing test that, due to the degree of past construction or investment, the.

G

Cost of correcting the mistake outweighs any public benefit which would be gained.

G

And it would be inequitable or in other words more expensive than it's worth, to require the violation.

G

To be corrected, so I submit that the this particular situation meets all of these criteria.

G

And an equitable waiver should be granted under the doctrine of honest mistake in the alternative.

G

We ask that a variance be granted again. I think it clear this situation clearly meets.

G

Meets all of the criteria for the variance for the granting of a variance, um the variance will not be.

G

Contrary to the public interest, well, obviously, it's not going to be contrary to the public.

G

Interest because there are other tree houses in the neighborhood at my insta, upon my instructions.

G

My client went out one day when they were walking their dog and they counted at least 10 tree houses.

G

In the neighborhood and just the time, it takes to walk to walk a few blocks from their house to.

G

Walk the dog around the block: there are ten other treehouses, so obviously it is not contrary to the.

G

Public interest because there are other, there are other treehouses in the same neighborhood.

G

For men much the same reason, it does not contrary to the spirit of the ordinance. uh I I think of.

G

These setback requirements, but I think they're intended primarily to prevent this big large.

G

Big large buildings on one property, that sort of loom over um over the neighboring properties.

G

And cut off layer air light in space. Well, this thing this tree house doesn't do anything anything.

G

Like that, it's basically just a deck with guardrails on it, and it's not uh it's not.

G

Acting in domineering fashion toward any of the other property owners, substantial justice will.

G

Be done by the granting of the variants. All that my clients are merely asking for is what at least.

G

10 other 10 other people, just within a 200 yard, radius of their home, have which is other tree.

G

Houses and what people all over the portsmouth have. uh We have uh submitted pictures of.

G

I will submit in a few moments and pictures of other tree houses that are.

G

In the same neighborhoods as my client, it would be an injustice to deny my clients the right to.

G

Have a choice to have what all of these other property owners who have tree houses have and.

G

By the way, most of these other pro, these uh most of these other tree houses hug, the.

G

Property line and violate the violate the setback requirement just the way this one does and so far.

G

We haven't heard anybody else complaining about anybody else's treehouse, but my clients.

G

Branding the variants would not diminish the values of uh surrounding properties, but.

G

Again I haven't heard anybody complain that any of the other tree houses are diminishing.

G

The value of their surrounding properties and there's no reason to think this one will.

G

Now we come to the hardship to test and there must be special conditions well, in this case,.

G

The special special condition is, you can't move the trees the trees are, they are where.

G

They are, and it's kind of would be kind of funny to have a tree house with no tree.

G

uh These trees in question, they sit at the edge of the property line. They were there for decades.

G

At the time that my clients moved in- and that is a special condition- it would be the only way.

G

The only way you could comply, I suppose, is to move the trees. Well, obviously, that's not possible.

G

And the only other alternative is to move the tree house at least eight.

G

Feet inside the property lines where it will be detached to the trees and.

G

It will no longer be a tree house. The use is reasonable again, dozens of other people in the in.

G

In this neighborhood have tree houses, they are commonplace in the neighborhood. It will not be.

G

Con it can't be used in strict informants of the requirements of the zoning ordinance again.

G

Because of the special conditions the trees are where they are and they can't be moved. You can't.

G

You can't move the trees and you can't build a tree house in strict conformity with the.

G

Requirements of the zoning ordinance and finally, there is no such fair and substantial relationship.

G

Between the general purposes of the zoning provision in question, which is.

G

Section 10.573 of the zoning ordinance and the specific application of that principle.

G

That that to the property again, uh I think that the general purpose of this particular section.

G

Is to create elbow room between properties and property owners so that they're, not overcrowding.

G

Each other, in this case the uh in this case again, I call it a treehouse, basically what it.

G

Is is just a deck with guardrails around it and it's not doing any harm. It's not overcrowding.

G

Anybody's property: it's not a structure, that's looming over the over the neighbors or.

G

Invading their privacy, especially with the screen that my clients built, that they remember.

G

That their rear neighbors requested and so.

G

For that reason, it is not.

G

There's no substantial relationship between the zoning provision in question.

G

And it is not being compromised and finally, the maloney's, uh the maloney son is not going to be.

G

Eight years old forever, the time is going to come when he's becoming going to be more interested in.

G

Cars and girls and the red sox than he is and playing in the tree house.

G

And at that point my clients are going to be dismantling the treehouse and taking it down.

G

So this is really just a very short-term thing and uh I do not do not really see how.

G

Anybody in good faith can complain so for that reason we submit all of the requirements of the.

G

Variants are met and we ask that it be granted. Are there any questions? Any questions.

F

Beth, miss markson. Oh yes, so we only have a snippet of the conversation.

D

Between the building inspector and your client actually peter's on it a little bit, but.

D

Was the building inspector under the impression that this tree house was from a kitten.

G

I don't know I do I really don't know I would if it is from a kid. I was not aware.

G

Of it, all I know, is the the contractor john. Let me pronounce his correct name.

G

His last name correctly, john ratchek, is the person whom you will be hearing from and.

G

You can ask them that question I I really don't know. I do not know the answer to that question.

A

You need, if you're going to talk, you need to come up to the uh podium, identify yourself, please. She.

D

Cannot speak to her? That's right. She wait just. I thought she was come on. She's, the owner she's, the.

H

Owner, okay, I just wanted to say um yes, he knew it wasn't from a kid because when I spoke to.

H

Him he's we were talking about, there's um concrete ma'am could could you identify yourself? I'm sorry.

H

But I should have done that this is joe maloney. I apologize sorry about that. um So when I spoke to.

H

The building inspector we had discussed how it was put together, and I had explained how the builder.

H

He was concerned that there are cement platforms that they weren't in the ground and I explained.

H

To him that the builder had put them on top of the ground, so it wasn't really considered.

H

Permanent and that's how he decided that it was considered considered, not a structure.

H

And therefore he did know that it was done by a builder. So thank you. Thank you for clearing it up.

D

The um other question I have is were the setbacks discussed during at any time between the.

D

Building inspector and the not a bit did atp the application was submitted. uh The builder excuse me.

G

The inspector looked it over and did what he did. He said you know, you don't need a you, don't even.

G

Need a permit for this, but that's for the building inspector, that's not for the zoning regulation.

G

Well again, we would have thought that he would, you know, he's in the business. This is what he does. My.

G

Understanding is the building inspector looks at looks at the looks of the plans and decides.

G

Whether or not it complies the thing I'm getting at here is that the um to get an equitable waiver.

D

Ignorance of the ordinance is not a defense, so um I just wanted to clarify that.

G

Ignorance of the ordinance may not be a defense, but again you know if.

G

If the building inspector says nothing when he is presented with the application.

G

That's not, you know, that's just not. That's not just ignorance of the ordinance that.

G

The average person the average unschooled person who was on it.

G

Was not an engineer and is not educated in the nuances of the zoning ordinance? I think.

G

Has a right to conclude that if the building's inspector doesn't say anything, then it's all right.

D

The other treehouses that are in the neighborhood.

D

Are they from canada? I'm glad you mentioned. I've got some pictures to pay. This out show.

G

I'm sorry your question. No I'm just waiting to see the pictures.

A

You say on page five that the structure does not exceed 10 feet in height. Yes, and I don't see how.

A

That can be so because it's the platform is eight feet: high, right, correct and the fence above that.

A

The wall has to be another six to eight feet right well, the screen is is separate. The wall.

G

The wall, the wall is six to eight feet high, so in fact we're looking at something. That's probably.

A

18 feet and- and I don't know what those other treehouses look like yet.

A

But this is a pretty um large structure and is well above 10 feet off the ground. No.

G

The wall or screen whatever you want to call it is an extension of the fence.

G

It is not connected to the treehouse. Well, if it is.

A

Then I don't think fences that tall are permitted in residential business. That's a different issue.

A

Okay, thank you.

E

You mentioned that the property owners had previously spoken with the abutters.

E

And had received a positive.

E

Consent, I guess, for what they were doing. Are there any uh any letters in support that uh state that.

E

Like have any of your butters written anything to that effect, not that I'm aware of.

G

Whatever you have is what I have, and uh you mentioned, that there's a temporary structure.

E

But there's really I mean: is there some kind of a mechanism where uh wherein at a certain point in.

E

Time like a time certain it would be taken down, and that would be an enforceable commitment or.

E

Is that just something we have to take people's word for no variances, like diamonds, are forever.

G

Once you grant the variance it's there, but so you would be relying on my client's word.

G

But they certainly have no use for it. I mean that you know.

G

As far as I know, they don't particularly want a tree house for any other purpose. Things change.

E

Right I mean they could sell the property, somebody else could buy it. You are correct, you are correct.

D

Yes, um so one of the photos that you're showing us is that after the wood has weathered, so we suggest.

D

A period of time in which it will be up, I mean this does not. I mean it qualifies as a structure.

D

Under the zoning ordinance, this does not look like a treehouse to me. It looks like a deck. That's true.

D

And so you know, I don't want to I'm sure your clients are of good faith, but.

D

The reality is is that this could be easily repurposed after the child.

D

Outgrows it all I can tell you, is they have no intention of repurposing it and it is a tree.

G

House in at least one respect, because it's one of its main supports are the two trees. Okay, thank you.

F

Does anyone else have any questions for the applicant.

F

All right all right, thank you, mr calling.

F

All right, we'll open the public public comments for this, so.

F

Does anyone here to speak in favor of this application? Please come to the podium.

I

Hello, I'm I'm john rochek, I'm the actual. I build treehouses.

I

My business is called zentree works. I've been an arborist for 30 years.

I

Worked in new york city connecticut, all along the I-95 corridor, boston and uh up here for.

I

Like the last 15 years, been building treehouses for about seven now I'll build one for my kids.

I

Gotten the portsmouth newspaper and boom business took off so um just some. I wanted to bring a.

I

Little context to everything that's going on here, so it is a platform. It's not a treehouse that.

I

Treehouse thing is, everyone thinks house is like a big treehouse, it's not it's a platform um and what.

I

I'm going to try to go through is everything that happened as this whole thing kind of like, like.

I

Unfolded so I got actually contacted by mcdermott landscaping. First she's, the one who designed this.

I

Platform and what I did I came in, I looked at it and I said: okay, we can do that.

I

First thing I asked jill maloney was: what do your neighbors think? Because this is always like.

I

The first question I ever asked when I go to a property because nine times out of ten, they always.

I

Get built on the edge of a property because that's where all the old growth trees are, and especially.

I

In cities and towns, that's usually the only ones that are left there any good to actually build on.

I

She said yes talk to all my neighbors. Everybody was fine with it. I said fine. um She said that her.

I

The rear, I'll call the rear, neighbor had one request, and that was to build a wall to.

I

Block their view of the children, and I said well in order to do that- I have to like actually.

I

Increase the size of the of the deck to go back beyond the trees.

I

Closer to the fence line where they wanted it, so that it kind of looked like it was like.

I

Part of their fence line that was already there. So that's what I did so.

I

Again so this increased the cost to the maloney's right off the bat they wanted.

I

They wanted to do that. They wanted to do what they were. You know, and the neighbor actually came out.

I

Probably like the first or second day, I was building hey. What's going on hey, you know.

I

You know, and he goes and you're building a wall, I'm like yep, I'm building a wall for you.

I

You know this is where it's gonna, be. It's gonna be right. Next to your fence, you guys can paint.

I

It whatever color you want you can. You know, I mean it's going to be so high, so you can't see the kids.

I

He asked me: how high is it going to be I'm like? Well, it's probably going to be. You know the kids.

I

You know this child's like about four or five feet tall, so I'm gonna make it like six seven feet tall.

I

He said fine. Okay, a couple days later, the other neighbor came out the neighbor on the.

I

Side who agreed to it? Because that's the the the side neighbor and he was.

I

And he they he came over, he walked on the property, he looked at the tree deck. He says you know. I know.

I

I agreed to this it's a little bit bigger than I I imagined he says, there's anything you can do about.

I

It and we're like well, what do you want us to do, he says: can you move the whole deck I'm like well,.

I

It's already attached to the trees. I can't you know we're talking about moving the whole thing.

I

He says what else can you do? I says: well, he just was really concerned that it was like a little bit.

I

Too close to his fence line, so I'd like I tell you what what if we cut two feet off the deck for you.

I

So jill they all they talked about it for a little while they.

I

Came to agreement, I actually removed two feet of the deck.

I

Which again cost them more money, because it you know it's this, I charge by you know by the.

I

Hours labor right, so I had to remove two feet of the deck on the side, so that neighbor was happy.

I

And then, a couple days later, the old, the older gentleman in the back came out and he was kind.

I

Of like he was, he was not really happy what was going on and I'm like, and I just asked him like.

I

Well, I thought you agreed with you know you agreed, he goes well. My wife did at this point, I'm like I.

I

You know I just like I can't it was already built, and I you know what am I supposed to do now, so I.

I

Just I put the and I it was at that point, the deck was built, but there were no railings on it.

I

For my you know, I'm I'm uh I'm a tree climber, I'm very safety conscious, I'm like well. I can't leave.

I

This like this, I have to put the rails on it. At least you know, I don't want your son going up.

I

Here or the kids in the neighborhood coming up here and just having an open deck where.

I

They can just run around fall off of I finished off. I built the uh built the railings around it.

I

And then you know, then everything else just kind of happened. So this is this is a while ago, when.

I

When so, that's the context of what was going on so as far as I know well, I know she didn't. She had.

I

Her neighbors were fine with it. They didn't have an issue we bent. You know she bent over backwards.

I

Trying to make everybody happy and it's you know, and it was in along with the uh the building.

I

Inspector, like she said, one of my first treehouses was built in portsmouth, didn't need a permit. I've.

I

Done a lot of estimates and estimates, estimations for treehouses portsmouth never needed a permit.

I

I've built all over the coast all over the east coast, um the coast here into manchester up north.

I

Every town's different, but I'm just saying I've always say you know. What do you are your.

I

Are neighbors okay with this, and they were fine with it? It wasn't until it was built.

I

That everyone started complaining about it and you know that's my that's my part of it.

I

Trees, you can't it is attached it's attached to trees, you know. If, if I was again, it's not a.

I

Tree, I keep everyone keeps saying treehouse, it's a platform. If- and I understand what.

I

You're saying you're talking about defense height, you know that was on by his request.

I

If he doesn't want that on there, you know that can be removed, but you know, but when everyone agrees.

I

Everything and all of a sudden everything's built, and then they disagree with it. Well.

I

You know I don't know what to say, but I've never ever ever had this. Like I said, I've been.

I

Doing this in this business for 30 years, I've never had an issue like this before.

I

Usually, when the neighbors agree, everybody's happy and there's there's no problems, any questions.

F

All right, thank you, sir you're welcome.

F

Anyone else to speak in favor of the application come forward. Please.

H

Hi, thank you. I'm jill maloney, the owner of 389 lincoln avenue. um Excuse me I'm a little nervous.

H

If you did get to read the all the letters against the tree house, I kind of feel like it's me against.

H

The city of portsmouth so um bear with me, but um I just want to give a little context of like.

H

What happened from from my point of view, um my family and I never set out to anger our.

H

Neighbors or make enemies all we wanted to do was have a play set for our child to play. um We.

H

Really thought we were doing everything right when we hired the local designer hired a local.

H

Builder, we were excited about this new adventure and we wanted our neighbors to know and see what.

H

What was happening? We first spoke with kelly wright who lives next door to us of our plans.

H

He approved the platform and even helped us put up our zip line. That goes from one of the platforms.

H

To a tree one occasion he came over, he was unhappy as john told you and we had.

H

Cut off portion of the platform to appease him, um I also sparked spoke to mark moses and his wife.

H

Tess who live right behind us who were also going to be affected by the treehouse? I even had his.

H

Wife come over and show her where it was going to be placed. I asked, since it was so close to their.

H

Fence would they like a privacy wall? Unfortunately, there's no letters um because I tried to text them.

H

And I realized that they have only a landline, so my texts were returned, so I would write a little.

H

Letter and stick it in their mailbox and that's how I ended up getting a hold of them, because.

H

Being new to portsmouth, I really didn't know many people in the area, um so she came over.

H

She approved of where it was going to be. She even commented on my garden and she.

H

Told me how she likes to garden, and I really thought it was a very pleasant experience.

H

When they requested the wall, we even let them pick out the wood. We had the best part of the.

H

Wood facing their property, they asked if they could paint it. I said, of course, make it. However: it.

H

Can so it can blend into your property, then I got a call from jason page at the complaint department.

H

That our neighbor kelly weinstein, who does live next door to us but can't see the treehouse called.

H

To complain about our friend or offense and then added in a complaint about the treehouse.

H

For good measure, that's a whole other story, but I found that I was told I would need to get a permit.

H

So, after filling out a permit request, I found out the video from the building inspector again.

H

That this wasn't needed so, needless to say, work my family and I are happy right. My son's.

H

Happy imagine my surprise months later, when I get a letter from the zoning board telling me.

H

I'm not in compliant with the zoning walls. Again all honest mistake: we were completely blindsided.

H

My family and I throughout the whole process. We thought that we were in good standing with our.

H

Neighbors I mean they never came up to us and spoke to any displeasure about it after that.

H

I didn't speak to any of the other abutters because, quite frankly, they can't really see.

H

The treehouse from their property, they might be able to see snippets of wood.

H

Or part of the wall that our neighbors behind us requested, but you can't see it from the street.

H

So one of our neighbors, who actually wrote in to complain, um said she could see the treehouse.

H

When she said to me, um oh I heard you got a uh ellen cohen said. Oh, I heard you build a treehouse.

H

How nice, I can't see it from here, and I said oh you're- welcome to come over anytime and see it.

H

So, dear members, please just understand that my family has only acted in good faith. I mean.

H

It was really an honest mistake. We thought we were doing the right thing through everything.

H

By hiring all local designers and builders, you know we we could have just bought some.

H

Ugly, bright plastic metal thing and stuck it up and that's what they would have been seen instead.

H

Of a beautiful wood, that's going over time to really blend into the landscape. I mean that's.

H

What the designer does she builds these designs that really look like they're part of your your.

H

Land, I mean everything we did. We wanted to save the charm of portsmouth, we love portsmouth, we've.

H

Only been here for a little over a year- and I mean this is- we chose it for its charm, so.

H

In ending, I just want to say you know: what does it solve by moving it they're still going to see some.

H

Sort of play structure in our yard- I mean mark moses lives on top of a hill, we're at the bottom.

H

So, no matter what we put there, it's going to mess up their view. I apologize for 30.

H

Years there was no children on that side. Now they hear a bunch of third graders.

H

You know yelling and screaming after school and I'm sure that can be kind of annoying. But you know.

H

They raised their kids 30 years ago and it's our chance for us to raise our kids and let him have.

H

A tree house or tree platform, or whatever we're calling it and for other children to enjoy it.

H

Thank you. Thank you. All right is anyone else speak in favor of the application.

F

Mr dick, do we have anybody on zoomed? um Actually, yes, kimberly oakes.

C

Hi hi, sorry about that um hi I I am a neighbor. Can you hear me? Yes,.

C

I am a neighbor. I live five doors down from the maloney's. I am.

A

I am embarrassed, I am embarrassed at this- uh the form that this has.

C

Been raised to um yeah, you know, I've read all of the complaintants complaints.

C

One of them says it's ironic: it's unfortunate when residents violate the spirit of neighborliness and.

C

Mutual accommodation that prevails throughout most of portsmouth. It is unfortunate. This is exactly.

C

What is happening here with the complaints about a treehouse that has nothing to do with setbacks,.

C

Variances heights, nothing to do with that. It's everything to do with the neighbors behind them.

C

Don't want to see or hear children, although they have not complained about any noise.

C

They don't want to see children, the other complaints, grain of salt there's, some digging.

C

There, if you have time, I'm sure, you'll find some interesting stories there, but.

C

The wall that that has been complained about by that very neighbor, the one who took the pictures.

C

The wall is was at his request, their request, his wife's request. You know both of their requests.

C

It's just ridiculous, it's embarrassing! So I I apologize to the maloneys for having this kind of.

C

Warm welcome into the state of new hampshire, the town of fort smith, um I'm embarrassed. I apologize.

C

uh And I I I think it's ridiculous, so thank you very much. Thank you. I'm sorry.

C

That's right so peter anybody else. Anyone else on the zoom call I'd like to speak in favor.

F

All right, seeing none is there. Anyone who'd like to speak in opposition.

F

To this application, please come to the podium and state your name and address. Please.

J

My name is kelly wright. I live at 409 lincoln, I'm a primary of butter.

J

And I'm here to speak in opposition of branding of the waiver. I want to push back.

J

On the timeline a little bit, we never saw plans. We were never consulted as to size and impact.

J

The first uh I I I heard that something was in the works. um There was a lower play structure.

J

That had been constructed earlier in the summer. um That's quite small. It was like a three by four.

J

Something else was going to accompany that um jill referenced. The fact that we put in the.

J

Zip line, um which I thought would be joining these two structures. um I had no idea uh as to the size.

J

And sort of imposing presence that this would have construction began a week of august, the 9th.

J

I complained, or I approached jill and evan regarding my concerns on the 11th.

J

Construction concluded a few days after that, the application for permit, at least according.

J

To what's been submitted was in mid-september, so it's well after the completion of the of the.

J

Of the structure um at the time I expressed my concerns about the setbacks. This is in august.

J

When the construction was ongoing um and the builder stated what he stated here tonight,.

J

Which is what he has you know done, he's experienced and and done this you know.

J

Countless times throughout the seacoast and never needed a permit. Well, I'm I'm wondering.

J

If he actually sought a permit um in a place like this, so this isn't this isn't a borderline issue.

J

This isn't we're a few feet from a setback. This is directly on the property line.

J

And as far as the the the building inspector goes uh to speak to um miss margerson's.

J

Point, I'm not sure it's his job to to enforce zoning ordinances. I think one of the things that's.

J

Getting lost in this is the size of the deck, it's the main deck, and I think you all have pictures.

J

Of it I didn't realize I could bring them to be distributed, but I'm going to distribute them now.

J

The main deck is 168 square feet.

J

It's conjoined by a ramp of similar construction. That's three feet wide and about 15 feet. Long and.

J

Joins a lower deck, so this is a single structure. It's not 168 square feet, it's more like 230 to 40.

J

Square feet of lot coverage: this coincides roughly with the average size of a single car garage.

J

Ms aldridge referenced the height I would. I would push back on that as well. The height of the deck.

J

Is eight feet at the back of the property? I would estimate it's closer to 10 at the front.

J

There's a privacy fence in the picture you can see the height of that post is seven feet so.

J

The the floor of that structure is is well above. I think the eight feet that's been stated. um I.

J

Also, I don't measure the height of my house to the floor of my attic. I measure to the peak of my roof.

J

um So this idea that there's an eight foot setback required is directly connected to the height of.

J

The structure there are other tree houses in the neighborhood, that's that is, uh you know an.

J

Obvious fact, if you go to home depot and you look at the largest play structure that they uh sell.

J

It's called the gorilla, it's it's, it's quite big, but when you strip away the slides and the swings.

J

You're, looking at a core tower structure that has a that has a square footage coverage of 5 feet. 10.

J

By 9 feet, 10., it's under 60 square feet of lot coverage that is two and a half times smaller.

J

Than the main structure, it's one quarter of the overall structure so to say that this is like.

J

Other tree structures in the neighborhood or place structures, I think, is misleading. It is way beyond.

J

What is ordinary and expected in terms of loss of privacy um as in a butter, the structure is located.

J

I will I will give them this. The logical place that you would place a structure.

J

um It's open space, it's great for play, kids have been playing there, we have no issue, but it is the.

J

Farthest spot away from the home at 389, so at no window in their house do they view the structure.

J

In their in their on their patio on their deck by their fire, put, they can't see it.

J

It's viewable from every room in the back of our house. It's viewable from our deck, our backyard.

J

To my mind, the maloneys enjoy all of the benefits of this structure, but they don't experience any.

J

Of the impact this structure has created and that, and that goes to loss of value, we have an.

J

Undefined timeline in terms of what this variance allows, you know the lifetime of this structure.

J

If I were to sell next year, I think that the the the presence of this of this structure.

J

It's encroaching it's it's imposing um it would, I think, it'd be a deterrent to other other buyers.

J

The tree logic, which uh mr mccallum stated out, is, in my mind, hilarious. You can't move the trees.

J

Therefore, you can't have a setback, because you can't have a tree house.

J

If the shoe was on the other foot, if the maloney's had a structure that was built next to their house,.

J

That has the impact that it has on myself and other abutters. We would have been in this. You.

J

Know variance meeting months before um I can assure you so you know I have no ill will towards.

J

Them I want them to have a play structure, that's appropriate for the for the lot.

J

And I guess that's all I have to say thank you. You're welcome.

F

Is there anyone else that would like to speak in opposition.

K

My name is mark moses and I'm here with my wife, tess feltes and we live at 178 highland street.

K

And we've resided there for the last 40 years before I get started with my objection.

K

I need to respond to the allegation that we have an issue with children playing nothing.

K

Could be further from the truth or the presence of a tree house in a normal sense of the word.

K

We raised three children, we had play structures, they came, they went, they were not a problem to.

K

Neighbors we were very respectful and they were small, the gross mischaracterization of who we are.

K

Who we have been as members of this community for 40 years.

K

And is also a mischaracterization of the basis of our objection, so I needed to get that off my chest.

K

Before we begin- and I worked at the children's museum for 12 years- so I.

C

Don't hate children just for the record and we have nothing against the maloneys.

K

Our backyard abuts, the applicants and the structure.

K

The issue is that it's directly along our fence with zero setback.

K

Talk about elbow room, I don't think you can put your pinky in between where it sits in our fence.

K

The span is 25 feet right along our property line, the structure and then the 15 foot ramp.

K

We have always had a good relationship with our neighbors.

K

We approached the applicants with the same mindset when they moved in neither myself.

K

Or my wife want to be taking a position against one of our neighbors. We've never done this before.

K

But we felt compelled to attend this evening because of the profound impact this structure.

K

Has had on us more specifically, the structure is concerning, for several reasons.

K

First, its size is imposing and dominates the field of view in our backyard and from our house. Second,.

K

It also invades our privacy and third, it present prevents safety issues outlined in our letter.

K

It is important for the board to know that any initial verbal cons.

K

Concessions and conversations attributed to us were made in the spirit of trying to be neighborly.

K

However, these concessions were made without accurate information.

K

As to the scope and other details of the structure, no details, no sketch.

K

Had we known the structure that sits there today would be erected when we had these.

K

Initial conversations we would have voiced our strong concerns and opposition at that time.

K

We never were fine with it. That was mr mccallum's mentioned that a few times.

K

We were never fine with the structure when we saw it being constructed. We were shocked.

K

I also want to make a correction here that um jill maloney said, and also the mr mccown said.

K

That we requested this privacy screen or wall or whatever we call it that is clearly attached. Only.

K

To the deck it is not part of our fence. Here is the original note to tess. I can.

K

Read it pass it around if you want hi neighbors, it's jill, maloney, 389, lincoln ave.

K

I stopped by to let you know we are putting a tree house in the back.

K

It would overlook your property so wanted to know if you wanted us to put a privacy wall up or not.

K

We'd love to discuss, please stop by and call, I think, there's a difference between.

K

Our requesting it and they're offering it as an option and at that point without any.

K

Detail of what that would look like, we said well, yeah we'd, like some privacy.

K

And we were surprised when we saw what the structure was and also what was proposed for the.

K

Wall if it was going to stay, we were interested in minimizing the impact. We were not okay about it. We.

K

Were not fine I'll, be glad to have you so if that becomes property of the city, if you, uh mr moses,.

C

If that becomes property of the city, if you want to hand it out otherwise, is that all right, okay,.

A

I think it's five minutes. Okay, if you just wrap that up sir, we don't allow okay, thank.

K

You it's important for the board to know that any initial verbal concessions attributed to us.

K

uh Were made in the spirit that I talked about. Additionally, there are a few inaccuracies in what.

K

Was presented in the application, the fact that needs correction beyond dimensions are already.

K

Mentioned by mr wright, the claim first, the claim of the structure is temporary. It does not impair.

K

Value impaired value in the neighborhood properties is, I think, absurd undeveloped.

K

And conclusory common knowledge supports the assertion that an unsightly obstructive.

K

And potentially dangerous structure that not only violates setback requirements but is not.

K

Set back from the lot line whatsoever does adversely impact the value of our property.

K

And makes it less desirable. Second, the assumption made that the privacy wall.

K

That towers, 15 feet above the ground, provides sufficient. Privacy is not the case. I'd like.

K

Some photos to be projected if possible, you know that the view of the yard and also the.

K

Onto the structure and from the house and the structure into the house is very obvious,.

K

The removal of the unsightly privacy wall would only breach privacy more. The platform essentially.

K

It becomes then a balcony over our yard, a direct view into our home third, the applicant raised.

K

The point that similar structures are in the neighborhood- and there was this discussion.

K

Of treehouse treehouse, but the builder said it's not it's a deck and that was determined.

K

By the planning department as an elevated deck accessory structure, not a tree house and finally.

K

That the presence of the structure does not harm the abutters for all.

K

Of the reasons that I've mentioned, it certainly does especially about privacy.

K

So with all that said, the applicant has acknowledged.

K

As the planning department has established that the placement of the deck structure was a mistake,.

K

Regardless of whatever makes or mistakes were made or misfortunes led to the erection.

K

Of the structure, without permit and notices to a butters detailing the nature extent and location.

K

Of the structure, the fact remains that we are neighbors and harmed by the presence, as stated.

K

In our letter and other letters submitted in opposite opposition to the application.

K

We believe this board serves as an invaluable purpose of ins, ensuring lawful uses of property.

K

In portsmouth and protecting against unreasonable interference with the rights of abutters.

K

And for this reason, in our letter, as well as the 11 10 21 memorandum from the planning department.

K

We believe this structure violates sensible zoning laws and unreasonable interferences.

K

Or impairs the rights of the butters, especially us.

K

At 178 highland street, therefore, we ask that the board- please deny this request. Thank you.

F

Is there anyone else that would like to speak in opposition.

C

Good evening my name is kelly weinstein I live at 373, lincoln ave. I'm a director butter of the.

C

Maloneys I'd like to start by addressing the letter that was submitted by the maloney's.

C

Or evan maloney, um I can assure you that there is no public or private campaign against the maloneys.

C

Nor am I involved in any sort of campaign campaign against them, both currently or historically.

C

So I just wanted to start by addressing that um I don't. I only know a few.

C

People who have submitted letters in opposition of this.

C

Most of the accusations in his letter are false. Contrived we've been grossly misquoted in several.

C

Occasions and I think that my family's positive reputation will be clear, we're active community.

C

Members I did want to address jill's suggestion that I called the city about the tree house. That's.

C

Not the case, I called the city about their newly erected fence, in which I learned that was also.

C

In violation of code in which it's not supposed to be higher than four feet tall 14 feet back.

C

From the front of the property, my husband and I decided not to address that with the city. It was.

C

At that time, that a member of the city asked me if these were the same people as the treehouse people.

C

I can't see the treehouse for my property. It was the first time that I had heard about the.

C

Treehouse, it was at that time that I did learn that there was a conflict with many people.

C

um About the treehouse and the negative impact of the neighbors.

C

uh Regardless, that's not why I'm here, I'm simply here to support mark and tess and kelly and misa.

C

And the negative impact on their lives and their property, I don't support the variants.

C

Where uh it's clear that there's a zero foot setback where eight feet is required and a.

C

Five foot setback where eight feet is required, um so it's for those reasons that I am here.

C

And speaking and submitted the letter today, thanks so much for your time. Thank you. Thanks.

L

Hi, I'm carol hollis and I live on union street and I just wanted to say that zoning exists.

C

To protect the neighbors and neighborhoods, and so.

D

Whatever the zoning says is probably a good idea, and so I asked the zba to.

C

Have the applicant dismantle or remove the tree house so that it meets zoning? Thank you.

C

I promise I'll be brief, because I know we should move on from this.

C

My name is jake weinstein 373 lincoln have direct abider to the maloneys.

C

uh Thank you for the members of the board for your service and here tonight, and I just want to state.

C

On the record that, regarding the letter written by mr maloney in the public record, that you guys have.

C

uh The maloney's made many false statements. False quotes misrepresentations about my wife and myself.

C

Most notably, neither my wife or I am in any type of campaign against.

C

This treehouse, nor did I ever admit to such a thing, uh I'm merely here to reflect my disapproval.

C

For the waiver, equal waiver of variance as it would set president for an erosion of standards.

C

That's costly to my neighbors mark and tess and kelly and misa particularly thank you. Thank you.

F

Is there anyone else that would like to speak in opposition to this application.

F

Do we have anybody on zoom sage, clark.

L

Hi, can you hear me? Yes, thank you um so sage, clark, 582, lincoln avenue um first off. Thank.

L

You to the board for your service um and helping us solve these problems in our neighborhoods.

L

um So I had heard some um rumblings in the neighborhood about this structure that was.

L

Going up this treehouse that was being built and um that it was really causing aggravation.

L

For the abutters- and I thought you know you know, what's the big deal.

L

Someone wants a tree house in their backyard. I've raised my children in this neighborhood as have.

L

The abutters and many other people and we've all had various play structures at various times and.

L

You know have enjoyed those for our children, so um I was eventually um invited to take a look.

L

At the treehouse, from the vantage point of the wrights.

L

Driveway and I could not believe what I saw I mean I was expecting something- maybe three or.

L

Four feet: um you know a little peaked, roofed walls, you know something befitting the size of a child.

L

There's nothing quaint about this thing and it's not a tree house. I mean it's essentially a viewing.

L

Platform into the right property, there is no place on their property where they can't.

L

Not see it, and especially from their back deck, so they essentially have no privacy left.

L

I know that mr mccallum asserted in his letter that privacy is not an issue for the neighbors.

L

From the two sides of the property- and it's far from the property line.

L

But he clearly did not consult the abutters when making that statement. It's just wishful thinking.

L

Because they have no privacy left, you know there's no way they can't be within.

L

Visual and auditory contact with whatever is going on on the structure at all times,.

L

It's ironic to me because it seems that the maloney's.

L

Are very concerned with the boundaries of their property and their privacy.

L

You mentioned was made of the new privacy fence that they erected on the one side of.

L

The property that didn't have a tall fence, their house has numerous security cameras.

L

On it, looking out at everybody who comes past the house, so to me it feels a little ironic that they.

L

Would be so inconsiderate and unconcerned with the privacy of their butters when they're clearly.

L

Very concerned with their own privacy on their own property. I don't think there was any malice.

L

Intended I'm sure that they just wanted to give their son something enjoyable same thing. We want.

L

For all our children, but there's a certain kind of inconsideration in the process of doing that.

L

The idea that the structure can't go anywhere else in the property because there's not trees.

L

Available is a little bit crazy because their property has multiple trees all over the place.

L

In addition to this large viewing deck the ramp system on, it is big enough to push.

L

A whole wagon or wheelbarrow up and down it.

L

So I think essentially, what I'm saying is the thing is too big: it's too high. It's too close.

L

And it's just too intrusive and I don't think.

L

Anybody would want to live next to it. Thank you for your time.

F

All right, you have anybody else on zoom, peter.

F

C

My name is lance hellman. I live at 228 highland street.

C

I was sent the information about this hearing.

C

I I've done many things in my life, but I'd like to be thought of as an artist tonight.

K

And I'm only going to address one aspect of this platform, and that is that from the moses's house.

K

They have a beautiful, highly landscaped backyard and the wall attached to the top of the tree house.

C

Whatever its origins or province is too big, it's not as big as a billboard, but it's objectionally.

K

Large, so their view of their backyard. Now has this as a prominent feature, and I think it's.

C

Excessive. Thank you. Thank you all right. Anyone else to speak in opposition.

F

You know anybody on the zoo, um I don't see any hands raised all right.

F

So does anybody speak to for or against last chance to make a comment one way or.

F

The other please come to the podium and state your name and your address. Please.

H

Hello again uh jill maloney, uh 389 lincoln avenue. uh First, I just want to speak to the person on.

H

Zoom, who mentioned the security cameras? um If you had read my husband's letter, the security cameras.

H

Were actually set in place because the portsmouth the police department requested us to do it.

H

Because we were being harassed by the weinstein children and their friends, um we actually have.

H

Camera evidence, so I'm not going to go into that, but that's why we ended up getting security.

H

Cameras from the portsmouth police department's request, um I want to speak to the board members.

H

Have you any of you actually come to see the the tree platform that they're talking about.

H

Okay, so um mark moses, his right. Next to him, there is another family that has um a play structure and.

H

They put up their own wall uh mark and his wife, it's actually in one of the pictures, um but I.

H

Guess the design is pretty enough and they painted it. So it doesn't it's not like glaring at them.

H

So if our wall was painted, maybe they would like it better. I told them that they could paint it, but.

H

They haven't yet, but but again they didn't want to see the children playing on the other side.

H

Of their their um a butter, so they put up their own wall. um It looks very nice, so I can see why.

H

That is something that they like. um If you've never been to our house, we have a very interesting.

H

uh I guess land the way it's designed, it's actually two lots. So we have our house and then.

H

There is a garage or studio and then there's empty space, so we couldn't technically put anything else.

H

Where our lot is, we have that second lot, which again, for I imagine for 30 years, was just trees.

H

And flowers and quiet and now there's a children's play area. So, no matter where we put that player.

H

In that lot, they're going to see and hear children it's not going to have any privacy. I could put a.

H

Swing set there they're still going to not have privacy. The kids are still going to see.

H

Like you can see into your neighbors, it doesn't matter if it's a tree house or not there's there's.

H

There's no way not to have privacy, because the way that the house is set up, we can't put it.

H

It's a huge lot which we're very grateful for and that's where we want to put our child's play.

H

Structure, our house- we can't put it there so as they keep talking about the no privacy, no privacy.

H

You know we're seeing all of this like they're, going to see it no matter what we put there if.

H

You grant for the treehouse to be removed and put further in. It's still going to be tall.

H

I mean there's not going to be a privacy wall that was really expensive, so the children are still.

H

Going to see into their yard there's still going to be children there there's no there's there's.

H

No way around it really um so just wanted to let you know how our the lay of our land was and why.

H

This is a special condition because there's really no other place. To put it. um So. Thank you and I.

H

Really hope that you vote for the platform to stay. Thank you all right. Anyone else, two for a guest.

C

Hi, I'm christine hegarty, I'm in a butter and live at 202 highland street.

C

I can see the structure, it is very imposing I'm not as affected as the moses are, but I just needed.

C

To say I raised kids next to the moses, they loved my kids, my kids had a swing set. They made lots of.

C

Noise, it isn't about that. It's about a structure that is just too big, so I am opposed. Thank you.

G

Good evening again duncan mccallum representing the maloneys, um I just wanted to make a.

G

Comment or two about these letters um that mr moses relies so heavily on.

G

uh There is a thing or two that's peculiar about them. uh For example, um I have I have to confess I.

G

Have difficulty understanding how the woman from 579 sagamore avenue has any stake or interest in.

G

What happens the maloney's place at uh 389 lincoln street she's a mile away uh the same from with.

G

With respect to the woman from who lives at 12 south street, who wrote a letter in opposition.

G

I'm having a trouble seeing why it should matter to her one way or the other.

G

What goes on in the neighborhood? That's a mile away from her and.

G

Almost without exception only a tiny handful of the people, who've written letters can even see they can even see the.

G

Treehouse from their property, uh almost all of these, uh with the exception of just one or two.

G

These these people live at least a quarter mile away or more. They can't even see the treehouse.

G

And yet they're writing letters excoriating my clients and it's excoriating. The tree house.

G

I I think you can see what's uh what's going on here. um The fact of the matter is.

G

Out of all of the people who wrote letters, none of them have any.

G

Have anything to do with this property? None of the almost none with a handful exceptions, none of them.

G

None of them are even in the neighborhood, and almost none of them can even see the treehouse.

G

The woman who lives across the street at 420 lincoln street, who wrote a letter.

G

In opposition to my client's petition, uh katinka de reuter, if I'm pronouncing her.

G

uh Her name correctly, she lives directly across the street from my client's property and she can't.

G

Even see the treehouse, she lives across the street and she can't see it. So uh I regard many of these.

G

These letters to the to in opposition, I think, have to be uh have to be taken with a grain of salt. The.

G

Fact of the matter is this: this tree house isn't harming anybody and, for all all of those reasons.

G

My client's application should be granted. Thank you. Thank you. So peter's anybody else in the zoo.

C

Anyone else on the zoom call want to speak two for or against.

C

All right final opportunity, there's one: oh sorry, um w clarke.

C

M

To that last point, I just wanted to say that um you know I live at 582 lincoln three blocks away.

C

uh But I spend quite a bit of time in kelly's backyard and it doesn't so. I think I.

C

Also have neighbors, who have put their uh their shad next door to my house.

F

In the middle of your yard, to avoid a buddy, and I think that uh kelly, these desserts.

C

Yeah, I think we lost yeah, there's one other edgar gilchrist.

N

Hi, I just wanted to contradict what the what the lawyer uh said that.

J

None of the people that wrote the letters or very few were.

J

Direct neighbors we live across the street, we wrote a letter in opposition, 398, lincoln avenue.

F

All right, thank you.

C

Anyone else peter uh no one else, all right. Anyone else in the audience.

F

Seeing no one rising since I didn't get the gavel wrap of the knuckle close. The public comment.

F

And uh it's up to the board to.

F

Have a discussion and then vote perhaps emotionally at somebody. So what what do you think.

D

I think we have to decide whether or not we're going to go the equitable waiver.

D

um Route or the variance route, so I mean I have my own thoughts, but I want to.

D

Would refer to others, I think philosophy says on the equitable waiver route.

E

There are some things that concern me, and that is that there were two professionals.

E

Involved in this a lan a designer and a builder, and neither one of them thought to bring this.

E

Up, uh I don't think that is acceptable and I think that the expectation for professionals.

E

Should be that they would be more familiar with the requirements of the building code.

A

I would agree that equitable waiver is not the way to go and that I would consider it.

A

As a variance, instead.

A

I would I would move that we consider this.

A

As a variance because I don't believe an equitable waiver is the way to go with this property for.

A

The reasons stated that professionals were working and more should have been known.

A

I'll wait for it.

D

Well, second, um I'll only add that um I think this structure, probably.

D

Constitutes a private nuisance, I think that um ignorance of the zoning laws is.

D

Not a basis upon which we can actually uh uh that they cannot.

D

um They cannot claim ignorance of the zoning law, so I support the motion and we'll vote for it.

F

I'm trying to think would we be making a motion to not grant the equitable waiver or not.

C

Yeah and I'm not even sure that you need a motion, it's just. You have to just determine.

C

They're requesting either one of the other, if not, that the experience well.

F

I think I think, maybe if you could withdraw the motion and just not consider the.

F

Equivalent waiver and move on to that to do that right, I'm fine doing that right.

F

But we're on the variance now okay, um I would like to speak briefly to that.

A

After more than an hour, I feel that I'm really willing to hear this, as if this were coming to us.

A

For the first time and consider, would I give it a variance in the light of just seeing this project.

A

Clearly, there's a lot of emotion but for us there's the five criteria that it has to meet and.

A

For me, this doesn't meet all of the criteria because I don't think it's in the public interest.

A

Or observes the spirit of the ordinance, and one of the reasons I say that is that.

A

The zoning board when it gets a request.

A

A

A variance in a home in close proximity to another home, one of the things we're really.

A

Cognizant of is not infringing in the space of the home. That's there. If somebody wants a deck.

A

We make sure it's not going to look over the person's backyard.

A

If somebody wants an air conditioner, we try to put it in the place. That is the most quiet.

A

If somebody wants to put a window in it's the same kind of consideration- and I just.

A

Think this fails on all of those criteria and um since it doesn't meet the five I would have to.

A

Vote against giving it a variance and that's where I would start this so any other thoughts.

E

I have a thought as well that I would like to share, and that is that I wonder what we would.

E

Be accomplishing by denying the variance! Because, if I understand the relevant.

E

The relevant citation for setbacks.

E

And considering that this is being viewed as kind of a platform kind of a treehouse.

E

I would imagine that the homeowners, if they really want to have this kind of a structure, could do.

E

It by having it as a freestanding platform and relocating it. I don't think that it would, I think,.

E

They would need a 10 to 16 foot setback depending on what the square footage of this thing really is.

E

And I don't see how that would enhance the privacy.

E

For the surrounding properties, so I don't know that we'd really be accomplishing anything.

E

By denying the variance it shouldn't be a private conversation.

A

If they don't need a variance, they can do pretty much whatever they want. But my objection to this.

A

Has to do with the fact that it is so intrusive on the other property.

A

And that is something that we consider in one and two of the criteria. Also, I'm not sure, there's a.

A

Real hardship, because if this is a platform and we've been told, it is, and not a treehouse, it.

A

Doesn't need trees and it could go someplace else in the yard. So again, I'm not seeing it.

F

Morrison, so I will second um phyllis's motion. I think it. I think that was yours.

C

Okay, I'm sorry so I'll. Let you make a motion.

D

uh I would vote to deny the variance request. I I think that um it fails.

D

A couple of things uh I think the uh there are no special conditions of the property.

D

That uh render it that there is no fair and substantial relationship between the general.

D

Public purpose of the ordinance and the specific application of that provision to that property.

D

um uh The proposed use is a reasonable one, but I think it it. You know, having a tree house.

D

Or a deck in a residential neighborhood is fine, but I do not think that there.

D

Is anything specific to this property that allows it to be exempt from the zoning ordinance? I think.

D

That um I do agree uh with ms eldridge in that. I think that the um I think this really.

D

Conflicts with the explicit or implicit purpose of the ordinance which is to um which is for setbacks.

D

In neighborhoods, that is a sort of a bedrock principle of zoning ordinances. I think that.

D

I think there is probably more harm to the general public than there is to the benefit.

D

To the applicant and therefore I think it um it fails, a substantial justice problem.

F

So let me should be clear: we have a motion in a second. Is that correct? Do we have a.

A

Second, what's that I'll? Second, oh okay! So who made the motion? That's made the most.

D

I made the motion: phil is the second egg, all right? Well, uh okay, so we have a motion in a second.

F

In this any discussion about that, if none I'd like to make a couple of comments, I was once a.

F

An eight and ten year old boy I have a, I got a purple heart in tree houses when I fell out of.

F

One and broke my arm when I was about 10 years old. I've built them with anything from two boards to.

F

My cousins and I built an elaborate castle in the tree. One time.

F

That you could put one of these inside there and still have room to walk around so size and.

F

Location is really not a criteria for a tree house, it's kind of in the eyes of the beholder.

F

In this area area in the fort smith, all the houses are in very close proximity to everything and.

F

Pretty much everything your neighbor does: you're going to be able to see.

F

No matter what the circumstances are so.

F

It's uh unfortunate that you know the situation came to this, but we we're here to deal with it so.

F

Having said that, uh if anybody else would like to make any comments, I'd be glad to hear them.

F

Mr mcdonald.

N

This is a particularly difficult decision, because I don't think it's directly and clearly addressed.

N

By the ordinances much of anywhere, and so the the purpose of ordinances in in the first place is.

N

To ensure that property owners maintain the use and enjoyment of their property.

N

When that use and enjoyment infringes on a butters and neighbors use and enjoyment of their property.

N

You have a very hard decision.

N

It somebody somebody is going to win and somebody must lose unless.

N

They're, better at negotiating than I am.

N

So seeing the problem that way, I would say, the applicants.

N

uh Who are trying to provide a play opportunity for their child.

N

See that child grow up and and the play opportunity is no longer.

N

N

Then that problem goes away and it should go away for the neighbors too. It should go.

N

Away for the people who have lost some use and enjoyment of their property.

N

And so how we're getting closer and closer to.

N

Dividing the the burden um between both sides- I don't think either side is ever.

N

Going to feel good about what comes out of this.

N

And I don't enjoy being one of the ones to make the decision. That's what we get paid for david.

N

um But I was, I would say right now.

N

Given that the the need um for the treehouse is is going to be expiring,.

N

um That we should consider first the uh importance of the well-being of children.

N

And allow allow this child to grow up with his caring parents providing opportunity.

N

And then, when that time expires it's over and the neighbors will no longer have to put up with.

N

What they've been putting up with so? For that reason, I would support.

N

I would support a variant to allow the treehouse to remain until.

N

The child is too old to need it anymore. Unfortunately, a variance stays with the.

F

Property forever. The motion we have on the floor is to deny the variance.

D

And this is really for an accessory structure. It's not. I mean it's being called a structure.

D

Or a tree house, but the reality is, is that this is really the variance request is really for a.

D

Accessory structure yeah looking at the pictures, I never thought it was a treehouse per se.

N

All right all right, so we have your motions motion. Excuse me, you made the motion to to.

D

Deny the variance right, and could you restate that please your reasons, my reasons to deny.

D

Are that um I think it just has to fail one prong. I think um the property does not have.

D

Special conditions uh for which there is no fair and substantial relationship.

D

Between the general public purpose of the ordinance provision and the specific application.

D

Of that provision to this property, this is an accessory structure that is being built within the.

D

Setbacks, and I also think that it does fail the for the same reasons. Primarily uh it fails. The.

D

Public interest and spirit of the ordinance and that uh it's a direct directly in compact.

D

Conflict with the express and implicit purpose of the ordinance, which is for side yard setbacks,.

D

Thank you for your second miss. I did second, and can I address something.

A

I just want to say to mr mcdonald's concern, which is very kind, but I'm not sure it's an either or.

A

I'm not sure it's having this tree house or an unhappy childhood, I mean I feel like there are.

A

Other ways for an eight-year-old on a double lob in portsmouth to have fun. So for me that isn't.

A

A big consideration, nor is it really part of the phoning consideration.

F

There's no more comments, we'll call for a vote. The motion is to deny the variance mr rossi.

E

F

That's! That's! All! That's! Yes! That's a yes! Thank you. Sorry.

F

Are you keeping score peter by the way? Yes? Okay, ms martinson.

F

Yes, all right, miss morganson! Yes, mr mcdonald, no, mr mantle mantle, yes, the vice chair votes, no.

F

The vote is four to two, so the variance is denied correct.

F

All right, all right off we'll come back.

E

B

Thank you. Thank you, mr lee. I appreciate it.

B

Too bad we couldn't have a nice easy one for you to pray yeah. You know start at the top.

B

Please leave as quickly as you can folks.

B

And take your conversations outside with. Thank you very much.

A

It's always good to have the school principal there. You go.

B

uh I used to teach knights.

B

That completes all business. uh Let's, let's move right into new business.

B

Item a uh reads as follows: the request of cyrus beer and erica karen owners.

B

For the property located at 64 mount vernon street, whereas relief is needed.

B

To add a condenser unit which requires the following one: a variance from section 10.515.14.

B

To allow a four foot setback where 10 feet is required.

B

Said property is shown on assessor map, 111 lot 30 and lies within the general residence b.

B

Grb and historic districts who speaks in favor of this project, please welcome hello.

L

Yes, something I said, um thank you so much for your service. um Yes, I'm erica beer.

L

I live at 64 mount vernon street, my home of butts city hall. We are looking to put in.

L

Central air and the unit will be away from the street and any neighbor's view of the property.

L

What else can I say, I'm a little nervous.

A

You're doing great um no need that we plan my husband plans to build a structure to camouflage.

L

The unit, if it if it's um and it will be placed in the least visible location, um there really.

L

Won't be any impact to our property, anyone else on the street and the only impact I can think.

L

Is they won't have to hear three children and a dog barking on hot summer days and nights? So in.

L

The last 10 years that we've lived on this street, um there are nine houses on our street and some.

L

Seven of them have central air. Now, in the last few years, we're sort of one of the last holdouts.

L

Yeah, I don't know what else to say, except the current house is about 200 years old and it's.

L

The temperatures on the second floor can reach almost 90 95 degrees on a regular.

L

Very hot summer night and it's made it impossible at times to sleep up there.

L

And so just this still just add to a sense of comfort and security, knowing that we can don't.

L

Have to worry about keeping our windows open at night. um We don't plan to use it often, but.

L

I um know what else to say all right: any questions from the board at this point.

B

No apparently yeah, mr mcdonald, do you still plan to screen it? Yes, we can screen it. We're.

L

Happy to screen it, I've noticed that there are few um houses on the street that have screened.

L

Theirs with bushes, where it would be placed, is actually right up against the back side, where.

L

City hall is there's like a parking lot there. um So wouldn't I'm not sure if it needs screening.

L

We've offered to do that. um Yeah some of the neighbors have put bushes. I noticed around theirs.

N

Okay, yeah part two of my question: yep um generally, the the reason for side yard, clearances.

N

Is is to allow access for emergency equipment like fire trucks, and things like that? Okay,.

N

In in this case, the code anticipates 10 feet and you'll you'd like to reduce it to four.

N

And so my question is, on the other side of the house.

N

You're not asking for a variance, you must have 10 feet.

N

Has has anyone just from the city discussed with you.

N

The um accessibility for for emergency apparatus.

N

Okay, do you have any idea how much clearance you have on that side.

L

um Are you talking in the front like the front of the house opposite from where the.

N

Air conditioner is yeah um from it would be the front. The opposite would be the front yeah I mean.

L

I mean right now we have two cars parked out there, big deck- I don't know, but I don't okay.

D

I'm not sure, okay, so it's pretty straightforward. You need you're going to need a verified.

N

Yeah: okay. Okay. Thank you any uh other questions from the board of this anybody else at all. No.

B

Thank thank you very much. Anyone present who would like to speak in favor of this.

B

Anyone else anyone in favor no seeing nobody, anyone wishing to speak in opposition anybody.

B

At all, okay, any speakers to for or against last call last chance to speak, seeing none.

B

Okay, okay, public hearing close, thank you very much discussion from the board or perhaps a.

B

Motion, mr chair, I'd, move to approve this variance. Thank you, mr lee. There's a motion to approve. It is.

B

There a second on that motion. Second, thank you. Thank you, mr mantle. Mr leo, your motion. Please.

B

So this is a pretty straightforward application. We get these pretty often for uh air conditioning.

F

Convincers this uh you know going through the criteria. This experience is not current public.

F

Interest, the spirit of the ordinance is observed. It's just uh an air conditioning compressor that.

F

Will be placed out of view of the public and will not bother anybody. Substantial justices will be.

F

Done here? Because the benefit to the applicant is not outweighed by any harm to the general public.

F

And certainly there'd be no no diminishing values of the surrounding properties because of this.

F

And little enforcement of the ordinance would result in an issue hardship because.

F

Of the age of these houses, they were built 200 years ago with little thought for ventilation.

F

Across breezes and that sort of thing so they're, unfortunately very hot and which had you know.

F

Rises, the necessity to uh to retrofit an air conditioning unit in there.

F

So because of that uh in special conditions of the property, then the property can't be used.

F

And reasonably used in strict performance of the ordinance, and so for those reasons I have moved.

F

That we approve this application. Thank you very much. Your second, please with everything mr lee.

O

Just said, thank you and anything further before we take a vote. Okay, I just want to note that the.

D

Right right, yard setback is not being increased from what it is currently it's still. It was four.

D

Feet and it still will be four feet yeah. Yes, thank you. Yes, that's useful to note.

B

Excuse me those uh those in favor, let's start with mr lee. Yes, yes, mr rossi, yes, yes, ms eldridge, yes,.

B

Ms rogerson, yes, mr mcdonald, mr mantle, yes and I vote yes as well. The motion is pat you're. All.

B

It's passed, you're all set you're welcome.

B

All right, let's me, let me mark the scorecard here.

B

B

Excuse me, mr lee, it's just it's just your lucky night.

B

uh I have to refuse on the next issue court street as well all right.

F

So this application is the request of treadwell house incorporated owner for the property located.

F

At 70 court street, whereas relief is needed to convert the building into an eight-room.

F

Inn with caretaker residents, which requires the following: a variance from section 10.440.

F

Use 10.30 to allow an end where the use is not permitted, a variance from section 10.114.21.

F

To allow a 13 foot maneuvering aisle where 24 feet is required.

F

Said properties shown on the accessory map uh 116 lot 49 allows within the character district 5.

F

Cd5 and character district 4 dash l1 cd4-l1 who's here to speak to this application.

P

Good evening, mr acting chair, um my name is chris mulligan from I just I'm sorry kristin interrupt. I.

D

Just want to get clarification from peter stiff. It says that this is in cd5 and cd4 l1, but yet.

D

It's just cd4 l1. Okay. I just want to make sure, because in cd5 it would be permitted by rights.

P

Right, cd4, l1, all right. Sorry, that's! Okay! Again, chris mulligan from bozon and associates in.

P

Portsmouth here on behalf of um the applicant davenport nllc and also the owner of the.

P

Property treadwell house llc, it's nice to see you all again. It's been a couple of months.

P

I have with me as part of the project team, andrew simonis, from the davenport inn and.

P

Eric sorry from altus engineering, the project engineer, I do believe chuck doliac.

P

Who is a representative of the treadwell house? Llc ownership group will either be zooming in or.

P

Maybe here to speak, but in any event, um as was noted, this is a proposal to convert the existing.

P

Historic treadwell house that is now standing at 70 court street from the existing office use to.

P

An eight-room boutique inn with a caretaker residence.

P

The I went into a bit of the history of the treadwell house.

P

In the narrative in support, but suffice it to say it's a fairly important piece of historic.

P

Architecture in portsmouth has quite a history, and its provenance is as an inn in rooming house.

P

At its prior location on the corner of fleet and state street, approximately 1950s.

P

It was threatened by the wrecking ball, as was quite a bit of historic, portsmouth and.

P

Through sort of an extraordinary.

P

Effort by the predecessors of mr doliak's ownership group, it was.

P

Saved and physically removed to its current existing location.

P

According to the tax records that the city maintains, there's approximately 3 400 square feet.

P

Of livable space again, it was moved in to this location in the 1950s um and has a significant.

P

Prior history, both as an inn and also um some historical uh worth, uh given that it was used.

P

During the war of 1812, as generals quarters, et cetera, in addition to the you know, colorful past.

P

It also has some fairly important architectural features and I'm not going to attempt to.

P

Recite those because I would not come close to doing it justice, but I provided some pictures in.

P

The submission of moldings, the circular stair ball, there's alternating spindles on the main stairway.

P

Deep arched window bays several significant features of an architectural nature that.

P

Are fairly rare in portsmouth these days, so the the goal is to be able to utilize.

P

This property as an end, to take advantage of these unique features and history of the property.

P

Because an inn, a place of public accommodation, would allow people to access.

P

And experience and learn about the historic nature of this property and of portsmouth in general.

P

I think you all would agree with me that modest sized boutique inns are very popular downtown.

P

The hotel, portsmouth, formerly decision is a couple of doors away further down.

P

Court street we have, the cell makers in around the block um is the in at 53 austin street. The.

P

Old salvation army is uh in the process of being repurposed into a similar type of.

P

Facility, so our um believing our belief is that.

P

These are among several of these smaller boutique ends um that uh take advantage.

P

Of and play into portsmouth's historic character and they provide a nice counterpoint.

P

Or you know a historic alternative to the new hotel construction. We've also seen quite a bit of.

P

In the city um so tonight uh we're before this board seeking two variances, the big one is.

P

Obviously, a variance for the specific use as an in which is not permitted by wright in the cd4.

P

L1 zone, we also need relief for a 13.3 foot, maneuvering aisle where 24 feet is required.

P

The maneuvering aisle, I think- and I hope you would all agree- is a pretty straightforward request.

P

um It's essentially an existing condition of the property, um and it's been in existence um as such.

P

For you know more than 60 years in order to comply with a 24-foot travel aisle, we would either have.

P

To seriously alter the historic structure, and even then I'm not sure we could, we could comply.

P

Or perhaps sacrifice uh some of the existing parking spaces that are there.

P

So it's almost by definition, an unnecessary hardship because that's an existing non-conforming.

P

Condition of this particular property that we really just can't comply with.

P

What we're proposing would be no external changes to the existing property.

P

And it would maintain its historic character, we are in the historic district, um so any.

P

External changes to the property um if we're required as we move through the planning process.

P

Would have to be approved or further vetted by the historic district commission, although.

P

We're not anticipating that we're going to need any beyond just appropriate commercial signage.

P

So with that, as a background, I will move to the criteria, but before I do that, I just want to point.

P

Out something that some of you may have picked up on the c1 plan that was submitted. This is the.

P

Variance plan that was uh submitted showing the proposed use and um the first note on that plan.

P

Indicates that this is a site plan for a proposed restaurant use. That is obviously not accurate.

P

And that uh it was carried over from an earlier iteration of this plan and a different proposal.

P

For this property, which is not going to see the light of day so to the extent that was.

P

Burning a hole in anyone's pocket, the plan is not for any type of restaurant use.

P

So again, an eight-unit.

P

Boutique inn with a caretaker residence um is the use that we're seeking approval for from the.

P

Board today, we will need to go before the planning board for conditional use permit regarding parking.

P

Given the existing non-conformities in the parking that exist now, but.

P

The variances we need are for the use and for the maneuvering aisle so to address the.

P

Five criteria necessary for granting a variance granting the requested variances will not be.

P

Contrary to the spirit of the ordinance, nor will they be contrary to the public interest. These two.

P

Criteria are considered together, and the tests for whether or not these are met is whether the.

P

Variances being granted would substantially alter the essential characteristics of the.

P

Neighborhood or otherwise threaten the public health, safety and welfare. Here, the essential.

P

Essential characteristic that the neighborhood would not be altered by this particular project.

P

There are a a a variety of commercial and residential uses within the immediate.

P

Vicinity, we have single and multi-family dwellings, we have other ends in the vicinity.

P

We have public housing, we have municipal uses middle school, the fire house. There are some retail.

P

Uses down court street- and there are professional offices, lawyers, architects,.

P

Other professionals and business offices all in the existing neighborhood, so a uh an inn as we're.

P

Proposing it would be consistent and compatible with a mixed commercial residential area such as.

P

This, as far as the drive aisle configuration that has been in place on this property.

P

For essentially over 50 years, without any significant issues that we're aware of.

P

So there will be no change in the essential characteristics of the neighborhood.

P

Nor would the health, safety and welfare of the public be threatened. The next criteria is.

P

Substantial justice and we believe substantial justice will be done by granting the variance.

P

Variances- and here you have to balance the loss to the applicant, should the variances be denied.

P

Against the benefit to the public, should you require strict compliance with the.

P

Ordinance um as I've discussed, I don't think the maneuvering aisle is a really tough call for you.

P

There's really no way we can comply with the maneuvering aisle and that requirement.

P

Would compliance with that requirement would require significant alteration of the historic.

P

Structure that would clearly be a loss to the applicant that outweighs any benefit to.

P

The public with respect to the change the proposed change in use, we are proposing no exterior changes.

P

Beyond otherwise permitted signage and what we're proposing will promote and protect the historic.

P

And architecturally significant features of this particular property and make them available.

P

And accessible to more of the public than any other use, that is likely.

P

The current use of the property is for office space.

P

Office space is we're seeing a decline in the demand for office space, so it is very likely that.

P

If the variances are not um granted the highest and best use of this property would be as high-end.

P

Residential dwellings, which there's always an argument for high-end residential dwellings. But.

P

What would be lost if that's the way this property goes? Is the ability for members of the public.

P

In greater numbers to experience and enjoy the history.

P

And the significance of this particular property- and I think that's a benefit.

P

To the public that this proposal promotes, so I think denying this uh variance um would be.

P

uh Would be a denial of substantial justice to the applicant and to the owner.

P

um Granting the variances will not result in a diminution of value of surrounding properties.

P

The existing built environment is not going to change; there will be no.

P

Exterior renovations to this property that will not have to be approved either by the uh hdc. If.

P

We're required to do any as we go through the process, but we don't believe we're going to need.

P

To do any exterior modifications to the property, if so they they should be very limited, um and, as I.

P

I mentioned earlier when we were talking about the spirit intent of the ordinance and the essential.

P

Characteristics of the neighborhood, the use that we're proposing is compatible and consistent with.

P

The the sort of panoply of existing and varied uses within the neighborhood, the the mix of.

P

Office, professional commercial uses in the area, along with some residential and municipal uses,.

P

This would be consistent with and not incompatible with those uses, so values of surrounding property.

P

Should not be diminished by what we're proposing then. Finally, in order to grant a variance, you have.

P

To find that there's an unnecessary hardship, and here there are special conditions associated with.

P

This property, which prevent its proper enjoyment under the strict terms of the zoning ordinance.

P

And that's creates an unnecessary hardship. The unique part of this property is the historic.

P

Nature of the property, as the treadwell house that it's been moved to this location in the 1950s.

P

To be saved from the wrecking ball and its existing architectural.

P

Anomalies or architectural features that you will not find in other properties.

P

Those are particularly those are qualities that we feel are particularly well suited or make.

P

This property particularly well suited uh for a place of public accommodation which this property.

P

Had been before, it was moved to this location. um This will assure that this.

P

Part of historic portsmouth will be preserved for visitors in the public.

P

I think the way to get people to appreciate historic portsmouth is to get them to.

P

Experience historic portsmouth: this proposal will um foster and promote that ideal um and.

P

That ideal would be lost in our opinion, if this were otherwise converted to residential use.

P

The use is a reasonable use. It's a commercial use within a mixed commercial zone. There are.

P

Examples of ends within the immediate vicinity that seem to work very well.

P

I've discussed a few of them: the old seisin, the cell makers in the new.

P

Salvation army, that's being rehabbed, so.

P

It's a reasonable use for this location and, finally, there's no fair and substantial.

P

Relationship between the purpose of the ordinance and its particular application of this property.

P

Here I would argue that the um the purpose of character, districts and form-based.

P

Zoning is to preserve the form in terms of mass scale and architectural integrity of a property.

P

And make sure that it blends in with its immediate surroundings, this property, or this proposal.

P

Accomplishes all of those goals, um the point of form-based zoning, like we have in our character.

P

Districts is not to slavishly segregate different uses from one another; they just need to be.

P

Compatible with one another- and I believe they are in this case- and the mass scale and.

P

Appearance of this particular structure isn't changing at all, so it it fits in.

P

With its surroundings, so the proposed use here would not in any way frustrate the purposes of.

P

The character zone and the use restrictions imposed on the character zone so for all those.

P

Reasons we believe that this project is a good one for portsmouth. It's a great one for this location.

P

And we encourage you to approve the application all right. Thank you. So anybody have any questions.

F

For the applicant all right, what's the status of seeking a conditional use permit for the parking.

P

So we thank you for the question. We had a work session with the technical advisory committee.

P

Last monday or tuesday, I believe, and we've submitted a application for full formal tax review.

P

Today, as a matter of fact, and that will be before you know ultimately,.

P

Assuming we get variances, we need that will ultimately be.

P

Decided by the planning board, I believe in the middle of march, so it's in process.

F

Thank you, you're welcome anything else.

C

Thank you, mr miller. Thank you.

F

All right, we'll open the public comment. So is there anyone here that speak in favor of this application.

F

Please come forward and state your name and your address. Please.

Q

My name is chuck doliac. I live at 365 little harbor road.

Q

Portsmouth new hampshire, I uh one of the owners of the building right next to this one.

Q

At 82 court street- and I can tell you without doubt that having an inn in this location is a.

Q

Preferable use rather than a residential house, or rather than an office piece and I'll, tell you why.

Q

You think you have a letter from my partner ralph woodman in the packet.

Q

In his youth he saw this house saved from destruction when the first national bank.

Q

Was going to tear it down and the reason it was saved by my partners.

Q

At that time was because it's a house of enormous historic importance. It has features of.

Q

Of architecture that you don't see anywhere else, except in historic buildings in the center of.

Q

Portsmouth, the plankton house, those kind in the moffat lat house- are similar structures, but you.

Q

Don't see small structures like this that are as magnificent in terms of their inter.

Q

Interior architectural features, which I won't talk about- you have pictures of them.

Q

But the key to this is not only with that, but this was an end. It was the davenport in before it was.

Q

Moved it's going back to its historic nature and it was very famous for having very many famous.

Q

People stay there during the court sessions and, as a result, it has this this historic history.

Q

That you know if it's an office you're not going to know that if it's a private residence, you're.

Q

Not going to know that, but if it's an inn, it's in their interest to talk about the architecture.

Q

It's in their interest to talk about the historic people that were there.

Q

And this building was so magnificent that in 1814, when the british, when the american army was.

Q

Afraid that the british were going to burn down portsmouth and station, the 5 000 man army here.

Q

Guess what building the the generals chose for his headquarters because of the magnificent.

Q

Architectural features this house, in fact it's the only house that has any relationship to the war of.

Q

1812 right now in portsmouth, so what we have is a building that has enormous historic importance.

Q

And a use of people who are going to use it as an end to be able to tell people what that.

Q

Historic importance is, it is a selling point of portsmouth and it is the best way to preserve.

Q

Portsmouth beyond making it a museum, so we hardly endorse this project. Thank you.

F

All right is there anyone else that likes to speak in favor of this application.

F

Is there anyone that would like to speak or when.

F

Opposition to this application, we we do have jason jenkins, okay,.

C

Sorry about that, can you guys hear me? Yes, oh, but there's no video. I guess.

M

uh No yeah, no video, all right I'll continue. um So my name's jason jenkins um directed butter.

C

To this property, um I wouldn't say I'm for or against this um it's a beautiful structure and.

C

uh Great to have it in the neighborhood um just a couple unanswered questions I had regarding the.

C

Plans um first off was I just curious. If there was gonna be.

C

Like a dumpster anywhere or how they were going to handle the trash.

C

And then the second thing was it's kind of unclear on why the parking situation is not part of.

C

This board of adjustment meeting- I guess you guys just touched on that a minute ago, but I.

C

Didn't really understand so you guys could clarify that, because I mean it looks like they're trying.

C

They want to go from like two spaces against the fence to three um which is barely room for.

C

It it is, you know, it's kind of tough with like snow removal and mark street is super narrow.

C

I wasn't sure if, like here's, the front of the building, gonna be the primary entrance or you.

C

Know will people be pulling around the back to check in um you know and where are the other.

C

Six cars going to park or five cars, however many cars you're gonna, be um so if you could.

C

Just maybe get some more clarification on those questions. um That's that's all. Thanks.

C

All right, thank you.

F

So anybody else on zoom peter, no, all right so does anyone speak too far or against the application.

M

Well, members of the sony board of adjustment- my name is bob mahevka. I live at 327, sagamore avenue.

M

I my client is a treadball house and I do represent them. I also own a property on the hill.

M

In portsmouth, so I thought I'd just maybe shed some light on a similar situation. We had there.

M

The hill is a it's a condominium, complex of a dozen buildings on an acre of land.

M

Adjacent to the hilton hotel and a couple of years ago,.

M

The former blue mermaid restaurant was for sale and the purchaser was uh proposing to put an in.

M

uh In the facility and changing it from restaurant to end so as uh a condominium association, we.

M

You know we were, uh we had some questions about. How will that affect parking.

M

Because we have limited parking there and uh just how would it affect our immediate neighborhood and.

M

One was well a bed and breakfast is allowed, so they could have put a bed and breakfast.

M

In there, but wanted a variance for an inn which we supported, because we didn't want.

M

A kitchen in there and you know, odors from food and that sort of thing and more people in and out.

M

So we thought um it was more appropriate to have an inn as opposed to a bed and breakfast.

M

And that's what the uh that's, what the buyer was proposing and we were on board with that.

M

I will say after their project was completed. They similar to this property here was about.

M

Five thousand square feet and I believe it was eight units they renovated the building.

M

Looks great all of our buildings are historic, so we were very concerned with that and what it.

M

Would look like and very pleased with the outcome and I will say that in terms of parking and any.

M

Any kind of impact to our small neighborhood there, there's very little. In fact it was. It was much.

M

Much better than the restaurant had been in terms of impact, and I think it is much better than an.

M

Office building would have been with you know: 20 25 people in and out of there every day, so.

M

Our experience there was very positive continues to be very positive, so I just wanted to.

M

Let you know about that situation, which is very similar to this one here. So any questions.

M

I'm happy to answer any questions and also the parking, um the app or the.

M

The property owner, uh if for some reason we were out of parking or whatever um his.

M

um His tenants or clients would park in the parking garage or on the street.

M

So and there's there's never been an issue so anyway. Thank you. Thank you, mr.

P

Again chris mulligan for the applicant just to briefly address.

P

Parking again, we have a conditional use permit application that will.

P

Need to be approved by the planning board, so the ultimate parking configuration.

P

Hasn't been set yet and the, uh but the the butter's comment is well taken. We understand.

P

It's a concern. um The uh the thing that I think is important to keep in mind, though, is that there are.

P

At least three municipal lots within uh you know, with significantly less than half a mile from this.

P

Location, there are two parking garages that are within half a mile and the applicant's principles.

P

Own an apartment or a office building on middle street which, if necessary, can be utilized for.

P

Overflow and off-site parking, either through a formal, shared arrangement that the city imposes.

P

On us, or if they deem it to be part of a business necessity because their guests require it so.

P

Again, the city and the zoning ordinance recognizes and contemplates conditional use permits in this.

P

Situation where there is not enough on-site available parking and we'll have to convince the.

P

Planning board that we can accommodate it and we're prepared to do that. Thank you. Thank you.

P

All right question: chris, I'm sorry, I'm sorry.

A

What about the dumpster question that mr jenkins yeah? We uh that's! uh I thank you. Miss eldridge.

P

We don't anticipate and we have no plan for a dumpster there's no room for a dumpster. There.

P

We we're going to utilize municipal services. Thank you. You're welcome,.

F

All right final opportunity, 2-4 against seeing no one rise, close the public hearing.

F

Lord thoughts, emotion on our two variances, I always feel like. I start things, but.

A

Yeah, we don't have chase anymore or chris, no I'm just kidding, um but um so just some random.

D

Thoughts um but I I just want to explain to people watching and uh and we're listening.

D

uh Parking is not the purview of this board, um we, uh you know, I understand people's parking issues.

D

um Problems with it, um I am largely sympathetic. However, that is not something that this board can.

D

Decide an application on because it's in the purview of the the planning board now under.

D

A conditional use permit. I also very much appreciate the information on history again.

D

That's not something that's within our purview, although I appreciated the uh information from.

D

Chuck doliac- and um you know the the building is lovely. um I don't know if the interior will be not.

D

Disturbed they're putting bathrooms in but again- and I hope that's not true, but again, that's not.

D

You know within the purview of this of this board, um I am going to support this application. um I.

D

For a variety of reasons, I think mostly, is that um the character district is really about streetscape.

D

And facades and there's going to be no change to that um with this change in use, the use, variance.

D

Is normally very hard to get, um I think less so in a character in a character-based zoning district.

D

uh I note that the um hotel portsmouth is two doors away. That's also in the cd4 l1.

D

I can't see that this change in use is going to have any impact on that on that area. I I do.

D

Note that- and this is something that I noticed when we were evaluating the variants for the.

D

Treadwell house, that's on the corner of court and pleasant. The zoning and going down court is.

D

Is rather odd, there's a lot of municipal and civic um slots. There is alternating cd4 l1 with cd5.

D

Which is a little strange if you're trying to bring it to congruity of sort of streetscapes.

D

So I I think that to a certain extent, there are special conditions for this property.

D

In that, it's right on the edge of the cd5, where it would be allowed by wright.

D

um And I I do find that that's a little bit strange in terms of how the zoning was done.

D

uh Down court street, but um there is another end within the cd4 l1.

D

um And I just don't see that this uh will have any uh will change the character of the area so.

F

Thank you. I agree with everything you said and I think preserving the character of the building is.

F

Certainly, a laudable uh effort on the on the applicant's part and I'd certainly be.

F

Supporting the motion to grant these variances, so if anybody has anything else to say.

F

Or maybe somebody would like to make a motion get? Did you make a motion? I did not. I just spoke.

D

Oh, if somebody else wants to do it I'll I'll move to approve the motion as.

N

Excuse me as proposed. Thank you, mr mcdonald. Do we have a second from anyone? Second,.

F

All righty, so, uh mr mcdonald, your motion, please well. I think uh the proponents have.

N

Said everything that can be said in favor of this application, so I will depend on their.

N

Complete competence to to do it and.

N

And not add to what's already complete all right, so manny your second, please.

F

um Well, to follow up on what mr mcdonald said. um I agree. This is a great reuse of.

O

The project I appreciate mr doliac and attorney mulligan's comments.

O

Unfortunately, as ms margerson said, the boa does not have jurisdiction over parking. That.

O

Was taken away might have a different issue right there and then, but no matter. I think it's a great.

O

Reuse of a property, uh the character districts- I remember those meetings very well and how they.

O

Changed from block to block and house to house um and, as you said,.

O

The size in and the sail makers are loft are all on the same street.

O

The variance is not contrary to the public interests, the spirits of the ordinance.

O

Is observed, substantial justice is done, the values of the surrounding properties are not diminished.

O

And literal enforcement of the ordinance would result in unnecessary hardship. I believe all.

O

Those criteria are met and I will be supporting the motion all right. Thank you, mr manny. So.

F

With that, we will go to a vote if no one else has any comments. Mr rossi, for okay.

F

Ms eldridge, yes, ms morgson, yes, mr mcdonald, yes, mr manny.

F

Yes, the vice chair also votes. Yes, so it's unanimous emotions approved. Thank you very much.

F

Mr parrot, now that you're now that you're retaking now that you're retaking the reins, we're a little.

F

Past the time for our uh breaks, that was the first first thing I was going to mention all right.

B

Is everyone in favor of nine o'clock? Yes, yes,.

B

We're adjourned. No I'm not adjourned. Excuse me we're on break super early adjourned.

A

B

The last item of the evening is uh under new business item c and the request it reads as.

B

Follows the request of master da master ran? Please correct my pronunciation: restaurants, inc, the owner.

B

For the property located at 22, 55 lafayette road, where is relief, is needed to demolish the existing.

B

Burger king and construct a fifty five hundred and fifty five square foot convenience store with.

B

Drive-Through and fuel island and fueling island, which requires the following one: a variance from.

B

Section 10.5 b 33.20 to allow zero percent front lot line, build out where 75 percent is required.

B

Two: a variance from section 10.5 b 22.40 to allow a building to be constructed outside of the 70 to.

B

90 foot setback from the center line of lafayette road, three, a variants from section 10.1113.20.

B

To allow parking to be located between a principal building.

B

And a street for a variance from section 10.1114.31.

B

To allow more than one driveway five, a variance from section 10.835.32.

B

To allow a bypass lane for right excuse me for a drive through to be set back.

B

24 feet from a lot line where 30 feet is required: six, a variance from section 10.1251.20.

B

To allow a 160 square foot freestanding sign where 100 square feet is the maximum allowed.

B

Said property is shown on assessor map, 272 lot 3 and lies within the gateway florida g1 district.

B

Who speaks in favor of this proposal? Please good evening, mr chair members of the board, I'm attorney.

R

John boston, I represent the applicant we're joined tonight by brad pernot from common man. Restaurants,.

R

And project engineer nicole duquette from gpi the proposal before you seeks to redevelop the former.

R

Burger king building, located at 2255 lafayette road into a common man. Roadside convenience store.

R

With an irving gas station, onsite will be 5550 square feet of retail food service space with.

R

A drive-through and a retail fueling area with five fuel dispenser canopies.

R

Dispenser islands with an overhead canopy, along with associated parking travel lanes and other.

R

Improvements, as shown in the plan, I provide you with a handout for some visual aids and I'd like.

R

To have brad perna come to the podium and just give you a really high level overview of the.

R

Project, I think, it'll help put this in perspective. Then nicole is going to come and talk to you.

R

A little bit through the site plan and I'll come back up and go through the zoning criteria. So brad.

S

Good evening I'm brad parnell for the record, I'm the managing partner of the common man roadside.

S

Our brand, the common main roadside, we're an offshoot of the common man family of restaurants,.

S

That's been operating in new hampshire for about 50 years. In 2014 we opened the first common man.

S

Roadside at the hooks of welcome centers that we redeveloped through a partnership with the.

S

New hampshire department of transportation, through the success of that concept, we created a smaller.

S

Version that you see in front of you, it's anywhere from four thousand to five thousand square feet.

S

We opened our first store in plymouth in 2019 and we opened a second location in manchester in 2020.

S

We're here tonight to seek approvals for our project here in portsmouth, and we have others.

S

Planned in epsom in concord we're a 55, 5500 square foot market in delhi, a major portion.

S

Or component of our offering is made to order food service which is coming from our restaurant.

S

Heritage and background, so when you think of a traditional convenience store and gas station.

S

You might not think of what we have here to offer, so we felt like this packet would be important.

S

These are pictures from a publication that was done on our manchester store about a year ago.

S

And this is what we would be building here in portsmouth with a couple.

S

Tweaks in manchester, we had to eliminate some of the indoor dining due to the.

S

Lot configuration constraints on the next page. You can see our facade, we.

S

Use a stone facade we similar to our restaurants. We want to have a barn, aesthetic and a peel.

S

Inside the store, you can see the great links we take to make a new building look old.

S

That's all reclaimed barn board that we find rusted corrugated metal, roofing.

S

And we go through two great lengths to to do that. The last page is a floor plan and I just.

S

Want to point out the living room concept, we have a fireplace in there couches and.

S

We view this as uh it's more than a convenience store. It's a it's really a deli and it's one of.

S

Our restaurants, focusing on real food, real fast, we're excited about this project. We think this.

S

Is a great location and we are looking forward to coming back to portsmouth. So I'm going to.

S

Turn everything over to nicole now and she can go through our site plan. Thank you. Thank you.

T

Hello, nicole duquette from gpi um just I know it's getting late, so I'll go really fast.

T

So the existing site- you probably all know about it's burger king right across from water country,.

T

um The existing building is almost 5 000 square feet. It's it's 4 770 square feet. um There.

T

Is uh 73 parking spaces on that lot, which is kind of a lot for that use and that's why they.

T

Have so much pavement on that site, the existing building, which this will come into play later on.

T

Is is 151 feet from the center line of lafayette road, so the existing building does not conform.

T

With today's regulations as well, and the other thing to mention is that the existing development.

T

Has like a one foot separation to the wetlands.

T

The major wetlands in the back, so we did as part of this, we do need to get a cup.

T

uh A conditional use permit with the conservation commission, so we did meet with them conceptually.

T

A couple of months ago, we also met conceptually with the technical advisory committee committee.

T

And had a scoping meeting with d.o.t to try to really do our homework before we came before.

T

You today, some of the things that came up uh well, the proposed development uh as mentioned uh is a 5.

T

55 square foot convenience store sandwich shop or deli with a drive-through, so we are asking for a.

T

Drive-Through in this in this location as well, and then it has the five fuel dispenser islands or 10.

T

Fueling locations, we are reducing the parking spaces to 25 spaces. We are allowed to count the.

T

Parking spaces at the pumps- and I know you don't deal with with spaces, but this is how we're some.

T

Of the ways that we're reducing the pavement on this lot, um the can uh the canopy itself.

T

And I figured out how to use this tool right before you. It was good that you took a break, so I.

T

Could figure out and watch it's not going to work? I think if you hold it hold the button yeah. I am.

T

Oh wrong button: I did practice this. I swear all right, so this canopy edge is.

T

120 feet off the center line of lafayette road, so the existing building is right behind.

T

And this red dot is or pink dot is a really wide. I'm just going to go there and point to it.

T

Right there, so that is the edge of the existing building, so our existing building.

T

The burger king building is going to be is behind where we would have the canopy to uh in the future.

T

The convenience store deli is about 203 feet from the center line of lafayette road.

T

There was some discussion back and forth whether or not the canopy was the principal structure.

T

Or the convenience store was the principal structure. um If there is a supplemental.

T

Regulation for the gas station use and the gas station use does list the convenience store as.

T

An accessory to the gas station, um however, I I do see the ambiguity, because this isn't.

T

Just a convenience store, it is a convenience store in delhi shop. But if, if the canopy was.

T

Deemed the principal structure, the canopy would be more conforming than the existing structure.

T

And the other thing is, we are not proposing any um spaces to the front of that canopy or to the.

T

Side of the canopy, the only spaces, the customer spaces are actually located right in front of.

T

Our our storefront right here and then we have spaces back here which I'll get to a little bit.

T

So with the conservation commission, this this plan has been revised several times.

T

With the conservation commission they're concerned, you've got the wetland.

T

Which comes down along here this finger right here is a swale between the two properties.

T

And it basically is a swale for d.o.t. The d.o.t has a culvert that discharges right there.

T

And that goes right into the the main section of the wetlands back here. So one thing that the.

T

Conservation commission had asked us to do. We did have parking spaces. Oh now, it's we did have.

T

Parking spaces in this area here we have removed those um and put some in back the other thing we.

T

Did is we took the the underground storage tanks that were located on this side and pushed them to.

T

The other side, further away from the wetland as far away from the wetland as we could get them.

T

The loading area, one of the things that they wanted to do.

T

Is get the pavement edge as far away from the main portion of the wetland as they could.

T

So we took the loading area that was back here before and we moved it over to the side that.

T

Allowed the the pavement edge and the development footprint to be moved away from the wetland.

T

So these spaces back here, the um the 11 spaces back here- are actual dual purpose: spaces in the.

T

Future, the common man roadside would like to have the ability to put ev charging stations back there.

T

So that's another green building initiative that that the common man roadside is looking into.

T

The other thing I want to mention, too, is our storm water right now, burger king's pavement.

T

Just she flows right into that wetland, there's no treatment whatsoever. So, with this development we.

T

Are proposing um both pre-treatment and treatment devices to treat the storm water.

T

Before it is released into the wetland, so we feel that you know it is important.

T

Especially for this site, with such a large wetland and back, even though it's not a.

T

Prime wetland, it is a significant wetland and we need to to protect it as much as possible.

T

um The other thing I want to mention, too, is with dot. We did have the scoping meeting.

T

And their their big comment was that they wanted to keep these driveways exactly the way they were.

T

With um it's currently in in an entrance driveway only in an exit driveway only so.

T

That was very important to them to keep those same exact locations and the same traffic flow.

T

With that being said, I think I'm all set I'll hand it back over to john. Thank you. Thank you, nicole.

R

The city tax records indicate that the existing building was built in 1990.

R

Unlike the end, there's no historical significance here.

R

But, as a result, it's not easily adapted to other uses. So it's any project on this property is going.

R

To require some relief from this board so, with the background that we've provided I'd like to.

R

Go through the zoning criteria necessary for you to grant the requested variances.

R

First, granting the requested variances will not be contrary to the spirit intent of the ordinance.

R

Nor, contrary to the public interest and the test here is whether or not the variances being granted.

R

Would substantially alter the characteristics of the neighborhood threaten health safety well, for.

R

The public in this case, if you grant the variances there, won't really be any change to the essential.

R

Characteristics of the neighborhood, nor will any public health safety of welfare, be threatened.

R

Property is surrounded by similar incompatible commercial uses within the gateway zone.

R

And the uses being proposed here are permitted by wright. As a result, the existing built environment.

R

On this site, as it exists now, the existing building on the site is grossly non-compliant.

R

With the ordinance provisions that we seek relief from tonight and the project has proposed, will.

R

Bring the property line uh into closer compliance and will greatly improve the existing impacts.

R

On the wetland buffer, so the health safety and well for the public will not be threatened.

R

Nor will the essential characteristics of the neighborhood change in any way as a result of.

R

The either whether it be the virtue of the signs being proposed or the relief being requested, this.

R

Project will also require a full site review by the planning board, so the interests of the.

R

Public will be further protected. Next, substantial justice will be done by granting the variances.

R

And the test here requires the board to conduct a balancing test if the hardship upon the applicant.

R

Outweighs any benefit to the general public in denying the variance then substantial justice.

R

Would be done by granting the variances here the existing configuration of building parking.

R

And traveling is more non-compliant than the applicant proposed replacements and.

R

The project will improve the environmental impact of this site, the property as it exists.

R

Is non-conforming as to the front lot line build out and the lafayette road setback requirements.

R

It already has two driveways and has parking between the principal structure and the roadway.

R

So the proposal will not change those non-conformities, so there's no benefit.

R

To the public, that's not away by a loss to the applicant! If these variances were granted.

R

Next, the value of surrounding properties will not be diminished, but granting the variances.

R

The surrounding properties of acidity will not be negatively affected in any way by the relief that.

R

We see tonight, property as it exists, is already not conforming as to the front lot line, build out.

R

In the lafayette road setback, requirements, driving driveway and parking requirements.

R

As well so and as you can see from the plants is a very thoughtful uh tasteful building. That's.

R

Being proposed and much more desirable, that was presently there, so we do not believe that.

G

Surrounding properties will be negatively impacted in any way.

R

Also, this is a commercial use that is permitted. It's compatible with the surrounding uses.

R

uh Next, there are special conditions associated with the property that prevent the proper enjoyment of the property in the strict terms of the ordinance and thus.

R

Constitute unnecessary hardship, this property, as you can see from the plan, it is unique.

R

We are burdened by wetlands in the southwest corner and the wetlands buffer bisects, the.

R

Lot existing structures, the pavements and the improvements already are significantly.

R

Non-Conforming to the current ordinance, so these special conditions of the property.

R

Constitute hardship that our redevelopment will bring into closer compliance and will.

R

Further protect the wetlands also, the use here is reasonable. It's permitted within this district and.

R

It's compatible with other surrounding retail and commercial uses and, lastly, there's no fair.

R

And substantial relationship between the purpose of the ordinance as it's applied to.

R

This particular property frontline buildup requirements would be met if the principal.

R

Retail structure was used for measurement instead of the canopy, as nicole had mentioned,.

R

There's no proposed parking between the gas pumps and the canopy and the road and the.

R

Secondary driveway is designable to maintain safe and efficient navigation, as well as access to and.

R

From the site, and as nicole mentioned, we've had a favorable scoping meeting with the ot.

R

So the purpose of the sign ordinance is to maintain enhanced character of the city's.

R

Commercial districts and to protect the public from houses and distracting displays.

R

What's being proposed, the new sign is nothing to distract from the character of the district and.

R

There's nothing hazardous or distracting about it. It's also consistent in square footage size with.

R

The existing burger king sign so there's no fair and substantial relationship between the purpose.

R

Of the those restrictions and their application to this property, so for all those reasons we do.

R

Believe that various criteria- matt and myself and my team are happy to answer any questions you may.

R

Have thank you any questions from the board at this point. No, no! No, apparently not thank you.

B

Welcome thank you, who else would like to speak in favor of this proposal. Anybody else.

B

Want to address the board and speak in favor last call last call. No okay. uh Is anyone present yeah.

B

No, we have no one, no one, no one on the um zoom. Okay uh is anyone present who would like to.

B

Speak in opposition to this proposal, anybody, and I'm still not on this zoom, no okay,.

B

uh Apparently, not last call will be two for or against any speakers two for or.

B

Against any at all- and you know, none seeing none will. Okay. The public hearing is closed.

B

We've we've heard the proposal uh board. What what's your pleasure? Does anybody want to.

B

Open up the discussion or well I'd like to ask a question of uh of you really, and that is that the.

E

Amongst the variances that are needed, there would be a variance needed for the 160-foot.

E

Gross sine area has a variance of 10.125 1.2 as well as these other listed up here. Correct.

E

Okay, yes, and can that be considered separately from the other variances anyway? What any.

B

Any way you wished or anybody wishes to craft a uh proposal, certainly, yes, we can take the.

B

We can take the variances individually as a group or in any a couple at a time it doesn't.

B

Doesn't make any difference whatever, whatever anyone wishes to do any any.

E

Well, I would prefer any emotions. I would propose that we take the variance for the sign.

E

Separately from the grouping of the rest of the variance all right.

B

Do I sense a motion on the rest of the variances? Not for me because I'm terrible from you, okay, okay.

B

Does anybody does anybody feel uh moved to move it.

B

No, I'm not making a motion but okay, um it's very rare for me that I come here and look.

A

At this experience requests and that's a lot, it works requests. Yes, and yet I don't.

A

Think there's anything about this that isn't perfectly suited for this location. I mean.

A

This is what that part of lafayette road is, and.

A

So, even with the sign variants, I don't really have any.

A

Any real concerns about this, but I guess I would want to hear what.

A

Okay, other people have any anybody else, have a thought, mr mantle well then, and then miss mcdonald.

O

To ms elders point: is that the reason they need.

O

Six variances is because the zoning has changed on lafayette road.

O

It went from whatever the zoning was before the gateway to promote.

O

Lack of better term more pedestrian, friendly friendly buildings, because we have no ability.

O

To control lafayette road, it's a federal highway, but as studies have shown, if you push buildings.

O

And pedestrians closer to the roadway drivers tend to slow down. So that was the purpose of all of the.

O

Zoning changes in gateway zoning- I don't agree with all of them, but that was the purpose of the.

O

Changes they've already been a few buildings on lafayette road that conformed to that zoning. So.

O

For what it's worth? Yes, I agree. Thank you yeah, and the idea is that it looks.

B

It looks better too, to have uh buildings closer to the front and not massive parking lots and then a.

B

Building it depends on what you like. Definitely it depends what you like yeah. It is very much a.

B

Personal preference- that's true, not miss mcdonald. I was just going to agree with ms eldridge. Okay.

N

I I think, there's there's never going to be a better use for that scrap land. There.

N

Then they drive through gas station restaurant combination. I think it's the right use for the.

N

Land and they the use that was there kind of died, a natural economic death. I think.

N

And so the opportunity for successful businesses is high. Okay, thank you. Thank you again. I'm sorry.

B

Mr lee, I just wanted to get some clarification on the sign issue. uh Is that going to be.

F

Would that be one sign or multiple signs that are internally lit, I'm kind of trying to wrap my head.

F

Around the size of this sign, if it's that one's a proposal in their packet yeah, that was in the.

B

Package, I believe it. Oh I shouldn't say I believe I believe it's one sign.

B

Free stamp so-called freestanding sign, pretty much of yeah. So on the other side.

E

I would like to make a motion that the variance for the increase.

E

uh Sign size uh against ordinance, 10.1251.2.

E

Be denied on the basis that it fails to meet the criteria of imposing an.

E

Unnecessary hardship on the applicant okay is there? Is there a second to that motion.

B

No apparent, apparently not.

B

Okay is: does someone have an alternate motion scene now that we've broken the ice on motions.

B

Anybody haven't, I think my only issue is, I think I would rather take the main ordinance of.

D

Ordinance relief first, rather than start with the sign ordinance all right. That would be.

D

So do you uh do I sense a motion.

D

I made too many motions now.

B

F

All right well to to move things along I'll move to approve the first group of ordinances.

F

Or applications, which would be.

F

Back specifically, where we are numbers, what 110.53 3320 through 10.835.32.

B

So one on the front, the first ordinance is one. Your motion is to approve one two.

B

Three four and five: is that correct? Okay, close enough okay, says: number: six is the uh sound sign.

B

Okay, so mr lee's motion is to approve ordinances one through five. Okay is the second to that motion.

B

I'll second, second, thank you. Thank you, miss uh you'll, your motion, mr lee. Well,.

F

Taking the first two together, uh I don't think any of these variances requests.

F

Are contrary to the public interest and they certainly observe the spirit of the ordinance.

F

You know the existing building. Pretty much has everything that's listed here now, except the.

F

Proximity to the road- and uh you know, there's two driveways there now.

F

There's going to be a building canopy for the gas pumps which will be closer to the road, but I don't.

F

Quote one of our former chairman, I don't have any particular heartburn about that.

F

So those first two are satisfied. I think some sexual justice is done here. You know again, we.

F

Apply the balancing act test, there's no benefit to the applicant is not outweighed be any harm to.

F

The general public, so that's, it's not satisfied. The values of surrounding properties are not.

F

Diminished, this is a heavily commercial zone in all directions. You know water country across the.

F

Street, an auto parts store on one side and another commercial enterprise on the other other side. So.

F

You know nothing to diminish the value surrounding properties. It'll probably enhance their value.

F

Literal enforcement, this ordinance would result in an unnecessary hardship because of special.

F

Conditions of the property that is the existing huge amount of pavement. That's there now, that's.

F

Apparently, draining directly into the wetlands reconfiguring that, with the reduced pavement area,.

F

Would solve that that problem, but because of these special conditions, you can't usually reasonably.

F

Use the property, the strict performance for the ordinance, because it's non-conforming already.

F

Reconfiguring and redoing the existing site will make it less non-conforming. So, for those reasons.

F

I moved to uh to approve the application. Thank you and you second, ms eldridge. I have nothing to.

B

Add thank you will said: okay, we'll we'll take a vote on this motion and then we'll deal with the.

B

Sign ordinance variance number six, okay,.

B

I'm going to do some tricky bean counting. uh Excuse me, mr lee. Yes, thank you.

B

Mr rossi, yes, miss eldridge, yes, miss margesson! No, no! Okay! That's why I didn't make the motion. Okay,.

B

Okay, uh mr mr mcdonald, yes, yes and mr mantle! No, no and the uh and I vote yes so.

B

Those one two, three, four five, two five yep okay, so that's carried. uh That leaves the issue of uh the.

B

Signs who wants to address the sign? I I assume the concern is over the.

B

The size, because that's all it's being asked for is the size. That's my concern. Okay,.

B

Okay, the, uh as we all know, the variance the excuse me. The ordinance requires in this situation, no.

B

More than a hundred a hundred square excuse me 100 square feet and the request is for 160 square feet.

B

So does someone have a motion with an alternate size in mind or something like that.

B

They've got to pass something they're entitled to a sign. Obviously,.

B

Ms eldridge, I would move to approve the sign the way it is.

A

I think that, given the size of this property and the other signs along lafayette, road.

A

That it seems appropriate to me and I think, attracting attention on that road.

A

With all of the lights and all of the traffic is a hardship and requires something maybe a little.

A

Larger than life, so I don't think it's affecting any property values. I don't think that it is.

A

Against the public interest, I think it will make it easier. I should be waiting for a.

A

Second, shoulder: no! No! That's fine! Okay! I think it observes the spirit of the organs. I don't usually.

A

Make motion um for the reasons that I said it would do substantial justice it wouldn't take from.

A

The public or from surrounding businesses- and it certainly won't diminish the value of surrounding.

A

Properties, so for that and given the competition for attention on this roadway, I would approve that.

A

Thank you for the motion. Is there a second to miss eldridge's motion? Second, anybody. Second, second,.

B

Second, second, thank thank you, mr mcdonald. Okay, do you do you wish to address it.

N

And I think miss eldridge said everything that needs to be said and said and said it well.

N

All right, thank you all right, any anything further before we take a vote on the motion.

B

Which is to approve the sign as presented at 160 square feet, and I I will, I will just add the.

B

Obvious that there's no moving parts to it, because that's that's a requirement. It doesn't need to.

B

Be said, it's a standing requirement just for everybody's information, though I have a question.

B

No flashing lights, I noted on the on the canopy. The word irving appears there as well. Would that.

F

Be considered part of a sign, or at least not, b sign, but at the signage, the gross signage.

F

Not for not, for I wouldn't count towards this- freestanding sign, okay, which they're requesting.

C

I mean it is signage, but it's separate: okay, okay, thank you, mr smith. Okay, anybody else. Okay,.

B

Any fur, no for any any need for further discussion. Okay, let's, let's take a vote on the the motion.

B

Again is to approve the sign as uh presented in the uh application at 160 square feet. uh Mr lee, no.

B

uh Mr rossi, no okay, miss eldridge; yes, yes, uh ms margerson, no okay, uh mr mcdonald, no okay, mr mantle.

B

No okay and it doesn't matter, but I'm I'm gonna vote. Yes, okay. We need another in that case that.

B

Motion uh failed: uh does someone have another ocean or is there another motion necessary? I.

E

Mean if the variance is yes? Yes, it is yes, yes, because that's the negative. That was the motion.

C

To approve that was right, so we need another. We need another motion, push into denial of any.

B

Some of some kind I moved to deny the request for a variance from.

E

Section from my ordinance 10.1251.2 on the basis that.

E

Well, let's see for a 160 square foot sign and instead to approve a 100 square foot.

E

Sign as guided by the ordinance on the basis that uh having that sign, would not present a undue.

E

Hardship, so it fails to meet that test. Okay, the the motion is to approve uh a free standing sign.

B

At 100 square feet: okay, okay yeah! We can say that well! Is that what you mean to deny the request for.

C

Because 100 square foot would be because yeah exactly that's right, she doesn't need it right.

B

Yep so mr chair, yes, miss lee applicant's kind of friendly appropriate. I know we've closed.

B

The meeting but by vote has does everyone? uh Is everyone agreed that the uh even though we've.

B

Closed the public hearing that the uh applicant can speak. Yes, okay, yes agreed; okay, yes, you're.

B

Welcome I appreciate that and I'll make it very brief. um Peter is it possible you could bring up.

R

The page with the sign, I just wanted to explain, what's driving the size and that might help.

R

So one option and the existing burger king sign is 160, and that is 160, but 32 square feet is. Is that.

R

The area below that's uh base yeah the base. Thank you.

R

We could pile on that and, and that would reduce that side that size sign by 32 square feet. You.

R

Know it's obvious: we have to get the sign off the ground, so there's enough room for the snow. So if.

R

We put the pylons we'd, reduce that, except it's not as attractive. We think it's more attractive with.

R

You know um with the base the decorative base, but that would be an option. We'd be willing to.

R

Consider, as a you know, as a condition, perhaps we reduce that put the base.

F

Just make sure I'm clear on what this is. So is the 160 square feet the gross area of the whole.

F

The whole sign, including everything else- yes, okay, got it. So the what you pointed out there.

F

The bottom part is actually didn't have any words or anything on it.

F

Right so it's counted towards the calculation, got it yeah. Okay, I don't know if that helps so.

F

It does, and instead of 160 square feet more, like 130 square feet right with the area around that.

F

So I feel a little you know, you know that 160 square feet is almost twice what's allowed, so.

F

130 is getting a little closer than if you kind of subtract out some of these other.

F

Areas around here, where the words are stuck up yeah, I think we could.

R

Still have an attractive sign if we with 130 square feet yeah. So as a condition, we could.

S

We can not have the stone facade on the bottom and reduce the square footage from 160 by 32.

S

Square feet and you would have two poles on each side on each side. It would be visible. We felt.

S

From our branding and everything that we bring to these projects, this is far more.

S

Aesthetically pleasing, but I agree with costing a problem with the stoneage on the.

F

Bottom, I just didn't understand that what you're talking about was the whole sign yeah, the the.

S

Irving and the common man are are much smaller than than even 130 square feet. Majority of.

S

What's being calculated, is the stone facade just by the the way your ordinance reads.

F

Well, just kind of for context on this we approved for the west end yards assign area of 300 square.

F

Feet because about 200 of it was a big giant frame that said, nothing that went around it.

F

So I feel a little better about the way this is configured now than.

F

Because it's really not you're, not 160 square feet, sign it's 160 square feet base with stuck on it.

R

So the display area is like 60 square feet.

B

The actual yeah, the actual colored part here, yeah the irving right, yeah, okay, okay, so where are we.

B

uh Is anyone interested in the double jeopardy the yeah, the pedestal business or or as it appears.

B

Are 100 you know, based on the new information, I'd, make a motion to approve it as presented.

F

Well, there was a motion, mr rossi, but yeah. Okay, don't even never got a second, so I don't know.

B

Yeah, it's like it was right like it was. You went away yeah because he didn't get a second yeah.

B

Okay, mr lee yeah restated just please for that. I would move to uh approve the application for.

F

The sign as presented: okay, is there a second to that motion? Now, no, no, no, no, all right! Okay,.

B

We need something: okay, yes, there is miss albert yes, yes, you can always vote against it. Okay,.

B

So now, in other words, the I don't want to put words in your mouth, explain your emotions. Go.

B

Ahead, no, I was just saying that the proposal, as I understand it, is to make it exactly as it.

B

That's correct: that's presented and advertised to quote mr mulligan, as shown with a solid pedestal.

B

Whatever you want to say, the lower the lower part of it, correct and based on the new information.

F

We've received and my better understanding of it. I now believe that this variance is not contrary.

F

To the public interest, the spirit definitely deserves the spirit of the ordinance, because.

F

It's really not 160 square feet of words. It's 160 square feet of.

F

That the words reside on so that makes it you know the the total context better. In my mind,.

F

I believe success. Substantial justice is done because the benefit to the applicant.

F

uh Should not be outweighed be any harm to the general public or any other individual.

F

I think, having a sign you know this is a actually going to be a pretty attractive sign. I think so.

F

Again, because it's in a commercial zone, I don't see that this will be. There will be.

F

Any any mutation of values of surrounding properties, because they're all commercial.

F

And they all have signs and uh the unnecessary hardship here.

F

F

The applicant, let's see because.

F

Again, the special conditions of the property, because the propose used to be reasonable.

F

It doesn't alter the essential care to the neighborhood. Okay. Thank you. All right did we.

B

Get do we have a section to that motion? Yes, we did miss elvis and do you have any additional comments.

B

No, no, no you're all set okay. All right in that case we're we're ready for a motion. The motion.

B

Is to approve it as presented, and that includes the assign, as it's shown here in the graphic.

B

And with the nothing added to the wording, and just just as it is so and not, and no moving parts.

B

So let's take a vote on the motion, mr lee. Yes.

B

Mr rossi, no, no uh ms eldridge! Yes,.

B

Ms margerson, yes, all right, mr mcdonald, yes yeah, mr mantle, no, no okay and I vote yes. So.

B

So it looks like it's carried. We have one two, three, four five.

C

All right, thank you. Thank you all for you.

B

Thank you all for your patience. At least I'm not consistent make a motion to adjourn. Please do is.

B

That sounds like one. That's right, I make motion to adjourn. Thank you. Is there a? Is there a second.

B

Got it yes, thank you all. We are adjourned. Thank you see you next week.