NEW BUSINESS. Aerial Map. Case #11-1. Neighborhood Context

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1 TO: Zoning Board of Adjustment FROM: Peter Stith, AICP, Planning Department DATE: November 15, 2017 RE: Zoning Board of Adjustment NEW BUSINESS Lincoln Rehearing Case #11-1 Petitioners: Working Stiff Properties LLC, owner, Matthew Beebe & Barbara Jenny, applicants Property: 87 Lincoln Avenue Assessor Plan: Map 113, Lot 34 Zoning District: General Residence A (GRA) Description: Rehearing of Appeal. Requests: Appeal by the owners of the action taken by the City of Portsmouth issuing a cease and desist for a non-permitted use as a short term rental for the property referenced above. Neighborhood Context Aerial Map

2 Zoning Map Previous Board of Adjustment Actions October 17, 2017 The Board denied an appeal of the action taken by the City of Portsmouth in issuing a cease and desist for a non-permitted use of the property as a short term rental. October 24, 2017 The Board granted a rehearing regarding the above. Planning Department Comments In addition to the original Planning Department Comments below, a memo from Attorney Sullivan is included outlining the City s enforcement protocol. Section of the City s Zoning Ordinance, designates the responsibility of enforcement and administration of the ordinance to the Code Official, which by definition includes any employee of the City who has been authorized to administer or enforce the Zoning Ordinance. The Planning Director is one of the Code Officials so authorized. The administrative policy developed under the previous Planning Director, Rick Taintor, regarding short-term rentals is still in place and is consistent with the state s definition of short-term rentals. This policy was developed in response to City Council discussions at that time about short-term rentals, and it was written to summarize and clarify the City s zoning regulations regarding these types of uses. The definition of dwelling unit is referenced in the memo, but the full definition is below for your reference.

3 Dwelling unit A building or portion thereof providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. This use shall not be deemed to include such transient occupancies as hotels, motels, rooming or boarding houses. Also attached is a letter from the City Attorney dated January 5, 2017 advising the property owners to meet with the Planning Department. No consultation with the Planning Department took place as a result of this letter. The letter from the Planning Director dated October 17, 2017 provides additional information on this matter and has been provided to the Board as a separate attachment. A bed and breakfast 1 is allowed by special exception in this district and would be limited to a maximum of 5 rooms. No other lodging use is allowed in the GRA district.

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6 Case #11-2 Petitioners: KL Boston Revocable Trust, Kelly L. Boston, trustee Property: 465 Cutts Avenue Assessor Plan: Map 210, Lot 27 Zoning District: Single Residence B (SRB) Description: Extend existing garage and front porch. Requests: Variances and/or Special Exceptions necessary to grant the required relief from the Zoning Ordinance including: 1. a) A Variance from Section to allow a secondary front yard setback of 11 ± where 30 is required and b) to allow a 20.13% ± building coverage where 20% is the maximum allowed. 2. A Variance from Section to allow a nonconforming building or structure to be extended, reconstructed or enlarged without conforming to the requirements of the Ordinance. Existing & Proposed Conditions Land Use: Existing Proposed Permitted / Required Singlefamily Enclose stairs and screened porch in accessory structure Primarily Residential Uses Lot area (sq. ft.): 10,454 10,454 15,000 min. Lot Area per Dwelling 10,454 10,454 15,000 min. Unit (sq. ft.): Street Frontage (ft.): min. Lot depth (ft.): min. Primary Front Yard (ft.): (ok per ) 30 min. Right Yard (ft.): min. Secondary Front Yard min. (ft.): Rear Yard (ft.): min. Height (ft.): <35 <35 35 max. Building Coverage (%): max. Open Space Coverage >40 >40 40 min. (%): Parking 0 ok ok Estimated Age of Structure: 1964 Variance request shown in red. Other Permits Required None.

7 Neighborhood Context Aerial Map

8 Previous Board of Adjustment Actions No BOA history found. Review Criteria This application must meet all five of the statutory tests for a variance (see Section of the Zoning Ordinance): 1. Granting the variance would not be contrary to the public interest. 2. Granting the variance would observe the spirit of the Ordinance. 3. Granting the variance would do substantial justice. 4. Granting the variance would not diminish the values of surrounding properties. 5. The unnecessary hardship test: (a)the property has special conditions that distinguish it from other properties in the area. AND (b) Owing to these special conditions, a fair and substantial relationship does not exist between the general public purposes of the Ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable one. OR Owing to these special conditions, the property cannot be reasonably used in strict conformance with the Ordinance, and a variance is therefore necessary to enable a reasonable use of it.

9 Case #11-3 Petitioners: Ned and Bill Properties LLC Property: 621 Islington Street Assessor Plan: Map 164, Lot 6 Zoning District: Character District 4-W (CD4-W) Description: Convert three retail/office units into three residential dwelling units (for a total of 7 units). Requests: Variances and/or Special Exceptions necessary to grant the required relief from the Zoning Ordinance including: 1. A Variance from Section 10.5A41.10B to allow the following: (a) a lot area per dwelling unit of 2,074 s.f. where 2,500 s.f. is required; (b) to allow 9.7%± open space where 15% minimum is required; c) to allow a ground story height of 7 7 ± to 8 1 ± where 12 minimum is required; d) to allow a façade modulation length in excess of 80 ; e) to allow façade glazing in excess of 50%; and f) to allow a ground floor surface above sidewalk grade in excess of 36 where 36 is the maximum allowed. 2. A Variance from Section 10.5A44.35 to allow a 34 ± wide driveway where 24 is the maximum allowed. Existing & Proposed Conditions Existing Proposed Permitted / Required Land Use: Mixed use Convert commercial to residential units Primarily Mixed Uses Lot area (sq. ft.): 14,517 14,517 5,000 min. Lot Area per Dwelling Unit (sq. ft.): 3,629 2,074 2,500 min. Height (ft.): <45 <45 45 max. Open Space Coverage (%): min. Parking Max. façade modulation: >80 >80 80 ft. max. Max. finished floor surface of GF above sidewalk grade: >36 >36 36 in max. Min. ground story height: ft. Estimated Age of Structure: 1900 Variance request shown in red. Other Permits Required Historic District Commission for any exterior alterations.

10 Neighborhood Context Aerial Map Previous Board of Adjustment Actions As the former 625 Islington Street: June 13, 1978 The Board tabled action on a request for a special exception to permit the sale of not more than two motor vehicles and a variance to allow the location of the sales area to be less than 100 from a residential building. The request was tabled with a stipulation that it be tabled to the next regular meeting so that that the owner s signature could be obtained on the application and more accurate plans submitted.

11 June 27, 1978 The Board denied the above request. April 28, 1987 A request was withdrawn to install a projecting sign 31 from the edge of curb where 10 was required. April 26, 2005 The Board granted a variance to allow a 20 wide travel aisle where a 24 was required in conjunction with the conversion of an existing building with 2,000 s.f. of warehouse space and 1,354 s.f. of retail space and four apartments to 3,200 s.f. of retail space and six apartments. April 18, 2006 The Board granted a one year extension of the granted variance. Planning Department Comments Any exterior changes to the building would require HDC approval. Review Criteria This application must meet all five of the statutory tests for a variance (see Section of the Zoning Ordinance): 1. Granting the variance would not be contrary to the public interest. 2. Granting the variance would observe the spirit of the Ordinance. 3. Granting the variance would do substantial justice. 4. Granting the variance would not diminish the values of surrounding properties. 5. The unnecessary hardship test: (a)the property has special conditions that distinguish it from other properties in the area. AND (b) Owing to these special conditions, a fair and substantial relationship does not exist between the general public purposes of the Ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable one. OR Owing to these special conditions, the property cannot be reasonably used in strict conformance with the Ordinance, and a variance is therefore necessary to enable a reasonable use of it.

12 Case #11-4 Petitioners: KC Realty Trust, Keith Malinowski, Trustee Property: 84 Pleasant Street Assessor Plan: Map 107, Lot 77 Zoning District: Character District 4 (CD4) Description: Replace rear addition and permit residential uses on the second and third floors with no off-street parking provided. Requests: Variances and/or Special Exceptions necessary to grant the required relief from the Zoning Ordinance including: 1. A Variance from Section 10.5A41.10C to allow 0% open space where 10% is required and b) to allow 100% building coverage where 90% is the maximum allowed 2. A Variance from Section to allow a change in the use or intensification of use in an existing building or structure without providing off-street parking. 3. A Variance from Section to allow a use that is nonconforming as to the requirements for off-street parking to be enlarged or altered without providing off-street parking for the original building, structure or use and all expansions, intensifications or additions. 4. A Variance from Section to allow a nonconforming building or structure to be extended, reconstructed or enlarged without conforming to the requirements of the Ordinance. Existing & Proposed Conditions Existing Proposed Permitted / Required Land Use: Restaurant/ Residential Demo and reconstruct rear Primarily Mixed Uses addition Building Coverage (%): max. Open Space Coverage min. (%): Parking Estimated Age of Structure: 1850 Variance request shown in red. Other Permits Required Historic District Commission Planning Board Site Review

13 Neighborhood Context Aerial Map Previous Board of Adjustment Actions August 20, 2013 The Board granted a special exception to allow a religious place of assembly.

14 Planning Department Comments This project is currently going through HDC review. Review Criteria This application must meet all five of the statutory tests for a variance (see Section of the Zoning Ordinance): 1. Granting the variance would not be contrary to the public interest. 2. Granting the variance would observe the spirit of the Ordinance. 3. Granting the variance would do substantial justice. 4. Granting the variance would not diminish the values of surrounding properties. 5. The unnecessary hardship test: (a)the property has special conditions that distinguish it from other properties in the area. AND (b) Owing to these special conditions, a fair and substantial relationship does not exist between the general public purposes of the Ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable one. OR Owing to these special conditions, the property cannot be reasonably used in strict conformance with the Ordinance, and a variance is therefore necessary to enable a reasonable use of it.

15 Case #11-5 Petitioners: PNF Trust of 2013, Peter N. Flores, Trustee Property: 278 State Street Assessor Plan: Map 107, Lot 80 Zoning District: Character District 4 (CD4) Description: Appeal decision of the Historic District Commission to deny the issuance of a demolition permit. Requests: Issuance of demolition permit. Neighborhood Context Aerial Map

16 Planning Department Comments The Applicant for 278 State St. was denied a request for a demolition permit from the Historic District Commission on August 28, A Request for Rehearing was subsequently denied on October 4, Although the applicant s request is termed an appeal from the decision of the HDC, it is unlike the other types of appeal and applications that the Board receives. The role of the Board of Adjustment is not to review the HDC s action, but instead to conduct a new hearing and make its own decision on the matter in issue using the HDC criteria. If the Board deems necessary, it may request information that was presented at the HDC meeting, including the engineering reports or memos from staff. Some of this information is referenced or provided in the applicant s submittal. Additionally, if there is other information or testimony the Board needs in order to make a decision on this matter, it may postpone in order to receive and review such information. A memo from Attorney Sullivan dated August 15, 2008 regarding HDC appeals is provided below. A separate document is attached with the Ground Rules for conducting a hearing for an HDC appeal.

17 Review Criteria The Board must conduct a new hearing and evaluate the application with respect to the standards for the HDC contained in the Zoning Ordinance Purpose and Objectives The Historic District is established to preserve the architectural and historic resources of the City of Portsmouth; to foster its architectural and historic character and its sense of place; to conserve property values; to strengthen the local economy; and to promote the use of the District for education, pleasure and welfare of residents and visitors This Section is intended to achieve the following objectives: (1) To preserve the integrity of the Historic District; (2) To maintain the special character of the District as reflected in the scale, mass, location and style of buildings; (3) To assess the historical and architectural value of buildings and structures, their settings, and their local or national significance in terms of the represented time period, visible architecture, construction materials, or relationship to a historically recognized individual or event; (4) To encourage designs for new buildings and structures, additions to buildings and structures, and the reuse of existing buildings and structures that complement and enhance the City s architectural and historic character and contribute to its sense of place; (5) To foster Portsmouth s heritage and economic well-being through the conservation and enhancement of property values; and (6) To promote the District s contribution to the education, pleasure and welfare of the City s residents and visitors. HDC Review Criteria: Review Factors In conducting reviews under this Section, the Commission shall consider factors that render a site architecturally or historically significant, including: (1) the historical time period, context or immediate setting; (2) the structure s architecture, including stylistic features, design elements and mass; (3) construction materials, including technological systems and features; and (4) importance relative to a historically recognized individual or event.

18 Review Criteria The Commission shall review an application for a Certificate of Approval and determine whether the application is consistent with and furthers the purpose and objectives set forth in Section In making this determination, the Commission shall make Findings of Fact by referring to the following criteria: (1) The special and defining character of surrounding properties, including architectural details, design, height, scale, mass, width of surrounding structures, street frontages, types of roofs, façades and openings. (2) The significant historical or architectural value of an existing structure for which a Certificate is sought, including its setting, scale and mass; and the general size of new construction with consideration of such factors as height, width, materials and architectural details. (3) The extent to which a proposed project s exterior design, scale, arrangement, texture, detailing and materials complement or enhance the existing structure and are compatible with surrounding properties and the Commission s adopted Design Guidelines. (4) Encouraging the innovative use of technologies, materials and practices provided these are compatible with the character of surrounding properties.

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