Rye Harbor condo plan gets first of two local approvals

Zoning Board OKs proposal by prospective buyer of Saunders Restaurant

Jack Driscoll


Saunders Restaurant sits alongside Rye Harbor and affords views of the Isles of Shoals from the dining and deck areas, looking through the harbor's breakwater entry. (Jack Driscoll photo)



(This story was updated following the April 8 Zoning Board of Adjustment meeting.)

Just about everyone seems to have an idea on how to use the scenic site next to Rye Harbor being sold by Saunders Restaurant.

"It should be another restaurant."

"Why not a State Park?"

"How about two mansions, one on each lot?"

The last idea came out during three hours of deliberations about a proposal for the property before Rye's Zoning Board of Adjustment (ZBA) on March 11.

No matter how many ideas are thrown out, the fact remains that a one-person development operation, called, Rye Harbor Realty, LLC, has the only plan on the table for the prime three-acre, two-lot land. That plan calls for eight, single-dwelling condominiums.

After four hours of debate and discussion on April 8, the plan cleared its first of two local regulatory agency hurdles when the ZBA voted 3 to 2 in favor. Next: The Rye Planning Board.

Developer Jim Nadeau of York, Maine, who has 17 years of coastal real estate experience, had gotten his ducks in a row before facing the local hurdles.

The key question is whether condominiums can be built on the two parcels of land that are designated residential (although currently used for commercial purposes). The ZBA had the first shot at the condo question.

On the north side of Harbor Road where the restaurant sits is roughly an acre (.97); on the south side are about two acres (1.8), now used for overflow parking. Only one septic system, on the south, services both parcels.

Altus drawings of two sets of condos.  (Brian Batson rendering)
(Note Correction & Clarification at the bottom of this story.)


Issues having to do with the economy, the condominium code (see text at bottom of this article), aesthetics and the density of the project seemed to dominate discussion at the first hearing, at which board members also did come conjecturing of their own.

Why not two mansions, asked the ZBA's Shawn Crapo at the ZBA's March meeting, suggesting each would pull in a pretty penny? In response some wondered who would pay the price in this economy. Also raised is the problem that the two would have to share one septic system.

"That never works," a Rye land-use veteran said after the meeting.

Why not condos? "I don't think it goes with the neighborhood," said board member Ray Jarvis.

"Why do we have to second guess the applicants? You've got condos right next door," countered fellow member Ben King.

Why not another restaurant, some mused? Apparently there have been no takers. Inquiries have been made, but Rye sources say the price of $3.9 million was a stumbling block, along with the likelihood that the restaurant building would have to be closed for as much as two years to allow for the regulatory process to play out and renovations to be made.

Attorney Loughlin told the ZBA that a "much more intense restaurant" would be needed to make a go of it.

IN FAVOR OF CONDO PLAN

In speaking in favor of the proposal in March Saunders owner Doug Zechel said, "There's only so much tax money you can get out of a restaurant. You'll get more from these eight units." He admitted business has been slow the last couple of years, as it has for most restaurants, adding with a smile, "The ghost who lives in our building is our most active customer.

"It will be my 38th year running the business this summer," Zechel continued. "How's this going to end? If Saunders is going to cease to exist, I can't think of a better project. It'll be a much quieter, much more serene situation" for the neighborhood.

Zechel added that, as he listened to the ZBA discussion, "The only thing that is rattling through my head is that you have to look at this as one lot. The state will absolutely not allow a septic system on the harbor side of the road."

Direct abutter Louise Deschamps, who has zero feet between her property and the back of the restaurant, said, "I'm in full support." She said she grew up in the area 50 years ago and worked at the restaurant in 1966.

(The land owned by Dorothy Saunders in 1926 was used by her husband, Ben, a lobsterman and later harbormaster, to sell his catch, then evolved into a fish market and lunch counter. Their daughter Dorothy turned it into a seasonal restaurant in the 1960's, had to close it for two years, then sold it to William W. Zechel in 1972, after which the inside was expanded and a deck was added, turning it into a year-round restaurant/club.)

OPPOSED TO PLAN

Mae Bradshaw of 106 Harbor Road had raised numerous issues with developer Nadeau prior to the meeting, some of which were resolved and some weren't. Among her concerns was that because of the economic downturn the units may not sell, leaving "unsightly slabs" on two sides of the road.

In regard to the condo code (503), Jarvis was adamant that a special exemption could not be granted unless there were existing units. "I'm not a lawyer," he said, "but it says right here: 'conversion of existing dwelling units to condominium ownership shall be permitted.' These units do not exist. So how can we grant a special exception?"

Several days later attorney Loughlin commented during an interview that "I'm feeling confident we are going to be able to address that issue," saying he thought the board raised a lot of "legitimate questions".

Possible hints as to how the "existing" question will be answered are contained in the March application which refers to the "unique setting" of the property and raises case law and past practice, pointing to the set of condos a few hundred yard to the south. Also cited in Loughlin's presentation was a case that stated: "In considering whether to grant an area variance, courts and zoning boards must balance the financial burden on the landowner, considering the relative expense of available alternatives … " That quote was in boldface type in the application.

ABOUT AESTHETICS

Chairman Frank Drake raised the aesthetics question at the March meeting, admitting he was still upset about the appearance of the condo buildings just south on the site of the former Pilot House and Hemingway's restaurants, saying that the drawings were changed after the completion of the zoning process. "I have deep concerns that this (holds up architect's drawings) could be that speculative."

Loughlin responded that there will be two basic units, a 3-bedroom and a 4-bedroom. "Probably they're not going to look all identical."

Saunders Condo Proposal, looking north toward harbor. Click on drawing for larger version. (Brian Batson rendering)


Under the proposal the units on the north parcel would have 1,580 sq. ft. each with about 330 feet of frontage on the harbor. All would be wood-framed with shingle siding, asphalt shingles on the roof and be two-and-a-half feet higher than the present restaurant. Pavers would be used for all walks and driveways.

Saunders Condo Proposal, looking east toward ocean. Click on drawing for larger version. (Brian Batson rendering)


The units on the south parcel would have 2,186 square feet of living space and about 300 feet of frontage on the marsh. Space between units would be about 20 feet and the building heights would be no more than 28 feet.

ABOUT DENSITY

Drake later stated his position that "residency is OK; density is an issue." ("Residency" meaning that the parcels appeared to comply with residential zoning).

"I feel like we're arguing about an eight-lot subdivision," Drake said.

Board member Jay Nadeau (no relation to the developer) said he thought the package presented that night, while voluminous, was incomplete, getting a lot of nods around the board table and signaling that any decision would be deferred till April--at least.

Board members seemed to pair off after the meeting, buzzing about the number of tricky points that had been raised. However, this is only the first shoe. Rye Harbor Realty will now face the scrutiny of the Rye Planning Board, which deals with similar but differing questions.

It was not insignificant that Planning Board chairman Don Cavallaro was sitting in the back row of the first ZBA meeting. Also at the hearing was Patricia Weathersy who at that point had been elected as the top vote-getter to the Planning Board and later was approved as an appointed member (by the Selectmen) as an alternate to the Zoning Board (almost always at least one alternate is needed to sit in on Planning Board hearings and has full voting powers.) Planning Board member Mel Low attended the April meeting.

SECTION 503    CONDOMINIUM CONVERSIONS OF EXISTING DWELLING UNITS. (Amended 1982 and 2007)

503.1 Permitted By Special Exception: In any district, conversion of existing dwelling units to condominium ownership shall be permitted as a special exception granted by the Board of Adjustment, only if all the provisions herein are met.

503.2 Plan Requirements: A complete set of site plans and floor plans, as well as a complete set of all condominium documents must be filed with the Board of Adjustment upon application for the special exception.

A. The plans shall show the location of all utilities on the site and shall indicate the location of all water connections and locations where the shutoff valve will be located for each particular unit in the case of a condominium project containing more than one unit.  The plans shall indicate whether or not additional meters other than those existing or additional lines from the street will be required as a result of the condominium conversion.

B. In the case of seasonal properties the condominium declaration and other documents which are recorded in the Registry of Deeds shall indicate on their face that the property may only be used for seasonal purposes and the months when the property may be used shall be indicated in the documents.

503.3 Criteria for Special Exceptions.

A. The dwelling units which are subject to the request for condominium conversion must, at the time of the request for condominium conversion, exist as legal dwelling units pursuant to the ordinances of the Town of Rye.  The burden shall be on the petitioner to demonstrate that the units sought to be converted have legal status.

B. Each dwelling unit of the condominium shall contain a minimum of six hundred (600) square feet of floor area.

C. The off-street parking requirements of the Town of Rye existing as of the date of the request for condominium conversion must be met.

D. The proposed conversion of the existing dwelling unit to condominium ownership shall not adversely affect the values of surrounding properties.

E. The proposed conversion to condominium ownership must not be injurious or detrimental to the neighborhood or town.

F. The septic system and/or private sewer system standards of the New Hampshire Water Supply and Pollution Control Board and the Town of Rye existing as of the date of the request for condominium conversion must be met or exceeded by all systems used by the dwelling units associated with the condominium conversion, and a certificate to that effect must be filed with the Board of Adjustment; based on review of Town records by the Building Inspector or an on-site inspection of systems and soil conditions by a professional engineer.

G. For condominium conversions involving detached dwellings, if the amount of land designated as common area is less than 90% of the area of the parcel, not designated for buildings and individual unit owners’ vehicles, each limited common area assigned to a detached dwelling shall meet the minimum lot area and frontage requirements of this ordinance.

(Adopted 2003 and Amended 3/14/06)



CORRECTION AND CLARIFICATION: From April 2 to April 9 Rye Reflections mistakenly published a rendering showing 13 units rather than the 8 units being proposed for the two parcels on the site of Saunders Restaurant. (The 8-unit rendering is shown above.) The 13-unit alternative never was presented to the Zoning Board of Adjustment (ZBA) by Rye Harbor Realty Inc., but was included in a package of documents submitted prior to the March ZBA meeting.


April, 2009


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