Plan for four homes on Saunders property passes muster

Zoning Board votes 5-0; Developer responds to most objections; Planning Board next

Jack Driscoll

If at first you don't succeed (8 homes, 26 bedrooms), try (6 homes, 24 bedrooms), try again (4 homes, 16 bedrooms).

Or as a related old adage says, the third try never fails. That, at least was the case last week for the development of a prize piece of property alongside picturesque Rye Harbor.

It all started two years ago when Saunders Restaurant was put up for sale. No other restaurants were interested when along came Jim Nadeau, of York, Maine, a developer of seaside properties. He entered into a purchase-and-sale agreement for the restaurant and had a couple of ideas that raised hackles among some neighbors and numerous other Rye residents. After nearly a year of contentiousness and on the brink of a Superior Court battle, Nadeau's Rye Harbor Realty LLC came up with a winning formula that included some creative flourishes.

That proposal, calling for two four-bedroom homes on each side of Harbor Road glided through the Zoning Board of Adjustment (ZBA) after a four-hour session on January 27 by a vote of 5-0. Voting were Jay Nadeau, Ray Jarvis, Shawn Crapo, Paul Goldman (alternate sitting in for Ben King) and chairman Frank Drake. (Click here for summary of application.)

Nadeau said the final plan resulted from a lot of listening, and the ZBA agreed that Nadeau's team paid attention to feedback with its final proposal.

About 50 residents turned out for the January hearing, mostly neighbors. Some drifted off in mid-meeting, some went away unhappy, but most were accepting without being enthusiastic. "I'm glad it's over," said one, who hadn't missed a meeting.

Attorney Mae Bradshaw who lives on Harbor Road and has led the opposition, was out of state at a business conference and unable to attend the ZBA hearing. She said later that the Save Rye Harbor group would meet to discuss the matter.

Bradshaw complained that her group had only one week to respond to the new proposal, that only the Planning Board has jurisdiction over subdivisions and that the Rye Harbor Realty filing was "deficient in its non-compliance."

Her response was submitted a week before the hearing on behalf of the Save Rye Harbor Coalition, other citizens and abutters. (Click here for a complete text of the response.)

This version of engineering plan shows Rye Harbor at right (Route 1-A would be at top. The envelopes but not the homes themselves are shown in jagged-line areas, two on the north (right) side of Harbor Road and two on the other side. Leaching fields on south side are designated by boxes. (Courtesy of Altus Engineering)

Restaurant owner Doug Zechel said he would most assuredly keep Saunders Restaurant open through March and was unsure what would happen after that. Zechel said he hoped to operate through the summer, but a lot would depend on how long further town approvals would take and what date he and the new owner arrived at for transfer of ownership.

Most of the criticism of the development proposal concerned the size and density of the earlier plans. The word "condo" also reverberated negatively, even though the early plans involved individual homes, not physically-linked condominium buildings. The "condo" referred to the form of ownership that resulted from what was seen as the need for a single, shared septic tank.

That was part of the creative solution. The four-home plan with two-car garages, which still has to gain acceptance of numerous details under the purview of the Planning Board, calls for separate septic systems alongside each house with piping running to four leaching fields along the south border of the property in order to satisfy the state's previously-stated requirement that there be no full septic system on the restaurant/harbor side of the nearly three-acre lot.

Not satisfied was John Heisey, who lives on Mill Lane, within viewing distance of the location for the leaching fields. Eric Weinrieb, who heads Altus Engineering, assured Heisey there would be no mounds obstructing his view nor any other impacts. Heisey wasn't convinced.

The word "condo" disappeared from the approved proposal, but in its place will be a Home Owners Association to which the four homeowners would belong and pay a fee, according to Nadeau.

Even more creative were approaches to the look of the homes and protection for Rye Harbor's commercial and pleasure boat owners.

Ralf Amsden, a well-known architect for Living Spaces in Rye, will provide his services free of charge to approve the designs for all four homes before they can be submitted to the Building Inspector. Amsden said he favored what he called a "boutique shingle style", commonly used along New England's seacoast.

Fears that new homeowners could impose strictures on the harbor, particularly the commercial aspects that operate around the clock, seemed to be allayed when Attorney Peter Loughlin announced that part of the buyers' Property Disclosure Statement would be the following:

"Persons buying lots at either 160 or 175 Harbor Road (the former Saunders Restaurant site) in Rye, NH are to be made aware of the fact that Rye Harbor has been a working waterfront for over two centuries. As a working waterfront there are commercial and private fishing boats, whale watch and other commercial cruisers using the harbor both day and night and as a result there will be certain sights, sounds and smells that will be perceived on neighboring properties.

The buyers will have to sign the disclosure statements with a copy to go to the Building Inspector.

Then there was the issue of public access. Although the present restaurant property is private, it had the appearance of being public because owner Doug Zechel never imposed any restrictions.

Rye Harbor Realty, according to Loughlin, is proposing to build a public walking path off Harbor Road that would be especially suitable for bird watching.

It was at that point that neighbor Paul Collier walked to the microphone. His testimony last August led to disapproval of the six-home plan. Looking toward Nadeau, Loughlin, Saunders lawyer Timothy Phoenix and Weinrieb, Collier said:

"I have to compliment this group," adding that he now considered himself "neutral" in regard to the present proposal. Clearly it was a turning point.

Collier went on to say that the number and sizes of the houses didn't meet his "fondest hope", but, he said, "You have made a pretty convincing case environmentally." and "you have gone a long way to reach a compromise."

Saunders is located on south edge of Rye Harbor (Jack Driscoll photo).

Still not convinced were Heisey and Burt Dibble, both of whom felt rules were not being followed by the ZBA and Rye Harbor Realty, particularly regarding the five permits required by the New Hampshire Department of Environmental Services (NHDES).

Rye Harbor Realty had obtained the permits for the previous plans and argued that common sense would suggest that a new plan with half the number of buildings and further setbacks would pass muster.

Dibble didn't accept that reasoning, saying that Rye Harbor Realty should have obtained new permits. He also emphasized an earlier point, that the proceedings should be before the Planning Board not the ZBA.

"What do the rules say?" Heisey chimed in.

ZBA member Jay Nadeau ended the permits discussion by saying he already had a list of 25 conditions that the developer must meet and new permits would be among them.

Attorney Phoenix spoke on behalf of the Zechel Family Trust, stating that the proposal was "environmentally hands down better" than what now exists and buttressing Loughlin's argument regarding the new lot sizes by saying they are not only 75% bigger than lots in the immediate area but also "all up and down the beach."

In arguing that the proposal meets the public-interest test, Phoenix said the plan was "in keeping with the essential character of the neighborhood, then asked: "Would you tear down four houses to build a restaurant" on the property?

He concluded by saying that "the concessions by the landowners have been substantial" and that there is more than necessary financial burden on the landowner."

Heisey wasn't buying that argument. "A lot of us are having financial hardship," he said.

David Aponovich of Nashua, who owns the marsh land on the south  side of the  property, questioned Weinrieb as to whether the leaching fields needed to be located where proposed. Weinrieb explained the state's demands in that regard, and Aponovich seemed satisfied.

With high praise for the adjustments the developer had made and the environmental improvements the area would undergo, the board members quickly agreed to the proposal with numerous conditions, then voted unanimously in favor.

Eleven months after five hearings and a cut-in-half proposal, they seemed to agree with Attorney Loughlin's opening statement, that "This is the right plan for this site."

(Click here for a Summary of the Saunders Trust/Rye Harbor Realty Proposal prepared by Peter J. Loughlin.

(Click here for a List of Conditions submitted by Rye Harbor Realty, LLC.


February, 2009