ZBA grants equitable waiver for shipping containers at 119 Old Turnpike Road; city easement may require clearing

The Concord Zoning Board of Adjustment granted an equitable waiver allowing 20 storage containers to remain inside required setback lines at 119 Old Turnpike Road, finding the encroachments met the ordinance’s post-facto waiver criteria while noting the city’s separate easement authority may require removal of containers that intrude on the sanitary sewer easement.

Applicant representatives told the board the property, owned by Cornerstone Realty Holdings LLC, was acquired with existing storage containers and a concrete retaining wall; a survey included in the packet showed roughly a 10-foot encroachment into the 25-foot side setback for much of the row and a very small encroachment into the 30-foot rear setback on one corner unit. The applicant said the earlier condition led the owner reasonably to believe the containers were allowed in that location and that moving 20 tightly stacked containers would be costly and risk damage.

The applicant asked the board to apply the city’s equitable-waiver criteria, saying the condition predated the current owner’s work, that the encroachment was a good‑faith error, that relocation would impose a disproportionate cost, and that there was no evidence the containers had diminished surrounding property values. Counsel said the owner could relocate containers if future utility access required it but argued there was no appreciable public benefit to forcing immediate removal.

City staff and the planning inspector disagreed with the applicant on at least one legal point: planning staff read the municipal definition of “structure” into the record and stated that storage containers meet that definition, meaning they are subject to setback requirements; staff also noted a sanitary-sewer easement runs diagonally across part of the parcel and that Engineering & General Services had requested that any access covers in the easement be cleared.

Board discussion weighed the fact that the retaining wall and some containers predated the owner’s improvements and that the encroachments were relatively modest in scale. Some board members expressed frustration that multiple, piecemeal code issues had arisen on the parcel, but most concluded the equitable-waiver criteria were met for the setback encroachments. The motion to grant the waiver passed; the board recorded a 4–1 vote with one member in the minority.

The board’s approval did not alter or remove the city’s independent authority to enforce easement terms; staff said Engineering and General Services had indicated the city expects the sanitary easement to be cleared if access is required. The applicant’s representative acknowledged the city’s authority and said the owner would cooperate if the city needed to access the easement.

The board adopted the applicant’s proposed findings as the board’s factual findings when it voted to grant the equitable waiver.