ZONING BOARD
OF ADJUSTMENT
August 14,
2000
Mr.
Edmund Gleason, the Vice Chairman, called the meeting to order at 7:30 PM.
Mr.
George LaBonte called the roll:
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PRESENT: |
Edmund
Gleason, George LaBonte Jr., Peter McNamara, Alternate Jim Bundock, Alternate
David Hennessey |
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ABSENT: |
Walter
Kosik, Peter LaPolice, Alternate Carolyn Carter |
CASE #2180 - ML 9-40/Rita St.Onge/Hobbs Road - Seeking a
Variance to Article III, Section 307-14 to permit a single family house lot
with less than 200 foot frontage.
Mr.
LaBonte read the ordinance 307-14 aloud.
He then read aloud the list of abutters.
Mr.
Henry St.Onge, 28 Hobbs Road, appeared before the board to represent his wife,
the owner of the property. He said they
are trying to receive a variance on property with less than 200-foot frontage
to give to his daughters. It is his
belief this has never been a town road, it is a private road that has been in
existence over 100 years. He advised
that the people who access this road have an assessment of $800,000 they pay
taxes on. He then said, this is the
only access the residences have to their property. Mr. St.Onge then read the five criteria for the record:
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1)
There will be no decrease in the value of the surrounding properties;
the Proposed structure will be of equal or greater
value than the surrounding properties. 2)
It is in the public interest the proposed use will add to the taxes
being paid on the properties. 3)
There is significant hardship to the land. If it is not granted, it probably will be rendered useless and
cause it to have little or no value. 4)
There is substantial justice to be done. The use we are seeking is a committed use for that district. 5)
This request is within the spirit of the zoning ordinance. We are only requesting a variance to
waiver one of the zoning requirements.
We will meet all the other setbacks and codes. |
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Alternate
Carolyn Carter arrived.
Mr.
McNamara asked Mr. St.Onge if he made any representations to the future use of
the property when the previous variance was granted in January 1998.
Mr.
St.Onge said he was asked if he would request any future lots, but at that
time, he didn’t know. It was his
intention, at the time of purchase of the 180 acres, to give to his three
daughters to build their homes. He went
on to say, since that time, there have been changes in the rules and
regulations which make it difficult to give land away to your children.
Mr.
McNamara asked if Mr. St.Onge and his wife currently live on lot 9-40-3. Mr. St.Onge said no, he lives on 9-40 which
encompasses 9-40-3. Mr. McNamara asked
if he had any plans at present for the 14 acres of 9-40-3. Mr. St.Onge informed he plans on giving the
whole parcel to his daughter. He
further informed, that the lot contains prime wetlands, and there are only 4-5
acres of livable land. He then
explained that the property line is set so there wouldn’t be any jagged edges.
Mr.
Hennessey inquired about the easements coming out to Cutters Passage rather
than to Hobbs Road directly. Mr.
St.Onge let it be known that the owner of 9-40-2 previously had a 16’ right of
way. When the St.Onge’s asked the owner
of 9-40-2 for a 50’ easeway, they agreed, provided they change the name to
Ken’s Way, instead of Cutters Passage.
Mr.
LaBonte confirmed with Mr. St.Onge that 9-40-3 would have a 50’ easement, which
would be used for the egress and ingress.
Mr.
Hennessey asked if Mr. St.Onge researched placing the easement down through
9-40 directly to Hobbs Road. Mr.
St.Onge said it’s all prime wetland and the cost for dredge and fill is not
affordable. He also said this is the
only access for 5 lots in the back. He
reiterates that it is a private road, not a town road.
Mr.
Hennessey asked if the easement would entail a conservation (wetland)
crossing. Mr. St.Onge answered no.
Mr.
Gleason asked if Mr. St.Onge owned more property, other than 9-40-3. Mr. St.Onge said he only owns the area
9-40.
Mr.
Gleason then asked if Mr. St.Onge’s daughters had any plans to subdivide and
appear before the Planning Board. Mr.
St.Onge answered no. Mr. Gleason asked
how many acres of buildable land there are.
Mr. St.Onge said that originally they owned approximately 35 acres. He went on to say now there are only the 14
acres left, of which there are approximately 4-5 buildable acres due to prime
wetlands. Mr. Gleason then asked if the
easement goes into 9-40-3. Mr. St.Onge
said it goes across 9-40-1, 9-40-2 and goes as far as 9-40-3. He then referenced lot 9-40, specifically
9-38, 9-32 the whole bottom runs through prime wetland. Mr. Gleason asked if the Board would see Mr.
St.Onge again if this variance were granted.
Mr. St.Onge answered no. He then
brought up the fact that the Fire Chief, David Fisher, reviewed the right of
ways, and didn’t have a problem for emergency vehicles. Mr. St.Onge stated he has signed papers
informing that the Town would never be responsible for the property, including
the maintenance of the road. He said
they recorded on the deed and plot plan there would be a 20’ wide road for
emergency vehicles, and if there were any school children, they would have
transportation to the nearest bus stop on Hobbs Road.
Mr.
LaBonte asked if this has been recorded in the chain-of-title at the registry
of deeds.
Mr.
Bundock asked if Ken’s Way was a dirt road.
Mr. St.Onge said yes, gravel. He
went on to say his son-in-law has the equipment and has been maintaining it.
Mr.
Hennessey said the application stated single-family home, but the size of the
lot would allow a duplex and assumes Mr. St.Onge is giving up his right to do
so. He said he didn’t have a problem
adding a stipulation to the deed and plot plan.
Mr.
LaBonte has concern with the restricting Mr. St.Onge to a single-family
home. Mr. Hennessey disagrees.
Mr.
Gleason then reminded the Board that Mr. St.Onge would have to appear before
the Planning Board, therefor he agrees with Mr. LaBonte.
Mr.
Bundock said he is concerned with the arrangement that constitutes stacking,
and advised that the prudent thing would be to build a road.
Mr.
Gleason said his only concern is to put a succession on the variance request,
and his preference is to act favorably.
Mr. St.Onge reiterated that the Town wouldn’t have any responsibility of
the maintenance.
Mr.
Hennessey pointed out that this is a change in the zoning, despite the previous
precedent. He said he doesn’t see
anything wrong with restricting Mr. St.Onge to exactly what was petitioned,
which was a single-family home. Mr.
Hennessey is inclined to go along with the variance for the protection of the
Town.
Mr.
Gleason said the Town has adequate agencies to address this. He then asked Mr. Vince Messina, Planning
Board Director (who was in attendance to the meeting) if this would fall under
the purview of the Planning Department as to what goes on the premises.
Mr.
Messina answered by saying they can put a Planning Board restriction on the
subdivision of the parcels as well as a restriction for the type of
structure. He then let it be known that
if they Zoning Board approves, Mr. St.Onge would still have to subdivide the
parcel and that would be in the jurisdiction of the Planning Board.
Mr.
Bundock believes it is within the judgement of the Board to put stipulations on
the variance, particularly due to the fact there have been two prior. He again spoke of avoiding stacking.
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BALLOT VOTE |
Mr. McNamara-Yes; Mr. Bundock-No (He feels
criteria 5 has not been met); Mr. Hennessey-Yes (contingent upon a
recommendation from the Planning Board for a single-family only); Mr.
LaBonte-Yes; Mr. Gleason-Yes |
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VARIANCE GRANTED |
Mr. Gleason informed there is a 20-day waiting
period for the appeal |
CASE #2181 - ML 6-185-51/Ms.
Colleen Talty/Robin Road - Seeking an Appeal to Administrative Decision of
Planning Director’s denial of building permit for a single family dwelling in
accordance with NFPA 1-5.6 7-2 & 7-2.1.
Mr.
LaBonte read the list of abutters.
Ms.
Colleen Talty appeared before the Board and read the following statement: “My
Building permit, actually on Honey Lane, was unjustly denied by the Planning
Director because of the fire ordinance that’s referred there. However this subdivision is a fully approved
and bonded subdivision, it’s actually over bonded. This fact alone should have assured that I received a building
permit. The ordinance that the Planning
Director is referring to, have been in affect for many years and this situation
is the first time it’s been applied.
I’m the only person, the only woman that this Town has applied the
ordinance to. Because I’m a woman, I’m
being taken advantage of and my building permit has been denied. There are many male builders in town, in
this very subdivision, in other Pelham subdivisions, private homes in the
immediate area that have clearly not been subject to this very ordinance. The Planning Director, in denying my building
permit has deprived me of my property rights, my equal protection rights as a
woman and due process under the State Law and Constitutional Law. Because I have been treated unfairly by the
Planning Director and because other officials in this Town have made
questionable remarks regarding this very property, I am now forced to seek
damages. This situation has forced me
to move out of the area, to store all my personal belongings at great expense,
because I don’t live in Pelham now, I don’t have access to my daughter’s
schooling, I no longer have close access to my health care which is of great
distress as an expecting mother and am not going to be in a home of my own in
time for the birth of my twins. I will
be contacting the State Attorney General to inform them that my civil rights
have been violated.”
Mr.
Gleason informed that he isn’t aware of the whole situation because there
aren’t a lot of particulars in the supporting documentation. He asked if Ms. Talty is attempting to build
a house in this Town. Ms. Talty
answered yes. Mr. Gleason confirmed
that Ms. Talty applied for a building permit.
Ms. Talty answered yes. Mr.
Gleason then asked if she was denied the building permit. Ms. Talty answered yes. Mr. Gleason asked if the house was under
construction at that time. Ms. Talty
answered to say the house had a standing foundation right now. Mr. Gleason asked if the standing foundation
was put in prior to the application for the building permit. Ms. Talty said not prior to. She went on to say that she isn’t being
allowed to build her home because of this ordinance, which hasn’t been applied
to anyone else in town. Mr. Gleason
asked if it’s a question of water being provided to the site.
Ms.
Talty doesn’t believe it has been adequately explained to her and the owner of
the subdivision hasn’t been notified.
She said she is the only woman (as far as she knows) who has put in a
permit and been denied by the Planning Director. She then said she received a letter of denial that referenced the
ordinance.
Mr.
Hennessey asked if she is the owner of the parcel. Ms. Talty said she is under contract to be the owner of the
parcel. Mr. Hennessey asked again if
Ms. Talty owned the parcel. Ms. Talty
said she is under contract and would own it shortly.
Mr.
Gleason reiterated that the Board is at a loss as to the particulars. Ms. Talty said she understood, but is
following the advice of the Attorney General to take it to this point.
Mr.
Gleason said they are interested in administering justice for the taxpayers of
the Town, but the Board has to fully understand the circumstances. He said it is very serious to appear before
the Board and accuse the Town of discrimination of being a woman. He added that the Board takes this very
seriously. Mr. Gleason then said that
before they can make an informed decision, they would need to fully understand
all the particulars. He went on to ask
if Ms. Talty owned the land. Ms. Talty said
yes. Mr. Gleason then asked what she is
contracting for. Ms. Talty said she is
having a home built by a builder. Mr.
Gleason asked if Ms. Talty or the builder requested the building permit. Ms. Talty said she did. Mr. Gleason asked if the building permit was
immediately denied. Ms. Talty said it
took quite a long time for response.
Mr. Gleason asked if during that time, the foundation was put in. Ms. Talty said the foundation was in. Mr. Gleason went on to ask if it’s fair to
say the foundation was started in advance to the granting of the building
permit. Ms. Talty replied to say there
was a separate application to the Town for the foundation, which was approved.
Mr.
Bundock referenced Ms. Talty’s statement wherein she said Town officials have
made “questionable remarks”.
Mr.
Gleason interjected to say he would defer that to the Attorney General’s
office. He went on to say that is out
of the Board’s jurisdiction and won’t accept third party information. He said he would like to get to the basis
of the appeal. Mr. Gleason summarized
by saying, Ms. Talty went to the Planning Director and applied for a building
permit (she already had a permit in place for the foundation) and had to wait,
in Ms. Talty’s judgement, an inordinate amount of time, and after which it was
denied on the basis of an existing regulation.
He then asked if the regulation was violated. Ms. Talty said as far as she knew it hasn’t. Mr. Gleason said the Board has been provided
with excerpts from the regulations in affect.
Mr.
LaBonte read the regulation excerpts NFP 1-5.6, 7-2 and 7-2.1 for the record.
Mr.
Gleason asked if anyone had read these regulations for Ms. Talty. Ms. Talty believes her denial letter
contained similar information. Mr.
Gleason asked if she understood what they say.
Ms. Talty said yes. Mr. Gleason
asked Mr. Messina to address the Board on the basis for his denial on their
request.
Mr.
Messina noted that in NFP 1, new construction must have an adequate fire
protection system available to it at the beginning of construction. He said since he’s been Planning Director (1
year this month), this rule has been applied to every subdivision that’s come
before the Town. Mr. Messina said one
variance (with the Fire Chief’s approval) is new construction within a
subdivision must have water available 1000’ from a construction site. He said there are at least four subdivisions
in the Town that they have done exactly the same thing. He said there are two recent developments
(Beacon Hill and Shannon Circle) where this rule has been applied.
Mr.
Gleason asked if these are rules of safety and then asked if the Fire Chief is
in accordance with this. Mr. Messina
said when he started his position, he discussed certain issues with the Fire
Chief of how to better protect the subdivisions. He said one of the key elements was a more astringent enforcement
of this particular regulation. He said
there are numerous subdivisions in various states of completion. He noted that they have had significant
delays in acquiring particular protection after the fact in certain cases that
required cisterns or added fire protection, which were not enforced. Mr. Messina made it be known that all
subdivisions that have come before the Planning Board and his department the
regulation has been in force unilaterally.
Mr. Messina said there are some exceptions, such as subdivisions on
existing Town roads. He then noted Mr.
St.Onge’s subdivision, which required intermediary fire protection. He ended by saying this has not been applied
discriminatory, there is certainly enough background in the Town.
Ms.
Talty interrupted to ask for an example.
Mr. Messina then provided the example of Beacon Hill where 6 permits
were denied until adequate fire protection was in place. He said once they were in place, building
permits were granted.
Mr.
Gleason asked if the issue was a source of water. Mr. Messina answered yes, it is adequate fire protection which
could be either a certified fire pond, dry hydrant or cistern.
Mr.
Bundock asked if Mr. Messina’s department responded in a timely manner to the
application. Mr. Messina said they try
to respond within five working days. He
also said that some of the subdivisions and requests require significant
research. Mr. Bundock asked if in Mr.
Messina’s estimation, best efforts were made.
Mr. Messina answered yes.
Mr.
Hennessey asked when the Planning Board approved the subdivision. Mr. Mahoney said January or February. He went on to say that it was the second
phase of the subdivision that was approved three years ago. Mr. Hennessey asked if any other lots in the
subdivision were under the same requirement.
Mr.
Messina said yes, the first six lots of the subdivision have access to the
cistern at the corner of Robin and Irene Drive, so they are covered and the
building permits have been granted. He
went on to say that toward the end of the subdivision adequate fire protection
was not available because is out of range from the 1000’ street pipe distance.
Mr.
Hennessey asked if this was part of the Planning Board’s approval of
subdivision or is this done at building permit level.
Mr.
Messina said the cistern location is a joint effort between the Planning Board
and Fire Chief and the engineering firm who would come up with preferable
location. He said as for discretion for
building permits, that primarily falls in his jurisdiction with the advocacy of
the Fire Chief.
Mr.
Hennessey clarified that there should have been no surprise, since February,
that this lot would need additional fire protection. Mr. Messina answered yes.
Mr.
LaBonte asked how many lots are within the second phase. Mr. Thomas Mahoney, subdivision developer,
spoke up to say this is a 40-lot subdivision and permits have been issued for
at least 28 of the homes. He also said
he wasn’t informed of the ruling.
Mr.
Messina said that phase one was done at least 2 1/2 years ago and the phase two
portion of the subdivision was approved approximately in January/February. Mr. Messina said that prior to his
involvement with the Planning Department, the enforcement of the cistern being
in place prior to granting building permits was not done, they were to be in
place prior to completion of construction of phase one. He went on to say that this is a new
subdivision and right now there are six permits on the first part of the road
that meet the requirements of NFAP 1.
Mr.
Gleason asked if there are any existing properties or subplots right now that
do not meet the requirements other than Ms. Talty’s. Mr. Messina said no.
Mr.
LaBonte asked if there were any lots beyond Ms. Talty’s. Ms. Talty said as recently as last week,
Peterson Built Homes was granted a building permit in this subdivision further
away from the fire protection than hers.
She assumes the home adjacent to her on Noella Avenue needs a permit for
the addition recently going up. It is
her understanding that the occupancy permit can be denied if there isn’t
adequate fire protection and the bond for the road was to cover any problems up
until then. Mr. LaBonte asked if the
Board could view a map.
Mr.
Gleason believes reviewing a copy of the map would be appropriate. Mr. Messina said he could provide one.
There
was a short recess.
Mr.
Hennessey asked Mr. Messina if a building permit was issued for the foundation
to go in, prior to enforcing the regulation.
Mr. Messina said he has no record a building permit being pulled for a
foundation. Mr. Hennessey said that if
a building permit for the foundation were issued prior to the enforcement of
the ordinance, Ms. Talty would have a case.
Mr. Messina said it is a very rare circumstance for a foundation permit
to be issued without a building permit.
Mr. Hennessey asked if Ms. Talty would still be bound to the regulation
if she had received a permit on the foundation prior to the enforcement of the
regulation. Mr. Messina said no, she
would still be bound by the regulation.
He said he could cite specific cases for this specific ordinance where
stop orders were issued until cisterns were put in place. He said one specific case for five building
permits, this past April. Mr. Hennessey
wanted to clarify they’ve been discussing a denial for a building permit, when
in fact, the letter sent to Ms. Talty stated the building permit would be held
until the developer got his cisterns up and running at which case it would be
issued. Mr. Messina agreed.
Mr.
LaBonte asked Ms. Talty for a copy of the permit issued. Ms. Talty said she doesn’t have a copy and
assumes it is with her building application the Town clerk provided for the
Board. Mr. LaBonte asked if she has
received the actual permit. Ms. Talty
apologized and said she doesn’t understand the correct process. Mr. LaBonte explained that the question was
whether or not she had a permit at the time the foundation was put in, to which
she said earlier that she did. Ms.
Talty said it was the application.
Mr.
Gleason reiterated his original question, which was Ms. Talty, applied for a
permit, and proceeded with building a foundation without a granting of
approval. He then asked Ms. Talty if
that was a fair statement. Ms. Talty
answered yes.
Mr.
Bundock asked Ms. Talty to identify the subdivision that was granted a building
permit, which she believes to be further away from her property. Ms. Talty pointed out on the map lot
6-185-55. Mr. Bundock asked Mr. Messina
if he could identify that lot as being in compliance with the code.
Mr.
Messina approached the map and confirmed that lot 6-185-55 is within the range
and complies with the regulation.
Mr.
LaBonte asked Ms. Talty if she has spoken with the developer putting in the
road. Ms. Talty said she has and then
said he hasn’t been formally notified of this. Mr. LaBonte questioned her statement. To which Ms. Talty answered it is not her responsibility.
Mr.
Mahoney said the problem came when they proceeded building and it was their
understanding at that time was the no occupancy permit. He said that even now it just says you
shouldn’t have any combustible materials come into your frame. Mr. Mahoney doesn’t believe that this part
of the building permit shouldn’t have been denied, since the well, septic and
foundation wouldn’t burn. He feels with
other problems going it seems very selective that Ms. Talty was the only one
turned down. Mr. Gleason asked if Mr.
Mahoney agrees that Ms. Talty’s case is unique due to her location to the
cistern. Mr. Mahoney doesn’t believe
so. He said that within the 40-lot
subdivision, 28 homes are allowed to be built, then the rule is changed within
the last two weeks.
Mr.
Gleason doesn’t agree with that statement and hasn’t heard evidence to that
fact this evening. Mr. Mahoney feels it
is strange and suspicious but fortunately will be heard by someone else. Mr. Gleason said in looking at the map and
hearing testimony of the two groups, there is a unique situation and there is a
cistern in process. He reiterated the
facts as follows: Ms. Talty applied for
a building permit and was not granted the permit, but did build a
foundation. He then said that even if
she wanted to put combustible materials on, she would still have to seek a
separate permit, which Mr. Messina would be absolutely right in denying.
Mr.
Mahoney appreciated the Board for listening to both sides and hopes the Board
now has more information. He said as
this progresses, the Board would become aware of other situations. Mr. Gleason asked Mr. Mahoney if he is the
contractor of record and when the cistern would be up and operational. Mr. Mahoney said as soon as possible. He said he didn’t know they had to be in at
the time, only for occupancy, the road is under construction. He then said if the Board gave them two
weeks, the three cisterns would be ordered and put in. Mr. Gleason asked if it was Mr. Mahoney’s
intention to do so and the ordinance would be a moot issue at that point. Mr. Mahoney agreed.
Mr.
Gleason’s observation is there are adequate ordinances in affect (since
1996). Ms. Talty agrees. Mr. Gleason said the Board recognized her
concern.
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MOTION: |
(Hennessey/LaBonte)
To reject Ms. Talty’s claim of selective enforcement and uphold the
administrative decision by the Planning Director, on the basis that selective
enforcement was not proved. Mr.
Messina showed the basis of his decision in denying the permit and the Board
upholds his decision. |
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VOTE: |
(3-0) |
MINUTES REVIEW
June 12, 2000
MOTION: (Hennessey/McNamara) To accept the
minutes.
The motion carries.
July 10, 2000
MOTION: (LaBonte/McNamara) To accept the minutes.
The motion carries.
ADJOURNMENT
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MOTION: |
(LaBonte/McNamara)
To adjourn the meeting. The motion carries. |
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The
meeting was adjourned at 8:47 PM.
Respectfully
submitted,
Charity
A. L. Willis
Recording
Secretary