APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 8, 2003

 

The Chairman, Mr. Peter McNamara, called the meeting to order at approximately 7:30 pm.

 

The Clerk, Mr. David Hennessey, called the roll:

 

PRESENT:

 

 

ABSENT:

Peter McNamara, Walter Kosik, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky, Alternate Cindy Ronning

 

Edmund Gleason, Selectmen’s Representative Victor Danevich

 

Mr. McNamara noted that Ms. Ronning would vote in Mr. Gleason’s absence.

 

CONTINUED

 

Case #2264 - TESSIER, Dennis, Jr./21 Saint Margaret’s Drive - ML 13-86 - Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit a single family dwelling on a lot that does not meet the Table of Dimensional Requirements of the required 200 feet road frontage within the residential zone. 

 

The case had previously been continued to allow the applicant the opportunity to meet with the Selectmen and discuss the status of the right-of-way. 

 

Mr. Dennis Tessier Jr. said he met with the Selectmen.  He said he would be petitioning the Town through a warrant article to purchase the right of way to be voted on in March, 2004.  Mr. McNamara asked if the Selectmen decided against constructing a road on their own.  Mr. Tessier, Jr. answered yes.  He had no further information since the last Board of Adjustment meeting.

 

Mr. McNamara said since the last meeting, the Board had received two letters from Town Counsel dating back to 1989.  Mr. Hennessey read portions of the letter sent by Town Counsel (in 1989) to former Board of Adjustment Chairperson Charlene Takesian.  In summary, after review of deeds, etc., Town Counsel that the 50ft. right-of-way was never dedicated for public use and depicted on the plan as a right-of-way, not a street.  After the meeting with the Selectmen, Mr. Tessier, Jr. was left with the assumption if the land were purchased with his neighbor (Mr. Mark Schmidt, 19 St. Margaret’s Drive), they would add a common drive.  Mr. McNamara said that Planning Director Will D’Andrea understood that the 50ft. strip was taken a few years ago for non-payment of taxes.  It was unclear if the strip of land was a right-of-way.  Mr. Tessier, Jr.  said that the Selectmen told him that the 50ft. piece was a strip of land owned by the Town.  Mr. McNamara read a portion of the April 7, 1989 (Attorney Barbara Loughman, Town Council) letter which stated that the effect of the note on the plan is to make it clear that lots 1A and 2A were not approved as separate lots, but created solely for the purpose of annexing them to the adjacent lots 1 and 2.  Mr. Tessier, Jr. noted that the lots had separate numbers and tax bills. 

 

Mr. Tessier, Jr. wanted to know, if the purchase of the land was approved at the March vote, how the situation with the two lots could be cleared up.  Mr. McNamara suggested discussing the situation with an attorney.  Mr. Hennessey informed even if the Town approved the purchase of the land, there were no guarantees that the Board of Adjustment would grant a variance for access, or that the Planning Board would approve the subdivision of the lots.  Mr. Kosik clarified who the owners of the lots were.  He said according to the tax map, lots 86 and 90 didn’t have the required amount of frontage.  Mr. Tessier, Jr. said that lot 86 received a variance.  Mr. Kosik questioned why the street was left, and not added to the lots for additional frontage.  He was unclear about the sentence in Town Counsel’s letter that read ‘..anyone who is dependant upon the use of a paper street as the only access to his land is still entitled to an easement for the purpose of access to his land even though the effect of the release of the dedication is that there is no longer a public way, or the opportunity to construct a public way on a paper street.’ Mr. Hennessey said that the sentence read by Mr. Kosik didn’t support the other information contained in the letter.  Mr. McNamara agreed. 

 

Mr. McNamara said the Board could not advise the applicant, but informed they had the option of withdrawing the application without prejudice until the ownership of the parcel became clear. 

 

Mr. Tessier, Jr. withdrew his application without prejudice.       

 

MINUTES

 

November 10, 2003

 

MOTION:

(Kosik/Hennessey) To approve the November 10, 2003 meeting minutes as amended.

 

VOTE:

 

(4 - 0 - 1) The motion carried.  Ms. Ronning abstained.

 

DISCUSSION

 

Mr. McNamara discussed the items that were discussed at the joint meeting between the Planning Board and the Board of Adjustment, in particular frontage calculations and back lot situations.  He said that Planning Director Will D’Andrea was working on language, which would be submitted as a warrant article for Town Meeting. 

 

Mr. McNamara discussed a recent Superior Court case regarding a decision of the Zoning Board of Adjustment in Newington which was remanded back to the board for clarification.  Apparently, Newington regularly reviewed expert opinions when making a decision, but in this case did not.  There was a discussion regarding obtaining expert opinion, which would be a judgment call, but legal opinion should be obtained to find out what is allowed.    

 

ADJOURNMENT

 

MOTION:

(Hennessey/Gowan) To adjourn the meeting.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

The meeting was adjourned at approximately 8:15 pm.

                                                                                          Respectfully submitted,

 

                                                                                          Charity A.L. Willis            

                                                                                          Recording Secretary