September 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:






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


Edmund Gleason, Walter Kosik, Selectmenís Representative Victor Danevich


Mr. McNamara noted that Ms. Beloritsky and Ms. Ronning would be voting members of the proceedings.





Case #2264 - TESSIER, Dennis, Jr./21 Saint Margaretís Drive - ML 12-87 - 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.


Mr. Hennessey read the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters.


Mr. Dennis Tessier met with the Board to discuss his variance request.He said he was trying to build a single-family dwelling on a property that did not contain an acre of land.He began by reading the following criteria aloud:


Item #1.The proposed use would not diminish surrounding property values because: It would be anew home of equal or greater value than surrounding homes.


Item #2.Granting the variance would not be contrary to the public interest because: The home will add value to the property and increase the taxes being paid on the property.


Item #3.Denial of the variance would result in unnecessary hardship to the owner because:

†††††††††††††† a) the zoning restriction as applied to their property interferes with the reasonable use of the †††††††††††††† property, considering the unique setting of the property in its environment such that: The property †††††††††††††† meets all requirements except 200 ft. of road frontage, but it has access to a 50 ft. right-of-way.


†††††††††††††† b) that no fair and substantial relationship exists between the general purposes of the zoning †††††††††††††† ordinance and the specific restriction on the property because: It will not allow us to use out †††††††††††††† property to build a house.


†††††††††††††† c) the variance would not injure the public or private rights of others since: We already live in the †††††††††††††† Town and would like to build our own house to raise a family in this Town as well.


Item #4.Granting the variance would do substantial justice because: It would allow us to use our property for the same purposes as surrounding properties.


Item #5.This use is not contrary to the spirit of the ordinance because: We are requesting the variance only to waive Article III, Section 307-12 we will meet all other requirements.


Mr. Tessier Jr. explained that his father owned lot 1 and 1A, which was purchased approximately eleven years prior.He said that he currently lived with his father, but would like to purchase lot 1A to build a home for his own family.Lot 1A had no frontage onto St. Margaretís Drive, but could be access through a 50ft. right-of-way (that lead from St. Margaretís Drive into the then St. Margaretís parcel) which was added during an approved subdivision (of four lots) done in the late 1960ís.Mr. Dennis Tessier, Sr. provided the Board with a copy of the subdivision plan done in the late 1960ís.He noted that the new tax map showed the right-of-way as a paper road (but was actually an old access road); the tax map also excluded the cul-de-sac.


Ms. Ronning asked if the Tessiers had reviewed the possibility of making the right-of-way into a road.Mr. Tessier Jr. answered no.Mr. McNamara asked what the length of the right-of-way was from St. Margaretís Drive to the turn-around.Mr. Tessier Jr. said the right-of-way was approximately 465 ft.-475 ft.††


Mr. Gowan asked how lot 2A accessed their parcel.Mr. Mark Schmidt, 19 St. Margaretís Drive owned lots 2 and 2A.He accessed his parcel through St. Margaretís Drive, but was curious with the outcome of his neighborís request, since in the future he may come before the Board with a similar request.


Mr. McNamara asked what the distance was from the back of lot 1A to Cote Drive.Ms. Ronning said Cote Drive was not accessible.She asked if the Board could grant the right to place a driveway onto a Town owned right-of-way.




Mr. Mark Schmidt, 19 St. Margaretís Drive said he was in favor of the request as long as he would be allowed to have the same access to his parcel.Mr. McNamara said that the Board reviewed requests on a case by case basis.Mr. Schmidt said he was not against the request.


Mr. Gowan questioned the timeframe in which a subdivision became null and void from the point of approval.Mr. Tessier Sr. informed that the original subdivision included lots on Cote Drive, but a developer from Dracut purchased abutting property that provided access for the homes on Cote Drive so the 50 ft. right-of-way was no longer needed.


Mr. Hennessey asked if separate deeds had been recorded at the Registry of Deeds for the four lots (1, 1A, 2, 2A) separately.Mr. Tessier answered yes and went on to say that he pays a separate tax bill for lot 1A.


Mr. Hennessey summarized by saying the owner had two valid lots with insufficient frontage onto a non-existent road.It was believed that the right-of-way was going to be a fully-bonded road up to Town standards to access the back lots.The applicants were not going to build an access road up to Town standards.Mr. Hennessey noted that the back lots were land-locked.He suggested that the Board continue the case one month and seek the opinion of possibly outside counsel and the Planning Board.Ms. Ronning wanted counsel to review if a road could be placed onto Town owned property.Mr. Gowan said the Planning Board may recommend a 500ft. built to Town standard with a hammer head for turn-around.Mr. Tessier Sr. wanted to know if the Town would maintain the road if it were required to be brought up to Town standards by the Planning Board.Mr. McNamara believed if a road were required to be brought up to Town specifications; it would have to be voted in as an accepted road before the Town took responsibility.Mr. Tessier Sr. asked if it were possible to purchase the right-of-way land from the Town.The Board was unsure.Mr. McNamara said that the Board wanted some guidance from the Planning Board and Town Counsel before proceeding.†††



(Hennessey/Gowan) To continue Case #2264 until the next scheduled meeting.The Board requested that the Planning Department, Planning Board and Town Counsel issue a memo regarding possible recommendations for the disposition of the case.The Board also wanted confirmation of the right-of-way ownership.




(5 - 0 - 0) The motion carries.


Mr. Hennessey noted that the abutters would not receive additional notification.


Administrative break......


Mr. Hennessey asked the Board to consider switching the order of the following cases since the outcome of the Appeal of the Administrative Decision (Case #2266) may effectively make Case #2265 moot.



(Hennessey/Gowan) To hear Case #2266 before hearing Case #2265.




(5- 0 - 0) The motion carries.


Case #2266 - DIGRAZIA, Kenneth & Patricia/60 Arlene Drive - ML 9-69-15 - Seeking an Appeal from an Administrative Decision of the Code Enforcement Officer determining that the required 200 feet of frontage be contiguous.


Mr. Hennessey said that the basis for the appeal was that the Code Enforcement Officer noted that the Zoning Ordinance for the required 200 ft. of frontage was not met because the applicant had 165ft. of frontage onto Arlene Drive, and 162 ft. of frontage onto Moeckel Road.†††


Mr. Hennessey read the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification.The file did not contain any written correspondence from abutters.


Mr. Wes Aspinwall, Herbert Associates, the applicantís land surveyor, explained what the applicant was seeking.He said they would like to subdivide the existing 3.2 acre parcel into two lots.He said a subdivision had been done in 1981 which left a right-of-way for utility access to an abutting cul-de-sac.He said if subdivided,ML 9-69-15, Mr. Digraziaís lot (containing the existing home) would have adequate frontage; the proposed lot would have 2.046 acres with frontage on both Arlene Drive and Moeckel Road.Mr. Aspinwall said when completing the variance request form it asked for the zoning ordinance reference.In this case Section 307-12 contained the Table of Dimensional requirement that calls for 200ft. on an accepted Town road.Section 307-14 also called for 200ft. of frontage.Mr. Aspinwall said that the Code Enforcement Officer discussed the case with the former Interim Planning Director Clay Mitchell, whose feeling was neutral, but agreed if the footage of the two roads were combined the frontage would add up to more than the requirement.Mr. Aspinwall said that the Code Enforcement Officer didnít feel comfortable issuing a declarative ruling that the proposed complied with zoning and Mr. Mitchell didnít feel comfortable recommending a declarative ruling.Mr. Aspinwall contended that there was an excess of frontage and believed that the proposed conformed to zoning.He said there was no requirement that the 200ft. frontage be contiguous.Mr. McNamara read aloud the frontage requirement as written in the Zoning Ordinance

(Frontage: The length of the lot bordering on the public right-of-way and serves as the access to the lot).


Mr. Hennessey believed the problem was that there was not 200ft. of frontage onto either of the roads.Mr. Aspinwall said that both Arlene Drive and Moeckel Road were both planned and accepted Town roads.He pointed out that there was a paper road connecting the two that was publicly dedicated, but never constructed.He reiterated that the paper road was a public right-of-way (dedicated in 1981) was 206ft.Ms. Ronning asked if Moeckel was a Pelham, or Windham Road.Mr. Aspinwall believed a portion of the road was in Pelham, but was unsure who plowed the road.


Mr. McNamara asked Mr. Aspinwall to state his contention.Mr. Aspinwall said it was their belief that the lot had sufficient frontage and that it was in conformance with the Zoning Ordinance as written.He asked that the Board make a declarative ruling that the proposed conformed with the zoning so it could be on file when presenting the subdivision to the Planning Board.


There was no public input.


The Board continued their discussion regarding the information presented.The Zoning Ordinance language was reviewed.Mr. Hennessey believed if the existing frontage was added to the footage of the public right-of-way the lot would have adequate frontage and would meet the zoning requirements to be a legal lot.Mr. Gowan agreed and reiterated if the plan were put before the Planning Board, they may require that a road be built.Mr. Aspinwall noted that Arlene Drive was built and paved within the right-of-way.He said that all other standards of the zoning would be met. The Board agreed that adding the existing road with the public right-of-way created adequate footage for a legal lot.



(Hennessey/Gowan) To clarify for the Town Code Enforcement Officer, based upon the language in the Zoning Ordinance that calls for using ďright-of-wayĒ in frontage that, in this case there is sufficient frontage.




(5- 0 - 0) The motion carries.


Case #2265 - DDIGRAZIA, Kenneth & Patricia/60 Arlene Drive - ML 9-69-15 - Seeking a variance concerning Article III, Section 307-12 & 307-14 to permit a two (2) lot subdivision with one (1) lot having an existing house and 200 feet frontage and one (1) lot having 165 feet frontage for use as a building lot on Arlene Drive and 162 feet of frontage on Moeckel Road where 200 feet is required within the residential zone.


The applicant withdrew their request for a Variance.




August 11, 2003 - deferred to the October, 2003 meeting.





(Hennessey/Gowan) To adjourn the meeting.




(5- 0 - 0) The motion carries.


The meeting was adjourned at approximately 8:30 pm.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Respectfully submitted,


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Charity A.L. Willis††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Recording Secretary