BOA 07-12-2004

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 12, 2004

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, Edmund Gl= eason, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky

Alternate Cindy Ronning

Mr. McNamara appointed Ms. Beloritsky as a voting memb= er for the evening’s proceedings.

HEARINGS

Case #2286= – BIBEAU, David/36 Atwood Road – ML 29/7-41 – Seeking a Variance concerning Article VII, Section 307-41 (b) to permit the construction of a 30ft. x 40ft. garage partly within the 50ft. wetland buffer.=

Mr. McNamara informed that there had been an abutter notification error; therefore, the case would not be heard at this time. It was his understanding that the = case would be rescheduled to the next Board meeting,

Case #2287= – TOCCI, Mark & Melissa – 14 Holstein Drive – ML 14/4-137-4 – Seeking a Special Exception concerning Article XII, Section 307-76 = (III) to permit a Childcare Nursery program within the Residential Zone.

Mr. Hennessey read the list of abutters aloud. There w= ere 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. & Mrs. Mark Tocci met with the Board to discuss their Special Exception application. Mr. Tocci explained that his wife currently conducted a legally exem= pt daycare (with four children that included his daughter). He said his wife would like to exp= and to be able to have infants, with a limit of ten children. Currently Mrs. Tocci is seeking her license for child care/nursery status.&nbs= p; The Department of Public Health and the Fire Department are concludi= ng their inspections; all floor plans and area calculations were in order.

Mr. Hennessey read aloud the criteria for Special Exce= ption as contained in Article XII, Section 307-76 (III) General Home Occupation a= nd asked that the applicant respond to each.&= nbsp; The following are the responses provided:

Traffic will not be affected as we will remain a small program. All vehicles wi= ll be in the driveway for five minutes in the morning and five minutes in the afternoon (drop off and pick up) and one extra car in the driveway for= the day. There will be no si= gn in front of the house.

Most functions will occur in = the basement classroom area, with the exception of outdoor activities, whi= ch will occur in the fenced in area directly behind the house. Two out of the four sleeping = rooms will be used for napping. This will be highlighted on the floor plan provided on July 12, 2004.

There are no external indicat= ions of the business activity. Mr. Gleason said the site map indicated there was pool. Mr. Tocci said there were two separate existing fenced in areas, one of which contained an existing pool. Mr. Gleason questi= oned how the activity would be screened from the neighboring view, other th= an with a chain link fence. Mr. Tocci said there were no abutters directly behind the house. He noted that the outdoor activities were basically a play set, swing set, bikes and water table. Mrs. Tocci said t= he items were typical =
Mr. Gleason asked how many be= drooms were contained in the home. Mr. Tocci said there were three bedrooms (plus an office). Mr. Gleason noted that the se= ptic was rated for four bedrooms. Mr. Hennessey asked the age of the home. Mr. Tocci said they moved in = July, 2002.
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Mr. McNamara asked when the applicant anticipated the licensing process to be completed. <= /span>Mrs. Tocci said they were hopeful that the licensing process would be complete in August. She could continue to conduct the business as it currently was.&= nbsp;

Mr. Gleason asked if the applicant would be adverse to= the Board adding a stipulation that the number of children is not to exceed ten. Mrs. Tocci was not adver= se to a stipulation regarding the number of children. She didn’t want a large prog= ram.

Mr. McNamara asked how the business would be advertised without a sign. Mrs. Tocci sa= id she marketed through the newspaper and advertisements at local businesses.

There was no public input.

The Board had satisfied their questions; the following motion was then made: <= /p>

MOTION:<= o:p>

(Hennessey/Gleason) To approve the Special Exception= for permitting a childcare/nursery program at 14 Holst= ein Drive with the following stipulations: 1) there is a maximum child capaci= ty of ten children; and 2) there will be no sign.

VOTE:

(5-0-0) The motion carri= ed.

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Case #2288= – DIGRAZIA, Kenneth & Patricia – 60 Arlene Drive – ML 4/9-69-= 15 – Seeking a Variance concerning Article III, Section 307-12 & 307= -14 to permit a two lot subdivision with one lot having an existing house and 200ft. frontage and one lot having 165ft. frontage for use as a building lo= t on Arlene Drive and 162ft. of frontage on Moeckel Road.

Mr. Wes Aspinwall of Herbert Associates, representing = the applicant, met with the Board to review the Variance application. He said on September 8, 2003 the m= atter had been brought before the Board of Adjustment. He discussed the lot, which was approximately 3.2 acres with existing frontage on <= st1:address w:st=3D"on">Arlene Drive and an existing house = on lot 9-69-15. He said they were proposing a new = lot (lot 9-69-48) that would have approximately two acres. Initially, the subdivision was don= e in the late 1970’s with Arlene Drive ending in a cul-de-sac and having a 50ft. right-of-way to Moeckel Road (kept for utilities and not built throug= h as a road). Mr. Aspinwall said approximately seven or eight years ago Arlene Drive was continued for the subdivision (lot 9-69-23 owned by Mesiti Pond Realty Trust) through to Kathleen Lane. He said the issue of the subdivisi= on came down to a technicality of two hundred feet frontage; lot 15 has the re= quired frontage. He explained that t= he second lot contained 165.31feet to a boundary (with a point of curvature) at that point the Arlene Drive right-of-way departed from the previously dedicated right-of-way (that remains only as a paper road and right-of-way easement on Moeckel Road); on Moeckel Road there is 131 feet of frontage with a partial curve with 32 feet (totaling 163 feet).&nb= sp;

Mr. Aspinwall reviewed the Variance being requested and noted that there had been one change in zoning since September 8, 2003 prio= r to their discussion with the Planning Board; the change was the insertion of t= he word ‘contiguous’ in front of the word frontage (All lots, except those for the use of industrial buildings, shall have at least two hundred [200] feet of contigu= ous frontage on a public right-of-way…) . He said in the past frontage was n= ot specified as being contiguous. He said through the Planning Board’s discussion, it was significant to t= hem that the road was active (Class V); the members did not believe that a publ= icly dedicated (paper road) was the same thing as a public right-of-way. He said the clear direction from t= he Planning Board was that the subdivision required a variance in order for th= em to deal with it. He said a me= mber of the Planning Board questioned if a road could be put in through to Moeck= el Road, which he felt would not only be a significant expense (for a technical reason with no realistic improvement) and would be a detriment to lot 9-146= -7, who currently had a roadway on three sides of the lot and would make that l= ot an island if Arlene Drive were constructed further. He said some of the Planning Board members preferred to do the subdivision as shown, rather than build the road through. He felt the variance= was needed in able to pursue with the Planning Board and it was also detrimenta= l to put a road in.

Mr. Aspinwall said there were a couple details that we= nt along with the road question that were discussed at the previous Board of Adjustment meeting such as when a road came out to an intersection the tang= ent distance is allowed to be counted as part of the frontage. If they used the tangent length th= ere would be more than enough frontage on both Arlene Drive and Moeckel Road.

Mr. Aspinwall went on to read the following Variance criteria and applicant responses aloud:

Item #1. The proposed use would not diminish surrounding property values because: The proposed will be of equal or greater value than the surrounding properties.=

Item #2. Granting the variance would not be contrary to the public interest because: The proposed use will add to the taxes being paid on the property.= It will be conforming to the under= lying zoning district.

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 propert= y, considering the unique setting of the property in its environment such that= : Lot 9-65-15 as it currently exists contains an area= of 3.2 acres and a total road frontage of 528.49’(feet). The lot meets all other conditions= of the Pelham Zoning Ordinance to be acceptable as a 2-lot subdivision, and we believe that this is a reasonable use of the property.

b) that no fair and substan= tial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: Proposed lot 9-69-15 conf= orms to the purpose of the Zoning Ordinance as stated in Article I Section 307.2= to the same degree that any other newly subdivided 2-acre lot in Town would. The specific restriction is that t= he road frontage is split between two roads and both segments are less than 200’(feet). The land an= d road frontage are adequate for a driveway access to be constructed to either road. Access to Arlene Drive is preferred.

c) the variance would not i= njure the public or private rights of others since: The lot meets or exceeds all other zoning and subdivision regulations and the frontage of 35’(feet= ) of direct frontage on Arlene = Drive is of no practical consequence relative to the rights of the public or other private parties.

Item #4. Granting the variance would do substantial justice because: The use = we are seeking is permitted use for that district.

Item #5. This use is not contrary to the spirit of the ordinance because: We will meet all other requirements that the Town will place on us, such as obtaining all ot= her necessary permits.

Mr. Hennessey said on September 8, 2003 an identical r= equest for Variance was requested and granted (with a 5-0 vote) through the follow= ing motion: “To clarify for the Town Code Enforcement Officer, based upon= the language in the Zoning Ordinance that calls for using ‘right-of-way’ in frontage that, in this case there is sufficie= nt frontage.” He reviewed = the Planning Board minutes of April 5, 2004 in which one member felt the applicant should request a variance for the frontage. He= was confused by this because the Board of Adjustment had previously voted and m= ade a definition. Mr. Gleason understood that there was a change in the regulation subsequent to the Boar= d of Adjustment’s decision stipulating that the footage had to be contiguo= us. Mr. Hennessey said the Board of Adjustment’s decision (September, 2003) preceded the change in the language (accepted at Town Meeting in March). He was concerned that the Planning= Board was refusing to accept what the state RSA says, that the Board of Adjustmen= t defines the Zoning Ordinance (subject to subsequent court opinions). He said the Town enforcement offic= er had been instructed by the Board of Adjustment to apply their interpretation of= the rule.

Mr. Gleason felt that the Board had to act on the requ= est because there was evidence that the regulation had changed. He questioned to whom the right-of= -way (land) was deeded. Mr. Aspinw= all said the original plan showed a public dedication (easement), but was under= the impression that the right-of-way was within the deed of lot 9-146-7 (an abutter); through the language in the title, he believed the Town or any ot= her person that wants to construct a road across it would have the legal right = to do so. Mr. Gleason confirmed = that there was 165 contiguous feet of frontage without the right-of-way. Mr. Aspinwall answered yes. He said if the tangent distance of= the curve was included there would be more than 200 feet on Arlene Drive. Mr. Gleason didn’t feel that= the frontage from lot 48 (even though there was a right-of-way) could be used f= or frontage.

Ms. Beloritsky reviewed a section of a plan included i= n the applicant’s submission that had a note which read ‘previously platted R.O.W. not deed or dedicated to the Town area incorporated into Lot 9-146-6’. Mr. Aspinwall reviewed the note being referred to, which was a porti= on of the subdivision of Arle= ne Drive that was done by another company. He said it may not have been deeded to the Town, but disagreed with = the note and said it was dedicated to the Town by virtue of the previous plan.<= span style=3D'mso-spacerun:yes'> He said the number 9-146-6 was eit= her a mistake, or referred to a parent parcel before the piece was subdivided bec= ause it clearly was shown on both plans as 9-146-7.

Mr. McNamara said the facts were fairly complicated an= d both boards had struggled with the interpretation. He believed that Mr. Aspinwall had= cited a number of circumstances that were unique to the parcel. He noted that the New Hampshire Su= preme Court had changed the law regarding area variances and believed that the (u= nnecessary hardship) criteria set down applied to this case. He read aloud the criteria for an = area variance and asked Mr. Aspinwall to address each.

Special condit= ions exist such that literal enforcement of the Ordinance results in unnecessary hardship:

a)&n= bsp; the area variance is needed to enable the applicant’s proposed use of the prop= erty given the special conditions of the property: Mr. Aspinwall asked if an ‘area’ variance was one that had to do with frontage and not ar= ea also. Mr. McNamara felt front= age was an ‘area’ variance because it was not a ‘use’ variance. There was a brief discussion regarding the court’s use of the word ‘area’, which the Board believed was a dimensional question. Mr. Aspinwall said the applicant&#= 8217;s proposed use was to subdivide their large lot into two smaller lots; one of those lots was fully complying as to dimensions and areas, the other is com= plying but dependant on one’s particular interpretation/definition/accepting distances of frontage. He sai= d one could say that where the paper road came out to Moeckel Road would ‘on the face’ be fully complying. The other interpretation could be if the underlying ownership was in some other person/party that it shouldn’t be allowed to be counted. Mr. Aspinwall felt that a special condition arose from the shortage of the small percentage of required front= age and contended that that was the special condition that related to the propo= sed use.

b)&n= bsp; the ben= efits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance: Mr. Aspinwall said a hammer-head could conceivably be built in the right-of-way, but the practical/physical reasons it couldn’t be built were substantial. He said the geom= etry would be contrary to the normal geometry of a hammer-head and probably would not satisfy the Planning Board or Highway Department as to its design and configuration. Second, it all occurred in a wetland and most likely the Conservation Commission and the s= tate would oppose because there wasn’t a clear need to do it. Third, he believed the Planning Bo= ard would oppose putting the road through and creating the hammer-head that wou= ld create an island and deficit to one of the properties.

Mr. Hennessey said when the Board of Adjustment discus= sed and changed the interpretation of the right-of-way there was a suggestion t= hat the Planning Board may require paving the road; it became clear that the Planning Board in conjunction with Mr. Yarmo of the Conservation Commission= were opposed in any way to open the ‘stub’.

There was no public input within in favor, or in oppos= ition to the request.

Mr. McNamara noted that the voting slips would need to= be altered to reflect the new criteria. It was noted that the Board would vote based upon the new criteria a= nd Mr. Aspinwall’s response to such.

BALLOT VOTE= :

Mr. McNamara – Yes to all criteria

Mr. Gleason –= Yes to all criteria

Mr. Hennessey -&nbs= p; Yes to all criteria

Mr. Gowan – Yes to all criteria – based = on new hardship criteria

Ms. Beloritsky – Yes to all criteria

VOTE:<= /o:p>

(5-0-0) The motion ca= rried.

VARIANCE GRAN= TED

Case #2289= – GOLDEN BROOK, LLC – Off Hobbs Road – ML 8/9-41 Seeking a Varian= ce concerning Article III, Section 307-12 & 307-14 to permit construction = of a single family dwelling on a lot without frontage within the Residential Zone.

Mr. Hennessey read the list of abutters aloud. There w= ere 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. There was one abutt= er who said he had not been notified, but it was later realized that the abutter d= id not own property within two hundred (200) feet of the applicant’s par= cel and did not legally have to receive notice.

Attorney David LeFevre of Bossie, Kelly, Hodes, Buckley & Wilson, P.A. appearing on behalf of Golden Brook, LLC and Mr. Donald Glass, Manager Golden Brook, LLC, met with the Board to discuss the variance being requested. Attorney LeF= evre said the property was accessed by way of Ken’s Way (fka Cutter’s Passage), which is a private deeded right-of-way dating back to about 1848 (came originally from book 251 page 424).&= nbsp; He said this was the only access and noted that the special circumst= ances with the lot were that it was landlocked and had no frontage onto a public right-of-way.

Attorney LeFevre reviewed the criteria as contained in= the applicant’s submission to the Board. (note: the criteria were address= ed in a different order than listed in the application and on the voting slips – the item numbers correspond with the Town’s forms)

Item #2. Granting the variance would not be contrary to the public interest because: The variance is a non-use (dimensional) variance; the proposed use= is a permitted use (single family within a residential district) is a permitted use. The property is 12.2 acr= es, with approximately 2.8 acres of buildable land due to the brook. Requiring frontage serves the publ= ic interest through items such as preventing overcrowding and providing emerge= ncy services. Attorney LeFevre sa= id he spoke with Fire Chief David Fisher of the Pelham Fire Department who inform= ed he had no problem with the proposed and believed his trucks could access and turn-around with no problem. = It was represented to Attorney LeFevre that the Fire Chief would be willing to put such in writing if it were required. Attorney LeFevre said it would also be in the public interest to dev= elop the lot because it would increase the Town’s tax base.

Attorney LeFevre cited the Boccia v. City of Portsmouth, NH case with respect to the unnecessary hardship requirement.

Item #3 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship:

a= ) = the area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property: Attorney LeFevre said the applicant had a landlocked piece of land that could not be built without the variance.

b= ) = the benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance: Attorney LeFevre said there was no other point of access to the property.

Item #5. This use is not contrary to the spirit of the ordinance because: Attorney LeFevre believed because this was a dimensional variance, the use was permitted (residential use in a residential zone).&n= bsp; The property would comply with all other requirements of the ordinance.

Item #4. Granting the variance would do substantial justice because: Attorney LeFevre understood that there were two (2) other residential dwellings on Ken’s Way that were permitted by variance and believed that there was= a third variance recently granted for another residential use. He said the Board had allowed othe= rs to do what his applicant was seeking; the applicant didn’t want anything more, or less than what others were permitted. He said substantial justice would = be done by allowing him to build as others had.

Item #1. The proposed use would not diminish surrounding property values because: Attorn= ey LeFevre said there would be a single-family residential dwelling consistent with the neighborhood of equal or greater value than the surrounding. It would not diminish the value an= d may possibly increase the value of surrounding properties.

Attorney LeFevre submitted to the Board that this was = a good case for an area variance. He reiterated the significance that without a variance the applicant could do = nothing, which would fundamentally deny all economically viable use of the land.

Mr. McNamara believed the matter had previously been h= eard and a variance was denied several years ago. He said under the case law in New Hampshire if= there was a new hearing there had to be a preliminary showing that either there w= as a material change in circumstances; it was his assumption that the argument in connection with this case was that the new case law corresponded to the change. Attorney LeFevre said= there was a prior request for variance (June 11, 2001) and the current request was substanti= vely the same (frontage requirements). He cited two cases that rule a request could not be continually filed unless there had been a substantive change in the application, material cha= nge in circumstances or a change in zoning law; in this case he felt there had = been a material change in circumstances (ownership). He said there seemed to have been concerns by the abutters during the June 11, 2001 meeting regarding the septic design (t= hat had not been approved) and some debris and potentially hazardous waste on t= he site. Since that time, a sept= ic design has approved by both the Town and the Department of Environmental Services; also the environmental hazards have been remediated and removed f= rom the site. Attorney LeFevre en= ded by saying that there had been a significant change to the zoning laws and submitted that it would be appropriate to reconsider this application. Mr. McNamara asked if there was any other material change in the property or application, other than the change= of ownership and change in zoning law, from the request in 2001. Attorney LeFevre said the conditio= n of the site (septic design and the waste remediation) had changed. Mr. McNamara asked if the physical= characteristics of the site were the same. At= torney LeFevre said it was the same size and lot dimensions.

There was a consensus of the Board members of a prelim= inary determination that sufficient circumstances existed to get to the merits of= the application.

Mr. Hennessey asked if any arrangements had been made regarding the maintenance of the road.&nbs= p; He wanted to know how there would be access through a private road a= nd questioned if there would be an association created. He said the Town had specifically = said they would not plow private roads unless there was an association in place.= Mr. Donald Glass (Manager of Golden Brook, LLC) said he inquired of one of the neighbors (who did the plowing) = if an association could be formed so he could participate in the cost of the m= aintenance; however, he was turned down. = He said it was his intent to maintain his portion of the road on their own.

Mr. Gleason confirmed that the new ownership purchased= the property with the knowledge that it was landlocked and knew they would need= a variance. Mr. Glass answered yes. Mr. Gleason asked when t= he property had been purchased. = Mr. Glass said the land had been purchased close to a year ago. Mr. Gleason asked how the applican= t would get utilities and access; he wanted to know if Mr. Glass had agreements with others on the road to bring equipment in.&= nbsp; Attorney LeFevre said there was a private deeded right-of-way and believed the applicant was entitled to make use of it (consistent with the private deeded right-of-way for access purposes). He believed everyone derived their= right from the same deed. He cited = the Sanderson v. Candia case (that was post Simplex, and pre Boccia) in which t= he court said it was a non-dispositive factor indicating that the owners could= have somewhat cured the problem. I= n this situation, Attorney LeFevre said there was nothing in their power to cure t= he problem. Mr. Gleason reiterat= ed that the applicant purchased the land knowing there had been a previous req= uest that was denied; he bought it on speculation. Attorney LeFevre answered yes.

PUBLIC INPUT

Mr. Bob Pace, 31 Ken’s Way, informed the Board t= hat it was his understanding that the property was currently up for sale through a realtor. He questioned the applicant’s concern for maintenance since the property was for sale.<= span style=3D'mso-spacerun:yes'> He said the issue of frontage had = been denied several times and questioned when and why it had been denied. Mr. Pace said the emergency turn-a= round that was referred to (that Fire Chief Fisher said was sufficient) was entir= ely on his property. He said he initially had to put it in for the Fire Department to have an emergency turn-around so they could get their lot approved. He understood that the property ha= d been cleaned up, but didn’t feel that it made the property any more buildable. He noted that the = area to gain access to the power was totally on his land. He said since 1997 basically all o= f the maintenance was done by him. = He said he gave permission for two of his family members to have access leadin= g through his property if the Town allowed them to build (which they did). Originally, the Town allowed him t= o go down there (Mrs. Albertson was in favor of the variance), and in turn he ga= ve power to the other properties. Mr. = Pace said allowing an additional lot would only gain him aggravation from a maintenance point of view and suggested if the lot were allowed that a Town= maintained road be put in. He felt it was absurd for a person to think they could gain access to the emergency turn around on his property. He sa= id he already had an issue when the property was being cleaned up; his cul-de-sac (which has sod, grass and irrigation) was wiped out and a damage report was given to the Police.

Mr. McNamara asked if Mr. Pace if his property was immediately adjacent to the applicant’s property. Mr. Pace answered yes. He said part of the access to the applicant’s property abutted part of his property lead over it (throu= gh the Cutter’s Passage deeded years ago). He believed the applicant’s = deeded area was sixteen feet (16’). <= /span>At the time Mr. Pace gained access he believed the state required him to have a twenty-five feet (25ft.) area for access.&= nbsp; Mr. Pace discussed his recollection of a denied subdivision of the properties. He reiterated tha= t the emergency turn-around was contained entirely on his property.

Mr. Hennessey confirmed that Mr. Pace had received a variance and two other family members had also received variances. Mr. Pace believed his variance was granted in 1996 and said he had provided two family members access through = his property (not Ken’s Way). Mr. Hennessey didn’t understand why the Board wouldn’t allow the ap= plicant what Mr. Pace was allowed to do (as far as access). Mr. Pace discussed the fact that t= he original access was gained through Ken’s Way (50ft. right-of-way) and questioned if they could subdivide the property using frontage from the right-of-way. Mr. Hennessey s= aid a road (Class V) would have to be approved by the Planning Board. A subdivision could potentially be= done with the approval of the Planning Board.

Mr. James Knight, 44 Hobbs Road, said he had an agreement regarding maintenance and was concerned that he had spent money to put a road in (off= Hobbs Road)= that could potentially be used for a subdivision. He also noted the safety concerns = at the intersection of Hobbs Road= if there was increased traffic. He ended by saying if he had known there would be additional homes, they wouldn’t have done the road. He was not in favor of the variance.

Mr. William Leboeuf, who had been notified, was unsure= how he abutted the property.

Mr. Gleason asked the applicant if the property was for sale. Attorney LeFevre answer= ed yes, but didn’t feel that it changed the intended use. Mr. Gleason said it would make it = more attractive to sell. Attorney LeFevre answered yes. Mr. Gle= ason asked if the applicant was aware that under the original ballot vote (June 11, 2001) = one of the concerns was that the owner had previous knowledge that the lot was not conforming; which was one of the conditions being reviewed at this time. Attorney LeFevre said he read the meeting minutes and saw the issue come up.=

Mr. Glass noted when he listed the abutters to the pro= perty he was informed that abutters didn’t have to be contiguous with the p= roperty, which may be the reason Mr. Leboeuf was notified.

Mr. Hennessey said he was not aware that the property = was for sale and questioned what agency it was listed with. Mr. Glass said the property was li= sted with Integrity Realty.

Attorney LeFevre referred to a plan that showed the Pa= ce property which he noted was encumbered with a right-of-way and location of Ken’= ;s Way (fka Cutter’s Passage).

Mr. Bob Chatel and Cathy Masson the final family membe= rs that would be building on Ken’s Way.= They were granted a variance and had Planning Board approval. Mr. Chatel said it took them a cou= ple years of working with the Board of Adjustment and Planning Board to obtain = an approval. He said at the time= the Planning Board wanted a Class V road put in, which would have been a financ= ial hardship. He said the applica= nt was not seeking a variance due to a hardship but rather were seeking a variance= for a marketing approach. He said= the variance out to the property had been denied at least once. He noted that they were told their= home would be the last house allowed unless a Class V road was put in. Mr. Chatel ended by saying he didn’t feel that a ‘selling point’ was an appropriate rea= son to grant a variance.

Mr. Pace reviewed the map of the area and pointed out = to the Board that the turn around access was 100% contained on his property. He also addressed the easement.

Attorney LeFevre said if there was reluctance to allow= the use of Mr. Pace’s turnaround, there was more than enough area on the applicant’s property to configure a turn around for a fire truck. Mr. McNamara asked if the applican= t was aware of any variance denial other than what was referenced. Mr. Glass said the only other deni= al he was aware of was Mr. Cahill’s denial (June 11, 2003).

Mr. Leboeuf questioned the dotted line on the plan (Cutter’s Passage). Att= orney LeFevre said Cutter’s Passage was not a public right-of-way (the Town= had not accepted it and taken on the responsibility to maintain it); it is a private deeded easement and right of access to all the properties it served. Mr. Leboeuf was curio= us if it was a road, because he had a plan that showed it as an easement. Attorney LeFevre said it had been = around for so long that people probably treat it as a road, but it is not a road in the legal sense where the Town had obligations. Mr. McNamara asked how wide the ro= ad was. Attorney LeFevre believe= d it may be fifteen to twenty feet (15ft – 20ft) wide. Mr. Pace said the road was fourtee= n feet (14ft.).

Mr. Gleason said he had the same problem that the Boar= d had previously; the land was purchased knowing the conditions and knowing the problems especially that previous variances were denied. He said it didn’t have beari= ng on the variance, but was bothered that the land was up for sale again.

Mr. Hennessy said the sale of the land didn’t influence him. He believed th= at it was not the Planning Board who admonished Mr. Chatel that their lot would be the last, but actually it was the Board of Adjustment. Mr. Gleason recalled that the land= had been granted a variance, that expired and they had to come back a second time. Mr. Hennessey recalled = that there had been a great deal of discussion because assurances were given to = the Board that there would be no further requests on that parcel and the Board stated firmly that they would not grant anything further without making it a public road. He said the Town= had made changes and now required that associations be formed if roads are to be maintained by the Town. Mr. Hennessey was reluctant to approve new lots on private roads unless someone= was responsible for taking care of the road; he pointed out that the applicant’s lot access extended beyond the abutters with no indicatio= n of an association forming. He was bothered that variances had been granted in the past on the same road, but noted that the Board had stated they would not do it again because of the private versus public issue. = He didn’t feel that the applicant was being treated any different than s= omeone else requesting an additional variance in the same spot. Attorney LeFevre understood the Board’s reasoning, but with this situation having other people ‘hold out’ and not allow the applicant to participate would be unfair to deny on that basis. &= nbsp;

Mr. McNamara also addressed the Sanderson v. Candia case and said it was not a disposited factor= (an owner with knowledge), but it was a factor. He then read a quote from the case= as follows: A purchaser with knowledge= of the property’s deficiencies has few if any legitimate investment back= ed expectations of development rights which rise to a level of constitutionally protected property rights. He said the other problem was that the applicant purchased the property with t= he knowledge: 1) that it had zero property frontage; and 2) that a variance had been denied in the past. He felt under the new hardship cri= teria an arguable case could be made, however if the variance were denied on the other basis (which he believed to be true), even if hardship could be overc= ome, the property was the same (other than the clean up). He didn’t see what condition= s had changed to allow the Board to go back and change what was voted on essentia= lly the same application.

Ms. Beloritsky questioned why the Board was reviewing another lot on the road if the Board had already said there would be no more lots on the road. Mr. McNamar= a said a property owner had a right to request a variance.

The Board voted based upon the following criteria:

Item #1. The proposed use would not diminish surrounding property values because:

Item #2. Granting the variance would not be contrary to the public interest because:

Item #3 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship:

a= )      = the area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property

c= )      = the benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance.

Item #4. Granting the variance would do substantial justice because

Item #5. This use is not contrary to the spirit of the ordinance because:

It was noted that if a member voted ‘No’ o= n any of the five criteria, it would constitute a ‘No’ vote.

BALLOT VOTE= :

=

Mr. McNamara –<= span style=3D'mso-spacerun:yes'> 1) Yes; 2) No; 3a) Yes; 3b) No; 4) No; 5) No – final approval: NO=

Mr. Gleason – 1) Yes; 2) No; 3a) Yes; 3b) Yes; 4) No; 5) Yes – final approval: N= O

Mr. Hennessey -&nbs= p; 1) Yes; 2) No; 3a) Yes; 3b) Yes; 4) No; 5) No – final approval: NO=

Mr. Gowan – 1) Yes; 2) Yes; 3a) No; 3b) No; 4) Yes; 5) No – final approval: NO=

Ms. Beloritsky – 1) No; 2) Yes; 3a) No; 3b) No; 4) Yes; 5) No – final approval: NO=

VOTE:<= /o:p>

(05-0) The motion fai= led.

VARIANCE DENI= ED

MINUTES

June 14, 2004<= /p>

MOTION:<= o:p>

(Gleason/Hennessey) To approve the June 14, 2004 meeting min= utes as written.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

MISCELLANE= OUS DISCUSSION

There was a discussion regarding the roles of the Boar= d of Adjustment and the Planning Board in connection with interpreting zoning (specifically the frontage issue that had been previously discussed by both boards).

ADJOURNMEN= T

MOTION:<= o:p>

(Gleason/Hennessey) To adjourn the meeting.

=

VOTE:

(5- 0 - 0) The motion carried.

The meeting was adjourned at approximately 9:45 pm.

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Respectfully submitted,

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Charity A.L. Willis     &n= bsp;

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Recording Secretary