BOA20040614

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 14, 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 Cin= dy Ronning (arrived shortly after the meeting commenced)

None.

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

CONTINUED<= o:p>

Case #2284= – LAFONTAINE, Michael & Lisa/18 South Shore Drive – ML 30/11-247 – Seeking a Variance concerning Article III, Section 307-12(E) to per= mit a garage which does not meet the required side setback of 15-feet in the residential zone. =

Mr. McNamara said the case had been heard at the previ= ous meeting. The Board elected to continue the case and delay a decision until they had the opportunity to wa= lk the site. Mr. McNamara believ= ed the site walk may have resolved the questions and concerns the Board had.

Mr. Hennessey believed the Board had a clear idea for = the garage placement once the site was walked.= He asked the applicants if they were satisfied with the garage place= ment per the sketch of the lot provided at the previous meeting. Ms. Lisa Lafontaine answered yes.<= span style=3D'mso-spacerun:yes'> Mr. Hennessey said he would like to condition an approval based upon the proposed garage being located per the sketch provided by the applicant. Mr. McNamara confirmed that the back end of the garage would be approximately at the level of the garden.

Mr. McNamara felt it was fair to say that the configur= ation of the lot given the slope, size and placement of the septic system would m= ake it extremely difficult and impractical to put a replacement garage anywhere= but where the applicant indicated. He believed the Board was satisfied that the applicant met the hardship criteria. He asked if the Boa= rd wanted to place a height restriction. Mr. Gleason felt the location was unique location and didn’t f= eel that a height restriction would be beneficial. He didn’t see that there wou= ld be any restriction of abutters, or future development. Mr. Hennessey also did not have a problem with the height of the garage, per the plan presented.

There was no public input.

MOTION:<= o:p>

(Hennessey/Gleason) To place a restriction on the pl= an, that the location of the garage is to be per the plan submitted to the Zo= ning Board of Adjustment.

=

VOTE:

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

<= /u>

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

Ms. Beloritsky – Yes to all criteria

VOTE:<= /o:p>

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

VARIANCE GRAN= TED

The applicant was informed their variance was granted = with a thirty (30)day appeal period.

HEARINGS

Case #2285= – NAGEL, Kyle & Glenda/5 & 7 Wood Road – ML 30/11-327 – Seeking a Variance concerning Article III, Section 307-9 to permit the remo= val of an existing building and rebuild the same size summer cottage in the residential zone. =

Mr. Hennessey read the list of abutters aloud. The fil= e did not contain any written correspondence from abutters. There were three abutters who did = not have their names read aloud; however they informed the Board that they were= not within two hundred feet (200ft.) of the lot (ML 30/11-327) in question.

Ms. Ronning arrived.

Mr. Kyle and Mrs. Glenda Nagel met with the Board to d= iscuss his variance request. Mr. Nag= el began by circulating photographs of one of the two cottages located on his lot. He said one of the cotta= ges was an old camp that had been used in the past and they would like to repla= ce it with a better facility. He= read aloud the five variance criteria as follows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed cottage will be of equal or greater value than the existing one. <= /p>

Item #2. Granting the variance would not be contrary to the public interest because: There is a need for what is being requested.

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: There is no additional land to be purchased in order to conform to zoning. =

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: We will no be able to use= our land to its fullest potential.

   &nbs= p;            c) the variance would not injure the public or private rights of others since:= It is already on our lot.

Item #4. Granting the variance would do substantial justice because: The use being requested is consistent with uses of the surrounding lots and variance will allow us the same.

Item #5. This use is not contrary to the spirit of the ordinance because: There have alwa= ys been two cottages on this property. We are only requesting a variance to waive one of the zoning require= ments. We will meet all the other setback= s and codes.

Mr. Gleason asked if the applicant understood that the variance being requested limited one dwelling per lot. Ms. Nagel said they were told which zoning ordinance number to apply for. Mr. Gleason asked if the cottage was currently in use. Mr. Nagel said the camp was in use= up until 1987, the other camp is currently in use.

Mr. Hennessey asked what the lot size was. Mr. Nagel was unsure. Mr. Hennessey said based upon the = map provided it appeared to be approximately 12,000-16,000 square feet. He asked confirmed that there was currently a 3000 gallon holding tank, and asked if there was a septic system. Mr. Nagel said they h= ad a septic system designed, which had not yet been submitted to the state.

Ms. Ronning asked if the current house was seasonal. Mr. Nagel answered yes. It was noted that both houses were seasonal. The applicant was proposing to build a seasonal house.

In the event a variance was granted, Mr. Gleason wante= d to know if the applicant was proposing to install a septic system. Mrs. Nagel said they would be usin= g the existing holding tank. Mr. Na= gel pointed out that they used the property a couple months per year.

PUBLIC INPUT

Mr. Frank Soares, Webster Avenue was in favor of the application. He said the current cottage was an= eye sore and believed if it were upgraded the property values would increase. Mr. Soares is a year-round residen= t.

Ms. Mary Pearlac, Wood Road noted that a portion of existing building= was within her right-of-way to the water. She had no problem with the applicant taking the current building do= wn and rebuilding, but requested that the lot be surveyed and the new building= not be placed within her right-of-way. <= /span>She reviewed the plan submitted to the Board and showed the location of her right-of-way. Mr. Nagel said = the person who designed the plan recognized the right-of-way issue and said it = was easy to shorten the footprint of the building. Mr. McNamara wanted know other than shortening the building, if the applicant would be building on the existing footprint. Mr. Nagel answered yes.

Mr. Gleason questioned if the setback requirements wou= ld be met and went on to read the requirements.&= nbsp; He questioned if Wo= od Road, or Webster Avenue was considered the front of the lot. Ms. Pearlac noted that Mr. Nagel met the thirty-foot (30ft) front se= tback requirements from Webster = Avenue. Mr. Nagel said he could meet the fifteen-foot (15ft.) side setback, based upon their plan of not constructin= g the extension. They would still be within the existing footprint.

Mr. Gleason reviewed zoning regulation 307-8 (nonconfo= rming uses), which he felt may apply in this case since the cottage had not been = in use for a long time.

Mr. Hennessey believed there may be problems with 1) discontinuance of use; 2) non-Town roads; 3) under criteria #2 ‘need = for what is being requested’ – he believed there was a need to prot= ect the pond as much as possible and felt the cottage should be torn down and n= ot rebuilt since the lot was already non-conforming.

Mr. Gowan said given the choice of demolishing and not rebuilding or renovate he believed the applicant would choose the later, wh= ich would not address Mr. Hennessey’s concerns. He then asked if a holding tank wo= uld be better than a septic system on a small lot. Mr. Hennessey said the fact was the cottage had not been used in over a year and therefore should come done.

Ms. Beloritsky asked when the porch was added because = it appeared to be later construction. Mr. Nagel said the porch was in place prior to him purchasing the property. Ms. Beloritsky said= it might be better if Ms. Ronning vote regarding the case, because she may hav= e a similar situation as the applicant.

Mr. Gleason asked if anyone had used the facility in t= he last year. Mr. Nagel said the building had been used for storage. Mr. Gleason asked if the lot was being taxed, and if it was year-rou= nd or seasonal. Mr. Nagel said t= hey had been paying taxes, but was unsure how it was assessed. Mr. Gleason understood the buildin= g was in disrepair, and questioned if the damage exceeded 50%. Mr. Nagel questioned if he could renovate the building rather than tearing it down. Mr. Gleason believed the regulatio= ns were constraining the request because the building was not being used. Mr. Gowan questioned the definitio= n of use, since the building was being used for storage. Mr. McNamara said in general it wo= uld have to be determined if there was an intent to abandon the use. Mr. Nagel said the property itself= is used, but the dwelling was used for other things.

Ms. Beloritsky felt the Board should review how the structure is being taxed. Mr.= Nagel said it was being taxed as a cottage. She said the building had not been used by the current owner and not= ed the infringement onto the abutter’s property. Mr. Nagel said the infringement oc= curred prior to his owning the property, but said it could be fixed.

Mr. Hennessey read aloud a regulation that was added by ballot January 5,= 1960 pertaining to fires or other ruins. He believed if the building was uninhabitable, it should be taken down. Mr. Gleason disagreed a= nd noted that the cottage was in disrepair, but was still being used for storage. Mr. Nagel said the c= ottage could be inhabited if he repaired the roof and added windows.

Mr. Hennessey suggested walking the site. He said he still had problems with= the five variance criteria, such as #2. Ms. Ronning believed there was a need to repair the cottage. Mr. Gleason believed that there wa= s a need to repair the cottage as a benefit to the residents and the abutters.<= span style=3D'mso-spacerun:yes'> Mr. Hennessey reviewed criteria #3= b, and noted that the citation calls for one house for one lot. Mr. Gleason said the Planning Depa= rtment had called this a nonconforming use. He said if the Board considered the variance there could be some concessions, such as guarantee the abutter the full use of their right-of-w= ay and also request remedies for the holding tank with Health Officer sign-off= . He said the applicant would be bri= nging the building more into compliance with the setback and would also build wit= hin the footprint. Mr. McNamara s= aid this was either a variance, or a nonconforming use.

Ms. Beloritsky said she saw no proof that the structur= e was a house. She wouldn’t h= ave as much of a problem if the applicant was calling the structure a shed or the like. She questioned once reb= uilt what would prevent the house from being used as a year-round residence. Mr. Hennessey said the use was seasonable and pointed out that they would have a holding tank. Ms. Ronning asked the applicant if= the intended on insulating or heating the building. Mr. Nagel said the cottage would b= e used in the summer and they were not intending to heat the building. Ms. Beloritsky discussed the setba= cks and wanted to know if the requirements would be met. Mr. Gleason said it had been deter= mined that the front of the property was Webster Avenue and it appeared that the applicant had the required thirty foot (30ft) setback, he said the applicant would need to meet the fifteen foot (15ft.) setback off Wood Road. Mr. Nagel explained how they could comply with the side setback when the existing house was rebuilt because the shape would change from an ‘L’ shape to a rectangle. Mr. Hennessey believed some good p= oints were made and would like to see the property.

Mr. McNamara said the hearing would be continued until= next month and a site walk would be scheduled.&= nbsp; Mr. Gleason asked if the applicant should speak with the Health Offi= cer regarding the holding tank. <= /p>

Ms. Pearlac informed that Branch Road (Wood Road) was not a road, but actu= ally her property and a right-of-way to the water.&= nbsp; She believed the applicant should be grandfathered. She had no problem with the struct= ure being rebuilt and said by doing so it would improve everyone’s property. She didn’t fe= el that the applicant should be denied since all he was doing was upgrading a grandfathered structure.

Mr. Gowan asked, as a courtesy, if Ms. Pearlac would a= ttend the site walk and bring a copy of her survey. Ms. Pearlac said she would.

The Board scheduled a site walk for June 26, 2004 at 8am.&nbs= p;

The case was continued to the July 12, 2004 meeting.

MINUTES

May 10, 2004

MOTION:<= o:p>

(Gleason/Gowan) To approve the May 10, 2004 meeting minute= s as amended.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

May 24, 2004

MOTION:<= o:p>

(Gleason/Hennessey) To approve the May 24, 2004 meeting minute= s as written.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

SITE WALK = – June 26, 2004 a= t 8am:

Case #2285 – NAGEL, Kyle & Glenda/5 & 7 Wood Road= – ML 30/11-327

REQUEST FOR NON-PUBLIC SESSION

MOTION:=

(Hennessey/Gleason) Request for a non-public session= per RSA 91-A:3,II,e (Consideration or negotiation of pending claims or litigation)

=

ROLL CALL:<= /b>

Mr. McNamara-Yes; Mr. Gleason-Yes; Mr. Hennessey-Yes= ; Mr. Gowan-Yes; Ms. Beloritsky-Yes; Ms. Ronning-Yes

Mr. McNamara noted that when the Board returned, after= the non-public session, the Board would not take any other action publicly, exc= ept to seal the minutes of the non-public session and to adjourn the meeting.

The Board entered into a non-public session and adjour= ned the public meeting at approximately 8:25pm.

   &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

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

MOTION:<= o:p>	(Hennessey/Gleason) To place a restriction on the pl= an, that the location of the garage is to be per the plan submitted to the Zo= ning Board of Adjustment.
= VOTE:	(5-0-0) The motion carri= ed. <= /u>
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 Ms. Beloritsky – Yes to all criteria
VOTE:<= /o:p>	(5-0-0) The motion ca= rried.