BOA20040913

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 13, 2004

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

The Vice Chairman, Mr. Edmund Gleason, called the roll= :

PRESENT:

ABSENT:

Peter McNamara, Edmund Gl= eason, David Hennessey (arrived after the meeting commenced), Jeff Gowan, Altern= ate Svetlana Beloritsky, Alternate Cindy Ronning

None.

Also present: Planning Director Will D’Andrea

Mr. McNamara appointed Ms. Ronning as a voting member;= Ms. Beloritsky was appointed as a voting member until such time that Mr. Hennes= sey arrived.

REQUEST FOR REHEARING

Case #2289= – Golden Brook, LLC – Off Hobbs Road/ML 8/9-41 – By Applicant

Heard later in the evening….see below.

Case #2286= – BIBEAU, David – 36 A= twood Road/ML 29/7-41 – By J. Albert and Mildr= ed Lynch

Heard later in the evening….see below.

CONTINUED<= o:p>

Case #2293= – SWEREN, John - 68 Marsh Road/ML 28/7-175 – Seeking a Variance concern= ing Article III, Section 307-14 to permit the creation of a lot with 100ft. of frontage where 200ft. is required within the Residential Zone.

Heard later in the evening….see below.

HEARING(S)=

Case #2294= – DAGGETT, Rachel - 351 Mammoth Road/ML 7/4-186 - Seeking a Special Exception concerning Article XII, Section 307-76(III) to permit an Automobile Repair = Shop within the existing garage in the Residential Zone.

Mr. Gleason read the list of abutters aloud. There wer= e 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.

The applicant was not yet in attendance; heard later i= n the evening….see below.

Case #2295= – BOUCHER, Barbara - Marsh Road/ML 6/4-166 – Seeking a Variance concern= ing Article III, Section 307-12 & 14 to permit the creation of a lot with frontage on a class VI road within the Residential Zone.=

Mr. D’Andrea informed that he received a phone c= all (Friday, September 10, 2004) from Attorney Paul DeCarolis who informed that there had been an error in address as contained on the legal notice (abutter notification was correct). He recommended that the item not be heard until re-notification could be done.=

There were no persons present for the case. Mr. McNamara said the case would be placed on the agenda for the next meeting (Thursday, October 14, 2004).

Case #2296= – KOBRENSKI, Derrick - 148/1= 36 Old Gage Hill Road No. /ML 17/12-271 & 269 = 211; Seeking a Special Exception concerning Article XII, Section 307-76 (III) to permit a Firewood Business within the Residential Zone.<= /p>

Mr. Derrick Kobrenski, 148/136 Old Gage Hill Road No. said= he had a firewood business for thirteen years and recently lost the lease wher= e it was located because the area was going to be developed.

The applicant was asked to address the criteria for the Special Exception (307-76); Mr. Kobrenski answered the following:

The occupation is clearly secondary and subordinate to the primary residen= tial use and shall not change the residential character of the neighborhood= . The occupation is secondary; it i= s a part time business; a couple hours during the week and on weekends. Approximately 1.5 – 2 h= rs. per night some Saturdays no Sundays.
It shall not consume more than 49% (forty-nine percent) of the gross residential living space and shall n= ot change the residential character of the property. The house lot is on 3.5 acres; current use land 15.74.
A maximum of two on-site non-resident employees. Mr. Kobrenski is th= e sole employee; occasionally a person helps on Saturday to load a truck..

Not permitted in a duplex or multi-family dwelling. Single family dwelli= ng.

One sign which advertises the business is permitted. It shall be unlighted and shall not exceed three square feet. If a permit was granted and sign generated traffic it would be taken down.

All outdoor storage, display and any other external indication of the business activity shall be screened from neighboring view. Everything w= ill be screened; existing fence – if neighbor has a problem something c= ould be done i.e. pile of dirt.

Any use that may be objectionable, obnoxi= ous or injurious by reason of the production of emission of odor, dust, sm= oke, refuse matter, fumes, noise, vibration, heat or excessive illumination= is prohibited. In addition,= the use, storage, or disposal of hazardous materials, chemicals, by-produc= ts, medical waste or similar items considered dangerous to health and safe= ty shall not be permitted without full local and state regulatory approva= l. Sound will be as loud as a lawn m= ower; noise would be the biggest issue; dust would not be an issue. Machine would be in use in ev= ening no later than 7:00-7:30= pm. Things could be done to quiet= the noise i.e. dirt pile, change exhaust. There are no chemicals/hazardous materials on the property; has a gas can that would be stored inside h= ouse.

A maximum of two registered vehicles rela= ted to the business may be kept in view.&= nbsp; All other business related equipment must be garaged and screen= ed from neighboring view. Everything will be screened and b= ehind a fence.

Delivery of goods and materials is limite= d to vehicles customarily associated with residential deliveries. One person brings firewood not mo= re than once per week/month; limited delivery. 100 cords of wood sold per ye= ar – approximately 8 cords of wood per truckload.

Customer parking shall be provided off-st= reet and may not be located within the required front, side or rear setback= s of the property. Not open to the public; wood delivered.

No retail sales other than those that are incidental to and customarily associated with business use for which t= he permit was issued. The only th= ing needed is the firewood.

An accessory structure built or converted= for home occupation purposes shall be a size, style and type that are compatible with the surrounding neighborhood and capable of reversion = to uses that are customarily accessory to residential. There will be no sheds/buildings.

Where the proposed General Home Occupation shall result in an increase of the amount of waste water to be dischar= ged it shall be shown by the applicant that there is subsurface waste water disposal system that has been approved by the New Hampshire Water Supp= ly and Pollution Control Commission (NHWSPCC) or that a system adequate f= or the proposed use shall be installed as a condition of issuing a Special Exception. There will be no wa= ste water.

The Board of Adjustment may impose any ot= her reasonable conditions on the home occupation that are necessary to pro= tect the residential character of the neighborhood. Board of Adjustment action.

Site plan review and approval shall be ob= tained from the Planning Board. All necessary paperwork has been submitted.

Mr. Kobrenski explained the business and the fact that= the wood is delivered as logs on a regular sized logging truck; the wood is then cut by chainsaw and split using hydraulic splitter. The truck made deliveries anywhere between once per week/month. =

Mr. Gowan said specific noise buffering should be addressed. He wanted to know = if there was some sort of structure that could create a strong buffer. Mr. Kobrenski said a wall or roof = could be put up but noted because the land is ‘farm land’ structures really should not be constructed. He would rather not take the land out of the current use. The equipment is located at the fu= rthest point away from neighbors (closest neighbor approximately 290ft – 300= ft). Lights aren’t really used, i= f they bother neighbors lights won’t be used. There is no present intention to e= xpand business; in the event it was to go full time, Mr. Kobrenski said it would = be fair to have an additional meeting.

PUBLIC INPUT

Mr. Wayne Parker, 146 Old Gage Hill Road North (closest neighbor to where the machine will run) said when neighbors mow their lawn, it’s louder than the fire wood business. He noted that his Aunt and Uncle owned the property prior to Mr. Kobrenski and ran a wood business with much louder equipment for many years= .

Mr. Brian Karcz, 159 Old Gage Hill Road North, who resides directly across the street from the applicant, said he didn’t hear the business.

The abutter that resides next to Karcz and across the = street from the applicant said the business wasn’t noisy, bothersome, or annoying.

Mr. Doug Brandon, 142 Old Gage Hill Road, acknowledged= that there was no noise coming across the street, however his area sat low and h= is pool was just about level with the work area and approximately 260ft. away. Because most of the wood cutting is done in the summer, he didn’t want to hear the noise when = he came home from work.

Mr. Gleason said it was the assumption that the busine= ss was already running. Mr. Kobrenski explained that he lost his lease and was told that he had to leave; he then contacted the NH Farm Bureau (because it was a state road and the land was = in current use) and was told that a permit didn’t have to be issued so he started to move his equipment; however the Town Building Inspector informed= him differently and said a permit was needed.&= nbsp; The business was then suspended.&nb= sp; Mr. Kobrenski said he would work with the neighbors to address noise issues.

Arthur and Sandra Buxton, 11 Kennedy Drive, who were in oppos= ition to the business discussed their concerns with the possible impact to drinki= ng water due to gasoline and oil storage, as well as equipment running in the wetland area. Noise was a pro= blem because they live on top of the hill; they object to any business operating after 5pm in a re= sidential area. Other concerns were dus= t and traffic safety due to the narrowness of the road.&= nbsp; Mr. McNamara asked how close the Buxton’s lived to the applicant. Mr. Buxton said th= ey were approximately six to eight acres away and noted that he heard noise earlier in the day. Mr. Kobre= nski said that there was a fire wood and excavation business near the BuxtonR= 17;s home. He said his machinery h= ad not run in the past four months. = Mr. Buxton reiterated his concern for the noise, operating hours and gasoline spillage. Mr. Kobrenski said = he had a five gallon can of gasoline. Mr. McNamara asked about additional traffic.&n= bsp; Mr. Kobrenski said the number of deliveries varied from once per week/month. The streets used = for delivery would probably be from Old Gage Hill Road North; there will be no driveway coming in from Kennedy Dri= ve, or Young’s Crossing.

Mr. John Fendelander, 2 Kennedy Drive discussed his conce= rns regarding the business. He as= ked about the hours of operation. Mr. Kobrenski said he would work with the neighbors regarding the Saturday hours and he would not work on Sunday. Mr. Fendelander asked if any of the trees from lot 136 would be cut. Mr. Kobrenski said the l= and would remain as it was. Mr. F= endelander asked if there would be any guarantee that there would not be cutting on the lot if the permit was granted. Mr. McNamara said a permit would be needed to cut the trees. It was noted that abutter notifica= tion would not be required from the Town because an intent to cut is a state permit. Mr. Fendelander said = his biggest concern was the noise from the chainsaw and the traffic safety.

Mr. Gowan asked if there could be any control over when deliveries were made. Mr. Kob= renski said deliveries were later in the day at approx. 5pm-5:30pm. <= /span>It was noted that the cutting would be on lot 269 which was mostly wetlands. Mr. Kobrenski reviewed the map and showed the Board where the operation would be set up, which would be approximately 150ft. from the wetland (there would be no infringement on the wetland).

Ms. Donna Dizazzo, 13 Kennedy Drive said her concern was the noise level, which she believed would carry up the hill to her home. Also, she was concerned regarding granting a business in a residential area.= Mr. McNamara pointed out that the applicant had applied for a Special Exception and if the conditions were met then the Board must grant the lice= nse.

From what the Board heard, they believed the two major concerns were noise and the delivery of goods (the logging truck). Mr. McNamara discussed the concern= over MtBE and discussed the fact that it is a legal substance; he said the dange= r of contamination from a five gallon can was the same for everyone since it was stored at homes. There was fu= rther discussion regarding what could be done to screen/buffer the noise (i.e. fencing, sand pile, possible enclosure).&n= bsp; Mr. D’Andrea said the Town didn’t have a noise ordinance= and believed the ‘noise’ is reviewed by the Board; the Planning Boa= rd would review the impacts to the property through site plan review. There was further discussion regar= ding the ‘noise’ and the suggestion to have the applicant work on a solution. Mr. Kobrenski said = he could shift the operation, but he placed it in a location that he thought w= ould be best for everyone. Mr. D’Andrea said it may be advantageous for the Board to visit the site = when the machine was in operation to see what the noise really is.

A site walk was scheduled for October 2, 2004 at 9am.&n= bsp;

Case #2294= – DAGGETT, Rachel - 351 Mammoth Road/ML 7/4-186 - Seeking a Special Exception concerning Article XII, Section 307-76(III) to permit an Automobile Repair = Shop within the existing garage in the Residential Zone.

The abutter list was read earlier in the meeting (see above).

Attorney David Groff, representing the applicant met w= ith the Board to discuss the application. He said the proposal was to operate an automobile motor repair shop inside an existing four-bay garage. There would be nothing outside.&nbs= p; He said a complaint had been filed and the applicant was told that a Special Exception was needed to operate within the residential zone. The business had operated for approximately four years.

Attorney Groff addressed the criteria for the Special = Exception (307-76) as submitted:

1.&n= bsp;      The occupation is clearly secondary and subordinate= to the primary residential use and shall not change the residential character = of the neighborhood. Applicant, her hu= sband and 2 children reside in the ranch-style home on this property. There is a detached garage on the property, in which the proposed home occupation will be conducted. The garage was constructed by prev= ious owners of this property. The proposed home occupation as the applicant’s residence; and it will no= t change the residential character of the neighborhood.

2.&n= bsp;      It shall not consume more than 49% (forty-nine perc= ent) of the gross residential living space and shall not change the residential character of the property. The proposed home occupation is conduc= ted entirely within the garage shown on the plan submitted with the application. It does consume = more than 49% of the gross living space, and does not change the residential character of the neighborhood.

3.&n= bsp;      A maximum of two on-site non-resident employees. There will be one part-time non-reside= nt employee (working approx. 20 hrs. per week).

4.&n= bsp;      Not permitted in a duplex or multi-family dwelling.= No.

5.&n= bsp;      One sign which advertises the business is permitted. It shall be unligh= ted and shall not exceed three square feet.&nb= sp; Applicant shall comply with = this requirement.

6.&n= bsp;      All outdoor storage, display and any other external indication of the business activity shall be screened from neighboring view= . There is no proposed outdoor storage, and all proposed business activity will be = conducted within the garage on the property.

7.&n= bsp;      Any use that may be objectionable, obnoxious or injurious by reason of the production of emission of odor, dust, smoke, ref= use matter, fumes, noise, vibration, heat or excessive illumination is prohibited. In addition, the = use, storage, or disposal of hazardous materials, chemicals, by-products, medical waste or similar items considered dangerous to health and safety shall not = be permitted without full local and state regulatory approval. The proposed business use is automobile repair. No painting or body work will be conducted, just engine work. = All work will be conducted within the garage, where it will be screened from ne= ighbor’s view. Applicant’s husba= nd, who will conduct the proposed business, has a DEP number for disposal of oil and antifreeze. Oil and antif= reeze will be disposed of in accordance with State regulations. Oil/transmission fluid draining oc= curs approx. once per month. There= is no in-floor drain or runoff. The= re are no rest facilities in the garage. Five gallon drums are stored on-site until disposed of off-site.

8.&n= bsp;      A maximum of two registered vehicles related to the business may be kept in view. All other business related equipment must be garaged and screened from neighbor= ing view. No, customer vehicles will be repaired inside the garage and then picked up by customers. No bu= siness related equipment will be stored outside the garage. A question was raised regarding the hours of operation(late night and illuminated) and the amount of vehicles on site – previously there were vehicles outside, but they are no longer there; drop off and pick up of vehicles occur when people are coming home f= rom work. Attorney Gross said the= hours of operation could be limited.

9.&n= bsp;      Delivery of goods and materials is limited to vehic= les customarily associated with residential deliveries. Yes, the only deliveries will be by common carrier or private vehicle.

10.&= nbsp;   Customer parking shall be provided off-street and m= ay not be located within the required front, side or rear setbacks of the property. There is no proposed cust= omer parking. It is expected that customers will drop off their vehicles for repair, the vehicles will be repaired inside the garage, and the vehicles will be picked up by the custo= mers. There are some cars located behind the house that will be removed. Attorney Gross said a condition of approval could be added that stipulated no external parking of vehicles eit= her in the front or the back.

11.&= nbsp;   No retail sales other than those that are incidenta= l to and customarily associated with business use for which the permit was issue= d. No retail sales are proposed.

12.&= nbsp;   An accessory structure built or converted for home occupation purposes shall be a size, style and type that are compatible with the surrounding neighborhood and capable of reversion to uses that are customarily accessory to residential. Applicant proposes to use the existing garage on the property for the accessory use It is not overly large, and is comp= atible with the surrounding uses in this neighborhood. It could be used as a garage if the applicant ceases the home occupation.

13.&= nbsp;   Where the proposed General Home Occupation shall re= sult in an increase of the amount of waste water to be discharged it shall be sh= own by the applicant that there is subsurface waste water disposal system that = has been approved by the New Hampshire Water Supply and Pollution Control Commission (NHWSPCC) or that a system adequate for the proposed use shall be installed as a condition of issuing a Special Exception. There would be no increase in the amount of waste water as a result= of the proposed use as an automobile repair shop.

14.&= nbsp;   The Board of Adjustment may impose any other reason= able conditions on the home occupation that are necessary to protect the residen= tial character of the neighborhood. Board of Adjustment action. Applicant = aware of criteria.

15.&= nbsp;   Site plan review and approval shall be obtained from the Planning Board. Applicant aware= of criteria.

Mr. Hennessey arrived.

It was noted that there were currently vehicles located behind the garage. Attorney G= roff suggested placing an approval condition that there be no external storage of vehicles whether registered, or unregistered.

Mr. Gleason asked the applicant to speak to the compla= int regarding auto detailing, which he understood to be painting on the cars. Attorney Groff said there was no p= roposal to do any sort of painting or body work; it had not been conducted on the s= ite in the past.

Mr. Hennessey asked if the well/water on the site been tested for MtBE. Attorney Gro= ff answered no. Mr. Hennessey asked if the applicant had a state license for the sale of used cars. Attorney Groff answered no; the applicant was not proposing to sell anything.

Attorney Groff had a few favorable letters from abutte= rs that were unable to attend the meeting.&nb= sp; He submitted the letters to the Board.

PUBLIC INPUT

Mr. Arthur Manelas, 349 Mammoth Road, said the current = owner kept the place cleaner than the previous owner. He said the only objection he had = was the posting of a sign saying ‘repair shop’.

Mr. Charles Ward, 360 Mammoth Road, said he had no objection if the operation continued as it currently was.

Judith and Thomas Young, 2 Lane Road who have owned the property abutting Mr. Daggett for forty-one years, and use it as a rental property (tenants have lived there for approximately seventeen years both of which are handicapped). Ms. Y= oung said they were not aware of what was going on next door until about a year = ago; the tenants would call and neighbors would complain. At this time it was noticed that c= ars were being stored and car parts were being delivered. Ms. Young did not approve of an au= to body repair shop being conducted in a residential area. She noted that there were other businesses that had been cited by the Building Inspector. She said the business was being conducted late at night. Other concerns were MtBE, the affects on the surrounding wells and runoff from the applicant’s property. M= s. Young said someone had to take responsibility to keep the Town residential/business. If there rights aren’t protected they would need to file suit against the Town. Ms. Young said the well= was checked regularly and was concerned with the devaluation of her home. Mr. Young said anything that spill= ed in the driveway would be carried out by the rain along the shoulder of Mammoth Road and would dump off in front of his home (approx. 50ft. from his well). He said this past weekend there we= re approximately eight cars parked on the applicant’s lot. He discussed the traffic issue surrounding the delivery trucks accessing the lot.

Mr. Bill McDevitt, 17 Lane Road, who was not an abutte= r, but considered the property to be in his general neighborhood, discussed the criteria. He said the garage = on the property dominated the site, which changed the residential character of the property. He had driven past = at night and seen the florescent lights pouring out from the garage, which did= not look residential. With regard= to the delivery of materials, he had seen the type of trucks, which was not customarily seen in this type of neighborhood. In summary, Mr. McDevitt said it h= ad been an uphill battle for this section of Mammoth Road and felt allowing the auto repair business would be a ‘step in the wrong direction’.<= span style=3D'mso-spacerun:yes'> He ended by saying there was nothi= ng in the application that was consistent with the residential character of the neighborhood.

Mr. Gleason said he had concern with the existence unr= egistered vehicles being on the property; as well as the affect they may have already= had on the well due to their proximity. He shared the same concerns as the abutters regarding the increase in traffic and non-residential vehicles.

Mr. Gowan asked for the square foot comparison of the = garage versus the house. Attorney Gr= off didn’t know the dimensions.

Ms. Beloritsky said she drove past the business approx= imately two times per day and had not seen the business shielded which was one of t= he criteria. Attorney Groff aske= d if a fence would help. He noted th= at the applicant was not proposing to change anything with the house (it had been built that way).

BALLOT VOTE= :

=

Mr. McNamara – No – Does not meet 307-76= (III), 1,2,6,7,8

Mr. Gleason – No

Mr. Gowan – No

Ms. Beloritsky – No

=

VOTE:<= /o:p>

Ms. Ronning - No

(0-5-0) The motion fa= iled.

SPECIAL EXCEP= TION DENIED

REQUEST FOR REHEARING CON’T…..

Mr. McNamara announced that due to the lateness of the meeting the Board would not hear Case #’s 2297, 2298 or 2299 until th= e October 14, 2004 meeting. He also noted that s= ince Mr. Hennessey arrived, Ms. Ronning would no longer vote.

Case #2289= – Golden Brook, LLC – Off Hobbs Road/ML 8/9-41 – By Applicant

Mr. McNamara said a memorandum had been received from Applicant’s Counsel which he believed everyone had the opportunity to read. It was his opinion that Counsel had made a valid argument (if the assertions were correct) and beli= eved the problem was that the three prior variances on the street had been allow= ed, and all of the buyers knew of the restrictions prior to buying the property= . He said if the only difference bet= ween this application, and the three previously granted (by prior boards) was the fact that they were family members (and the current applicant was not), the= re were questions regarding equal treatment.&= nbsp;

Mr. Gleason said the Board was under the impression erroneously that the Pace property had exclusive rights to the electricity;= he felt it was new information that there was a Granite State Electric right-of-way and the deed contained language to add. He felt the evidence submitted was sufficient to revisit the case. Mr. Hennessey didn’t feel the electric/power was a problem. He recognized that easements had previously been granted, however the changes in circumstance was the statem= ent (at the time of the last easement) that it would not be developed further because it had gone to the depth of the road and was becoming a public safe= ty issue. He also noted that the= Town (not specifically the Board) had changed its policy regarding private roads since the time of the last hearing. He still felt the Board should still deny the request. Mr. Gleason recalled that the prev= ious variance was for a family and the condition was that another variance would= not be accepted from them. After further review, Mr. Gleason said he was having second thoughts.

Mr. Gowan believed, from reading the memorandum that t= he case was worth rehearing so the discrepancy didn’t ‘loom large’.

MOTION:<= o:p>

(Gleason/Gowan) To rehear the Golden Brook, LLC Case= #2289.

=

VOTE:

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

Mr. McNamara said abutter notification should be done = and the case would probably be scheduled for the October meeting.

Case #2286= – BIBEAU, David – 36 A= twood Road/ML 29/7-41 – By J. Albert and Mildr= ed Lynch

Mr. McNamara said a letter from Counsel had been recei= ved regarding a request for rehearing. <= /span>

Mr. Gleason said he read Attorney DeCarolis’ req= uest for appeal, but still felt the basis for granting the variance were valid; = he saw nothing to the contrary. = He did not recommend granting an appeal.

Mr. Hennessey didn’t feel that adding a shed was= an expansion of a non-conforming use, but rather an extension of the business. Mr. McNamara felt t= he reference to the expansion was to when the business started, which was more= of a zoning enforcement issues. = He said the issue before the Board was an existing business that stores garbage trucks outside near a prime wetland; the variance request was to build a ga= rage to house the trucks which seemed to be a natural incident to the business itself. The fact was the busi= ness was there and the applicant was doing something.

The Board discussed the information received during the hearing; it was felt that the evidence was ample enough to grant the variance.

MOTION:<= o:p>

(Gleason/Hennessey) To deny the appeal for the Bibeau Variance (Case #2286) decision (request for a rehearing).

=

VOTE:

(5-0-0) The motion carri= ed to deny the appeal.

REQUEST FOR R= EHEARING DENIED

CONTINUED (con’t from above…..)

Case #2293= – SWEREN, John - 68 Marsh Road/ML 28/7-175 – Seeking a Variance concern= ing Article III, Section 307-14 to permit the creation of a lot with 100ft. of frontage where 200ft. is required within the Residential Zone.

Both Mr. Gleason and Mr. Hennessey had walked the site= . Mr. Gleason said two of the abutte= rs attended the site walk and he asked them if the variance was acceptable; th= ey said it was acceptable as presented as long as the land was controlled. Mr. Hennessey said the abutters we= re concerned about drainage (water runoff onto their property), which would be= a function of the building and Planning Board. Mr. Gleason said there were assura= nces from Mr. Sweren regarding the manner in which the lot will be subdivided so= the wetlands would not be a consideration and building would occur on the high area.   There was no evid= ence of excessive water (it was raining during the site walk). Mr. Hennessey felt that the varian= ce would protect the abutters better than letting nature take its course. Mr. Gleason said it was a unique p= arcel that met the hardship criteria. Mr. McNamara confirmed that this would be a single lot to be created. Mr. Gleason answered yes. He said it would be a subdivision = with less than 200ft. frontage with access onto Marsh Road.

Mr. Hennessey said there was a suggestion during the s= ite walk for ‘no further subdivision’; he said Town Counsel had provided their opinion to the Board that a decision could be encumbered. He said at the least, the Board co= uld request a statement of such could be read into the record. Mr. McNamara recalled that one of = Town Counsel’s comments was that it may not be enforceable in ten or fifte= en years, but the concern would be listed on the variance and brought to the attention of the board reviewing if anyone tried to do something further wi= th the property. Mr. Hennessey s= aid there was a fine line between a request and a coercion; during the site walk the applicant was asked if there would be any further subdivision and the answer was no through no coercion. Mr. McNamara felt the fact that there would only be a one lot subdivision was a factor to be considered in the variance criteria. Mr. Gleason said another variance = would be needed if further subdivision was wanted.

Mr. D’Andrea said he had a reservation of not kn= owing when the fine line is crossed between cooperation and coercion; he didnR= 17;t want the Board to be in a position to find that the variance criteria was m= et, but wouldn’t grant because of a stipulation. He discussed the possibility of fu= ture zoning changes in which the additional land may meet zoning requirements but rights may be precluded because of decisions being made in the present. Mr. McNamara said it would only be precluded because of changed circumstances. He said having the requirement to = go back to the Board left the property owner in the position where the Board may deny. He said it had not been tested and didn’t know if it would ‘pass muster’.

The Board decided to not make a motion; but to have the minutes reflect the Board’s feelings. Mr. McNamara said the fact that th= ere would only be one subdivision was one of the factors for his vote to approve.

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria

Mr. Gleason – Yes to all criteria

Mr. Hennessey – 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



Case #2297= - MELANSON, Carl & DRISCOLL, Cheri - 57 Mammoth Road/ML 33/1-48 – Seeking a Variance concerning Article III & V, Section 307-8 & 18 to permit t= he operation of a pre-existing convenience store in a Residential Zone. <= /o:p>

Continued to October 14, 2004.

Case #2298= – AUGENSTEIN, Linda - 303 Gage Hill Road/ML 16/13-116 – Seeking a Varia= nce concerning Article III, Section 307-12 to permit the construction of a dupl= ex on a lot that does not meet the required 2-acres of land in a Residential Z= one.

Continued to October 14, 2004.

Case #2299= – TWO M CONSTRUCTION – Off Benoit Avenue/ML 6/4-180-17 – Seeking a Variance concerning Article III, Section 307-13 & 14 to permit the crea= tion of lots with out the required 200ft. of frontage within the Residential Zon= e.

Continued to October 14, 2004.

DISCUSSION= – potential amendment to zoning for consideration on the March, 2005 ballot. =

Mr. Hennessey started the discussion by saying he woul= d like to see an increase in the square footage requirements for accessory dwellings. He recommended 650SF. There was a brief disc= ussion regarding increasing square footage to 700SF and additional handicap access= . Mr. D’Andrea said he would r= eview further and provide the Board with further information.

Mr. Hennessey said he would like the elderly zoning co= de clearly defined (i.e.multiple family?, setbacks). He felt strongly that elderly shou= ld be changed to age 55+ (rather than aged 62).&= nbsp; After further discussion, Mr. D’Andrea informed that the Plann= ing Board had elderly housing on their list of topics to discuss.

The Board then discussed the Town Center and the fact that the Board didn’t have the power to enforce certain actions because of the zoning type. Mr. Gowan recalled that there was a document put together by NRPC regarding commercial guidelines/recommendations for Pelham that would be go= od to review when considering language.

Mr. McNamara wanted to discuss the Board’s abili= ty to authorize imposition of fees for environmental, scientific, noise etc.   He believed the Board in the future may require additional information.= He reviewed the Board of Adjustment book and noted that the statutes were ambiguous if the Board could impose fees, however a couple of commenta= tors said it was implied that a zoning board had the authority to request studie= s to be done (being paid by an applicant). He suggested that the language be included in the Zoning rules as we= ll as in the Zoning Ordinance.   He felt the language would give the Board leverage. Mr. Gleason was against charging f= ees because they were another form of taxation. Mr. McNamara didn’t feel it = was fair for the Town to pay for expenses that were case specific. The Board discussed certain cases = in which additional information would have been helpful. Mr. McNamara said he hoped the Boa= rd would vote on the items discussed at an upcoming meeting.

MINUTES

July 12, 2004- Deferred to the next scheduled meeting.

August 9, 2004= - Deferred to the next scheduled meeting.

ADJOURNMEN= T

MOTION:<= o:p>

(Gleason/Hennessey) To adjourn the meeting.

=

VOTE:

(5- 0 - 0) The motion carried.

The meeting was adjourned at approximately 10:45 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