BOA20050110

NOT APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 10, 2005

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

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

PRESENT:

ABSENT:

Peter McNamara, Edmund Gl= eason, David Hennessey, Jeff Gowan, Svetlana (Beloritsky) Paliy, Alternate Cindy Ronni= ng, Planning Director Will D’Andrea

None.

CONTINUED<= o:p>

Case #2307= – ERICKSON, Craig & Pam – 27 South Shore Drive / ML 30/11-218 ̵= 1; Seeking a Variance concerning Article III, Section 307-12 to permit a 14x33 addition and garage on an existing non-conforming lot that does not meet the current minimum lot size and frontage requirements in the residential zone.

Mr. McNamara said the previous hearing was cut short a= t the last meeting due to time constraints, therefore he would allow the applicant time to address some of the issues brought up by an abutter’s attorney. Since the last meet= ing, the Board had walked the site and was familiar with the neighborhood.

Mr. McNamara informed that Mr. Gleason would vote rega= rding this case even though he was absent at the last hearing; Mr. Gleason had reviewed the minutes and walked the site.&= nbsp;

Mr. Hennessey said the Planning Director had received = an e-mail from the Conservation Commission Chairman Bob Yarmo that confirmed a discussion regarding the case; the Conservation Commission only acted on the expedited Dredge and Fill Application for the retaining wall and didn’= ;t consider the addition to the residence. Ms. Pam Erickson said when she in front of the Conservation Commission she made them aware of the project.

Ms. Pam Little of Baldwin, Callen & Hogan, represe= nting the applicant, provided Board members with a memo dated January 10, 2005 which includ= ed two exhibits (Exhibit A – photographs; Exhibit B – color coded map = of the area depicting surrounding properties that had garages and recent construction) discussed the case. She began by clarifying the dimensions of the existing home and what= was being proposed. Existing home= is 1263 SF of living space plus an 891 SF basement (bringing the living space = and basement total to 2154 SF). T= he proposed living space addition would total 784 SF; and the basement would be increased by 462 SF (bringing the new living space and basement total to 34= 00 SF). The height of the home w= ill not change. The proposed gara= ge is 24ftx24ft.and 14ft in height.

Ms. Little then addressed the abutter’s concerns discussed at the last meeting (December 13, 2004), which mainly was in relation to his (Mr. Donald Crossley) view being blocked. She said the applicant made a point when designing the plan to not block the vi= ew, however it would be altered. = She felt the appraisal from 1988 was moot because the view would be opened up.<= span style=3D'mso-spacerun:yes'> She noted that Mr. Crossley had de= eded beach rights to the lake (which, as far as taxes being imposed, was sometim= es considered the same as having a view as cited in the = Milford v. City of Laconia<= /st1:place> case). She noted that the wai= vers applied for (through the state) had been approved.

Ms. Little said the law had changed since the Crossley= v. Town of Pelham case and felt the applicant should not be denied a variance because their property was not unique. She = said that the Erickson case must be decided upon based on current case law, not = by the old Crossley case. Ms. Li= ttle gave the Board an overview of the cases discussed: Crossley v. Town of Pelham, Simplex Technologies, Inc. v. Town of Newington, Belanger v. City of Nashua and Boccia v. City of Portsmouth (in which the c= ourt distinguished between ‘area’ and ‘use’ variances).<= span style=3D'mso-spacerun:yes'> She said that Mr. Crossley was arg= uing that he didn’t want to see an addition or garage across the street, b= ut he had in fact added a second floor, decks and pool installed to one of the tw= o properties he owns. She said alternative= s were reviewed for the property; financially it would be a hardship for the applicants to add onto the back of the house because it would include renovating the entire kitchen as well as moving the septic and well from wh= ere they currently exist.

Ms. Little then referred to Exhibit A & B. Ms. Erickson reviewed Exhibit B wh= ich highlighted surrounding properties that contained 1) one or two garages; 2)= three to five garages; 3) one or two garages plus recent construction; 4) three to five garages plus recent construction; 5) new construction no garage. The map showed there were quite a = few one or two garages along the road. Ms. Erickson showed one lot who only pulled a building permit (lot 1= 12 – not much bigger than the applicants) that recently added a three-car garage with an addition over it. Lot 235 contained a two-car and a three-car garage = on the same property. Other properti= es were referenced that didn’t have variances, only building permits.

Ms. Little reviewed the criteria (outlined at the December 13, 2004 meeting) as follows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed use will be aesthetically pleasing and the building materials will be compatible to the existing materials and design. There w= ill be no adverse effect on the neighboring properties. There will be an increase in value= to other properties due to the increase in value of this property with the addition and garage.

Item #2. Granting the variance would not be contrary to the public interest because: The proposed addition will add to the = taxes being paid on the property. T= here is also a need for the additional living space and garage that is being requested. Many single family= homes in the residential neighborhoods are of this size and have garages for park= ing, particularly with the harshness of New Hampshire weather in winter. The proposed addition will also in= crease the value of surrounding properties and is consistent with the permissible = uses in the Residential district.

Item #3 Special conditions exist such that literal enforcement of the ordinance result 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 because: The property is a pre-existing, non-conforming lot with lot size and frontage that does not conform to the current zoning requirements. = The Court in Boccia has determined that, if a landowners plans are for a permit= ted use, but the special conditions of the property make it impossible to comply with some of the requirements, then from a practical perspective a landowner would not be able to make use of the property, as proposed, without a varia= nce. In this case, the pre-existing non-conforming size of the lot requires a variance for the proposed addition and garage. Single family hom= es are legal and are allowed on pre-existing non-conforming lots, and garages are a permitted accessory use in the residential area.

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 because: The lot size and road frontage can not be increased as there is no additional land to be purchased in order to conform to the zoning. The applicants are seeking additio= nal living space and a two car garage, which is a reasonable and expected use in most residential neighborhoods in New Hampshire. In Bacon, the Court determined that in some cases there are reasonab= ly feasible alternative methods for landowners to accommodate a proposed use without the need for a variance. Here there is no feasible method available to accommodate the propos= ed addition and garage without a variance.&nb= sp; It would not be feasible for the applicants to propose underground parking or additional floors to accommodate their needs. The only feasible method is the one proposed by the applicants. <= /i>

Item #4. Granting the variance would do substantial justice because: Single family homes are permitted in t= he residential district and garages are permitted accessory uses. There are other homes with garages= in the immediate vicinity of this lot and garages are a reasonable expected ac= cessory use for most homes, particularly in New Hampshire.

Item #5. This use is not contrary to the spirit of the ordinance because: We will meet all other setback require= ments and codes, and will obtain all of the necessary and required permits if the variance is granted. Applican= t has already obtained for this proposed project a state approved septic design.<= span style=3D'mso-spacerun:yes'> The applicant has also obtained a = state approved Shoreland Waiver, #2004-01759, dated September 28, 2004 and record= ed in the Registry of Deeds at Book 7335, Page 2909. The ordinance allows for single fa= mily homes in a residential district (on pre-existing non-conforming lots), and garages are a permitted accessory use to homes in the residential district. Therefore, granting= a variance for the proposed addition and garage is not contrary to the spirit= of the ordinance.

Ms. Little noted that the Bacon case was different tha= n the proposed because in the Bacon case the applicants wanted to place their gas tank in an area where they would have needed a variance, but they had plent= y of other places on the lot to locate it. She felt the economics of the applicant should be reviewed.

Mr. McNamara asked what the approximate cost would be = to redo to the kitchen. Ms. Litt= le said the approximate cost would be $20,000; the specific cost of moving a septic and well was not known, but believed to also be approximately $20,00= 0. It was noted that the septic was l= ocated between the house and the driveway; the well being 10ft. from the house and= the septic being another 15ft-20ft. The septic was believed to be installed in the late 1980’s.

Mr. Hennessey questioned why a variance request for bu= ilding within the 50ft, WCD setback was not included with the variance request bef= ore the Board. It was noted that = the state approval for the Shore Land Waiver (RSA 43-b,9,2) was separate from t= he Town’s Regulation (50ft. WCD setback). Mr. Hennessey said there shouldn&#= 8217;t be any building permits issued anywhere around any of the ponds (for the mo= st part) unless building on the existing footprint (foundation). He felt it was clear that the appli= cant needed an additional variance.

Ms. Paliy questioned if the two items (garage and addi= tion) could be separated. Mr. McNam= ara said they could be discussed separately if there was a particular objection= to one and not the other. Mr. Gl= eason asked for the approximate distance between the edges of the proposed additi= on to the boundary. Ms. Erickson= said it was approximately 50+ feet (on the right); the distance of the garage fr= om the road was approximately 33feet. <= /span>The applicant’s lot is 104ft. x 150ft.&n= bsp;

Mr. McNamara said it seemed to him that an additional variance request would be needed. Ms. Erickson said the Planning Director never mentioned the need for= a variance from the Town requirement. Mr. McNamara reviewed the Shore Land Waiver, which was subject to certain conditions, one of which (#9) the owner was not exempt from obtaini= ng any other necessary local, state, or federal permits or approvals. It was noted if the Board addresse= d the variance, an additional variance would have to be applied for.

There was a brief discussion regarding the materials t= hat the Board was presented with at the meeting and if they should hold off mak= ing a decision until the next scheduled meeting to provide time for review. Mr. McNamara suggested that the applicant speak with the Planning Director to find out why an additional variance was not applied for. Mr. Hennessey requested that applicant seek an advisory opinion from the Conservation Commission at the same time they submit the paperwork for the = WCD variance, since the Board generally requested Conservation Commission’= ;s opinion regarding WCD setbacks.

Ms. Erickson questioned why surrounding lots didn̵= 7;t require variances. Mr. McNama= ra believed the policy of the Planning Department was to issue building permits when a structure was constructed within the footprint of the original; a variance is requested when the addition/new structure clearly exceeded the = footprint (size of the original). He suggested that the applicant ask the Planning Director the specific questio= ns regarding when permits were issues, and when variances are requested.

Ms. Little asked the Board to consider addressing the ‘area’ variance. = The Board discussed whether they would continue at the present meeting, or deferring to the next scheduled meeting.&n= bsp; Ms. Little noted the concern of the variance not being heard, and go= ing through the expense of applying for an additional variance; if the first wa= s turned down it would be a waste of time and money.

MOTION:<= o:p>

(Hennessey/McNamara) To hear and vote regarding the = area variance as presented. <= /o:p>

=

VOTE:

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

PUBLIC INPUT

Attorney James Troisi representing Mr. & Mrs. Dona= ld Crossley of 14 & 16 So= uth Shore Drive, discussed the variance application. He said there wa= s no question that the applicants wanted to increase the building size on the lot and add another building; the Crossleys had been across the street and look= ing at the lake for over forty years; Crossleys are concerned about their scenic view and property values. He = said there was no problem years ago with the one-car garage that had been razed (because it didn’t interfere with the view). He said the question before the Bo= ard was if the variance petition was deserving of being granted based upon the facts of the case, circumstances surrounding the property, and law as it existed today. He said this w= as not a slight variance request, but actually substantial (based upon the proposed measurements) on an undersized lot with short frontage. He reiterated that in the past, variances for the construction of garages had been denied. The applicant believed surrounding property values would be diminished.

Attorney Troisi provided the Board with a packet of information (prior to the commencement of the meeting) containing the argum= ents against granting the variance, which included photographs. He reviewed the information (and discussed the court cases Crossley v. Town of Pelham; Bacon case from June, 2004) as = it pertained to the variance criteria. He then reviewed the color coded map submitted by the applicant that showed which of the surrounding properties had garages. He said if the subject property was reviewed in comparison to others around the lake, there were many (a majori= ty of which) that didn’t have large two-car garages. He discussed the similarities of t= he Bacon case in relation to the applicant; such that the property is not uniq= ue in the environment, and contained a residence within the 50ft. setback as a pre-existing non-conforming use. Attorney Troisi said all the criteria were equally important and sho= uld be given equal weight. In ref= erence to the substantial justice criteria, he noted that the Erickson’s had rented the property for a significant number of years prior to purchasing; = they purchased knowing the history of the property vis-à-vis no hardship,= no variances granted and the three hearings.&= nbsp; He said if the court charged that a variance should not be granted w= ith just a garage, then it should not be granted with the 50% increase of the house. He continued to discuss ‘justice’ and asked that the Board consider the Crossleys who h= ad fought to protect their view and their property value for the last twenty years. In reference to ‘spirit of the ordinance’ Attorney Troisi said it was just as i= mportant as the other criteria and the Bacon case was not decided just on hardship, = but also on the spirit of the ordinance. In the case it was cited that the shore fronts of Enfield’s lakes had become conges= ted as residents enlarged and improved homes along the water. He went on to read a portion of the Bacon case. It was noted that= the proposed garage would block the Crossley’s view. Attorney Troisi said it was brough= t to his client’s attention that the proposed addition would include a 21f= t.x 14ft. bedroom (a third bedroom which would not be supported by the septic system).

Attorney Troisi said it was fine that the applicant wa= nted to have larger living quarters and a large garage; however he felt if the Board reviewed the facts surrounding the property, the law as it was today, and t= he fairness to the Crossleys it would strongly suggest that the petition for variance be denied.

Ms. Erickson clarified that the original plan was to h= ave her mother move in with her, however, the plan changed and her mother will = be residing with her sister in F= lorida. She said the additional room (and bathroom) would be used for guests.

Mr. McNamara said this case had two legitimate interes= ts that were unfortunately colliding. <= /span>

Mr. Hennessey said one difficulty he had was under har= dship ‘…would not be contrary to the public interest because…’; he questioned if one abutter’s view being interfered with constituted the injury of public/private rights. Mr. McNamara questioned how the appraisal (15-16 years old) entered into the value. Mr. Hennessey believed not being a= ble to see the property and having a building of that size (such as the proposed) would limit the value of a property; however he understood that New Hampshire di= dn’t have an automatic right to ‘view’.

Mr. Gleason said from walking the site, the view would= not be obliterated, just altered. Mr. Hennessey discussed the Shore Land Protection Act and pointed out if the ow= ners of the property over the last twenty years had abided by the intent and wor= ding (in relation to trees and vegetation) of the act, there would be no view today. Mr. Gleason said the environment around the lake had changed and the courts rulings on hardship = had significantly changed. Mr. Mc= Namara agreed. He felt the applicant’s Council point was well taken regarding the Bacon case (in= the case, there were alternatives to the propane shed, which could have been pu= t in alternate places). He also no= ted that the applicant (under hardship in the Boccia case) didn’t have to show that there was no reasonable use of the property. Mr. Gleason questioned if there was enough hardship to justify the expansion of the non-conformity. Mr. Hennessey said some of varianc= es previously granted by the Board were to properties that were in tough shape (i.e. containing holding tanks) and during the public input, abutters were begging for the variance; which was not the case with the current request.<= span style=3D'mso-spacerun:yes'> He said this property was not detrimental to the neighborhood.

Ms. Paliy noted that the existing house was larger than those in the area and with the addition it would be made larger and take aw= ay from what the area was. She f= elt it would change the nature of the area. She said the garages in the area appeared to be smaller than what was being proposed. She ended by = saying she was having difficulty combining the two (garage and addition to the home).

The Board discussed the proposed garage and addition; = they seemed to not have as much problem with the garage, as they did with the addition = to the existing house. There was= a suggestion that the addition to the house be restricted within the existing footprint. There was further discussion and the Board questioned the applicant whether they wanted the B= oard to continue deliberation and vote based upon the application before them, o= r if they would prefer to withdraw and come back with an amended application that was more with the course of the discussion. The Board had concern with the siz= e of the addition on the lot, which made it difficult to apply the criteria.

Ms. Little said the applicant would like to bring a re= vised plan back to the Board that was more in line with the Board’s thinking.

The case was date specified to the February 14, 2005 meeting.

MISCELLANE= OUS DISCUSSION

Mr. Hennessey requested a meeting with Town Counsel to request an evaluation of the Board’s action, which he felt would help= the Board serve the public. Mr. G= leason also felt that the Planning Department should take an active role in court decisions. He said there shou= ld be a formal mechanism to keep the Board current on decisions. He suggested that the Planning Dir= ector provide the Board with summaries of actions periodically. Mr. McNamara said he would contact= the Planning Director and make the request.

MINUTES

October 14, 2004

MOTION:<= o:p>

(Gleason/Hennessey) To approve the October 14, 2004 meeting m= inutes as amended.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

November 8, 2004

MOTION:<= o:p>

(Gleason/Gowan) To approve the November 8, 2004 meeting mi= nutes as amended.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

<= /u>

December 13, 2004

MOTION:<= o:p>

(Gowan/Hennessey) To approve the December 13, 2004 meeting = minutes as amended.

=

VOTE:

(4 - 0 - 1) The motion carried. Mr. Gleason abstai= ned.

<= /u>

ADJOURNMEN= T

MOTION:<= o:p>

(Hennessey/Gleason) To adjourn the meeting.

=

VOTE:

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

The meeting was adjourned at approximately 9:40 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