BOA20050613

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 13, 2005

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

The Secretary, Ms. Svetlana Paliy, called the roll:

PRESENT:

=

ABSENT:

Peter McNamara, David Hen= nessey, Svetlana Paliy, Kevin O’Sullivan, Alternate Robert Molloy, Alternate Cindy Ronning

Jeff Gowan

Mr. McNamara appointed Mr. Molloy to vote in Mr. Gowan’s absence.

REQUEST FOR REHEARING – BY ABUTTER - Case #2307 – ERICKSON, Craig & Pam – 27 South Shore Drive/ML 30/11-218 – Seeking a Variance concer= ning Article VII, Section 307-41(b) to permit a 8ft.x33ft. addition within the 5= 0ft. WCD setback on an existing non-conforming lot that does not meet the current minimum lot size and frontage requirements in the residential zone

Mr. Molloy was not a voting member for the following c= ase, therefore Ms. Ronning was appointed to vote for this case only.

The Board was provided with a request for rehearing (r= econsideration of the decision) by the attorney for the abutter, Donald & Wendy Crossley. Mr. McNamara said t= he Board heard the case last month and decided to grant a variance to the Ericksons. He said the Ericks= ons had also filed a written response to the request.

Mr. Hennessey reviewed the provided information, but d= idn’t see any new information. He a= lso did not feel that the Board had made an error in law. He said the Board had thoroughly reviewed. Ms. Paliy and Ms. R= onning said the Board had worked really hard on the case.

MOTION:<= o:p>

(Hennessey/Ronning) To deny the request for rehearin= g of Case #2307.

=

VOTE:

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

REQUEST FOR R= EHEARING DENIED

HEARING(S)=

Case #2320= – FREIE, Michael – 26 Brandy Lane / ML 36/10-368-17 R= 11; Seeking a Special Exception concerning Article XII, Section 307-74 to permi= t an accessory dwelling unit in the residential zone.

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

Mr. Michael Freie, 26 Brandy Lane discussed the reason for the Speci= al Exception request, which was due to a family situation.

Mr. McNamara asked how many bedrooms the house would contain. Mr. Freie said there= were currently three, but the accessory unit would add a bedroom (total 4). Mr. McNamara asked if there was a = septic system designed for 5.5 bedrooms. Mr. Freie said he recently received the approved septic design and provided the Board with a copy.

Mr. Hennessey questioned the structure between the fam= ily room and the kitchen. Mr. Fre= ie said the structure was an existing fireplace. Mr. Hennessey asked for the dimens= ions of the fireplace. Mr. Freie s= aid the wall dimension frame around the existing fireplace would be approximate= ly 3ft.x6ft. Mr. Hennessey asked= if there could be a stipulation that the dimension would be 18SF. Mr. Freie shook his head yes.

Mr. McNamara asked what the square footage of the addi= tion would be. Mr. Freie said the planned foundation would be 24ftx32ft. (768SF excluding the walled in square footage of the fireplace). Mr. McNamara asked what the living space would be. Mr. Freie said it would be six inc= hes less on three walls. Mr. Henn= essey said if the fireplace was 18SF, the living space dimensions would be within= the 750SF requirement.

There was no public input.

MOTION:<= o:p>

(Hennessey/O’Sullivan) To approve the Special Exception of Case #2320.

=

VOTE:

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

SPECIAL EXCEP= TION GRANTED

Case #2316= – DICESARE, John Sr. & Grace – 141 Old Gage Hill Road North / ML 17/13-50 – Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit a single family home to be built on an existing .58 = acre lot with approximately 120ft. of road frontage in the residential zone.

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

Attorney David Groff representing the applicants discu= ssed the Variance request with the Board. He said the applicant had a small lot which was combination of two o= lder lots (1/3 acre and 1/4 acre) that were combined on a single deed transferre= d to a prior owner in 1966. He sai= d the two lots had existed since the late 1930’s or 1940’s. He said the applicants would like = to get the lot into a buildable condition so they could sell it for family reasons. A Variance was neede= d for frontage and lot size.

Mr. McNamara asked if Ms. Ronning was going to step do= wn from the Board, since she had a conflict with the case. Ms. Ronning recused herself.

Attorney Groff reviewed the Variance criteria as submi= tted:

Item #1. The proposed use would not diminish surrounding property values because: The proposal is to construct a new single-family home on the lot. There are older single-family homes constructed on abutting lots.

Item #2. Granting the variance would not be contrary to the public interest because: The construction (2080 sq.= ft. or less) will be priced for medium income families. There is a high demand for moderat= ely priced housing in Pelham.

Item #3. ‘Use’ Denial of the variance would resul= t 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= : Old Gage Hill Road, North is an established road with established homes of varying lot sizes. This Lot is zoned residential; but is undersized under current zoning requirements.<= span style=3D'mso-spacerun:yes'> No residential use of this lot can= be made without the requested variance.

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: A title search shows that this lot has been a lot of record since a= t least 1966. There was a home = on the lot, but it was torn down around 1978 because of condition. See attached deeds exhibit 1 and 1= a, 1b and 1c. Prior to 1966, the lot consisted of 2 smaller parcels. This property consisted of lots of record that existed prior to the current acre zoning requirement was enacted in Pelham. Attorney Groff said the lot wo= uld probably be grandfathered since it was a prior lot of record.

c) the variance would not i= njure the public or private rights of others since: The home to be built will be in compliance with all local building codes, including building setbacks and septic installation. Attorney Groff said the lot wo= uld have to meet the requirements for setback, septic design/approval, sight distances for driveway.

Item #3 ‘Area’ Special conditions exist su= ch that literal enforcement of the ordinance result in unnecessary hardship: <= /p>

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 lot is .58 of an acre in size, with approximately 120 feet of frontage on Gage Hill Road, North. There is not any additional land available in this area that could be added to this lot to extend the frontage. A survey was made o= f the lot on November= 11, 1992; however; it was not certified. See attached exhibit 2 and 2a. The survey shows that the lot now known as 141 Old Gage Hill was formerly two separate parcels. According t= o the Registry, the two lots were conveyed to the current owners by a single deed= in 1966.

b)&n= bsp;      the benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to purs= ue, other than an area variance because: The abutting lots have estab= lished homes. No additional land is available to expand the lot. = The lot does not meet current zoning requirements, but is zoned residential. No residential use can be made of = the lot without the area and frontage variances.

Item #4. Granting the variance would do substantial justice because: The current zoning laws were passed ye= ars after the smaller lots were created. Those smaller lots were combined to create the present lot.

Item #5. This use is not contrary to the spirit of the ordinance because: A single family home can be constructe= d on the lot that will comply with all setback and other building requirements.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara informed Attorney Groff that at the previ= ous meeting the Board didn’t realize that there had been a request for rehearing until later in the meeting. He said there were abutters present and rather than send them home, = they were allowed to give comment on the matter with the understanding that the matter would be continued.

It was Mr. Hennessey’s understanding that when a parcel was ‘up-zoned’ (with abutting non-conforming lots) that = the line ceased to exist and it was proper for the land to be conveyed on a sin= gle deed and in fact there would no longer be two lots. He believed there was no grandfath= ered clause in effect, because the lots ‘in the eyes of the law’ were combined. Mr. Groff said Pelh= am had an ordinance regarding the combination of abutting non-conforming lots into= one lot; for their purposes as well as tax purposes, the lots were assessed as ‘a lot’. He said = for purposes of their discussion, they were considering them as ‘a lot of record’ as the tax card read. Mr. Hennessey questioned if it was Attorney Groff’s position t= hat there was no need for Planning Board approval because there was no subdivision. Attorney Groff s= aid they were not trying to subdivide the lots. Mr. Hennessey questioned why there= was no need to go before the Planning Board if the Town saw there were no lines between the lots and it was a single, unsubdivided lot. Attorney Groff said the Planning B= oard would have jurisdiction if the applicant was trying to split the lots into something other than what they were. He said if the Board was concerned with if the two lots were combine= d, the applicant could file a voluntary merger form. Mr. Hennessey said the Town saw th= e lots as merged so a voluntary merger would not be needed. Attorney Groff said the Town saw t= he lots as merged for tax purposes. He said they didn’t have to go before the Planning Board to combine the = lots into one lot. He said they co= uld either: 1) consider the lots as one lot by virtue of the ordinance, or 2) f= ile voluntary merger form. Mr. He= nnessey reviewed the plan and confirmed that the applicant owned lot 1 as well as t= he abutting lots. Attorney Groff answered yes. Mr. Hennessey questioned if the law viewed the three lots as a single, unsubdivided piece= of property (since the lots on the left were below the lot size). Attorney Groff answered no and ref= erred to the tax card which showed the lot as .58 acres zoned residential. He said the two non-conforming lot= s were in existence prior to the institution of the zoning ordinance.

Mr. Hennessey questioned if the parcel met the Planning Board’s requirement of 35,000SF high/dry land. Attorney Groff did not know; in or= der to obtain a building permit the requirements would need to be satisfied. Mr. Hennessey said if the lots were considered undivided (one lot) and a building permit was applied for, there would be no need to go before the Planning Board and satisfy the subdivision regulations. Attorney Groff s= aid the building permit requirements would need to be satisfied (i.e. approved = septic design, sufficient sight distance, satisfy setbacks). Mr. McNamara questioned if the well radius would have to be complied with.&nbs= p; Attorney Groff was unsure. He said if there was an infringement a waiver would have to be filed.

Mr. McNamara said there was a little difficulty review= ing the sketch submitted because it didn’t show wet area or elevations. He said the letter of intent indic= ated that in the past there had been a house on the property that had been torn down. He questioned when the = house was torn down. Attorney Groff sai= d it would have been after the applicant purchased the home in 1978. Mr. McNamara asked if there was an= y idea where a driveway would be placed or the sight line distances. Attorney Groff did not know, he ha= d not taken measurements.

PUBLIC INPUT

Mr. Brian Hebert, 3 Eddy Lane, asked if there were three lots. Attorney Groff showed Mr. Hebert t= he lots in question. Mr. Hebert = said he had been an abutter for nineteen years and had no problem with new development or managed growth. He wanted to help his neighbor whose grandchild had dyslexia and was in need of education. Mr. Hennessey aske= d Mr. Hebert if he saw the land as a separate and distinct lot from where the hou= se was currently located. Mr. He= bert answered yes. Mr. McNamara no= ted that the Board had to judge the variance on the character of the land as opposed to owner circumstances.

Ms. Cindy Ronning, 9 Gaston Street (speaking as a member of the pub= lic) said she spoke to Planning Director Will D’Andrea regarding the well radius who stated in a letter that it was not required to have a 75-foot we= ll radius on the lot. Mr. McNama= ra asked if that was because the lot pre-existed zoning. Ms. Ronning said at that point Mr. D’Andrea indicated that the applicant had to come before the Board fo= r a variance concerning area and frontage.&nbs= p;

PUBLIC INPUT

Mr. David Meltzer, 378 Old Gage Hill Road, North, questioned if there= was a hardship. He said if the applicant’s grandson had dyslexia and was between the ages of 4 and 21, the school district in which the child lived would be responsible for education and the associated expenses. Mr. Hennessey said the ‘hardship’ was in reference to the land, not the owner’s personal issue. Mr. McNamara = said the Board didn’t view the owner’s personal issues, the Board ha= d to decide if there was a hardship to the land itself.

Mr. John Fendelander, 2 Kennedy Drive, said he attended t= he previous meeting and stated his opposition to the small lot size and frontage. Mr. Hennessey asked= if the road was straight from Mr. Fendelander’s lot to the proposed lot. Mr. Fendelander said the= road had curves and turned sharply to the left.= The proposed property was almost across the street from his property= .

Mr. Vincent MacDonald, 145 Old Gage Hill Road, North, resi= ded across the street from the applicants.&nbs= p; He was against the variance. He didn’t feel that the corner (bend in the road) could get worse. In his estimation, the= lot was big enough to put a house on; the surrounding lots were within an acre. Mr. MacDonald didn̵= 7;t feel the variance ‘fit’. Mr. McNamara reiterated that the personal circumstances had no beari= ng on the Board’s decision; the hardship went to the land. Mr. Hennessey asked for a descript= ion of the wetlands in the area. Mr.= Mac Donald said there was a brook that ran to the back of his property that was= wet all season and maybe dry for one week.&nbs= p;

Mr. Jim Bergeron, who owned property in the area discu= ssed some of the testimony provided. He wanted it understood that Attorney Groff was discussing two separate parcel= s. He discussed the term ‘lot of record’ that he believed was referenced in 307-13. He said he was a former Board memb= er who was part of the group that worked the revisions of zoning. He said they were having a problem= with people coming in with non-contiguous areas; ‘lot of record’ was= a term used for a lot that received final Planning Board approval. He didn’t believe the intent= ion of the language was to exempt every lot that existed at the time and was cut up/segmented by highways, deeded off for seasonal properties etc. He said he could cite a number of = lots that had been denied. Mr. Ber= geron said the spirit and intent of the ordinance was to try and keep the lot siz= es adequate to preserve and protect the ground water. He discussed the ‘absorption’ of land. He said he had recently purchased a 2.5 acre parcel that didn’t have a buildable lot and it was therefore absorbed onto a 10 acre parcel he owned. He noted that it stood= on a separate deed, however was absorbed onto another parcel. He pointed out that Mr. DiCecesare= had owned the property in question for twenty-eight years. Mr. Bergeron said originally all t= he property in the area had been owned by Otis Titcomb; the applicant’s property originally had a shack with no utilities. He believed a non-conforming use w= ould be created if the Board approved the request without a lot of additional information. He questioned if= the application should be an Appeal from Administrative Decision if there was already an official action by a Planning Director. Mr. McNamara said he wasn’t = aware of any official action. He be= lieved the Planning Director felt the application was more properly addressed as a variance, which is why it was before the Board as such. Mr. Bergeron felt full engineering= was needed. He said the Board he = sat on never approved similar applications and was able to cite them if the Board wanted. Mr. Hennessey questio= ned if the Planning Director had determined the lots were independent, there wouldn’t be a variance because the lot would have been grandfathered = and there would have been an Appeal of Administrative Decision before the Board= . Mr. McNamara said in summary, if t= he lot were grandfathered, there would be no need for a variance. Mr. Hennessey said the fact the lo= t was before the Board was because it was not grandfathered. Mr. Bergeron said he could

Mr. Meltzer spoke again and said he had no strong opposition, but wanted the amount of wetlands to be clearly defined. He also wanted to know where the driveway would be placed and noted the current traffic dangers due to the curves of the road.

Mr. Armand Berard, 134 Old Gage Hill Road North, said he resided dire= ctly across the street from the applicant’s lot. He questioned if the Board had rec= eived correspondence he submitted. = Mr. McNamara said the Board was in receipt of the correspondence, which would be submitted into the record, but had not had the opportunity to review. He said if Mr. Berard was question= ing the procedure of the application, he had no question that the Board had act= ed properly. Mr. Berard was conc= erned with Ms. Ronning’s input at the May 9, 2005 and wanted to know if it was proper prot= ocol for her to exchange information even though she was personally involved in = the case. Mr. McNamara said the o= nly way the Board knew that the applicant would not be present was from Ms. Ronning. He said Ms. Ronning represented that the applicant’s attorney (Attorney David Groff) would not be present and through her Attorney Groff requested a continuance. Mr. Berard said Ms. Ronning was not supposed to talk about the case because she had recused herself. Mr. McNamara said Ms. Ronning coul= d not decide the case because she was a member of the Board, however, she had eve= ry right to address the Board as a member of the public. Mr. Berard said Ms. Ronning could = not address the Board when she was still seated with the Board. He said per the By-Laws once recus= ed, a person should absent themselves from the Board; Ms. Ronning remained at the table during the = May 9, 2005 meeting. Mr. McNamara said Ms. Ronning absented herself from deliberation. He said since the applicant wasn&#= 8217;t present, there was no formal public hearing it was announced there was a continuance; out of courtesy, the public was allowed to speak their concern= s to the Board. Mr. Berard said he= had been informed by a former Selectmen, Zoning Board Member and Town Administr= ator that if a petitioner or counsel didn’t present themselves at a schedu= led meeting it would cause an immediate dismissal of the case. Mr. Hennessey said in many cases t= he Board had moved over an action as a courtesy to an applicant. Mr. Berard said he was concerned t= hat he was at a distinct disadvantage in the case because he felt a Board member h= ad pecuniary interest in the case used their position to influence the outcome beneficia= l to the applicant.

Mr. Berard provided the Board with a set of attachment= s. He reviewed the information for the Board which included photographs of the area (including the road), a petiti= on signed by 21 citizens (abutters and neighbors) arguing against the variance, outline of conditions in Case #993 of the Board (including the Superior Cou= rt decision which upheld the Town’s decision) and information regarding = substandard lots.

Mr. Berard reviewed (in summary) the Variance criteria contained in Zoning Ordinance 307-88 as follows:

307-88,A,1 – Mr. Berard believed granting the Va= riance would be contrary to the public interest.&= nbsp; He said his interest was not predicated on proposed building costs; = his interest didn’t include an increase in people, building density or to= live across the street from new construction whose driveway would put his family/friends in physical harm a= nd danger. He didn’t feel = that a need for moderate housing had any connection with the ordinance. Mr. Berard discussed a past case (Parisi) and the former Board who said it would not be in the public intere= st to create a substandard lot it would be an injustice to the abutting properties.

307-88,A,2A - Mr. Berard said no residential use of th= e lot could be made and suggested small farm, barn, buffer to provide separation = from neighbors. He said the applic= ant was seeking a use variance and was mis-applying the category. Mr. McNamara said the applicant was applying for an ‘area’ variance but wrote both ‘use’ and ‘area’ because the state of the law in flux. Mr. Berard noted that the Superior= Court found nothing unique about lot 102. Mr. McNamara said the Board would decide the case based upon the area variance criteria. Mr. Hennes= sey questioned attachment #8 which referenced two deeds and said since 1966 the= re was a single deed. Mr. Berard= said it was two parcels on a single deed. He said a merger of two contiguous lots must be endorsed in writing = by the Planning Board and filed at the Registry of Deeds; he found no such endorsement at the Registry. = He said the deed described two separate lots and believed a merger would creat= e a violation of current regulations. Mr. Berard described the structure that had previously been on the property as a shack with no running water or electricity which was torn dow= n. He believed the petitioner abandon= ed his rights to the use twenty-eight years ago.&= nbsp; He then discussed abandonment and believed the intent of the petitio= ner was clear since no money had been spent and no building was built on the lo= t in the past twenty-eight years. = Mr. McNamara noted that a Superior Court case didn’t have precedence, the Board had to follow Supreme Court or Federal Court decisions. He said the law had changed drasti= cally since the Parisi case and was unsure how applicable to the case it was. Mr. Berard believed if someone wer= e to built on the non-conforming lot, his (and the neighbor’s) rights woul= d be harmed, the property value would decrease, the area would be overcrowded and there would be an introduction of unnecessary dangers with the addition of a driveway.

307-88,A,2B – Mr. Berard said the Superior Court= was clear in defining ‘area’ variance and had no reference to acrea= ge, land availability, surveys or purveyance by registry documents as presented= by the applicant. He quoted a po= rtion of the Boccia case.

307-88,A,3 – Mr. Berard reviewed 307-88,C in connection with the requested Variance, which he felt was inconsistent with= the spirit of the ordinance.

307-88,A,4 – Mr. Berard said the current zoning = laws were passed after the small lots were created and the small lots were combi= ned to create the lot. He said th= ey were never combined in accordance with state law; the deed shows separately= .

307-88,A,5 – Mr. Berard felt the argument assume= d by the applicant was subjective. He said introducing a new home in the middle of older homes would change the character of the neighborhood. In addition he believed granting the variance would diminish surrounding prope= rty values because the lot was in violation of Town zoning laws. He said it was the only lot in the immediate area that could not meet acreage or frontage requirements. He said he reviewed 34 properties,= in which only one (the petitioner’s property) didn’t conform. Mr. Hennessey asked if there were = any other deeded lots in the area that were below statutory size. Mr. Berard was unsure. He reviewed the petitioner’s submission (tax map) and each lot appeared to have over an acre. Mr. Jim Bergeron pointed out that = there were several lots in the area that were segmented by the construction of Ro= ute 38 in 1946.

Mr. Berard ended by saying he had been friends with the applicant for 28 years and the request had not only hurt him, but also the neighborhood. He felt there w= as ample evidence that the petitioner had not met any of the conditions and fe= lt the arguments were inconsistent with what he had read as provided by Superi= or Court. He reiterated that the people who signed the petition were also against the variance request. He said the failure to meet condit= ions warranted denial of the variance.

Mr. Brian Herbert believed there were parts of the lot= that were along the straight-a-way where a driveway could safely be placed. He said the wetland on the applicant’s lot was a pass-through because it went under the old rail= way bed and into his yard. Mr. Mo= lloy questioned if the addition of a driveway would add to the traffic congestio= n on the street. Mr. Herbert said a driveway could safely be on the straight part of the street prior to the cu= rve in the road. Mr. Berard provi= ded the Board with photographs of the wetlands (that were supposed to be dry).<= span style=3D'mso-spacerun:yes'>

Mr. McNamara said he wanted to see the parcel. Mr. Hennessey said if the Board didn’t vote at the present time, his amendments would be to request i= nput from Public Safety (Police and Fire Chiefs), Planning, and Conservation (du= e to the wetlands and the possible effects).&nb= sp; Mr. McNamara said he didn’t have enough personal information on the lot, the sketch submitted didn’t provide enough for him to make an informed decision. Mr. Hennes= sey said he would like Town Counsel’s opinion regarding if there was a si= ngle lot or ‘lots of record’.

Mr. McNamara gave Attorney Groff the option to rebut t= he testimony. Attorney Groff sai= d if the Board wanted to review the lot it may answer a lot of the questions. He addressed the issue of pre-exis= ting ‘lot of record’ under the statute and said it required Planning Board approval on a plan. He = said there were a number of lots that came into existence before there was a Planning Board; these were examples of that type of lot. He said between 1959 and 1975, the Planning Board stamped plans with lots; those kind of plans with those kind= of lots were pre-existing non-conforming lots of record under the ordinance if approved by the Planning Board in that configuration. He used the lot behind his office = as examples of such. He said the ordinance didn’t speak to lots before there was a zoning ordinance or planning board. Mr. Hennessey= asked Attorney Groff if he felt he needed Planning Board approval to merge the lots. Attorney Groff answered= no. Mr. Hennessey said if the variance request was approved, the applicant would be able to build without review of the Planning Board. Attorney = Groff said if the Board were to approve the Variance there could be a condition f= or a lot merger. He said as far as= he knew the Town had already merged the two lots; there was a separate tax card for just the two lots that taxed them as a .58 acre lot. He said if the Board felt the Town= was wrong, he would be glad to satisfy that by simply merging the lots. Mr. McNamara felt it was safe to s= ay that the Board had more questions than answers. He wanted to review the lot. He said the Board could schedule referrals to Town Counsel, Conservation and Public Safety. He didn’t know what the Plan= ning Board would do.

The Board scheduled a site walk for June 19, 2005 at 8:30pm. Attorney Groff told the Board that the DiCesares would be present. A member of the public questioned = if the public would be allowed to walk the site with the Board. Mr. Hennessey said traversing the = land would be at the permission of the owners.

Mr. McNamara said he would request that Planning Direc= tor Will D’Andrea would refer the matter to Town Counsel, Public Safety a= nd Conservation.

The case= was continued to the July 11, 2005 meeting.

Ms. Ronning returned to the Board.

Due to the lateness of the evening, Mr. McNamara revie= wed the agenda. Attorney Bill Mas= on, representing the applicants in Case #2319 was not averse to continuing their case to the July= 11, 2005 meeting. Attorney David Groff, representing the applicants in Case #2318 was not averse to continuing their case to the July= 11, 2005 meeting.

REMAND

Case #2286= – BIBEAU, David – 36 Atwood Road / ML 29/7-41 – S= eeking a Variance concerning Article VII, Section 307-41(b) to permit the construc= tion of a 30ft.x40ft. garage partly within the 50ft. wetland buffer.<= /u>

Ms. Paliy read the list of abutters aloud (which was s= tamped June 24, 2004). There were no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written corresponde= nce from abutters.

Mr. McNamara said the case had a rather long history a= nd was back before the Board for application of the ‘area’ variance criteria per agreement between the applicant an abutters. He asked the applicant if he recen= tly had conversations with the abutters. Mr. David Bibeau (applicant) answered no. Mr. McNamara understood that the abutters weren’t necessarily opposed to the variance request, however they wanted to see that several conditions (originally imposed and possibly others) were followed through on. Mr. Bibeau said he was advised by Planning Director Will D’And= rea of items on the plan that needed completion, which he had done. He said a shed was removed and an earthen berm was completed. M= r. McNamara questioned if the shed on the left of the property was removed. Mr. Bibeau said there was no shed = on the left. Mr. McNamara confirmed = that the shed to the rear of the property had been moved out of the Wetland Conservation District (‘WCD’).= Mr. Bibeau said the shed had been moved off the property. Mr. McNamara asked if a certified = plot plan had been done. Mr. Bibea= u said it had been done a long time ago. Mr. McNamara asked if the necessary state approvals were obtained. Mr. Bibeau said he received state approvals twice, a long time ago.

Attorney Paul DeCarolis representing Mr. Edward Lynch = (an abutter) provided the Board with a proposed list of conditions for consideration. He asked that = the Board add a condition that there be no oil draining/changing oil on the property as represented to the Board by the applicant at the August 9, 2004 meeting. He said they felt he conditions we= re important because of concerns to the surrounding residential properties. Attorney DeCarolis noted in the Mr. Bibeau’s business Mission Statement it stated that a new business practice was implemented that involved steam cleaning all containers prior = to their storage on the Pelham property. He said it was never represented that there would be storage on the site, which would not be appropriate for the site. He said they were not asking for anything that the applicant hadn’t already agreed to or was stated in= the law. Mr. Bibeau said he had n= ever steam cleaned anything on his property.

Mr. McNamara reviewed the proposed conditions submitte= d by Attorney DeCarolis. Mr. Bibeau said he didn’t store garbage collected by his business on the property; he brought it to the dump. He sa= id the trailers were kept outside; the garage was built for the trucks and there w= as no room for the trailers indoors. Mr. McNamara asked how many and wha= t kind of trailers were stored. Mr. = Bibeau said there were utility trailers (15-feet) and some that he built years ago= . He said they were stored behind his house. Mr. McNamara asked if = there was room in the garage to store the trailers. Mr. Bibeau answered no. Mr. McNamara asked if the trailers= were cleaned of any waste material prior to storage. Mr. Bibeau said most of the stuff = was kept out, there was one trailer used to store scrap wood (from the garage). Mr. DeCarolis didn&#= 8217;t see this as a problem as long as they weren’t trailers used in the wa= ste business. Mr. Bibeau said occasionally the trailers were used in the waste business. Mr. Hennessey referred to the March 10, 2003 = minutes in which Mr. Bibeau’s representative (Mr. Orchard) said the prime reason= for the application was the building of a structure with a cement floor that wo= uld help contain any contamination of the wetland from the trucks being parked = on the dirt. He asked if the pur= pose had changed since 2003. Mr. B= ibeau answered no; originally it was for the trucks, which were in the garage. He said the trailers were approxim= ately 50feet from the earthen berm. Attorney DeCarolis asked if the number of trailers could be limited since the character of the area was a residential zone. Mr. McNamara said it wasn’t = the intent of the Board to allow the growth of a storage area; they didn’t want the use to expand. Mr. B= ibeau said the trailers were not used for trash, they were used for building material.

Mr. Hennessey was concerned that there was no licensin= g, review of the site or mechanism for correction once the Board approved. Attorney DeCarolis believed if the= re were conditions for approval it would give the abutter’s the right of enforcement. Mr. Hennessey sa= id the Board approved the application on the basis of ‘use’ not ‘area’; the abutters filed an appeal. Attorney DeCarolis said the appeal= was properly filed, Town Counsel agreed that the Board adopted the wrong standa= rd and consented to an order to remand. Mr. Hennessey questioned how the garage was ever built. Mr. Bibeau said he was never notified. Mr. Hennessey asked= if he pulled a building permit and when it was issued. Mr. Bibeau said he had a building permit, but was unsure when it was issued.= Mr. Hennessey asked if the issues imposed by the Board (move two she= ds, berm) satisfied. There was no answer.

Mr. McNamara continued to review the proposed conditions. Mr. DeCarolis sug= gested adding the words ‘There shall= be no oil changes on the premises and any fuel…….’ to the beginning of condition thre= e. Mr. McNamara went on to review the conditions. Mr. Hennessey ask= ed if there was a site plan submitted to the Town. Mr. McNamara believed there was, b= ecause the Planning Board had approved one. Mr. Hennessey asked that the words ‘… wetland buffer per site plan filed with the Planning Director, Town of Pelham.’ be added to the end of condition four.<= span style=3D'mso-spacerun:yes'> Condition number five was reviewed= . Mr. McNamara asked how much of the= area behind the garage was visible to the abutters. Mr. Bibeau said the abutters had b= een cutting/clearing trees, which allowed for more of a view. Mr. Hennessey said there was prime wetland. Mr. Edward Lynch inf= ormed that the trees, which were dead, were threatening the house because they we= re in close proximity (approximately 20feet).= He said the only trees taken were those threatening the house. Mr. McNamara noted it was beyond t= he scope of the hearing. =

Mr. Hennessey said if he heard about additional storag= e on the site, it would be an expansion of the use and therefore the basis for a ‘use’ variance. M= r. McNamara said the Board had been directed by the court to decide if the application met ‘area’ criteria standards and suspected that the conditions reviewed would be attached thereto. He said the use was grandfathered,= by granting a variance in the past, the use was allowed to continue; however t= he Board wanted there to be specific limits on the use to be sure that the wet= land and the abutter’s rights were protected. He said any vote of the Board woul= d not allow further expansion.

Ms. Paliy said the business Mission Statement contained information regarding the type and number of vehicles. Mr. DeCarolis said the Mission Sta= tement was not part of the filed application, but rather the business statement of what business Oscar Removal Service would provide and not representative of what would be used on the property.

Mr. McNamara reviewed the criteria and said the Board = was incorporating the facts that were previously presented (dating back to 2003 with the original variance request).

PUBLIC INPUT

Mr. Gordon Brawn, 15 Atwood Road, resided in his home for twenty-one years. He said the Town and t= he state had approved the garage twice and it had cleaned up the property immensely. He said he saw wha= t when onto the property and noted that it was a transfer area and nothing was sto= red (unless it came back late or was collected over the weekend). He said if the Board put stipulati= ons on the property then he would come in with his other neighbor that had done all sorts of things with his commercial/business property. He felt the Board was opening a pandora’s box. He said = Mr. Bibeau accomplished what he set out to do, which was to protect the wetlands. Mr. Brawn didn̵= 7;t understand why the case kept coming back.&= nbsp; He felt the applicant had done nothing but improve the property. He said if Mr. Bibeau never came t= o the Board, the Board would have nothing to say. Mr. McNamara said the Board didn’t keep bringing it back. He said the Board had approved the request, but there was an appeals process and the court directed the Board = to reconsider the case. Mr. Brawn asked if it would open the door for people to complain about other businesses. Mr. McNamara said= if there were violations he was aware of, he should complain to the Planning Office,= but not to the Board because the Board was not an enforcement body. He reiterated that the case was ba= ck before the Board because the court informed that the Board was to apply a different set of criteria to give a variance. In summary Mr. Brawn was in favor = of granting the variance.

Mr. Edward Lynch commented about the use of the property. He said the use of = the properties on both sides were residential, whether or not they were rented. He said people resided in the home= s and they should be viewed as such.

Mr. Brawn agreed with the argument that both sides were residential, however on the tax maps, they were listed as commercial.

Mr. Hennessey asked if there was an agreement with the proposed stipulations of agreement. He said if Mr. Bibeau was not in agreement, he had the right to requ= est that the Board vote without the stipulations. Mr. Bibeau said in reference with = number 5, he had ten storage containers that were usually all there in the middle = of winter. Mr. Hennessey asked w= hat the maximum number of storage units that would be stored on site. Mr. Bibeau said he owned trailers = as well.

Attorney DeCarolis said this was business zoned and sa= id he previously argued/questioned if the business was more of an industrial use because of the saturation of storage of heavy trucks, trailers, dumpsters.<= span style=3D'mso-spacerun:yes'> He said the Board placed limitatio= ns; they would not have an objection. Mr. Hennessey felt the Board may be going beyond their authority and= the abutter may be better served by having the Board not stipulate the number of storage trailers. He said it = would be noted that storage of too many trailers etc. could result in a complaint= . He suggested deleting condition nu= mber five, but made Mr. Bibeau aware that he could be subject to an enforcement = of the Town Building Inspector at some point if too many trailers show up on t= he property.

A good friend of Mr. Bibeau (who did not reside in Tow= n) addressed the Board. He said = before the garage was ever decided to be built, Mr. Bibeau had the containers and = no one ever complained.

Mr. Hennessey made a motion to attach the conditions of approval, with the deletion of number five. Attorney DeCarolis asked that the = Board consider adding language that stated there would be no steam cleaning on the premises. Mr. Hennessey said = number five shall now read ‘No steam cleaning of equipment and vehicles on premises.’ Mr. Lynch as= ked if dumpsters would be stored outside on the site. Mr. Hennessey said at some point t= oo many of the dumpsters and storage would convert the legitimate use under the zoning from business to commercial. By leaving it open Mr. Bibeau or the abutter could appeal to the Board.

MOTION:<= o:p>

(Hennessey/O’Sullivan) The conditions of appro= val (with #5 amended to read ‘No steam cleaning of equipment and vehicles on premises) as agreed to by= Mr. David Bibeau and the abutters, and as attached (to the minutes) hereto wi= ll be a condition of approval for the Variance.

=

VOTE:

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

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria; conditions= per motion.

Mr. Hennessey – Yes to all criteria; subject to conditions

Ms. Paliy - Yes to all criteria

Mr. O’Sullivan – Yes to all criteria

Mr. Molloy – Yes to all criteria

VOTE:<= /o:p>

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

VARIANCE GRAN= TED

HEARINGS CON’T…

Case #2317= – DALLAIRE, Frances – 83 Dutton Road&n= bsp; / ML 30/11-97-2 – Seeking a Variance concerning Article II & III, Section 307-10 & 30= 7-14 to permit frontage and driveway access from a location other than along a public right-of-way.

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

Mr. Wes Aspinwall of Herbert Associates, representing = the applicant, presented the case to the Board. He said they had a proposed subdiv= ision which was taken to the Planning Board for discussion. The item of interest/contention was there were two proposed lots (each having adequate frontage), and the propo= sed house access would be across lot 11-97-5 (containing 2.88 acres) by a 30-fo= ot driveway easement from Cam= pbell Road (from the public portion of the road). He said the Planning Board referred= the applicant to the Board for a variance request. Mr. Aspinwall read aloud a portion= of a letter (dated January 5, 2005) written by Planning Director/Zoning Officer = Will D’Andrea who informed that proposed lot 11-97-5 did not meet the zoni= ng definition of frontage and would need a variance. He said even though both lots had frontage onto the Town road (Dutton Road), lot 5 wouldn’t access from that point, but rather from Campbel= l.

Mr. Hennessey informed that his wife testified at the Planning Board meeting and said if the petitioner and/or the Board wanted h= im to recuse himself, he would. = Mr. Aspinwall said the applicant didn’t have any objection. The Board did not object to Mr. Hennessey remaining on the Board.

Mr. Aspinwall reviewed the variance criteria as submit= ted:

Item #1. The proposed use would not diminish surrounding property values because: The proposed structure will be of equa= l 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 taxes being paid on the property. This will avoid constructing a longer driveway to Dutton Road that would have substan= tial impacts to the WCD and a wetland crossing.

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= : We believed that the variance requeste= d will allow for reasonable use of the land which is preferable to the alternative that would require the driveway to be 500 feet long with a wetland crossing= of at least 25 feet of impact to the WCD.&nbs= p; This is due to the configuration of the wetland, the location of the building site and the ability to access the site from Campbell Road by an existing ROW Easement.

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: The proposed use (driveway location) is in conformance with the gen= eral purposes of the zoning ordinance as stated in Article I Section 307.2 thru G and is superior to the alternative relative to Section 307.2 H assuring the proper use of natural resources, and Article VII Section 307-37.B.

c) the variance would not i= njure the public or private rights of others since: The use is allowed n the district and there is very little differen= ce with respect to other private parties or the public whether the driveway en= ters from Dutton Road or Campbell Road.

Item #4. Granting the variance would do substantial justice because: The use we are seeking is a permitted = use for that district. The drivew= ay access we are proposing is shorter, more functional, and less detrimental to the remainder of the owners land.

Item #5. This use is not contrary to the spirit of the ordinance because: We are only requesting a variance to w= aive one of zoning’s requirements and we will meet all the other setbacks = and codes.

Mr. Aspinwall said the variance would allow the buildi= ng to be within the 15,000SF building area and would avoid any WCD or wetland impacts.

Mr. McNamara said when the Planning Board reviewed the proposed plan it was their preference for access to be via Campbell Road, a= nd not Dutton Road based upon the length of the driveway and extensive wet crossing.

Ms. Ronning asked if the right-of-way was always in place. Mr. Aspinwall believed= the right-of-way came about by a previous subdivision. He also believed there was a small= piece of land added and the driveway was deeded.= He said there was a deeded easement right to get from Campbell Road to the lot.

Mr. Hennessey said February 12, 2001 the Board approved a land swap bet= ween the Fehmels and the Dallaires. The Dallaires front land was swapped for the Fehmels back land. Mr. Hennessey questioned why the Dallaires didn’t retain more land for more frontage on Campbell when they did the land swap. Mr. Aspinwall was unsure. Mr. Jim Lever, 83 Dutton Road (family of the appli= cant) believed the land was such because they needed two acres for a duplex and t= he thirty foot easement was needed so Mr. Fehmel could access his lot in back.= He said the easement was deeded so= if someone wanted to build in the back they would be able to. Mr. Hennessey asked if the easement accessed another parcel to the west. Mr. Lever said it was one house.&nb= sp; Mr. Hennessey questioned if a restriction would be accepted for a si= ngle lot if the variance was approved. Mr. Lever answered yes they only needed the first twenty feet. Mr. Aspinwall added that the Fehmel’s subdivision plan showed a proposed house on lot 11-97-4 and = the actual driveway came through the easement and diverted to the north and wen= t to the house. He said the drivew= ays would be shared between the two houses for the part within the easement. Mr. Hennessey said he understood t= hat the land swap was done in order for Mr. Fehmel’s duplex to have sufficient frontage onto C= ampbell Road. <= /span>He questioned why they were accessing the easement if there was access from Campbell. Mr. Aspinwall believed Mr. Fehmel = had two lots. Mr. Lever said one = lot was Mr. Fehmel’s parent’s that was already sold. Mr. Aspinwall said the piece of la= nd was deeded to Mr. Fehmel for access to his house site. He said Mr. Fehmel had frontage on= to Campbell Road. He said there was also a strip of = land 35ft. wide x 262ft.long that was deeded to the Dallaires. He reviewed the plan for the Board= and showed the location of the lots and the easement.=

Mr. Hennessey questioned who owned the easement. Mr. Lever said Mr. Fehmel owned the easement. Mr. Aspinwall said = the Dallaires owned an easement right to access her property and proposed house site. He said they viewed the proposed plan as a practical way to save wetland and WCD impacts. He reiterated that there was a maintenance agreement that went along with the easement documents.

Mr. McNamara asked if a domino effect would occur if t= he variance was approved, such others accessing the road. Mr. Aspinwall believed the propose= d was full development. He said any= thing further to the west would be better accessed from <= st1:address w:st=3D"on">Dutton Road.

Mr. O’Sullivan confirmed that lot 11-97-1 had it= s own driveway. Mr. Aspinwall answe= red yes; the driveway was further north. Mr. Hennessey said after the Board approved the land swap in 2001, t= he Town said they would no longer plow unaccepted Town roads and there were discussions regarding who would perform maintenance and plowing on such roads. He questioned the maintenance of Campbell Ro= ad and if it was being done by an association. Mr. Lever informed that the first 1000feet of Campbell Road<= /st1:address> was considered public and was maintained by the Town; the remaining was tak= en care of by the residents. Mr. Hennessey said in listening to the Planning Board’s last meeting, they voiced their reluctance to shared driveways. He questioned if there was a need = for any waivers. Mr. Aspinwall didn’t believe that waivers would be needed.

Ms. Paliy questioned if the lot had been approved to be built on. Mr. McNamara said a variance was needed before the proposed plan could go back to the Planning Board. Mr. Aspinwall said they intended on going back to the Planning Board whether or not a variance was granted. However if the varia= nce was not granted the applicant would seem to be left with building a 500-foot driveway onto Dutton Road<= /st1:address>; there would be wetland/WCD crossings, fill and culverts. Ms. Paliy questioned if it was pos= sible to get the driveway if the variance was not granted. Mr. Aspinwall believed the driveway would be approvable but noted that the Planning Board had a preference to t= he shorter driveway.

Mr. Hennessey suggested that the Board postpone an opi= nion and seek recommendations from Conservation and Public Safety. Mr. McNamara noted that if the Pla= nning Board knew this was going to be shared driveway, there would be problems wi= th several of the members. Mr. L= ever informed he would only be using the first 20-feet to access his land. Ms. Paliy asked if it would be wor= se concerning public safety to put the driveway access from Dutton Road. This is the reason Public Safety i= nput was wanted. There was no obje= ction by the Board to seek the suggested input from Conservation and Public Safety. Mr. Aspinwall said th= ey would try to get the plan before Conservation as soon as they could. He would follow up with the Planni= ng Director.

The case was continued to the July 11, 2005 meeting.

Case #2318= – MARTINAGE, Patrick Joseph – 348 Gage Hill Road /= ML 17/13-60 – Seeking a Variance concerning Article III, Secti= on 307-12 & 307-14 to permit a single family home to be built on an unders= ized lot of record.

Continued to the July 11, 2005 meeting.

Case #2319= – TESSIER, Dennis & Sharon – Off St. Margaret’s Drive /= ML 16/13-87 – Seeking a Variance concerning Article III, Secti= on 307-14 to permit the construction of a single family home without 200ft. of contiguous frontage on a public right-of-way. Said home is to be accessed over a= 50ft. private right-of-way.

Continued to the July 11, 2005 meeting.

MINUTES

May 9, 2005 – deferred.

CONTINUED = CASE(S) – July 11,= 2005

Case #2316 – DICESARE, John Sr. & Grace R= 11; 141 Old Gage Hill Road North / ML 17/13-50 – Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit a single fami= ly home to be built on an existing .58 acre lot with approximately 120ft. of r= oad frontage in the residential zone.

Case #2317 – DALLAIRE, Frances – 83 Dutton Road /= ML 30/11-97-2 – Seeking a Variance concerning Article II & III, Section 307-10 & 307-14 to permit frontage and driveway access fro= m a location other than along a public right-of-way.

Case #2318 – MARTINAGE, Patrick Joseph – 3= 48 Gage Hill Road / ML 17/13-60 – Seeking a Vari= ance concerning Article III, Section 307-12 & 307-14 to permit a single fami= ly home to be built on an undersized lot of record.

Case #2319 – TESSIER, Dennis & Sharon –= ; Off St. Margaret’s Drive /<= span style=3D'mso-spacerun:yes'> ML 16/13-87 – Seeking a Vari= ance concerning Article III, Section 307-14 to permit the construction of a sing= le family home without 200ft. of contiguous frontage on a public right-of-way. Said home is to= be accessed over a 50ft. private right-of-way.

SITE WALK<= span style=3D'mso-spacerun:yes'> - June 19, 2005 8:30am

Case #2316 – DICESARE, John Sr. & Grace R= 11; 141 Old Gage Hill Road North / ML 17/13-50 – Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit a single fami= ly home to be built on an existing .58 acre lot with approximately 120ft. of r= oad frontage in the residential zone.

ADJOURNMEN= T

MOTION:<= o:p>

(Hennessey/Molloy) To adjourn the meeting.

=

VOTE:

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

The meeting was adjourned at approximately 11:30pm.

   &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