BOA20050711

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 11, 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 (left the = meeting at approximately 10pm), Jeff Gowan, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Alternate Cindy Ronning

Alternate Robert Molloy

CONTINUED<= o:p>

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. Ronning stepped down.

Mr. McNamara said the case was heard at the last meeti= ng and referred, for comment, to the Conservation Commission, Town Counsel, and Sa= fety Committee. He said comments f= rom Attorney John Rattigan and a copy of the Safety Committee meeting minutes h= ad been received. He understood = that the applicant had not met with the Conservation Commission.

Attorney David Groff, representing the applicants, was= under the opinion that the applicant didn’t have to meet with the Conservat= ion Commission because they were not requesting any waivers for jurisdictional wetlands. He said if they were going to be sent there, the Planning Director should have informed them. Mr. McNamara was under the impress= ion that the applicant was on the Conservation Commission’s agenda for Wednesday, July 13, 2005. Attorney Groff said he had not been informed. Mr. McNamara was un= sure if the Board should continue without Conservation’s comment. Attorney Groff recalled from the l= ast meeting that the Board wanted to review the lot (which they had) and hear f= rom the abutters.

Mr. Hennessey said after walking the lot he was unsure= how much more information the Board would receive from Conservation, although he definitely wanted their input. He was prepared to move forward because it was clear where the wetlands were located on the property. The = other Board members didn’t have a problem hearing the case.

Mr. McNamara said there was a further problem with the= case and had been informed just prior to the meeting that Ms. Paliy discovered a= fter the conclusion of last month’s meeting that she may have a potential conflict. Ms. Paliy explained= that one of her clients indirectly might have a financial interest in the proper= ty in the outcome of the case. Attorney Groff’s opinion, generally speaking regarding conflic= ts, was if someone had a direct ‘stake’ in the outcome (i.e. an abutter, stand to directly gain or lose money). Ms. Paliy said she was fine render= ing an opinion; it was her company’s legal department who asked her to make = the disclosure. Attorney Groff sa= id he didn’t have a problem with Ms. Paliy remaining seated and wouldn̵= 7;t ask her to step down. Mr. McN= amara said the decision had to be the individual’s choice. He said the Board had no power to = compel anyone to recuse themselves. = Mr. Gowan questioned if Ms. Paliy directly represented anyone who owned the property or who was an abutter. Ms. Paliy answered no. Mr. Gowan didn’t feel there was an issue. Mr. McNamara asked Ms. Paliy if she felt she could make a fair and impartial judgment on the case. Ms. Paliy answered yes.

Mr. Armand Berard, Gage Hill Road, an abutter had no problem with Ms. Paliy continuing with the case and respected her integrity.

Attorney Groff discussed the case with the Board. He noted that the lot had been tre= ated by the Town as a separate lot for a number of years and had been listed and billed as such for a number of years. He said under the Boccia decision there was no other way to satisfy = the area requirements. He said wi= th regard to other cases that occurred ten/fifteen years ago, they had no relevance to the state of the current law.=

Mr. McNamara reviewed the Technical Review Committee&#= 8217;s response (who had convened June 27, 2005). The Technical Review Committee had serious concerns about a potential driveway location on the sharp curve as additional traffic may increase the potential for accidents at the curve. <= /p>

Mr. Gowan said he previously resided half a mile from = the proposed location (on Old = Gage Hill Road North). He said there was probably a locat= ion on the lot that met the regulations for sight distance; however, the regulatio= ns were based on individuals driving the speed limit. He thought it was further up on the corner than it was and believed it would probably meet sight distance requirements (which would have to be determined by the Planning Board).

Mr. Hennessey said the sight lines weren’t the i= ssues (they weren’t bad), but was concerned with the size of the lot and the total frontage and the amount of high and dry. He felt the lot fell short of the = 35,000SF high and dry, which was not an issue for the current variance. Attorney Groff said the full surve= y, wetland and high intensity soil mapping and septic design had not been done yet. He said without the basic variance, the applicant couldn’t go anywhere.

PUBLIC INPUT

Mr. Armand Berard, 134 Old Gage Hill Road North, an ab= utter who resided directly across the street from the parcel being considered. He wanted the Board to know they h= ad been deceived two times; the first was when Ms. Ronning was asked if she was involved in which she responded ‘kinda’; the second was when through Ms. Ronning, Attorney Groff requested a continuance. He said Ms. Ronning was totally en= gulfed in the case. He said Attorney= Groff did not request a continuance and had no idea there was a meeting (May 9, 2005). He felt the integrity of a board w= as questioned when a board member deceived other members. Mr. Berard said there had been a question regarding a typo on one of the submissions he made. He said there had been a typo on Attachment #8 and provided the Board with a corrected copy. He said there was also a question regarding the acreage of surrounding lots; he checked the Assessor’s = data base and found only one lot to be under an acre (.92 acres). He said at the June 13, 2005 meeti= ng there had been a question if the parcel would meet the 35,000SF usable land (per Section 307-13); he said it wouldn’t because the two parcels put together added up to 25,264SF (.58 acres).= He said there was also a slope on the property. He believed the petitioner had to = apply for relief from Section 307-13 (minimum lot size). Mr. Berard said the Board had ques= tioned if the addition of a driveway would add to the congestion on the street; he reviewed the map, discussed the sight distance. He believed people turning into the property would be in danger. = Mr. Berard reviewed an article that had appeared in the Lawrence Eagle Tribune regarding the increase in traffic per a study done by the Nashua Regional Planning Commission. He began= to discuss the merger of two lots when Mr. McNamara said the Board had received comment from Legal Counsel regarding such.= Mr. Berard asked if the Board had been informed of counsel’s response; he said he had a copy of the correspondence. Mr. McNamara said the corresponden= ce was not public record and should have remained confidential (attorney/client privilege). He said when a To= wn board requests legal comment, the comment is privileged, unless the board d= ecides to release the privilege. He = said the point was now moot, because the document had been released to everybody except the Board.

Mr. Berard went on to point out that the merger form u= sed by the Town doesn’t satisfy the referenced statute (674:39, a). He said the merger could only take= place for approved subdivided lots/parcels and if the merger creates a violation = of current ordinances, it was not allowed.&nb= sp; Mr. Berard also noted that he consulted the office of Energy and Planning and found documentation that court case law was just as legal and binding on the Town and its officials as the statutes (per Attachment #19). He said the four varian= ces (i.e. decrease in value) being discussed were in place in 1952, with the on= ly difference being Simplex (2001) and Boccia (2003). It was his belief that the Parisi = v. Town of Pelham case was relevant. Mr. Berard= said there was no automatic merger if the parcels were substandard and the zoning ordinance didn’t have a required merger clause. He said the only feasible way to m= erge would be voluntarily, however that would violate current zoning ordinances = and state statutes. He believed i= f the variance was granted it would be ‘re-zoning’ and the Board did = not have that authority.

Mr. Berard concluded by reviewing a list of ten items = why a variance should not be granted: 1) petitioners failed to meet single condit= ion; 2) parcels cannot be legally merged because it cannot satisfy the statutes;= 3) parcels never approved by Planning Board; 4) parcels were abandoned twenty-seven years ago and became what they are today – a buffer for abutters; 5) parcels differ greatly from neighborhood ‘norm’ in acreage and frontage; 6) would be rezoning – the Board has no authori= ty to change zoning laws; 7) violate section 307:48,b; 8) variance cannot increase additional threats to public safety; 9) allowing would put Town against its= elf for traffic dangers; 10) Sections 307-8 (non-conforming uses) & 307-13 (minimum lot size) apply to the case. He said twenty-one neighborhood petitioners clearly stated their opposition to granting a variance. <= /span>

Ms. Madeline Carrier, 133 Old Gage Hill Road North, said = she lived two houses from the land in question. She stated that the letter from To= wn Counsel was not classified information; there was no where on the paperwork that stated such. She said the agenda wording was incorrect ‘on an existing .58 acre lot’ and believed it should have read ‘on= an existing two-parcel piece of property 1/3 acre and 1/4 acre.’ She also noted there was no automa= tic merge in the Town. She said t= here was no where near 35,000SF. M= s. Carrier ended by letting the Board know if the variance was granted a prece= dent would be set and any land owner could build what they wanted. She asked the Board to vote agains= t the variance.

Attorney Groff said he hadn’t seen the letter fr= om the attorney. He was given a copy= to review.

Mr. Vincent MacDonald, 145 Old Gage Hill Road, North, said= most of the items he was going to address had already been addressed by others.<= span style=3D'mso-spacerun:yes'> He discussed the driveway and beli= eved in order to build one it would need a turn-around, which would create a ser= ious run-off problem. Mr. Hennessey questioned why there would be an increased runoff. Mr. Mac Donald said there would be= an increase in the paved area. H= e said it was unsafe to back out onto the road.&n= bsp; He said at the last meeting he stated that the lot was big enough to build a house on; however he pointed out that the current lot would not meet the Town requirements for acreage or frontage. He said the state had the last aut= hority regarding the driveway placement because it was a state highway. He didn’t think the applicant would benefit from selling the properties because his lot (with the existing house) would no longer have access to the road.

Mr. Jim Bergeron, Plower Road (which is in the area, but not a notification/statutory abutter) said the Board didn’t have the statut= ory authority to re-zone the Town. He said the Boccia case didn’t apply to this case. He said there was a section of the application missing - Section= 307-70 (conformity required), which should have been listed because its one area w= here the applicant was deficient. = All Zoning Ordinance deficiencies are supposed to be listed. He said the Town set up lot sizing= by soil type for a reason – to protect public health and down slopes. He said the only lots with protect= ion from zoning, pre-dated zoning (1955).

Ms. Carrier addressed the Board again and informed tha= t it was a law, if a person backed out of their driveway (on a state road) and g= ot hit, they were liable.

Attorney Groff after reviewing the Town tax map and lot sizing in the area, he noted there was a variety from .3 acres up to 11 acres. He provided the Board = with a copy. Mr. Gowan appreciated t= he documentation, but questioned the value because it was unknown when the lots were approved because some may pre-date zoning. Attorney Groff provided the documentation simply to show there were lots in the area of varying sizes.<= span style=3D'mso-spacerun:yes'>

Mr. Berard said he explained to the Board that he revi= ewed thirty-six parcels within the area contained within the petitioner’s = Exhibit 2B.

Mr. Gowan’s concerns about the subdivision were = echoed in the abutter’s comments. He said the Town’s zoning was one acre high and dry for a reason. He understood that the Boccia case= threw doubt into the picture, however it is the Board’s responsibility to m= ake decisions based on the welfare of the community. For those reasons, he intended on = voting against the application.

Mr. Hennessey found the case interesting and discussed= his findings during the site walk. He said one of his concerns was given the shallowness of the lot before the wetlands there had to be less than 20,000SF high and dry. He was concerned with creating a p= roblem with the location the septic system had to go and where the affluent would go. He said unstated before t= he Board there was a variance for frontage, size, and high and dry with proble= ms in terms of abutting properties. He said it’s not just a variance for frontage and size, but additional i= tems that would have to be waived. He said the Board had to take into consideration the benefits to the Town; the presence of the number of abutters was an indication that the benefit to the Town had to be closely reviewed.

Ms. Paliy was curious how much high and dry/buildable = land there was. She believed, from= her own experiences (in another town) that a septic could be placed onto a small lot. She questioned what the calculation for high and dry land there was. Mr. Hennessey said the combined lo= ts would be .58 acres (a little over 25,000SF). He pointed out that the Town requi= red 35,000SF high and dry land. H= e said conservatively, there had to be 5000SF of wetlands.

Mr. McNamara said mention had been made by a number of abutters regarding setting a precedent as well as talk about a zoning ordin= ance calling for an acre and 200-foot frontage.= He said by law the Board had to review each case on its own merits.<= span style=3D'mso-spacerun:yes'> He said the criteria had been cons= idered particular to the case, and not in terms of growth to the Town.

BALLOT VOTE= :

=

Mr. McNamara – 1) Yes; 2) Yes; 3) No; 4) Yes; = 5) Yes;

Mr. Gowan – No to all criteria

Mr. Hennessey – No to all criteria except 3b <= /p>
Ms. Paliy –&n= bsp; 1) No; 2) Yes; 3) No; 4) Yes; 5) No

=

VOTE:<= /o:p>

Mr. O’Sullivan – No to all criteria

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

VARIANCE DENI= ED

Ms. Ronning returned to the Board.

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.

Mr. Peter Zohdi of Herbert Associates, representing the applicant requested that the case be continued to the August 8, 2005.

Mr. Hennessey questioned if the case would be heard at= the next Conservation Commission meeting. Mr. Zohdi believed they had already been to the Conservation Commission. Mr. McNamara said hopefully the Conservation Commission would discuss the case at their next meeting and report back to the Board so it could be heard at the August meeting.

The case was continued to the August 8, 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.

Ms. Paliy read the list of abutters aloud. There were two abutters present who received incorrect notification.

Mr. Jim Bergeron, a direct abutter, said the only reas= on he knew the case was coming up for a hearing was because he was present for an earlier hearing. He said the notification he received in the mail was the wrong notification for a Board= of Adjustment meeting for the other side of Town. He said technically/legally he had= the right to bring counsel and still didn’t know there was a Board of Adjustment meeting going on regarding the subject matter. He said he statutorily had not been notified. He showed the notic= e to Mr. McNamara. Mr. McNamara confirmed that the notice Mr. Bergeron received was for Case #2317 – Dallaire. Mr. McNamara said M= r. Bergeron had the statutory right to request proper notification, in which c= ase the Board would have to reschedule and re-notify abutters. Mr. Bergeron said he wanted it on = the record that he didn’t received proper notification; he waived his rig= ht to notification and offered to put it in writing.

Mr. Gerald Bedard, 342 Gage Hill Road said he was notified regarding = Case #2317 – Dallaire, not regarding Case #2318.

Attorney David Groff said when the applicant submitted= their paperwork, they were required to turn in three sets of mailing labels that match the abutter’s list and didn’t know how the gentlemen could have been notified incorrectly. Mr. McNamara said the Board had nothing to do with notification it was handled through the Planning Department. He said the difficulty was that two abutters had informed they were not statutorily notified. He said= the Board could move forward, but felt the applicant may be in some jeopardy if= the Board did so. Attorney Groff = was concerned that everybody on the abutter’s list received the wrong form. To be safe, Attorney Gr= off requested that notification be re-sent.&nb= sp;

Mr. Jim Bergeron said he was serious with what was hap= pening with the rush of applications for the substandard lots. He said the application was delinq= uent; according to the handbook issued by the Department of Energy and Planning an application should be reviewed; the applicant was missing Sections 307-7 (conformity – lot sizing by soil typing) and 307-13 (minimum requirem= ent of contiguous soils). He didn’t understand how the Board could review the cases in accordance = to the law if all information was not submitted. He questioned who was reviewing the cases and checklists. Mr. McN= amara said the Planning Department did.

There was a brief discussion; the case was continued t= o the August 8, 2005 m= eeting.

Mr. Gowan questioned if the best course of action was = to have the application sent back to the Planning Director for review. Mr. McNamara said the current Plan= ning Director was leaving at the beginning of August, but he could request that = the next Planning Director review and make comment.

The case was continued to the August 8, 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.

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. Gerald Bedard, representing his sister Linda Fox o= f 11 Debbie Drive (P.O. Box 24)= who owned the property (18 acre parcel) on St. Margaret’s Drive and did n= ot receive notification. Ms. Pal= iy found no one by the name of Fox either on the abutter’s list, or on t= he notification receipts for abutter letters.

Attorney William Mason, representing the applicant, sa= id he was told by his client that the piece of property in question was across the street from the parcel and more than 200 feet from such. The information was based upon the subdivision plan that created the parcel in 1974.

Mr. McNamara said the applicant was free to proceed bu= t were at risk if the property brought up by Mr. Bedard should have been legally noticed. Attorney Mason under= stood and tried to give the Board some level of comfort. Mr. McNamara said if the applicant wanted to proceed, the Board would hear the case. Attorney Mason said they felt they= were far enough away and decided to proceed.&nb= sp;

Attorney Mason said the request was with regard to lot= 1a on a 1974 subdivision plan off a 50-foot right-of-way from St. Margaret’s Drive. He understood that the= Board had the opportunity to review in the past and had some questions. He said on the 1974 subdivision pl= an the lot was identified as lot 1a. At this time (today) the lot contains 45,362SF and had 250 feet of frontage on= to a right-of-way identified on the plan and still in existence today. Attorney Groff understood that the right-of-way was determined to be owned by the church and at some point in = time the property (50-foot right-of-way) was taken for unpaid taxes. He said his client would like to b= uild a home on lot 1a with access over the 50-foot right-of-way with a private drive. The applicant understo= od that issues regarding fire and police may be reviewed by a different body to ensure emergency access. Atto= rney Mason said a couple of the issues that arose in the past revolved around the question of whether lot 1a was to become part of lot 1 at the time of the subdivision. There was a nota= tion on the plan that states lot 1a to be added to lot 1. Attorney Mason said the intention = was not known, however on the tax records lot 1a was shown to be a separate lot that received its own tax bill and in his estimation the lot was a separate= and distinct lot of record. He sa= id the other issue discussed at previous Board meetings was regarding the 50-foot right-of-way and believed the right to pass and re-pass remained no matter = who owned the right-of-way. His position was that it was a dedicated way.&= nbsp; He provided the Board with a court case regarding a right-of-way. Attorney Mason believed his client= had the ability to get from St. Margaret’s Drive to the property in quest= ion in order to build a home. He = said the only relief they were seeking was for road frontage, although they felt under case law they had the ability to construct a roadway/driveway access = they didn’t have the ability to publicly dedicate such. He understood that an approval wou= ld be subject to obtaining a state approved septic design.

Mr. McNamara informed the new members of the Board tha= t the case some history; information regarding such was contained in the member packets. He said it had come = before the Board three years ago, was debated over several meetings and eventually= the applicant’s agreed to withdraw the case to go before the Board of Selectmen and to the Town seeking a change in the status of the property su= ch that it could support separate lots and sufficient public road frontage. He believed the Board of Selectmen considered it and decided not to recommend it; the petitioners submitted a citizen’s petition that appeared on the 2004 Town Meeting ballot, whi= ch failed. He said there were al= so several letters from Town Counsel (of various vintage) which indicated the opinion (at the time) that the lot was not a separate lot of record, but wa= s in fact an extension of the adjacent lot and appeared that the Town owned the = land that the applicant proposed to access the land from and would require Town authorization to do so. Mr. McNamara said the problem he had with the current case was that he didnR= 17;t see a lot of difference with the current application and the application fr= om 2003. He said there were still questions of land ownership and the fact of whether the lots were ever inte= nded to be separate lots.

Attorney Mason didn’t feel it made a difference = who owned the 50-foot right-of-way. He didn’t feel that under the case law the applicant could be prevented = from going over the right-of-way in order to get to their property. He said the opinion of Town Counsel seemed to be different than the record in Town continued to depict (two separate lots). He felt if th= e Town was persuaded by Town Counsel’s opinion in the past they should have taken some measure to consolidate the two lots and stopped billing the applicant for separate lots. = He said what was created thirty-four years ago was still a matter of record and treated/taxed as two lots. He= said the applicant exhausted their remedy with attempting to purchase the right-of-way. He didn’t= feel that the Town, as an abutting property owner, could foreclose the right of = the 50-foot right-of-way to get to the applicant’s property.

Mr. Hennessey discussed the history and said from his experience, assessor records were a thin read to lean on in determining what was and was not a legal lot. = He said he had seen too many separate billings on parcels that could never be built. He referred to the Boa= rd minutes of Decem= ber 8, 2003 in which Mr. McNamara read a portion of the April 7, 1989 (Attorney Barbara Loughman, Town Council) letter which stated that the effect of the note on = the plan was to make it clear that lots 1A and 2A were not approved as separate lots, but created solely for the purpose of annexing them to the adjacent l= ots 1 and 2. He said at that poin= t the applicant noted that there were separate numbers and tax bills, however, To= wn Council stated that they were deliberately combined. Attorney Mason said he was not say= ing that the assessing maps were the governing document that determined whether there were one or two lots. H= e said even if the Town voted to convey the 50-foot right-of-way to the applicant = they would still be back before the Board of Adjustment requesting a building pe= rmit on a lot that had 50-foot of frontage on St. Margaret’s Drive. Mr. Hennessey said if the vote had= gone as requested it would have gone a long way to strengthening the pubic inter= est argument. He said he had a difficult time going against Town Counsel’s opinion and the vote on t= he Town Warrant. Attorney Mason = said per the plan the strip stated ’50-foot right-of-way’. He said all they cared about was t= he right-of-way language that gave them the ability (privately) to cross over, pave or whatever they needed to do to access lot 1a. Mr. Hennessey said he reviewed the history and said there was conflicting testimony. He said what was seen was that the= whole subdivision was re-drawn, access was changed and the stub (right-of-way) no longer served the purpose where it was originally drawn in on the lots. He said he was unclear as to wheth= er it was a right-of-way and had a problem as to if the lots were separate.

PUBLIC INPUT

Mr. Mark Szmyt, 19 St. Margaret’s Drive was fami= liar with the documents regarding the case.&nbs= p; He said it was clear to him that the lots were measured carefully to meet a certain criteria for passing the Town’s acceptance to be built on.

Mr. Gerald Bedard, representing his sister Linda Fox, = asked if the applicants were requesting to access property off St. Margaret’= ;s Drive. Attorney Mason answered yes. Mr. Bedard asked if St. Margaret’s Drive was a legal road.&n= bsp; Mr. McNamara and Mr. Mason answered yes. Mr. Bedard asked if any property w= ith 200 feet of frontage along St. Margaret’s Drive could build a house without making any improvements to the road. Mr. McNamara said they could if a = lot had 200-feet along St. Margaret’s Drive and had sufficient acreage, b= ut they wouldn’t be in front of the Board of Adjustment. Mr. Bedard discussed the history o= f the property. He said his sister = was informed that for her to develop anything on her property, the road would h= ave to be improved. He asked if t= hat would happen if the applicant was allowed the variance. Mr. McNamara said that was one of = the problems before the Board; there were conflicting views as to who has title and who = has right of access. Mr. Hennesse= y said the Board was told by the Planning Board in the past that the right-of-way = was a remnant of an earlier plan that wasn’t developed and when the entire parcel was re-wrote, the stub was a remnant and not intended to access the = back lots, which was why the back lots were joined. Mr. Bedard believed there was some= sort of roadway that connected to the right-of-way, but a large rock was placed = so that it could not be used. He provided a brief history of ownership for the parcels in the area.

Mr. Dennis Tessier, Jr. clarified that when the parcel= was re-subdivided (and came in from Cote Drive) it was to access parcel a; the 50-foot right-of-way was left for access to his lots. Attorney Mason said when the balan= ce of the land was subdivided, they came in from an alternative street, but didn’t make an effort to do anything with the 50-foot right-of-way (i= .e. combine it with lots they were subdividing, or divide it in half). He said it was okay if the Board w= anted them to validate the existence of the lot with the Planning Board. However it was not okay if the Boa= rd was saying they didn’t have the right to pass over the 50-feet for access. Mr. McNamara question= ed if the applicant was suggesting withdrawing the case and proceeding to the Planning Board or if they needed a variance to proceed. Attorney Mason said they wanted to propose that the lot was legal, except it didn’t have 200-feet of fro= ntage.

Mr. Szmyt believed when Mr. Bedard was speaking he was referring to St. Margaret’s Drive (the road) whereas the applicant is referring to St. Margaret’s Drive right-of-way. He said St. Margaret’s Drive= had been upgraded (paved) approximately seven years ago. Mr. Hennessey said it was an accep= ted road.

Mr. O’Sullivan questioned if there was clarification/final decision regarding who owned the 50-foot right-of-way.<= span style=3D'mso-spacerun:yes'> Mr. McNamara answered no; the Boar= d was given an opinion from Town Counsel; Attorney Mason had offered a different opinion. Mr. O’Sullivan= asked if the 50-feet was dry. Attor= ney Mason answered yes. He said t= here was a right-of-way (referenced by Mr. Bedard) that was approximately 400-fe= et south.

Mr. Hennessey reviewed the Board minutes of September = 8, 2003 in which he summarized that the owner had two valid lots with insuffic= ient frontage onto a non-existent road; however in the Board minutes of December= 8, 2003 Mr. McNamara informed the Board of a letter received from Town Counsel= and notes on the plan made it clear that lots 1a & 2a were not approved as separate lots but created solely for the purpose of annexing them to the adjacent lots 1 & 2. He s= aid part of the approval process of the whole subdivision was merging the lots = (1 & 1a / 2 & 2a). Attor= ney Mason taking Town Counsel’s opinion that 1a was merged said the appli= cant was saying they would like to reaffirm/recreate lot 1a again with the understanding they could access such with a private driveway over the 50-fo= ot right-of-way. Mr. Hennessey s= aid the petition for the variance would then need to read ‘the creation o= f a new lot with ‘x’ number of frontage…..for an area variance….’ He sa= id if Town Counsel’s opinion was being accepted by the applicant, a new variance would need to come before the Board. Attorney Mason said the only they = were asking for was frontage on a Town road.&nb= sp; Mr. McNamara said it was not a Town road. Mr. Hennessey said that would not = be the only relief; the applicant was taking existing 80,000SF (approx.) lots and creating two lots. He said To= wn Counsel had advised that lots 1a & 2a didn’t exist. Attorney Mason understood, but bel= ieved in creating lots 1 & 1a, the only non-conforming aspect they were seeki= ng relief from in creating the lots was to not have 200-feet of frontage onto a Town road. He said they wante= d to create a lot with access via a private drive over a 50-foot right-of-way; no other area relief was being requested.&nbs= p; He said the relief could be granted subject to Planning Board review= and approval (including Department Heads etc.). He reiterated that a 50-foot right-of-way was just that, and wanted access over such to a lot that would need Planning Board approval.

Mr. Hennessey was sympathetic, but could not ‘get around’ the line in the= December 8, 2003 minutes that read ‘It was unclear if the strip of land was a right-of-way.’ He was h= aving difficulty; there was a body of evidence that said the subdivision was re-written; Planning Board testimony that says – two valid lots were ‘wiped out’ as part of the deal of the subdivision approval; the Planning Board informed it was a clear intent to eliminate the two lots, therefore the right-of-way on the earlier plan was a stub of land that the = Town said they owned and was not clear if it was a right-of-way anymore.

Mr. McNamara was sympathetic to the applicant’s position and wished the sale of land was approved, however, the Board of Selectmen thought otherwise (due to certain concerns) and the Town voted it down. He said there was evide= nce of public interest going against the applicant’s application; in addition there was an uncertain situation regarding the right-of-way. He said the Board had different op= inions regarding what the strip of land was. He didn’t feel the Planning Board or the Safety Committee would favorably view.

Mr. Hennessey said he didn’t want to vote regard= ing the variance because it was submitted on the basis of the land being a right-of-way. He would like t= he Board to state they were unable to accept as a right-of-way and therefore, = the variance need not be considered. He felt the variance was moot if there was no right-of-way. Mr. McNamara believed the Board ha= d to do something with it. Mr. Hen= nessey said it was a faulty variance request because it was based on a premise that was not there; according to the Town records there was no right-of-way. Mr. McNamara said the problem was = the case had been referred by the Planning Department, who assumed thought it w= as before the Board as a valid variance request.

Attorney Mason said the applicant was willing to withd= raw the variance request without prejudice.&nb= sp; He said if he had to file a petition for declaratory judgment to determine the status of the 50-foot strip of land they would do so; if the court says it’s a 50-foot right of way, they will come back before the Board. Mr. McNamara felt that= was a good solution.

The applicant withdrew, without prejudice, Case #2319.=

HEARINGS

Mr. McNamara left the meeting and asked Mr. Gowan (Vice Chairman) to take over. Mr. G= owan appointed Ms. Ronning to vote in Mr. McNamara’s place.

Case #2321= – PACHECO, Anne & ST. PIERRE, Charles – 89 Sherburne Road /= ML 38 & 39/1-110 – Seeking a Variance concerning Article I= II, Section 307-12 & 307-14 to permit two lots each with 12.50 feet of fron= tage 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. Peter Zohdi of Herbert Associates, presented the p= lan to the Board. He said the propos= al was to subdivide parcel 110 into two lots with insufficient frontage. He said currently there was 25-fee= t of frontage onto Sherburne Ro= ad and they were proposing each lot to have 12.5-feet of frontage. He reviewed the plan sheets with t= he Board. The soil mapping had b= een done by Gove Environmental. M= r. Zohdi said Attorney William Mason represented a variance in 2003 (Case #2250 – March 10= , 2003) which was approved with a condition (upon the owner being responsible for t= he maintenance and the Town is not liable for persons being injured). He said the reason they were befor= e the Board was because since the approval the applicant had not gone before the Planning Board to finalize the plan. They had gone to the Department of Environmental Services (‘DES’) for a subdivision approval (which was granted); however= it had been over one year since the variance was approved. Mr. Zohdi said he was seeking conf= irmation of the previous approval.

Mr. Hennessey asked if DES imposed any conditions. Mr. Zohdi answered no; he provided= the Board with a copy of the DES approval.

Mr. O’Sullivan asked if the existing house (bord= ering Tyngsboro) had an existing well. Mr. Zohdi said currently there was a shared well; there was a proposal for sepa= rate wells in the future, if needed. Mr. O’Sullivan questioned how the septic was handled. Mr. Zohdi said page 4 of 4 on the = plan showed the 4K area for future septic if needed.

The ‘area’ criteria were submitted as foll= ows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed use will add to the taxed= being paid on the property.

Item #2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship because:

“Ar= ea”   i. and area Variance is neede= d to enable the applicant’s proposed use of the property given special conditions of the property because: There are currently 2 year-round houses on Parcel 1-110 with only 25 feet of fron= tage on Sherburne Road. The owners would like to set up on= e lot for each house, and a variance is needed because they are unable to acquire= or provide 200 feet frontage on either lot.

ii. the benefits sought by = the applicant cannot be achieved by some other method reasonably feasible for t= he applicant to pursue, other than an area variance because: They are unable to acquire more frontage.

Item #3. The Variance is consistent with the spirit of the ordinance because: The requested variance conforms to the= purposes of the zoning listed in article I section 307-2 and will result in conforma= nce with article III section 307-9 which calls for one dwelling per lot. <= /o:p>

Item #4. Substantial justice is done because: It will al= low for separate ownership of the land and houses without any detrimental impac= t to the town or neighbors.

Item #5. The value of the surrounding properties will not be diminished because: There will be no change in the use or appearance as a result of the variance.

PUBLIC INPUT

Ms. Eleanor Burton, Sherburne Road, asked to review the= plan to see where the proposed location was.&nb= sp;

Mr. O’Sullivan asked if there was a paved drivew= ay on the property. Mr. Zohdi answe= red yes. Mr. O’Sullivan que= stioned if the two properties would share the driveway. Mr. Zohdi answered Yes.

Ms. Ronning believed the problem of having two year-ro= und homes on one parcel was being corrected.&n= bsp;

Mr. Hennessey said it was obvious that the Town and the Planning Board didn’t like shared driveways, but felt it would clear = up an existing situation. He sai= d the Board voted favorably in the past and he was still in favor of the variance.

Mr. Gowan asked if there was any further subdivision possible. Mr. Zohdi said it c= ould be a condition. Mr. Hennessey= said he wanted to add the previous condition that they (owners) are solely responsible for the upkeep of the driveway and it will not revert to Town u= se at any time. Mr. Gowan asked = how long the total driveway was. = The applicant said it was approximately ¼ - ½ mile.



BALLOT VOTE= :

=

Mr. Gowan – Yes to all criteria

Mr. Hennessey – Yes to all criteria

Ms. Paliy –&n= bsp; Yes to all criteria

=

=

VOTE:<= /o:p>

Mr. O’Sullivan – Yes to all criteria

Ms. Ronning – Yes to all criteria

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

VARIANCE GRAN= TED

Case #2322= – LRL DEVELOPMENT OF PELHAM – Mammoth Road   / ML 39/1-53 & 1-55 – Seek= ing a Variance concerning Article III, Section 307-13 to permit the creation of a= lot with 35,000 SF of contiguous dry land, however the existing house is not located within that contiguous area.

Ms. Paliy read the list of abutters aloud.

A person from the public asked if Frederick Merriam was included on the abutter’s list. Ms. Paliy answered no. The person from the public informed that Mr. Merriam owned the land (lot 1-55) = directly across from lot 1-55. Mr. Pet= er Zohdi of Herbert Associates (representing the applicant) said per the Town Assessing records (through Vision Appraisal) the owner of lot 1-55 was Ellen Nadeau. The person from the p= ublic believed Frederic Merriam (her uncle) owned the land directly across from t= he proposed subdivision.

Mr. Gowan said the applicant could decide whether or n= ot they wanted to proceed. Mr. Z= ohdi said he would like to proceed; the records would be checked the following day.

Mr. Zohdi presented the plan to the Board. He believed the case was preexisti= ng to the Town’s zoning. He s= aid they were proposing to combine two parcels (one with frontage onto Sherburne Road and one parcel with less than 100-feet of frontage from Mammoth Road) and subdivide into fi= ve lots. He said coming from Mammoth Road would require a large amount of wetland disturbance. He said his client was in the proc= ess of purchasing a lot on Sherbu= rne Road so the access into the proposed would come from Sherburne providing a minim= um impact to the wetland. He said there would be one wetland crossing for the road, and three wetland crossin= gs for the driveways. He said to= make the plan work, the lot with frontage on Sherburne Road (and an existing hou= se) would not have 35,000SF contiguous land; but when subdividing an area in ex= cess of 35,000SF would be dedicated. He said at the last Planning Board meeting, the Planning Director gave the opinion that the hou= se should be built within the 35,000SF, however the house currently existed. He said if the variance was denied= he would have two choices: 1) move the existing house to the 35,000SF area disturbing a wetland, or 2) move the road and disturb the wetland. Mr. Zohdi said by leaving the road= as designed, they would minimally impact the wetland.

The ‘area’ criteria were submitted as foll= ows:

Item #1. The proposed use would not diminish surrounding property values because: There is an existing house to remain a= s is.

Item #2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship because:

“Ar= ea”   i. and area Variance is neede= d to enable the applicant’s proposed use of the property given special conditions of the property because: The existing lot with the existing house (1-53) is being added to an abutting l= ot and then re-subdivided. The proposed subdivision is laid out so that the new lot 1-53 has the required = dry land but it is in the rear of lot instead of in front where the existing ho= use sits.

&nbs= p;

ii. the benefits sought by = the applicant cannot be achieved by some other method reasonably feasible for t= he applicant to pursue, other than an area variance because: The owner does not want to destroy the existing house or impact the existing wetland any more than absolutely necessary.

Item #3. The Variance is consistent with the spirit of the ordinance because: We are only requesting to waive one of= the zoning’s requirements and we will meet all other setbacks and codes. =

Item #4. Substantial justice is done because: The use we are seeking is a permitted use for that district.

Item #5. The value of the surrounding properties will not be diminished because: There will eventually be brand new hou= ses built to add to the value of surrounding properties and taxes being paid.

Mr. Hennessey questioned if the current owner of the property was also the developer. Mr. Zohdi answered no. Mr. Hennessey asked if the current owner of the property did the addition (onto= the existing house) into the Wetland Conservation District (‘WCD’). He said = the Board received a note that indicated the house was built in 1998; a plan in 1998 showed the location of the WCD; in 2001 the Town erroneously issued a permit and al= lowed the encroachment into the WCD. He wanted to know if the encroachment was done by the developer requesting the variance. Mr. Zohdi answered = no, the developer doesn’t own the home, didn’t do the addition, or violate the Town’s zoning.

PUBLIC INPUT

Ms. Darlene Balzotti, 5 Sherburne Road was a direct abutter. She had several conc= erns regarding the project: 1) the proposed was not in keeping with the spirit of the ordinance; 2) the application may not be complete; 3) because of the Planning Board concerns (i.e. site specific, current house not within zoning ordinance, frontage within project, creating shared driveways). Mr. Zohdi said there would be no s= hared driveways proposed. He said t= he reason they were in front of the Board was to address the 35,000SF area and= the location of the existing house. Ms. Balzotti said throughout the project there was a concern by abutters that i= tems were being brought up one item at a time and not showing the ‘full= 217; picture. She said a shared dr= iveway was a concern because it had been brought up at the meetings. She said the shape of the lot was = not rectangular and needed to cross the wetlands. She discussed the concern that 75%= -80% of the two or three acres of wetlands would be impacted. Ms. Balzotti said there had been alternative ideas discussed by the Planning Board and the Conservation Commission to lessen the wetland impacts which included accessing the development through Pelham Veteran’s Memorial Park, which would lessen the impact. She said having a= house within the 35,000SF was a basic requirement and didn’t hear any compelling argument to override the ordinance. She believed variances would be br= ought forward one by one and asked the Board to review the ‘whole’ picture. She also didn’= t feel that the project was in the public interest and pointed out that a road approximately 950 feet in length (for four houses) would have tax implicati= ons for maintenance. Ms. Balzotti= said there were traffic concerns based on numbers provided by the Nashua Regional Planning Commission (‘NRPC’) and the fact that the Sherburne Road/Mammoth Road intersection was the busiest in Town. She said the Town profile (done in 2002) which included concerns that development was being driven by developers, the lack of enforcement, weak r= egulations, no regulations/considerations regarding water issues for existing homes as = new developments go in, and inade= quate wetland protection. She ended= by saying she didn’t see that any substantial justice would be done by approving the variance because of the number of issues raised by the Planni= ng Board, Conservation Commission and abutters. She was not in favor of the varian= ce.

Ms. Joanne Powers, a direct abutter to both of the lot= s in question. She didn’t fe= el that there was any pre-existing relationship between lots 53 & 55. She objected to the ‘it coul= d be worse’ comparison regarding road placement options. She didn’t feel that the pro= posed road placement choices were options in reality. She questioned under what circumst= ances the Board considered major objections from the by-laws. She said in this case major except= ions were being requested and went on to review portions of zoning. Ms. Powers said it was not clear t= o her what the criteria were to grant a variance as the one being requested.

Mr. Dwayne Nadeau, representing his wife Ellen Nadeau = who owned the property across from the proposed parcel commented that parts of = the existing house were already in violation of the WCD and the proposal in no = way corrected such and would merely access the proposed parcel. He said the proposed additional 35= ,000SF of dry land was separated by quite a bit of wetland and the ordinance clear= ly states that the 35,000SF cannot be separated by WCD or wetlands. He proposed that the presented pla= n was a poor proposal and didn’t see how the Board could approve such. The issue was actually access to t= he proposed development which was a separate issue that could be dealt with at= a different time.

Mr. Hennessey asked if the existing house was legal un= der the 35,000SF contiguous regulation. Mr. Zohdi couldn’t answer, he would have to measure it. He said it might if a road wasn= 217;t put in, but the house as it currently was didn’t conform because a po= rtion of which was in the WCD. Ms. Ronning said she was involved in building the house years ago and believed = it went through. Mr. Hennessey s= aid it looked very tight and questioned whether there was currently 35,000SF high = and dry.

Mr. Hennessey asked if there was any other way/alterna= tive means under the rules to make the property (the two lots) more conforming, = instead of more non-conforming. Mr. Z= ohdi said not that he knew of. He = said at the beginning of his presentation he explained about combining the two parcels. He reminded the Boar= d that he was in front of the Board to discuss Section 307-13 of the Zoning Ordinance. He said he wasn= 217;t prepared to discuss the Subdivision or Site Plan Regulations.

Ms. Paliy understood that the original contiguous squa= re footage was placed where the actual property was going to be, and not in another location.

Mr. Gowan asked the Board if they wanted to vote, or w= alk the site. He said if the Boar= d was to proceed he would like the Conservation Commission’s opinion. He personally saw a lot of conflic= ts with the proposed.

Mr. Hennessey believed Mr. Zohdi was correct the Board= was only dealing with the variance. He questioned how he could vote for the variance because it was taking a non-conforming lot and making it more non-conforming.

Mr. O’Sullivan agreed. He said without taking the other l= ot into consideration, there was no way for the Board to consider a variance.<= span style=3D'mso-spacerun:yes'>

BALLOT VOTE= :

=

Mr. Gowan – 1) No; 2) No; 3) No; 4) No; 5) Yes=

Mr. Hennessey – 1) No; 2) No; 3) No; 4) No; 5)= Yes

Ms. Paliy –&n= bsp; 1) No; 2) No; 3) No; 4) No; 5) Yes

=

=

VOTE:<= /o:p>

Mr. O’Sullivan – No to all criteria

Ms. Ronning – 1) No; 2) No; 3) No; 4) No; 5) Y= es

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

VARIANCE DENI= ED

MINUTES

The Board discussed the meeting minutes for May 9, 2005 and = June 13, 2005 i= n connection with Case #2316 and Ms. Ronning stepping down from the Board.

May 9, 2005 – The Board asked t= he Recording Secretary to review the transcript for the portion of the meeting containing Case #2316 where Ms. Ronning stepped down.

June 13, 2005 – Mr. Hennessey asked that the senten= ces in the minutes for Case #2316 reading ‘Mr. McNamara asked Ms. Ronning to step down from the Board since she had a conf= lict with the case. Ms. Ronning re= cused herself.’   to = be changed to read ‘Cindy Ronning recused herself based on a perceived conflict and was not asked.’

MOTION:<= o:p>

(Hennessey/O’Sullivan) To approve the meeting minutes of Jun= e 13, 2005 as changed.

=

VOTE:

(4-0-1) The motion carri= ed. Mr. Gowan abstained.

CONTINUED = CASE(S) – August 8,= 2005

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.

ADJOURNMEN= T

MOTION:<= o:p>

(Hennessey/O’Sullivan) To adjourn the meeting.=

=

VOTE:

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

The meeting was adjourned at approximately 11:10 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