BOA20050808

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

August 8, 2005

7:00PM NON-PUBLIC SESSION – Reques= t for non-public session in accordance with RSA91-A:3II regarding legal matters

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

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

PRESENT:

=

ABSENT:

Peter McNamara, Jeff Gowa= n, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Alternate Cindy Ronnin= g

Alternate Robert Molloy

Mr. McNamara discussed the abutter notification process. He explained that ab= utter notification list was the sole responsibility of the applicant and not revi= ewed for correctness by the Boards or Town Staff. He said applicants should obtain t= heir abutter information from the Assessor’s Office, not from information contained on-line.

REMAND

Case #2294= – DAGGET, Rachel – 351 Mammoth Road&nb= sp; / ML 7/4-186 – S= eeking a Special Exception concerning Article XII, Section 307-76(III) to permit a= n Automobile Repair Shop within the existing garage in the Residential Zone.<= /u>

Mr. McNamara said the Board would not be hearing the c= ase; the Board had voted to appeal the case to the New Hampshire Supreme Court.<= span style=3D'mso-spacerun:yes'>

CONTINUED<= o:p>

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

Attorney David Groff, representing the applicant discu= ssed the case with the Board. He s= aid the variance application was to use a 30-foot wide driveway easement to acc= ess a lot that was to be subdivided. He said the reason he got involved was due to a question about the easement an= d a question if the section of Campbell Road was public. He believed that the Planning Dire= ctor informed the Board that the first 1000feet was public; beyond that point Campbell Road is private. Attorney Groff sa= id the easement was granted when the Eric Fehmel lot was granted; the easement was= to provide access to the two adjoining lots.&= nbsp; He said there was frontage along Dutton Road, but the Conservation Commission would prefer not to see any crossing of the wetlands in that area. He said the proposed si= te for the house was at the rear corner, where the easement came off Campbell Road.

Mr. McNamara questioned if the driveway would come off= from the public portion of Camp= bell Road. Attorney Groff said the portion of the road that the driveway came o= ff from was public, farther along Campbell Road it becomes private. Mr. McNamara read aloud a letter submitted by the Conservation Commission dated August 5, 2005, that provided the results from the January 12, 2005 meeting in which the commission heard= the case and voted unanimously to support the proposed shared driveway to Campb= ell Road.

Attorney Groff reviewed the Variance criteria:

Item #1. The proposed use would not diminish surrounding property values because: The proposed use is to subdivide a new= lot that would be approximately2.119acre non-wetlands (2.885 acres total); the proposed lot would be a conforming lot the location of the proposed home on= the lot would not affect the value of any abutting properties.

Item #2. Granting the variance would not be contrary to the public interest because: The proposed lot meets all= the zoning requirements including the lot size and the frontage; the wetlands a= long the front of Dutton Road makes it undesirable to cross in that area.

Item #3. Denial of the variance would result in unnecessary hardship to the owner because: =

a) The Variance is needed t= o enable the applicant’s proposed use of the property give special conditions = of the property because: The proposed = lot is approximately twice the size for what’s required for a building lot in Pelham. It has 200feet of frontage along Dutton Road; but the area along Dutton Road= in swampy and there would be some wetlands filling in that area. Because of that they prefer to use= the 30-foot wide driveway easement from Campbell Road which provides convenient access and would not require any wetlands filling. &nb= sp;

b) The benefits sought by t= he applicant cannot be achieved by some other method reasonably feasible for t= he applicant to pursue, other than an area variance because: The wetlands area along Dutton Road would need to be filled in order to get to the rear portion of the lot. =

Item #4. Granting the variance would do substantial justice because: The property is zoned residential. The proposed lot has sufficient fr= ontage and meets all the requirements. Granting the Variance will allow the use of the property for residen= tial purposes.

Item #5. This use is not contrary to the spirit of the ordinance because: A home can be constructed on the lot w= hich will comply with all the setback and building requirements. They preferred not to fill in wetl= ands along Dutton Road.

Mr. McNamara noted that the applicant had gone before = the Planning Board, who essentially sent them to the Board of Adjustment.   That was Attorney Groff̵= 7;s understanding.

Mr. O’Sullivan questioned if the driveway would = be shared for a portion of its length. Attorney Groff said it would be a shared driveway between the abutti= ng lot (behind the proposed lot) because of the easement that was granted in t= he deed. Mr. O’Sullivan as= ked for the approximate length of the driveway. Attorney Groff believed the easeme= nt area was 30-feet wide and 210.99feet in length off = Campbell Road.

Mr. McNamara noted that the plan set indicated that Campbell Road was private and asked if this was correct.&nbs= p; Attorney Groff said per the read-out from the Selectmen’s offi= ce, the first .15 miles (approximately 1000 feet) of Campbell Road is public. He said the portion the driveway c= ame off from was public. Ms. Ronn= ing said there was a proposal that the remaining portion of Campbell Road would become public t= hrough a betterment fee to the private owners.&nb= sp;

Mr. Gowan confirmed that the parcel that owned the dri= veway easement area was lot 11-97-4 and questioned if the proposal was to have one shared driveway, or two separate driveways running the distance. Attorney Groff said the easement w= as 30-feet wide, the driveway would not be that width. He read aloud the language in the = deed.

Ms. Ronning asked if the language was contained in both deeds. Attorney Groff answere= d no; the language was only in the deed from the property that had been subdivided out of the original parcel. M= s. Ronning confirmed that the language would be passed along in the deed if the parcel was sold. Attorney Gro= ff said if the lot was created, as proposed, there would be an easement refere= nce in the new deed. The language= would continue unless it was released by the owners.

Mr. O’Sullivan pointed out that the lot number references were inverted from the original plan set provided to the Board.<= span style=3D'mso-spacerun:yes'> Lot 11-97-2 was formally referenced as lot 11-97-5. Attorney Groff said he wasn’t present at the last hearing; he had been given the plans today from the engineer. He said lot 11-97-2 (larger lot) was the proposed new lot; the smaller lot 11-97-5 contained an existing home. Mr. McNamara s= aid the applicant went before the Planning Board, who decided if they were to approve the plans as presented it would create a non-conforming lot, theref= ore the applicant was sent to the Board of Adjustment to request a variance; the Planning Board preferred to approve the configuration presented. Attorney Groff was not aware of any differences in the plans presented to the Planning Board and the Board of Adjustment, other than the lot numbers being inverted. Mr. Hennessey suggested, for clari= ty, that the Board use the plan submitted to (and stamped by) the Planning Board. Attorney Groff believe= d the concern was regarding the wording of the easement, which was granted to lot 11-97-2 (not any other lot). = Mr. Hennessey believed the issues were clear cut and suggested that the Board t= ie the decision to the plan presented.

PUBLIC INPUT

Mr. Erik Fehmel, 3 Campbell Road (lot 11-97-4) whose lot contained the driveway easement was concerned that heavy equipment constructing the proposed lot would ruin the driveway he recently paid to have put in. He said the lot contained adequate frontage onto Dutton Road<= /st1:address>. He understood there was a wetland = issue, but also believed it was a cost issue as well. He questioned how the costs and maintenance of the driveway would be split. Mr. McNamara asked Mr. Fehmel if h= e had any conversations with the applicant. Mr. Fehmel said he initially thought the applicant would come in off= Dutton Road= and tried to speak with them once. Mr. McNamara said it would be a civil matter since the easement was in place. He suggested that Mr. Fehmel seek counsel and document the condition of the road. Mr. Fehmel said the lot was confor= ming with frontage onto Dutton = Road; he believed by entering from Campbell Road the applicant was creating a non-conformi= ng lot. He said the wetland being discussed was a trickle of a stream that dried up in the summer. Mr. McNamara said the Board had re= ceived a letter from the Conservation Commission that indicated they didn’t = want to disturb wetlands by coming off of Dutton Road. Mr. Fehmel questioned if the issue was with the lot, or if it was a money issue. Mr. Hennessey questioned if it was correct that where the house was proposed, was the only place to build. Mr. Fehmel sa= id there were over two acres and believed there was feasible land to build on. Mr. Hennessey said accord= ing to the plan, the only place to build on the lot was in the corner. He was concerned with granting a variance and later the lot was subdivided with the frontage on Dutton Road used. Mr. Fehmel believed the= house could be placed in other areas. Mr. Hennessey didn’t see any other place for the house based upon the wetlands and Wetland Conservation District (‘WCD’). Mr. Fehmel said his understanding = was the Town was trying to get away from having shared driveways.

Mr. Gowan asked if the Planning Board had ruled out ha= ving two side-by-side driveways. M= r. McNamara didn’t know if two driveways had been ruled out. He was unsure if it would be techn= ically feasible. He believed the Pla= nning Board preferred access from Ca= mpbell rather than accessing through the wetland.= Mr. Fehmel believed there was enough space to add a driveway beside = the existing one; when paving his driveway, he tried to stay next to the proper= ty line. He said when his lot was created, he had no knowledge that a house would ever be built in the back.<= span style=3D'mso-spacerun:yes'> He assumed it was in name sake only. He reiterated his conce= rn with recouping costs in the event something happened to his driveway.

Mr. Hennessey said he was unclear if the easement was granted if it would also allow a duplex and wanted to know how Mr. Fehmel f= elt about it. Mr. Fehmel said he believed it was going to be a single family home. Mr. Jim Lever, 83 Dutton Road (who was seated in t= he public) indicated that a duplex was not planned. Mr. Hennessey asked if he would ag= ree to a stipulation that there only be a single family home. Mr. Lever answered yes. Mr. Fehmel said the existing house= was a duplex.

MOTION:<= o:p>

(Hennessey/O’Sullivan) Stipulation to approval= as follows: 1) in reference to the lot presented to the Board today, lot 11-= 97-2 was formally known as lot 11-97-5 on the original application; and 2) petitioners agree to stipulate that they will be building a single family home on the lot.

=

VOTE:

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

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria – sub= ject to stipulation

Mr. Gowan – Yes to all criteria

Mr. Hennessey – Yes to all criteria – su= bject to stipulation

Ms. Paliy - Yes to all criteria

Mr. O’Sullivan – value of surrounding properties on the ballot was marked ‘no’, however, Mr. O’Sullivan indicated it should have been marked ‘yes’ -= Yes to all criteria.

VOTE:<= /o:p>

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

‘AREA&#= 8217; VARIANCE GRANTED

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. She indicated there was a note in = the file that read Mr. Jim Bergeron had not been notified.

Attorney David Groff, representing the applicant, said= they were variance for an undersized lot. He said the lot contained approximately 230feet of frontage onto Rou= te 38. He believed a state appro= ved septic design had been submitted. He said they would also be requesting a state driveway permit because Route 38 was a state controlled highway.&n= bsp; He said the only thing the lot didn’t have, per requirements w= as the size.

The submitted variance criteria was as follows:

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

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

3. Denial of the variance would result in unnecessary hardship to the owner because:

“Use”

i. the zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property in its environment such that= : Gage Hill Road 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.

ii. That no f= air and substantial 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 at least 1962. This property consisted of a lot of record that existed prior to the current acre zoning requirement was enacted in Pelham.

iii. the vari= ance would not injure the public or private rights of others since: The home to be built will be in compli= ance with all local building codes, including building setbacks and septic installation.

“Area&#= 8221;

i. The area Variance is nee= ded to enable the applicant’s proposed use of the property given special conditions of the property because: The lot is about .7 of an acre in size. There is not any additional land available in this area that could be added to this 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: The abutting lots have established 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. Attorney Groff noted that a fronta= ge variance was not needed; the lot had sufficient frontage.

4. Granting the Variance would do substantial justice because: The current zoning laws we= re passed years after the lot was created.

5. The use is not contrary to the spirit of the ordina= nce because: A single family home can be constructed on the lot that will comply with all setback and other building requirements. =

Mr. Hennessey said the Board had only received a septic design and questioned if the applicant owned the abutting lot containing an existing house. Attorney Groff answered no. Mr. Hennessey as= ked what the calculation was for the total square footage of high and dry. Attorney Groff didn’t know.<= span style=3D'mso-spacerun:yes'> Mr. Hennessy said 35,000SF of high= and dry was required. He understo= od the lot was .7 acres which calculated to 30,492.

Mr. McNamara questioned what length of the driveway maintained a 12% grade. Ms. C= heryl Waitt, 17 Woods Avenue, Londonderry (a prospective purchaser who= was seated with Attorney Groff) said the 12% grade went for approximately 30feet.

Mr. Hennessey said there appeared to be 20ft-30ft. bet= ween the sideline and Route 38 (a 200foot strip of land) and wanted to know if t= he owners had been approached to purchase such. Attorney Groff said that portion w= as part of the state’s 50foot right-of-way. Mr. O’Sullivan asked if ther= e had been an attempt to increase the lot size by reviewing the bordering propert= ies. Attorney Groff said on one side th= ere was a small lot (with the old school house) and the other side had a small triangular lot. He didn’= ;t believe that the addition of either of the lots would increase the proposed= lot to be conforming.

It was noted that Attorney Groff had written authoriza= tion from the owner of the parcel to present the case was handed in with the application. Mr. Hennessey confirmed the authorization was turned in.=

Mr. McNamara asked how long the present owner had owne= d the property. Attorney Groff said= the present owner owned the property since 1962. Mr. Hennessey noted that the deed = said 1962; the application said 1982.

PUBLIC INPUT

Ms. Pamela Keefe, 103 Old Gage Hill Road North, inform= ed that she owned the lot (.33 acres) containing the old school house. She said the two lands together wo= uld be a little over an acre. She sa= id she had attempted to purchase the applicant’s land to make her lot a full acre and so that no one would build there.= She didn’t feel that a house belonged in the proposed location. Ms. Keefe discussed= the traffic in the area and believed an additional driveway would create more chaos. She believed the propo= sed driveway was less than 100ft. from the Ledge Road intersection.

Mr. Armand Berard, 134 Old Gage Hill Road North indicated he was not = an abutter, but did live in the vicinity.&nbs= p; He said a couple months ago a variance was denied for a parcel across the street due to size, wetlands, and the danger in the area. He said the proposed lot was under= sized with flagged wetlands across the width of the entire parcel. He said the driveway appeared to b= e set against the neighbor’s property and in close proximity to the catch basin. He discussed the ‘scaled’ calculations and didn’t believe that the actual dimensions of the property were known.&nbs= p; He also didn’t feel that the lot had adequate frontage. Mr. Berard reviewed the variance criteria and didn’t know how the proposed would not do substantial justice and shouldn’t be allowed.&nb= sp; He said under Boccia, a variance was ‘incidental’, but in this case a variance would not make sense since a lot, per the Town’s requirements had to be one acre with 200feet of frontage containing 35,000SF high and dry. He said the pur= pose of an ordinance was to promote health safety and believed the traffic in the area was dangerous and would put people at risk. He didn’t’ feel the Technical Review Committee would recommend the variance. Mr. Berard discussed the spirit of= the ordinance. He reviewed the su= mmary for the Board of Adjustment as contained in the Board of Adjustment handboo= k from the state. He ended by saying= he was opposed to the proposal. =

Mr. Len Bellmore, 107 Old Gage Hill Road North, informed the Board t= hat approximately nine years ago he had his attorneys research the lot and was informed that the lot was non-buildable.&n= bsp; He wanted to know if the actions were of a ‘new’ board (= if the zoning rules of the Town had changed).= He didn’t understand the variance request since the requiremen= ts call for lots to be one acre. Mr. McNamara said per the Town ordinance and New Hampshire State Law, if a parc= el of land doesn’t comply, landowners were entitled by law to seek a variance. Mr. Bellmore inform= ed that the state culvert was not shown on the plan being presented. He said the land was wet and had b= een deliberately tilted by the state so the runoff would flow into the culvert. Based on his observa= tions, he didn’t feel that the high and dry calculation would be over 15,800= SF.

Mr. Jim Bergeron, 27 Plower Road, who owned the Bergeron/Bedard par= cel across the street wanted to ‘shed light’ on the application bec= ause of its deficiencies. He provi= ded the Board with a packet of information.&nb= sp; He felt the Board needed to know that the application was deficient = in its form. He said there were = two sections of the zoning ordinance that had been missed: 1) non-conforming us= es; and 2) minimum lot size, which he felt needed to be included. He said he would also prove that t= he applicant needed relief from frontage.&nbs= p; He then provided a brief history of the parcel; backup materials wer= e included in the information he circulated to the Board. Mr. Bergeron’s predecessor, = Jim Sexton gave deeded interest to a portion of his land to Nancy Donahue, who deeded it (a description, no deed, just the interest in the land) to Hannah Sexton, who deeded it to Patrick Martinage. Mr. Bergeron discussed the traffic studies that had been done; copies of which he believed were located in the Planning Department. He noted= that the intersection of Route 38 and Ledge Road was the third worst intersection in the Town. He also noted that anot= her party had been reviewing the parcel for purchase. Mr. Bergeron felt that parties interested in the Town’s traffic and intersections should have been notified of the proceedings. = He handed the Board a petition, signed by twenty-five abutters that echoed his sentiments regarding the case. He noted that he had the original road plans from 1946 if the Board was intere= sted in reviewing.

Mr. Hennessey said if what Mr. Bergeron stated was cor= rect, there were significant clouds on title.&nb= sp; He questioned if Mr. Bergeron was saying that the engineer who stamp= ed the plan was incorrect. Mr. Bergeron reviewed the plan and said there was no engineer certification on = the plan. He said every deed that= was handed down was just a description of what was taken out by Jim Sexton when= he sold it to the state and created lot 60.&n= bsp; He said there were no meets and bounds, just a description. Mr. Hennessey said the applicant w= as representing that the lot was a lot of record and a plan that said it was an approved lot by the Planning Board. He asked Attorney Groff if this was correct. Attorney Groff said he got the pla= n from the Registry of Deeds in Nashu= a with the recording information on the plan (signed by the Chairperson and Secretary of the Planning Board). He said it was a lot of record since 1983.

Mr. McNamara asked Attorney Groff to address the issue= s that had been raised, specifically the frontage, safety, and the culvert. Attorney Groff said the recorded subdivision plan showed the frontage as being 228.78feet. along Route 38 wi= th additional frontage onto L= edge Road. He said the culvert was shown on the plan (double dotted lines).

Mr. Hennessey pointed out to the public that there was= a change in the zoning ordinance (at the last Town Meeting) regarding frontage.

Mr. McNamara felt the Board needed some background information due to the information that had been provided. Mr. Hennessey said his issue was t= hat he didn’t have enough information provided by the applicant, such as: 1) high and dry calculation; 2) culvert; and 3) WCD setbacks. He said the Board could request recommendations from Conservation and the Safety Committee or deny the requ= est. Mr. McNamara asked Attorney Groff = if additional information could be provided for the next meeting. Attorney Groff said his clients indicated that the wetlands had already been flagged and the information co= uld be included on the plan. Mr. = Hennessey said he wanted a recommendation from the Conservation Commission as well as= input from the Safety Committee, DPW and the state. Attorney Groff said if the Board w= anted, he could have the applicant’s engineer add the additional information= to the plan. Mr. Hennessey felt = the Board should do a site walk, obtain input from Conservation, Safety Committ= ee and that a letter from the Planning Department should go to the state infor= ming them on the application. Atto= rney Groff said there was a pending driveway permit application at the state.

Mr. McNamara said the case would be continued to the <= st1:date Month=3D"9" Day=3D"12" Year=3D"2005" w:st=3D"on">September 12, 2005 meeting. He asked that the applicant go to the Conservation Commission. He said he would ask the Safety Committee for input.

Mr. Bergeron asked that the Board consider legal couns= el opinion regarding the deeds. = Attorney Groff said that Town Counsel didn’t get involved in title issues unle= ss the Town’s interests are directly affected. Mr. McNamara said there had been representation that the applicant had clear title to the property and there= was evidence otherwise. Attorney = Groff said he never represents that he has clear title to any property. He said in terms of ownership inte= rest, he had the deed that showed the applicant owned the property. He said according to the Town̵= 7;s tax record the applicant had been taxed for a number of years. Mr. Hennessey said the Board had t= o take what was given. He asked that= the Planning Board review the plan and inform if the plan was stamped and appro= ved. Mr. McNamara didn’t think the Planning Board would add anything. Mr. Hennessey wanted a stipulation that Attorney Groff had represent= ed that it was an approved lot. Attorney Groff said the plan could be looked up with the plan number= 6711474 . He said H. Tracy Davis was = the surveyor dated = November 30, 1981.

The case was continued to the September 12, 2005 meeting.

Case #2323= – GARCIA, Don – 30 Hillcrest Lane / ML 42/10-131 – Seeking a Variance concerning Article III, Section 307-14 to permit the construction of a dwelling with associated septic and well without the appropriate frontage on a public way.

Mr. Gowan left the meeting. (He returned shortly after Case #2= 323 began). Mr. McNamara appointe= d Ms. Ronning to vote with regard to this case in Mr. Gowan’s absence.

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. Kenneth Lania of K&M Land Consultants, LLC, representing the applicant, discussed the case with the Board. The variance was to allow access t= o a lot with (approximately 46ft.) frontage onto Westview Terrace. The lot had existing frontage (approximately 265feet) onto (paper road) Hillcrest Lane which was a consider= able wetland area and require sever wetland filling (in excess of 20,000SF). The driveway would be approximately 12feet. Mr. Lania said they didn’t believe it would be detrimental to the neighborhood as the applicant would like to construct a single family house on the 2.16 acre lo= t. He said the wetlands had been iden= tified and surveyed; they had the required 35,000SF of upland. The home would be located in an ar= ea less detrimental to the lot itself; the driveway would require an 895SF fill to = come across a wetland crossing. Th= ey believed the house construction would not be out of the ordinary to the neighborhood= and would raise property values and provide and additional tax base to the parc= el.

Mr. Hennessey said the applicant should be seeking a variance not only for the access on Westview Terrance, but also because the 265feet on Hillcrest Lane<= /st1:address> didn’t constitute frontage per zoning. Mr. Lania answered yes.

Ms. Ronning asked to view a tax map to better understa= nd the surrounding area. Mr. Lania provided a copy of a map to the Board.&nbs= p;

Mr. McNamara asked who owned the property. Mr. Lania said Charles and Rita Therriault c/o Rita Comtois who had owned the property since 1983. He said a letter authorizing him to present the case to the Board was included in the Board’s package. Mr. McNamara said the property had= been reviewed by the Board in the 1980’s and believed it was denied. He asked if anything had physically changed since that time. Mr. = Lania said he reviewed the prior application; from what he reviewed it stated the case was continued, and then removed. Mr. McNamara said Case #699 in 1983 had been denied. He believed the 1989 application w= as withdrawn. Mr. Lania said he didn’t have a chance to review the 1983 application. To Mr. Lania’s knowledge, th= ere had not been any physical changes to the property since purchased in 1983.<= span style=3D'mso-spacerun:yes'>

Mr. Gowan returned to the meeting.

Mr. Lania reviewed the variance criteria. Mr. McNamara noted that in the application the criteria for a ‘use’ variance was answered, how= ever he requested that the criteria for an ‘area’ variance be answer= ed since that’s what was being requested.&nbs= p;

1. The v= ariance will not be contrary to the public interest because: There is a 2.16 acre = lot; the lot is sized large enough and meets zoning code for area. They are short on frontage, althou= gh the applicant could construct frontage, it would require a severe amount of wet= land disturbance. They chose to re= quest a variance because they felt a single family home constructed on this lot w= ould not be more detrimental to the neighborhood.

2. Special conditions exist such that literal enforcem= ent of the ordinance results in unnecessary hardship because:

“Area&#= 8221;

i. an area Variance is need= ed to enable the applicant’s proposed use of the property given special conditions of the property because: The area variance being requested was due to the restrictions placed on the lot= by the wetlands area. They had t= he proper frontage should they be able to construct a roadway; in choosing not= to do so, so they don’t have to alter wetlands, they would like to gain frontage o= nto Westview Terrace. Mr. Hennessey noted that the applicant didn’t h= ave frontage onto Hillcrest La= ne, unless they went through planning to bring Hillcrest Lane in as a road. Mr. Lania said in order for the applicant to use the legal frontage, they would have to construct Hillcrest Lane. He agreed that the parcel didnR= 17;t have legal frontage, which was the reason the variance was requested. The applicant understood Planning = Board approval would be needed to construct Hillcrest Lane. <= /span>

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: It would require the applicant to fill a considerable amount of wetlands to finish Hillcre= st Lane. Mr. McNamara asked if there wa= s an adjoining property the applicant could purchase. Mr. Lania said they reviewed purch= asing the adjoining piece on Westview Terrace, but had no luck.

3. The Variance is consistent with the spirit of the ordinance because: The variance req= uest is consistent because it was a lot of record created on an approved subdivi= sion plan by the Planning Board. T= he lot is one of the largest lots in the neighborhood (2.16 acres) and meets the zoning requirements for land area and has the upland area for the uplands compared to wetlands (35,000SF). It has a benefit to the neighborhood as a nice home would be constructed on the lot. It was not believed to be detrimental to the lot because the home would be pushed to the rear of the parcel and wouldn’t be able to be viewed from Westview Terrance and w= ould sit approximately 300feet from the road.&n= bsp;

4. Substantial justice is done because: The lot had been in creation for some time (since approximately1969= and taxed since then) as a lot; the owners would like to see it move on, which = is why the applicant would like a variance granted.

5. The value of the surrounding properties will not be diminished because: The applicant w= ould like to construct a single family home that was equal or better than the ho= mes in the area. <= /p>

Mr. Hennessey questioned if the wetlands crossing woul= d be 865SF. Mr. Lania answered yes= .

Mr. O’Sullivan asked if there was a more detaile= d map of the area. Mr. Lania said he supplied an assessor’s map.

Mr. Hennessey said based on the information provided it appeared to be a lot of wetlands on the parcel. Mr. Lania said they could have a w= etland scientist flag the area. Mr. Hennessey asked how wetland area would be crossed to get to the building site. Mr. Lania said it would= be approximately 60feet. The pla= n was discussed. Mr. Hennessey said= the plan didn’t show frontage. Mr. McNamara said the Board would need that information.

PUBLIC INPUT

Mr. David Cronin, Westview Terrace, who abuts the sout= h side of the property since 1972. H= e said there was a major wetland/pond that separates the two sections of Hillcrest Lane; this was the reason Hillcr= est Lane was never finished. He said t= his wetland/pond catches the rain water coming down the hill from Birch Lane.= He said if the wetland was altered= , the water would run to the next lowest point, his land. He said his neighbor and the Town = had spent time and money (culverts, sewers etc.) to take care of the water in t= he area. He believed the septic on the prop= osed lot would need to be raised. = Mr. McNamara asked Mr. Cronin if he attended the Board meetings in the 1980R= 17;s when the property was discussed. Mr. Cronin didn’t recall being informed of the meetings. However, he informed that the prop= erty had not changed since 1972. M= r. Cronin said in the past the owner had approached him and his neighbor regar= ding purchasing the property; they turned Mr. Comtois down, at which point the parcel was deforested a little bit. Mr. Hennessey asked if the parcel was currently wooded. Mr. Cronin said the parcel was overgrown; the pond cannot be viewed from Hillcrest Lane or Westview Terrace.= Mr. McNamara asked what the slope = of the property was. Mr. Cronin said= the land sloped down from the hill (Birch Lane).

Mr. James Bourgeois, 24 Hillcrest Lane who resided acros= s the street from the proposed driveway. He said he was the only person who attended the meeting in 1989; the applicants didn’t show up, there was no presentation, therefore the c= ase was dismissed. He didn’t believe there was much of a slope on the parcel. His only interest was where the ho= use was going to be located. He h= ad no problems with the proposed.

Mr. Lania said he believed the applicant realized that= more work needed to be done on the lot. They had conservation and planning file that would be needed, as well as a culve= rt analysis. Mr. Lania understoo= d said meeting with the Board was the first step and realized that there were more ‘pieces to the puzzle’ to complete. He believed the drainage could be = taken care of through engineering; a system would be designed. Mr. McNamara said he didn’t = see a well location. Mr. Lania said= there was plenty of room and could show the location on the next plan.

Mr. O’Sullivan said he would like to better unde= rstand the current state of Hillc= rest Lane and if there were any future plans for it. Mr. McNamara said the plan indicated it was a paper street running through wetlands. Mr. Lania said they would like to = take the proper steps to not alter the wetlands. He said there were questions regar= ding the plan that he would like the opportunity to clear up. Mr. McNamara said in the absence o= f the information on the plan he wouldn’t be able to vote favorably. He said unless there was an object= ion, he was willing to grant a 30-day continuation.

Mr. Hennessey said his concerns were: 1) that the plan= was incomplete; 2) the length of the driveway and 3) cutting a lot of trees in = an environmentally sensitive area. He said the issues being reviewed were the same ones reviewed twenty years ago.

Ms. Ronning agreed that the applicant should have the opportunity to come back with a better plan.

Mr. McNamara said the case would be continued to the <= st1:date Year=3D"2005" Day=3D"12" Month=3D"9" w:st=3D"on">September 12, 2005 meeting. Mr. Hennessey said he wanted a better application; the criteria should be re-written.

The case was continued to the September 12, 2005 meeting.

Case #2324= – GLANCE, Mary – 61 Burns Road / ML 28&34/2-12 &#= 8211; Seeking a Variance concerning Article II, Section 307-6 (10) to permit a subdivision of a lot with over 680 feet of frontage on Marsh Road to be accessed by a 15ft. wide driveway easement from Burns Road. =

It was noted that Mr. Gowan would resume voting for the remaining cases.

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.

Attorney David Groff, representing the property owner = Mary Glance, reviewed the plan with the Board.&= nbsp; He said the proposal was to subdivide off a 9.75 acre lot which had a great deal of frontage on = Marsh Road (which had a great deal of wetlands) and access the lot through a 15-foot driveway easement from Burns Road. He said the only reason for the application was to avoid filling a great deal of wetlands. He said there was a recorded plan = that showed the easement (a copy of which was provided to the Board).

Attorney Groff reviewed the criteria:

Item #1. The proposed use would not diminish surrounding property values beca= use: The proposal is to subdivide a new = lot that will be approximately 9.75 acres in size. The location of the proposed home = on the lot will not affect the values of abutting properties.

Item #2. Granting the variance wou= ld not be contrary to the public interest because: The proposed lot meets all zoning requirements, including lot size and frontage, but there is a wetlands area along Marsh Road that would make access from that frontage difficult and undesirable. The applicant reserved a 15-foot wide driveway easement from Burns Road to provide access to the proposed lot so that it would not be necessary to impact the wetlands on Marsh Road.=

Item #3 Special conditions exist such that literal enforcement of the ordinance result in unnecessary hardship:

“Area&#= 8221;

i. an area Variance is need= ed to enable the applicant’s proposed use of the property given special conditions of the property because: The proposed lot is 9.75 acres in size, with approximately 687 feet of frontage= on Marsh Road.= The frontage area along Marsh Road = is very swampy; and any driveway from Marsh Road would require extensive wetlands filling. There is an existing 15-foot wide driveway easement from Burns Road, which can provide convenient access to t= he proposed lot, and the proposed home site, without any wetlands filling.

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: There is an extensive wetlands area along <= st1:address w:st=3D"on">Marsh Road, and that area would be severely impacted by development of the lot using <= st1:address w:st=3D"on">Marsh Road as the access point.

Item #4. Granting the variance would do substantial justice because: The property is zoned residential, and= the proposed lot has sufficient frontage and are to meet all zoning requirements. Granting the va= riance will allow the use of this property for residential purposes.

Item #5. This use is not contrary to the spirit of the ordinance because: A home can be constructed on the lot t= hat will comply with all setback and other building requirements.

Mr. McNamara asked for confirmation of the placement o= f the easement. Attorney Groff said= the easement was contained on lot 7. Mr. McNamara asked if lot 7 was owned by the applicant. Attorney Groff answered no; the lo= t was sold years ago, which was when the easement was put in place. Mr. O’Sullivan asked if the easement would be access for a single-family dwelling. Attorney Groff answered yes.

There was no public input.

Mr. McNamara confirmed if the variance was granted the remaining 124 acres was not being put up for development at this time. Attorney Groff answered yes. He said the person interested in p= urchasing the lot was an abutter so that his son would be able to move there.

Ms. Ronning didn’t see much difference between t= he proposed case and the case just approved on Campbell Road.

Mr. McNamara said the variance would provide access to= an otherwise difficult lot to get to due to flood plane and wetlands. Mr. Hennessey said it was hard to = argue against the proposed given the wetlands on Marsh Road; the beaver pond. He felt there was a benefit to the= Town with the plan. Mr. McNamara a= sked if the easement was a ‘straight shot’. Attorney Groff answered yes. Mr. McNamara asked if the easement= was sufficient for emergency access. Attorney Groff said it was 15-feet wide. Mr. McNamara asked the approximate length of the proposed driveway. Attorney Groff said the driveway would be 250feet.

Mr. Gowan said if the Board ruled, it seemed to be a g= ood idea to make reference to the fact that the driveway easement would not pro= vide access to the further development of the parcel. The only access for the easement w= as lot 2-12-19. There was a brief discussion. Attorney Groff said the applicant didn’t plan to further subdivide the lot and said a restriction stati= ng such was okay. Mr. Hennessey = said the stipulation would be that the access to any further subdivision would n= ot be through the (15-foot) easement. Attorney Groff said that stipulation would be fine.

MOTION:<= o:p>

(Hennessey/O’Sullivan) To stipulate that acces= s to any further subdivision would not be through the (15-foot) easement.

=

VOTE:

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

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria – con= dition as stated in motion.

Mr. Gowan – Yes to all criteria

Mr. Hennessey – Yes to all criteria – su= bject to stipulation.

Ms. Paliy - Yes to all criteria

Mr. O’Sullivan – Yes to all criteria

VOTE:<= /o:p>

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

‘AREA&#= 8217; VARIANCE GRANTED

Case #2325= – SUBY, Margaret – 6 W= oekel Circle / ML 31/11-294 – Seeking a Variance concerning Article VII, Section 307-41 to permit a 36ft.= x6ft. deck within the 50ft. WCD setback 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. David Dorney (Margaret Suby’s husband), representing the applicant discussed the variance request with the Board. The proposal was to put a 6-foot w= ide deck on the waterfront side of the house.&= nbsp;

The criteria submitted was as follows:

1. The v= ariance will not be contrary to the public interest because: It will have no environmental impact. It will stand on property owner= 217;s land only and will be visible only from the water. It will not obscure any abutter= 217;s views.

2. Speci= al conditions exist such that literal enforcement of the ordinance results in unnecessary hardship because:

“Use”

i.&n= bsp; the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in it’s environment such that: The proposed deck improves safety for occupants who, as they age will need a safe access to the waterfront. The proposed deck will add to the = taxes paid on the property.

ii. no fair a= nd substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: No additional land will be purchased. =

iii. the vari= ance would not injure the public or private rights of others since: It will have no effect on the abutters’ or others’ views of the waterfront.

“Area&#= 8221;

i. an area Variance is need= ed to enable the applicant’s proposed use of the property given special conditions of the property because: Under RSA 483, Bill I.

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:

3. The Variance is consistent with the spirit of the ordinance because: The construction= of decks will be consistent with section 13 of Planning Department memo of April 17, 2002<= o:p>

4. Substantial justice is done because: The use we are seeking is permitted use for the district.

5. The value of the surrounding properties will not be diminished because: To the contrary surrounding properties will become more valuable with improved appearance of the cottage. <= /p>

Mr. Dorney understood that New Hampshire state law indicated a pe= rson could build up to 12-feet wide over waterfront; their deck would be well un= der that. Mr. Hennessey asked whe= re that information was obtained. Mr. Dorney said the Planning Office provided the information. Mr. Hennessey said the Planning Department was incorrect. He = believed the applicant needed a Department of Environmental Services (‘DESR= 17;) waiver under the Shoreline Protection Act.= Mr. McNamara clarified that the current building was within the WCD setback and questioned how far in it went.= Mr. Dorney said it was 8-feet back from the waterfront and completely within the setback. Mr. McNam= ara asked how far the deck would be from the water. Mr. Dorney said the deck would be = over the shore. Mr. McNamara said = the applicant needed to go to Conc= ord.

In Mr. Hennessey’s opinion, under state law, the applicant should have gone to DES for a waiver prior to coming before the B= oard of Adjustment. He said any bu= ilding within 50-foot or that close to the water a state waiver would be needed.

Mr. McNamara said to be prudent and safe, the applican= t should first go to DES in Concord, who would hold a hearing and give the applicant the opportunity to present their case. He suggested that= the applicant withdraw their variance request, subject to a refilling ‘do= wn the road’ which would keep their options open.

The applicant withdrew their application.

Case #2326= – O’GRADY, Patrick & Donna – 71 Holstein Drive /= ML 14/4-137-10 – Seeking a Variance concerning Article VII, Section 307-41 (B) to permit a 14ft.x22ft. in-ground pool within 10ft. of t= he 50ft. WCD setback 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.

Pat and Donna O’Grady met with the Board to disc= uss their variance request. Mr. O’Grady explained that they requested a pool permit and were turned d= own because it was too close to the buffer.&nb= sp; Mr. McNamara asked if the existing building structure was within the 50-foot wetland buffer. Mr. O’Grady answered no; the buffer was approximately 15-feet from the buffer. He said the pool wouldn’t be in the area, but the extra room was needed for the deck a= nd fence. No trees would be dist= urbed, the area was currently grassed. Mr. O’Grady submitted photographs of the property to the Board.

Mr. O’Grady read aloud the variance criteria as submitted:

1. The v= ariance will not be contrary to the public interest because: The proposed use will add to the taxes being paid on the property. =

2. Speci= al conditions exist such that literal enforcement of the ordinance results in unnecessary hardship because:

“Area&#= 8221;

i. an area Variance is need= ed to enable the applicant’s proposed use of the property given special conditions of the property because: The topography of the property and areas of wetlands, leaves the proposed area = the best option.

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: of the topography of the property.

3. The Variance is consistent with the spirit of the ordinance because: If the variance = is granted we will meet all Town requirements.

4. Substantial justice is done because: A variance being granted will allow us to use our property in the s= ame manner of surrounding lots. <= o:p>

5. The value of the surrounding properties will not be diminished because: The proposed structure will have no adverse effect on the surrounding properties.

Mr. O’Grady said the spot they chose was the onl= y flat spot they had on the property. He said they owned the property for two years.

Mr. McNamara believed the Board would want to know abo= ut Wetland Conservation District (‘WCD’) signs and if they were po= sted at the time of purchase. He s= aid they would also want to know what areas were treed/grassed/cleared when the property was purchased. Mr. O’Grady said they purchased the lot and a builder built the house. Mr. McNamara asked the condition o= f the back yard at the time of purchase. Mr. O’Grady said the backyard was cleared; WCD signs were in p= lace on the trees as shown on the photos submitted. Mr. McNamara confirmed that the si= gns were put in the wrong place. = Mr. O’Grady said the signs had never been touched, and had always been wh= ere they are currently located; the photographs show the location. Mr. McNamara read aloud a memo sub= mitted by the Planning Director dated July 27, 2005 which indicated that the signs were located along the wetland boundary and not at the appropriate setback location; a large porti= on of what should have been WCD is currently lawn area. Mr. Hennessey said when the lot was approved, it had a no-cut zone behind the house and there wasn’t supp= osed to be any lawn in the area it was supposed to be treed. Mr. O’Grady said they were g= oing to try to fit the pool behind the buffer, but they didn’t have enough room for the deck and the fence behind it.=

Mr. McNamara asked if a lot of cutting/filling would n= eed to be done. Mr. O’Grady an= swered no. He said he would cut the = hill, add a small retaining wall and the fill would be relocated to the gable end= of the house (where there was no restriction). He said no trees would be cut.

Mr. McNamara said the problem was in recent months, th= ere were at least three other similar cases.&n= bsp; He said if everyone cut a few feet off the WCD a significant portion would be lost. Mr. O’Gr= ady said there had already been problems in the wetlands, a truck crashed spill= ing 150 gallons of diesel. He sai= d the EPA was there for months cleaning it up.&n= bsp;

Mr. Gowan said there was a certain amount of chemicals= when a pool is backwashed. Mr. O’Grady said they would backwash into a filter/containment system; th= ere would be no backwash going into the property/woods.

There was no public input.

Mr. Hennessey recommended walking the site with the Conservation Commission. Ther= e were no objections to walking the site. Mr. Gowan said he would be interested in reviewing information about= the filter system.

A site walk was scheduled for August 12, 2005 at 7pm.&n= bsp;

The case was continued to the September 12, 2005 meeting.

Case #2327= – TOUPIN, Michael – 24 Pulpit Rock Road /= ML 41/6-141 – Seeking a Special Exception concerning Article X= II, Section 307-74 and a Variance concerning Article V, Section 307-18 to permi= t an accessory dwelling in the Industrial Zone.=

The case was continued to the September 12, 2005 meeting.

Case #2328= – FARRIS, Joseph – 13 Jones Road / ML 39/1-72 – S= eeking an Appeal from an Administrative Decision of the Building Inspector for a bonded dealer’s license in the Residential Zone. Article V, Section 307-18.

The case was continued to the September 12, 2005 meeting.

MINUTES

May 9, 2005

MOTION:<= o:p>

(Hennessey/O’Sullivan) To approve the May 9, 2005 me= eting minutes as written.

=

VOTE:

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

<= /u>

June 13, 2005<= /p>

MOTION:<= o:p>

(Hennessey/O’Sullivan) To approve the June 13, 2005= meeting minutes as amended.

=

VOTE:

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

<= /u>

July 11, 2005 – The Board asked t= he recording secretary to review the ballot vote in connection with Case #2321 – PACHECO, Anne & ST. PIERRE, Charles – 89 Sherburne Road and if a motion was made prior to = the vote.

MOTION:<= o:p>

(Gowan/O’Sullivan) To approve the July 11, 2005 meeting min= utes as amended and subject to review of the taped session for determination if a motion was made prior to the ballot vote in connection with Case #2321.

=

VOTE:

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

<= /u>

CONTINUED = CASE(S) –September= 12, 2005

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 #2323 – GARCIA, Don – 30 Hillcrest Lane / ML 42/10-131 – Seeking a Var= iance concerning Article III, Section 307-14 to permit the construction of a dwel= ling with associated septic and well without the appropriate frontage on a public way.

Case #2326 – O’GRADY, Patrick & Donna – 71 Holstein Drive / ML 14/4-137-10 – Seeking a Variance concerning Article VII, Section 307-41 (B) to permit a 14ft.x22ft. in-ground pool within 10ft. of the 50ft. WCD setback in the Residential Zon= e.

Case #2327 – TOUPIN, Michael – 24 Pulpit Rock Road /= ML 41/6-141 – Seeking a Special Exception concerning Article X= II, Section 307-74 and a Variance concerning Article V, Section 307-18 to permi= t an accessory dwelling in the Industrial Zone.=

Case #2328 – FARRIS, Joseph – 13 Jones Road /= ML 39/1-72 – Seeking an Appeal from an Administrative Decision= of the Building Inspector for a bonded dealer’s license in the Residenti= al Zone. Article V, Section 307-= 18.

SITE WALK = – August 12, 2005= – 7pm

Case #2326 – O’GRADY, Patrick & Donna – 71 Holstein Drive / ML 14/4-137-10 – Seeking a Variance concerning Article VII, Section 307-41 (B) to permit a 14ft.x22ft. in-ground pool within 10ft. of the 50ft. WCD setback in the Residential Zon= e.

REQUEST TO= RESUME NON-PUBLIC SESSION (continued from before the meeting)=

MOTION:=

(Gowan/O’Sullivan)Request for a non-public ses= sion per RSA 91-A:3,II,e (legal)

=

ROLL CALL:<= /b>

Mr. McNamara-Yes; Mr. Gowan-Yes; Mr. Hennessey-Yes; = Ms. Paliy-Yes; Mr. O’Sullivan-Yes

Mr. McNamara noted that the Board would not take any o= ther action publicly; the minutes of the non-public session would be sealed. The public session was adjourned.<= span style=3D'mso-spacerun:yes'> The Board entered into a non-public session at approximately 11:= 00 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

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