BOA20051114

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 14, 2005

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

The Secretary, Ms. Svetla= na Paliy, called the roll:

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Alternate Robert Molloy

Alternate Cindy Ronning, Planning Director Jeff Gowan

Mr. McNamara appointed Mr= . Molloy to vote for the evening’s hearings.&= nbsp;

CONTINUED

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

There were no persons in attendance to present the case to the Board. Mr. McNamara said the Board would revisit the case later in the meeting.&nbs= p; (see below for further action).

HEARINGS

Case #2335 – RASIMOWICZ, Stanley – 5 Westview Terrace / ML 42/10-146 – Seeking a Spe= cial Exception concerning Article XII, Section 307-73 & 307-74 to permit construction of an in-law apartment within an existing single family home in the residential zone.

Ms. Paliy read the list of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification. The abutter notification sent to Su= san Maiocchi had been returned (see below for further discussion).

Attorney David Groff, representing the applicant, met with the Board to present the case. He provided photographs of the pro= perty in the Board’s package. The proposal was to construct the in-law apartment within a portion of the gara= ge and what used to be the family room; the total square footage of the living space was 660SF.

He then reviewed the crit= eria specified in Article 12, Section 307-74 as follows:

a)&n= bsp; The proposed accessory dwelling will be secondary to the principal residence.

b)&n= bsp; The proposed accessory dwelling will contain 1 bedr= oom, and will not be more than 750 square feet in size.

c)&n= bsp; A copy of the approved N.H>W.S.P.C.C. septic sys= tem is filed herewith; along with a system design from Felix Septic Service, In= c., approved by N.H.W.S.P.C.C., that demonstrates the lot can accommodate the existing dwelling and the proposed accessory dwelling. (also need approval letter from Roland Soucy).

d)&n= bsp; The proposal is to create the accessory dwelling in= the existing garage. The entrance= for the proposed accessory dwelling will be on the side of the garage, not faci= ng the front of the home.

e)&n= bsp; The proposed accessory dwelling is to be constructed inside the existing garage.

f)&n= bsp; Not applicable

g)&n= bsp; There shall be 1 unlocked passage in the common wall between the proposed accessory unity and the primary dwelling.

h)&n= bsp; No change in the existing driveway is proposed. Adequate off-street parking is alr= eady available there.

i)&n= bsp; The ownership of the property shall not be converte= d to the condominium form of ownership any other form of legal ownership distinct from the ownership of the existing single family residence.

j)&n= bsp; The existing home is a single family residence.

Mr. Hennessey asked if th= e in-law apartment was currently in existence. Attorney Groff answered yes. He said the reason for the application was because a violation notice had been received from Roland Soucy. Mr. Hennessey asked if there was a second apartment in the basement. Attorney Groff said= not according to the violation notice he received. Mr. Rasimowicz said there was not.= Mr. Hennessey asked if there were = any dwelling units in the Quonset huts. Mr. Rasimowicz answered no. <= /span>Mr. Hennessey asked how long the illegal apartment had been in the building. Attorney Groff said the first viol= ation notice he had was dated February 24, 2005, but the letter also mentioned a previous letter (dated January 28, 2005) which he did not have a copy of. Mr. Hennessey said the reason the = date was important because it was after January, 2005 that the Board increased t= he size of the apartment units (from 550SF).&= nbsp; He said if the Board was to retroactively approve an apartment, he f= elt the Board should apply the existing zoning at the time it was done. Attorney Groff disagreed and felt = the existing statute should be applied.

There was no public input= .

Mr. O’Sullivan aske= d for a clarification of where the exit was located. Attorney Groff reviewed the submit= ted plan and showed the exit and common wall exit.

Mr. McNamara asked if the applicant’s son was currently residing in the space shown. Mr. Rasimowicz answered yes. Mr. McNamara asked if the space was being used for a home occupation. Mr. Rasimowicz said it was strictly a residence.

Mr. Hennessey didn’= t see the septic letter. Attorney G= roff said the approval for construction contained the information and had been submitted.

The file contained a retu= rned letter addressed to Susan Maiocchi of 24 Hillcrest Lane that had been stamped ‘not deliverable to address, unable to forward’. Attorney Groff said Ms. Maiocchi didn’t reside at the specified address, but rather behind Brooks. He said he it must have been the a= ddress from Town Hall, because he checked the addresses himself.

Mr. Hennessey said his so= le question was applying the size. Mr. McNamara believed the current zoning would apply since it was being conside= red today. Ms. Paliy didn’t= see how not to apply the current criteria.&nbs= p;

Mr. Hennessey reviewed the proposal and the footage. He = asked if a minor home occupation was being run from any of the space being review= ed by the Board. Mr. Rasimowicz answered no. Mr. McNamara said under the rules the use of the accessory dwelling was for immediate family,= not for rental. He said that was = the specific purpose that a Special Exception would be granted.

MOTION:

(Hennessey/O’Sull= ivan) To approve the Special Exception on Case #2335.

VOTE:

(5-0-= 0) The motion carried.

SPECIAL EXCEPTION GRANTED

Case 2336 – GAGNON, Derek – 172 Marsh Road /= ML 34/1-11-1 – Seeking a Variance concerning Article III, Sect= ion 307-14 to permit construction of a duplex on a lot that does not have 200ft= . of frontage in the residential zone.

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

Mr. Derek Gagnon met with= the Board to discuss his variance request.&nbs= p; He said he needed the variance because he didn’t have 200-feet frontage. He was seeking to p= ut an addition onto his single-family home and also a duplex. The duplex would be to take his pa= rents in; his father is handicapped and needed a wheel chair and a walker.

He then read aloud the va= riance criteria submitted to the Board as follows:

1. The variance will not be contrary = to the public interest because: The propos= ed use will add to the taxes being paid on the property and there is a need for wh= at is being requested.

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e:

“Use”

i. 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: T= he driveway is 500+ feet long and the house and proposed addition would be significantly away from the road where the frontage is lacking.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: left blank.

iii. the variance would not injure the public or private rights of others since: The proposed addition= is not visible from the road.

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: of the unique setting of the property and lot size.<= /p>

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because: = left blank on application. Mr. McNamara asked if there was a way to do the proposed without applying for a variance. Mr. Gagnon answered no. Mr. McNamara asked if any additional property could be purchased.&nb= sp; Mr. Gagnon answered no. .

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance of one of the requirements and we will meet = all other setbacks and codes. If = the variance is granted we will meet all other requirements of the Town by following building code, obtaining necessary permits allowing inspections e= tc. Our septic system is designed for = the proposed use and we will have it inspected and verified of its proper funct= ions by a certified professional. =

4. Substantial justice is= done because: The use we are seeking is a permitted use in our district.

5. The value of the surro= unding properties will not be diminished because: The proposed addition will add value to our current dwelling, it will be aesthetically pleasing to our neighbors and it will be of the same architec= ture as our current dwelling.

Mr. McNamara said accordi= ng to the Planning Director the files indicated that there was an application for= a variance requested in July, 1988 to allow a duplex, but was withdrawn due t= o inadequate information about the lot’s buildable area. Subsequently, another owner was gr= anted a Special Exception for a dredge and fill application (May, 1990) to constr= uct a driveway (with conditions contained in a letter dated April 2, 1990 from the Conse= rvation Commission). Given these fact= s, the Planning Director said the application was not a renewal, and should be reviewed for both lack of frontage and usable area. Mr. McNamara said the Board needed= the information about buildable acreage. Mr. Gagnon said he was unprepared to answer the question, but moving forward, they would try to make the square footage of the proposed property= meet the regulations (750SF) for the in-law apartment. Mr. McNamara confirmed that the Mr. Gagnon wouldn’t be pursing a variance, but rather a Special Exception. Mr. Gagnon answere= d yes.

Mr. Hennessey said the Bo= ard had granted variances on the size of an in-law apartment on the basis of handicapped. He said if the i= n-law apartment was more than 750SF a variance and a special exception would be needed. Mr. Gagnon discussed = the challenges they faced because their house was set up on a hill. He said they would have an obstacle meeting the common wall requirement. Mr. Hennessey said he was more comfortable extending a special excep= tion (restricted to relatives) than granting a variance for a duplex in a residential area.

Ms. Paliy believed a seco= ndary issue was the lack of frontage. She asked if the Board was now dealing with a non-conforming lot which would be different criteria. Mr. McNam= ara asked how many gross acres there were and if there were wetlands. Mr. Gagnon said there were 2.78 ac= res with some wetlands. Mr. Hennessey discussed non-conforming uses.

Mr. McNamara felt the app= licant may be better suited if he withdrew his application for the variance and re-submitted a request for Special Exception (through the Planning Director). He said he discuss= the frontage and non-conforming use issue with the Planning Director.

The applicant, Mr. Gagnon, withdrew his application for a variance.&n= bsp;

Case #2337 – PERRY, Thomas & Michelle – 14 Plower Road / ML 10/13-166-1 – Seeking a S= pecial Exception concerning Article XII, Section 307-74 to permit an accessory dwelling unit that was on the property prior to the purchase of the house.<= o:p>

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

Mr. Tom Perry, 14 Plower Road said he owned the pr= operty for approximately nineteen years and had not made modifications to such. He said he received a letter nine = years ago informing him that he had a non-conforming apartment. At the time, his attorney told him= not to do anything and proceeded to send a letter to the Town asking further ad= vice on what to do; he never heard back from John Tucker (the Planning Director = at that time). A year later Mr. = Perry obtained a copy of his tax card and noted that it had changed from a one-fa= mily to a two-family and thought it was the result of his attorney, or Mr. Tucke= r. Mr. Perry said there was nothing i= n the planning file that indicates anything had been done nine years ago, or twenty-five years ago when the home was constructed. He said he became aware of the pro= blem because he was in the process of selling the house to a family who wanted an in-law apartment. Mr. Perry submitted a letter from his septic company indicating the status of the tank. He noted that the apart= ment was less than 500SF per the old zoning regulations.

Mr. Hennessey said he didn’t see the data that satisfied that the septic was adequate. Mr. Perry said he spoke with Plann= ing Director Jeff Gowan who didn’t inform him that he needed any addition= al information outside of letters from his septic company and the size of the septic tank.

Mr. McNamara asked how ma= ny bedrooms there were. Mr. Perr= y said there were two bedrooms in his house and one in the apartment. There are two and a half bathrooms= .

Ms. Paliy asked what a se= ptic outlet baffle was. Mr. Perry = said it was part of the septic tank.

Mr. Molloy questioned the= number of bedrooms. Mr. Perry said t= he plan showed three bedrooms, but actually there were only two; one of them h= ad no door or closet.

Mr. O’Sullivan aske= d if the in-law apartment space had been occupied.&= nbsp; Mr. Perry said his mother occupied it and later he allowed a friend = use it.

Mr. Hennessey read aloud = the ordinance regarding septic. He believed the design was to be for four bedrooms. Mr. McNamara discussed the fact th= at there wasn’t sufficient documentation of the ability of the septic sy= stem to handle the number of bedrooms. He said they normally received a copy of a stamped plan that certifi= es that the septic field and system was qualified for the number of bedrooms. Mr. Hennessey said a four-bedroom = design was needed on file in the event it became necessary. He said the Board was not allowed = to grant with conditions. He questioned how (per the Zoning Ordinance) it could be verified that an in-l= aw apartment was used for a family member once the existing applicant sold the property. Mr. McNamara said i= n the past, the Board had people come in (with permission from the owner) to obta= in a special exception or variance. Mr. Perry said the prospective buyer was not willing to sign a contract until t= hey heard the results from the meeting, or a Special Exception is granted.

After further discussion,= Mr. McNamara suggested that the Board could hold the case, until the December meeting which would allow Mr. Perry additional time to submit information regarding the septic. Mr. Per= ry was agreeable to the suggestion. = Mr. McNamara told Mr. Perry to speak with Mr. Gowan regarding the submission.

The case was continued to= the December 12, 2005 meeting, unless Mr. Perry otherwise advises Mr. Gowan, or the Board.

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

There was no one present = for the applicant. Mr. McNamara read = aloud a letter (dated October 20, 2005) from an abutter who was opposed to the case.

Mr. McNamara believed the= case had been continued in the past. It was noted that the case had been continued three times.

MOTION:

(Hennessey/O’Sull= ivan) To deny the variance for case (#2323).

VOTE:

(5-0-= 0) The motion carried.

VARIANCE DENIED

MINUTES

Septe= mber 12, 2005 – deferred to the next meeting.

Octob= er 13, 2005 – deferred to the next meeting.

CONTINUED CASE(S) –December 12, 2005

Case #2337 – PERRY,= Thomas & Michelle – 14 Plower Road / ML 10/13-166-1 ̵= 1; Seeking a Special Exception concerning Article XII, Section 307-74 to permi= t an accessory dwelling unit that was on the property prior to the purchase of t= he house.

ADJOURNMENT

MOTION:

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

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 8:30 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary