BOA20060109

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 9, 2006

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

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

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Svetlana Paliy (arrived after the meeting commenced), Ke= vin O’Sullivan, Alternate Robert Molloy, Alternate Cindy Ronning (arriv= ed after the meeting commenced and left the meeting early), Planning Director Jeff Gowan

None.



CONTINUED

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>

Mr. McNamara said the cas= e had been continued so additional information regarding the septic system could = be obtained. He believed the requirements for a Special Exception had been reviewed (at the November meeting) and met, minus a plan for proposed septic system appropriate for t= he number of bedrooms at the property.

The applicant, Mr. Thomas= Perry said two sets of plans had been submitted; one showed a house and the other showed the single property. I= t was confirmed that the house met side and front setback requirements.

Ms. Ronning arrived. Mr. McNamara appointed Mr. Molloy = and Ms. Ronning as voting members.

Mr. Perry said Health Off= icer Paul Zarnowski has approved the plan provided to him and passed it along to= the state. He said the state had = stamped the plan, but he had not yet received it back from them.

There was no public input= .

MOTION:

(Hennessey/O’Sull= ivan) To grant the Special Exception. =

VOTE:

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

SPECIAL EXCEPTION GRANTED

HEARINGS

Case #2338 – GUILBAULT, Randy – 563 Mammoth Road /= ML 1/5-123 – Seeking a Variance concerning Article V, Section 307-18 to permit storage and sales of up to 15 ‘repairable collisions’ (motor vehicles). There will be no vehicle repair and the vehicles will only be viewed= by customers. No vehicle will be= test driven.

(Ms. Paliy arrived while = the Board heard the case, however because she didn’t hear all the testimo= ny Ms. Ronning voted)

Mr. Hennessey read the li= st 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.

Attorney Bob Shepherd, representing the applicant, met with the Board to discuss the requested Variance. He said Mr. Guilbau= lt sold repairable collisions (that had been purchased at auctions) in a space consisting of approximately 2500SF. Mr. Guilbault had been in business (at that location) since 1994 /19= 95 and thought he was operating legally, but was notified that he needed a variance. Typically the vehic= les purchased at the auctions could be driven, but were not road worthy, and therefore towed to the site. Vehicles are seen by appointment only and when purchased are towed away. The variance was needed because the business was considered a used car dealership located in the Industrial Zone. To the applicant’s knowledge, there had been no complaints about the business.

Attorney Shepherd reviewe= d the Variance criteria (as submitted) as follows:

1. The variance will not be contrary = to the public interest because: The applic= ant sells ‘repairable collisions,’ which allows people with automot= ive skills to purchase a vehicle at a low price. When the vehicle is repaired, the = owner will now have a very nice vehicle. <= /span>

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 applicant has been operating his business at this location, with no complai= nts, since 1994 or 1995. Although = much more intensive uses are permitted in the industrial Zone (such as manufacturing), warehousing or storing and selling automobiles are not permitted in this zone. The Applicant is not able to find property comparable to his present location, within the Business Zone.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance

and the specific restriction on the property bec= ause: The Industrial Zone is an appropriate location for the Applicant’s business. Damaged vehicles purchased by the Applicant are brought to the business by a ramp truck or tow truck. Vehicles that are purchased are re= moved from the business location by the same method. This is consistent with other acti= vities in the Industrial Zone and in the adjacent industrial park. =

iii. the variance would not injure the public or private rights of others since: The Applicant’s=

busin= ess has no impact upon abutting property owners.&n= bsp; This business is small in scope and volume.

3. The Variance is consis= tent with the spirit of the ordinance because: Much more intensive uses are allowed in the Industrial Zone. The Applicant’s business is unique. The Applicant purchas= es vehicles at an auction and stores or warehouses them at the property. The vehicles are not operated on t= he site. No repairs occur on site. Warehousing is a permit= ted use in the Industrial Zone. Customers are allowed to view the vehicles by appointment only.

4. Substantial justice is= done because: Although this particular u= se is not permitted, similar uses, such as warehousing and the selling of new boa= ts, trailers and aircraft are permitted. The proposed use by the Applicant is reasonable and consistent with other uses within the Industrial Zone.

5. The value of the surro= unding properties will not be diminished because: The Applicant’s business is small in scope and volume. No more than fifteen (15) vehicles= will be stored on the property at any given time. The vehicles are neatly stored on = site, behind a large fence that shields the vehicles from being seen from Mammoth Road. The business has been in place for approximately ten (10) years, with no impact on surrounding property. The Applicant’s business is = neat and clean.

Attorney Shepherd said the applicant understood that if a variance was granted, he would have to go be= fore the Planning Board to seek Site Plan approval.

There was a brief discuss= ion regarding the existing fence along Mammoth Road. Mr. Guilbault said he could install a 15-foot fence along the left s= ide of the parcel.

Mr. O’Sullivan aske= d what surface the vehicles were parked on. Mr. Guilbault said the vehicles were parked on crushed stone. He said the cars were rotated fair= ly quickly; normally approximately one hundred cars per year were sold. Mr. O’Sullivan said the Town= had a significant problem with water quality (contamination) issues and was conce= rned with adding to that potential. Attorney Shepherd said they were also concerned and felt it would be handled during the Planning Board’s review. Mr. Hennessey said the mechanism by which the Town had reassured that some of the fiascos from that past didn&#= 8217;t happen again was by having a consent decree signed. He said he would like a consent de= cree entered into (with periodic soil tests).&n= bsp;

Mr. McNamara understood t= hat the Planning Board would review for Site Plan approval. He questioned if the Board of Sele= ctmen would also have to review. Mr. Gowan said if the application was successful before the Planning Board under Site Plan review it would have to go before the Selectmen for (by the Town’s Regulations) a vehicle junkyard license. He said he had been to the site and believed it was a reasonable use of the property where it was located.

Ms. Paliy asked if there = was a requirement for there to be a barrier to the soil where the cars were standing. Attorney Shepherd w= as unsure, but believed it would be reviewed by the Planning Board. It was noted that the cars were currently on crushed stone that was able to be plowed in the winter.

There was no public input= .

Mr. Hennessey was unsure = if the Board could require that a consent decree be entered into. He wanted the Board to request tha= t the Planning Board require the applicant to enter into a consent decree prior to granting the site plan approval. Mr. McNamara was unsure who could require a consent decree. He said if the variance was grante= d the applicant had to go before the Planning Board and the Selectmen for further review.

Mr. Hennessey discussed t= he site and said it was hard to argue (given the recent court cases) that the appli= cant shouldn’t be allowed to continue the usage and there was detriment to= the community (as long as there were proper safeguards regarding pollution and water resources). Mr. McNamara added that the variance was specific to the business the applicant was cond= ucting. He wanted it made clear that it wa= s the only variance being granted; it was not a general use, or subsequent expans= ion of use. He said the Planning = Board would address the operation further. The Board discussed what additional items the Planning Board would address.

Mr. Hennessey made a moti= on; if the variance was approved, the Board of Adjustment will make a recommendati= on to the Planning Board that a consent decree (modeled after the Dutton Road junkyard – Jack Mansur) should be entered into that stipula= tes no more than 15 cars to be on the premises and how much of the lot could be disturbed, pertinent testing etc. Mr. O’Sullivan seconded the

motion.

MOTION:

(Hennessey/O’Sull= ivan) If the Variance is approved, the Board of Adjustment will make a recommendat= ion to the Planning Board that a consent decree (modeled after the Dutton Road junkyard – Jack Mansur) should be entered into that stipulates no more than 15 cars to be = on the premises, how much of t= he lot could be disturbed, pertinent testing etc.

VOTE:

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

BALLOT VOTE:

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria – all subject to recommendation to the Planning Board = for consent decree.

VOTE:

Mr. O’Sullivan &#= 8211;Yes to all criteria

Mr. Molloy – Yes = to all criteria

Ms. Ronning – Yes= to all criteria

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

‘USE’ VARIANCE APPROVED

Case #2339 – SARGENT, Ross – 12 Little Island Park /= ML 24/12-83 – Seeking a Variance concerning Article III, Secti= on 307-12 & 13 to permit the existing dwelling to be razed & reconstru= cted in a new location on the lot. The new building will meet side & rear setbacks, front setback to be 20-fee= t no the required 30-feet.

Ms. Ronning left the meeting. Mr. McNamara noted t= hat Ms. Paliy and Mr. Molloy would vote on the following case.

Mr. Hennessey read the li= st 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. Joe Maynard, represen= ting Mr. Ross Sargent, met with the Board to discuss the requested variance. He said he became involved with the property when he did the new septic system design for the property, which h= ad been before the Town’s Board of Health and received state approval. He explained that after the septic system approval was done, Mr. Sargent decided to revamp the existing cottag= e; however, when the structural integrity of the old camp was reviewed, Mr. Sargent felt it was better to start over again instead of repairing the old structure. Mr. Maynard said he discussed the situation with Mr. Gowan and they felt it should be made a be= tter situation than it currently was.

Mr. Maynard read the vari= ance criteria (as submitted) aloud:

1. The variance will not be contrary = to the public interest because: The propos= ed use will be no different than the existing use. Building to be located in a more conforming location further away from the existing roadway. Reconstruction of the existing dwe= lling will increase the value of the lot therefore adding to the taxes to be paid= on the property.

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

“Use”

ii. the z= oning 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: Lot of record with existing dwelling. There is no additional land availa= ble for purchase to make the lot large enough to meet current regulations. New building will meet side & = rear setback requirements. Buildin= g to be 20-feet off front setbacks with 30-feet required. Existing structure to be razed sit= s only 6-feet off the front setback.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: Existing lot of record. New location for building will e 2= 0-feet off front setback. This will = be a 14-foot increase over the existing building which sits 6-feet +/- off the f= ront setback. If variance is grant= ed we will meet all other requirements the Town places on us (such as we will construct the new dwelling to the current building code & any other per= mits the Board may require). =

iii. the variance would not injure the public or private rights of others since: Building to be reconstructed in a location further away from the right-of-way. Lot has existing dwellings.

“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: Existing lot of record. No other land available to allow lot to meet current regulations. Building proposed is relatively th= e same size as the existing dwelling.

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: = Existing lot of record. No other land is available to allo= w lot to meet current regulations. =

3. The Variance is consis= tent with the spirit of the ordinance because: Existing lot of record. New building location will be 20-feet off front setback. This will be a 14-foot increase ov= er the existing building which sits 6-feet +/- off the right-of-way. If variance is granted we will mee= t all other requirements the Town may place on the approval. (such as current building code or other permits).

4. Substantial justice is= done because: Use requested is consisten= t with surrounding lots. Variance be= ing granted will allow us to utilize our property in the same manner. Granting variance will allow build= ing to be reconstructed in accordance with modern building codes & regulations= .

5. The value of the surro= unding properties will not be diminished because: New building will be of equal or greater value than the surrounding properties.

Mr. Hennessey asked if the residence was currently year-round. Mr. Maynard answered yes. Mr. Hennessey asked if it was occupied year-round. Mr. Maynard said it had gone befor= e the Board of Health, and they made the property year-round as of August, 2005.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara wanted to kn= ow what the square footage of the current structure was. Mr. Maynard said the existing dwel= ling was 22ftx40ft and the proposed was 24ftx42ft. He said they would like to move the structure back, further away from the right-of-way. Mr. McNamara noted that there was = an existing deck to be razed and asked if there would be another deck. Mr. Maynard answered no. Mr. McNamara asked if the current structure was one-story. Mr. Maynard said it was a one-story (with vaulted ceiling) (approximately 26-fe= et in height) and some sort of basement. The new structure would be one-story. Mr. Maynard said they wanted to ch= ange the roof pitch so the structure would be one and a half stories (33.5-feet = in height).

Mr. Molloy asked what siz= e the abutting lots were. Mr. Mayna= rd said all the lots were similar; some smaller.

Mr. O’Sullivan aske= d if there would be a full basement. Mr. Maynard said they would like to put a full basement with 8-foot ceiling. Mr. O’Sullivan asked if ther= e was a driveway. Mr. Maynard said = there was an existing driveway and showed photographs showing the current conditions.

Mr. McNamara asked how ol= d the current structure was. Mr. Ma= ynard guessed the building was from the 1930’s. His client purchased the property = in 2000.

There was no public input= .

Mr. Hennessey noted that = the address was Little Island Park; however, the property did not abut the pond= and was more than 250-feet away so there was no shore land protection act. Mr. Hennessey asked if the road wa= s Town approved. Mr. Gowan said it w= as a private road.

Mr. Hennessey was concern= ed with converting from seasonal to year-round given in the face of the Fire Chief indicating there was a 20-minute response time. He said the Board of Health had the power to convert. Mr. Maynard= said if the Board required a residential sprinkler system they would add one. The question was raised as to whet= her the structure was used as year-round. Mr. Maynard said that question would go with how the Town viewed year-round. He said it met the needs of year-round, but could not answer how many days it was inhabited. The property was used in the winter. Mr. Maynard said they= were willing to ‘sprinkle’ (add a sprinkler system) the dwelling if = it was a concern of the Board. M= r. Hennessey discussed emergency response and was concerned with any future ow= ner not understanding the time. M= r. Maynard reiterated that they were more than willing to add fire sprinklers = to the building. Mr. Hennessey w= as unsure if the Board had the power to require sprinklers; however, he said he would make a recommendation for such.

Mr. McNamara confirmed wi= th Mr. Gowan that a variance was required. Mr. Gowan answered yes; and went on to discuss setbacks and noted th= at the proposed would make the lot more conforming. They discussed the request further= .

Ms. Paliy felt the propos= ed would be an improvement to the site. She said it wasn’t very good for response times to be high, but felt peop= le should be aware of such times.

Mr. McNamara asked if Mr.= Sargent intended to reside on the property once it was rebuilt, or sell it. Mr. Maynard said Mr. Sargent inten= ded to reside on the property. Mr. McNamara asked if the structure height would impair or block the abutter’s view. Mr. May= nard believed by moving the house back the view would be helped. It was beyond the Boards scope to stipulate adding a sprinkler system.

BALLOT VOTE:

Mr. McNamara – Ye= s all criteria

Mr. Hennessey – Y= es all criteria

Ms. Paliy – Yes a= ll criteria

VOTE:

Mr. O’Sullivan &#= 8211; Yes all criteria

Mr. Molloy – Yes = all criteria

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

‘AREA’ VARIANCE APPROVED

MINUTES

November= 14, 2005

MOTION:

(Hennessey/O’Sull= ivan) To approve the N= ovember 14, 2005 meeting minutes as written.

VOTE:

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

December= 12, 2005

MOTION:

(Hennessey/O’Sull= ivan) To approve the D= ecember 12, 2005 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

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

VOTE:

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

The meeting was adjourned= at approximately 8:35 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