BOA20060508

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 8, 2006

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

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

PRESENT:

=

ABSENT:

Peter McNamara, David Hen= nessey, Svetlana Paliy, Kevin O’Sullivan, Robert Molloy, Alternate Bob Haverty, Plan= ning Director Jeff Gowan (who was present in the audience).

None.

CONTINUED<= o:p>

Case #2341 K &= K EQUIPMENT – Pulpit Rock Road / ML 41/6-138 – Seeking a Variance concerning Article III, Section 307-12 to permit develop= ment of a lot that was created prior to current area requirements which the Town= is considering undersized.

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. Peter Zohdi of Herbert Associates presented the plan to the Board and reviewed the pages to such.<= span style=3D'mso-spacerun:yes'> He said the plan would go before t= he Planning Board and possibly to the Conservation Commission for review. The septic system is one that is h= ighly recommended by the state. Mr.= Zohdi said the reason the applicant was seeking a variance was because the lot is zoned industrial and contained 43,100SF.&n= bsp; When it was set up it was an acre, but was lost some land because of= it being set 25-feet from the center line of the road; for all practical purpo= ses it is one acre. At the time t= he lot was set, they were all according to the Town rules and regulations; the Town then changed the zoning of the lots to industrial and later informed that industrial lots required two acres. Mr. Zohdi said when his client wanted to purchase the lot, he was to= ld by the Town’s staff that the lot was a lot of record that pre-dated zoning. He said when the site= plan was submitted to the Planning Department, Jeff Gowan, the Code Enforcement Administrator’s understanding of the law was different from what the applicant had previously been told. He said Mr. Gowan said even though it is a lot of record that pre-da= ted current zoning the applicant would have to go before the Board of Adjustment. Mr. Zohdi ended by reiterating tha= t the lot was a lot of record in the industrial zone and they were not able to ob= tain any additional land; the lot complied with other requirements for the zone.

Mr. Hennessey asked what = the current usage was for the lot. Mr. Zohdi said there was a building, but no one lived there; it was used for residential purposes. Mr. Hen= nessey noted that ‘useage’ was grandfathered, but the fact it was an existing lot didn’t affect its use under current zoning. Mr. Zohdi agreed.

Mr. O’Sullivan aske= d if the property currently had a well. Mr. Zohdi said there was an existing well and system but didn’t know their location. He said they were proposing new systems that would be complied with.

Mr. McNamara asked what w= ould be stored in the proposed new building. Mr. Zohdi said his client would like to sell equipment (not repair i= t) on site, and hoped to have other tenants (dry goods). Mr. McNamara said if the variance = were approved the applicant would then need to go before the Planning Board for a site plan (and review the drainage, parking lighting etc). Mr. Zohdi answered yes. He informed that he had already go= ne before the Planning Board, who sent him to the Board of Adjustment.

Mr. Zohdi read aloud the ‘Area’ variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: The propos= ed use is permitted by the zoning and is not contrary to abutting property and by constructing this building it will add to the taxes being paid on the property.

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

“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: The Town changed the zoning to Industrial with 60,000SF area requir= ed when lots of record had only 40,000SF.

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: = There is no land available to purchase= to add to the lot area.

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance to waive one of the zoning’s requireme= nts and we will meet all the other setbacks and codes.

4. Substantial justice is= done because: The use being requested is= consistent with uses of the surrounding lots and variance being granted will allow the owner to use his property in the same manner.

5. The value of the surro= unding properties will not be diminished because: A brand new building is proposed of equal or greater value than surrounding properties.

Mr. Molloy asked if the a= butting lots were both used commercially. Mr. Zohdi said both were commercial.

Mr. Zohdi said they had discussions with an abutter who requested a few items be added to the plan;= a copy of the items was given to the Board.&= nbsp; The applicant had no objection to the request. Mr. McNamara reviewed the (2-page) letter (dated May 4, 2006) given to the Board containing ten conditions that seemed to be extensions on any kind of conditions that the Planning Board w= ould put on the approval during the site plan process. Mr. Hennessey noted that one of the conditions called for the building to be not more than 60ft.x100ft; however= the plan presented showed the building as being 120ft.x60ft. Mr. Zohdi said he spoke with the Planning Director/Code Enforcement Officer and was told by law the plan sub= mitted was the ‘submission’; if the applicant agreed with the abutter = to make the building 100ft. it could be done later if the Board placed that as= a condition. Mr. Gowan believed= the plan ‘suffered’ from the change in administration from the form= er planning director. He said at= the time, the property was being researched by the person wanting to do the project, who consulted with the then Code Enforcement Officer (Roland Soucy) who interpreted the zoning differently.&nb= sp; He said he requested legal advice before making his decision. He believed it was an appropriate = use for the site.

Mr. Hennessey said the To= wn had an Industrial zone and Business zone and wanted to know which one the proposed property fell under. Mr. Gowa= n said it was an Industrial zone, but a commercial/business use. Mr. Molloy asked if it was an indu= strial use area. Mr. Gowan said the = area was zoned industrial. He said= it was his opinion (and Attorney John Rattigan’s opinion) that just beca= use a lot was there when re-zoned, didn’t mean it was grandfathered. Mr. Hennessey said he knew K &= K Equipment from Dracut and asked if the engineering consultants had reviewed the road to make sure= it could handle heavy equipment. Mr. Gowan said the Town’s engineering firm wouldn’t review until the plan was accepted for consideration by the Planning Board. Mr. Zohdi didn’t feel there = would be any problem based on the fact that in the past there was a printing busi= ness in the area that had heavy trucks accessing the same road.

Mr. Haverty asked if any equipment would be serviced/maintained/fueled on the site, or just selling it. Mr. Zohdi said the equipm= ent would be brought to the sight, displayed and sold. They were not proposing to repair = the equipment. It would be a sale= s facility, not a rental facility.

Ms. Paliy questioned if t= he equipment would be customized for the clients. Mr. Zohdi answered no. Ms. Paliy wanted to know what woul= d happen if a piece of equipment broke down. She said it was still unknown who the other tenants would be; it wouldn’t be determined until after approval. Mr. Zohdi said generally with a si= te like the proposed the tenants were unknown; however, when a tenant wanted to take occupancy in a building they had to deal with the Code Enforcement Officer. Mr. Gowan noted that= any change of use would require review by the Planning Board.

Mr. Hennessey questioned = if the Board was granting the variance for industrial, or for commercial (business) use. Mr. Gowan said if the Bo= ard granted the variance for industrial, business could be practiced (the Town = has pyramid zoning). Mr. Hennessey noted that there is a distance requirement for establishments selling new o= r used automobiles and pointed out that doing so was not permitted in the industri= al zone; he wanted it clear that granting the variance there could still be no automobile sales. Mr. Gowan s= aid that was correct. Mr. Zohdi understood an additional variance would be needed if the applicant wanted to sell automobiles.

Mr. O’Sullivan aske= d what the building would look like. Mr. Zohdi said in general it would look like the new dollar store building on R= oute 38. The applicant was working= with their architect to make the building look good with a nice facade, not just= a metal structure. Mr. O’= Sullivan asked if the equipment was meant to be stored inside the building. Mr. Zohdi said some of the equipme= nt would be stored in the back of the building, inside.

Mr. Hennessey asked that = the height of the building be addressed. Mr. Zohdi said the elevation of the existing ground was 148; based on the building it would possibly be 54-feet from the street line and when reviewing the site, they had more than 65ft-70ft. from the street line. He said he had to comply with the requirement of twice the height of the building from the existing ground (three-times the height from the front; twice the height from the sides and back). Mr. Hennessey asked if= there could be a stipulation for the height of the building. Mr. Zohdi said it could be stipula= ted that the height (in the front of the building) would not exceed 20-feet (wh= ich would give him 60-feet in the front).

Mr. McNamara read aloud a= letter dated May 4,2006<= /st1:date> to Attorney Paul DeCarolis of Gottesman & Hollis from Flood & Hartigan= PC confirming that there had been a meeting where Attorney Flood’s client had agreed to include certain conditions in decisions issued by the Zoning = or Planning Board. Mr. Hennessey= questioned if the Board could stipulate the ownership (as requested in the letter of <= st1:date Month=3D"5" Day=3D"4" Year=3D"2006" w:st=3D"on">May 4, 2006). Mr. Gowan said he had not heard an= y of the conditions until now, but argued that most of the conditions belonged u= nder the purview of the Planning Board rather than the Zoning Board of Adjustment. Mr. Hennessey didn’t believe that the Board could restrict the petitioners from mak= ing the property into condominiums. Mr. Gowan pointed out that the abutters made recommendations; however, the Boar= ds were who stipulated the conditions.

PUBLIC INPUT

Attorney Paul DeCarolis of Gottesman & Hollis, representing some of the abutters, Prolyn Corp.and = J. Albert Lynch, said the property owners (applicant) would stipulate that the= re would be one owner. He said i= f the Board was inclined to grant the variance, it could be on the condition that= the property owner submit a private (recordable) covenant. He stated that the conditions cont= ained in the May 4, 200= 6 letter were agreed to by the property owner (and applied to the variance); = it was understood that the plan still needed site plan review and the applicant reserved the right to appear at the Planning Board to express any (addition= al) concerns. He said the abutter= s were also concerned with the aesthetics of the proposed.

Mr. Molloy pointed out th= at there was a discrepancy regarding the hours of operation as noted in the letter (dated May 4, 200= 6) and as stipulated on the plan. Mr. McNamara said the hours would be part of the site plan review. Mr. Zohdi said he would like to re= solve that type of item with the Planning Board.= Mr. McNamara asked if the applicant agreed to be bound to the letter dated May 4, 2006= for purposes of the variance hearing. Mr. Zohdi answered yes.

Mr. Hennessey asked for i= nput from the Planning Director regarding how to proceed in connection with the conditions. Mr. Gowan said hi= s concern of granting a variance based on a set of stipulations and later having the Planning Board review would encumber the variance. He felt the concerns were better addressed at the Planning Board level.&nbs= p; Mr. Molloy wanted to clarify if the variance was for industrial (requiring 87,000SF), or business (that requires 60,000SF). Mr. Zohdi said he was requesting a= lot, less than two acres within an industrial zone to be use as industrial. Mr. Hennessey said because the app= licant was requesting an ‘Area’ variance, he was hesitant to make stipulations and inclined to give it to planning to figure out. Mr. Gowan said if the variance was granted, he would include in his notes to the Planning Board the list conta= ined in the May 4, 200= 6 letter.

Ms. Paliy asked if the ab= utters were okay with how the Board would proceed. Attorney DeCarolis said the arrang= ement they had (with the applicant) was they wouldn’t object to the varianc= e if the conditions were agreed to. He said what he heard from the applicant was even though the list (in the lett= er of May 4, 2006) wouldn’t be imposed as conditions, they (the applican= t) would agree that they would be stipulations agreed to at the Planning Board level. Otherwise, Attorney DeCarolis’ clients would object on the basis that the proposed was an expansion of a prior non-conforming use.&n= bsp; Mr. McNamara said in the first paragraph of the letter dated May 4, 2006 it s= tates that the applicant agreed to the conditions in any decision issued by the Zoning Board and Planning Board.

BALLOT VOTE:

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

VOTE:

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

Mr. Molloy – Yes = to all criteria

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

‘AREA’ VARIANCE APPROVED

HEARING(S)

Case #2345 TENNEY = ROAD DEV. LLC – Tenney Road = / ML 21/3-101 – Seeking a Vari= ance concerning Article VII, Section 307-41 A & B to permit the development = of a single family house partially in the WCD, a well in the WCD, and a septic system that does not comply with the required setback to the wetland. =

Mr. McNamara informed tha= t the Planning Department had received a letter from the applicant requesting that this matter be withdrawn and postponed for at least two months. Abutters will be re-notified of th= e date and time the case will be heard.

Case #2346 DUBE, D= ennis – 29 Valley Hill Road /= ML 29/4-139-4 – Seeking a Va= riance concerning Article III, Section 307-12 to permit the installation of a 15x30 oval above ground pool that does not meet the 15’ setback requirement= .

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. Dennis Dube met with = the Selectmen to discuss his Variance request.= He explained he would like to put a pool in for his children. In measuring off the lot map, Mr. = Dube was short on one corner by 5-feet and another back corner by 16-inches. He said the lay of the land from t= he street to the top of the front yard had a 30ft.-35ft. elevation difference; leveled off at the location of the house and then continued up.

Mr. Dube read aloud the V= ariance criteria as submitted to the Town. <= /span>

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.

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: W= e will not be able to use our land to its fullest potential if the variance is den= ied.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: There is no additional land to be purchased to conform to the current side setback.

iii. the variance would not injure the public or private rights of others since: It does not obstruct = any views of abutters.

“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: One side of the structure is non-conforming to the side setback of 15ft.

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: = of the steepness of the land.

3. The Variance is consis= tent with the spirit of the ordinance because: I am only requesting a variance to waiver one of the zoning requirements and = will meet or exceed all other setbacks and codes.

4. Substantial justice is= done because: The use being requested is consistent with the uses of the surrounding lots and the variance being gra= nted will allow us to use our property in the same manner.

5. The value of the surro= unding properties will not be diminished because: the structure is common within the neighborhood.

Mr. Hennessey asked why t= he pool was 12-feet from the house. M= r. Dube said the air conditioners were on the same side and wanted enough room= to maintain the house. Mr. Henne= ssy said if the pool was moved in toward the house a variance wouldn’t be needed. Mr. Dube said the pool would be close to the air conditioner (that was located on a concrete pad) = and water may possibly get into the unit and harm the motor. With regard to electrical requirem= ents, Mr. Dube said there shouldn’t be any outlets within five-feet from the edge of the pool. Mr. O’Sullivan confirmed that the compressor was already sitting on the p= ad in that site. Mr. Dube answered yes.

Mr. McNamara asked if Mr.= Dube obtained any estimates to put a pool in on the other side of his home. Mr. Dube answered no and noted tha= t his leach field and septic system were located in that area. The back of the house was at a 40-= degree angle. Mr. Dube said the cost= of having an excavator and retaining wall would raise the cost by five times.<= span style=3D'mso-spacerun:yes'>

Mr. Gowan noted since the swimming pool was ‘above ground’, it wasn’t a permanent structure.

There was no public input= .

Mr. O’Sullivan aske= d what was on the other side of the property line where the pool would be located. Mr. Dube said the ar= ea was treed; his neighbor was approximately 300-feet from there. He spoke with the direct abutting neighbors and neither of them had a problem with his proposal.

The Board discussed the r= equest further. Mr. Dube reiterated = that the pool wasn’t a permanent structure. Mr. Haverty understood that the ap= plicant’s property had a steep grade but asked if the pool could be shifted. Mr. Dube said he couldn’t be= cause there was a 10-foot retaining wall located in the back.

Ms. Paliy believed there = would be other issues if the pool were placed closer to the house because it would interfere with the upkeep.

Mr. McNamara confirmed th= at Mr. Dube wasn’t proposing to build with the 12-feet between the pool and = the house. Mr. Dube answered no.<= span style=3D'mso-spacerun:yes'>

The Board discuss whether= they would walk the site and decided against such.

BALLOT VOTE:

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

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

VOTE:

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

Mr. Molloy – Yes = to all criteria

(<= st1:date Month=3D"4" Day=3D"1" Year=3D"2000" w:st=3D"on">4-1-0) The mot= ion carried.

‘AREA’ VARIANCE APPROVED

Case #2347 SAVOY, Patrick & Michele – 98 Dutton Road / ML36/10-370-1 – Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision o= f a 2.3 acre lot into two lots, one having 165.15ft. of frontage and the other having 42.04ft. of frontage where 200ft. is required.

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. Hennessey noted there= was a recent meeting with Town Council and the Planning Board to review the regulations. During this meet= ing, Town Council said all lots needed to have 35,000SF high and dry and it was = the responsibility of the Zoning Board as opposed to the Planning Board. If a lot didn’t have 35,000S= F high and dry a variance from zoning was needed.= Mr. Hennessey asked if lot 10-370-1 contained 35,000SF high and dry. He said if it didn’= ;t the lot didn’t conform and an additional variance was needed.

Mr. Robert Balquist of Me= isner Brem met with the Board to present the plan. He said he was unable to answer Mr. Hennessey’s question until he went back to his office. He said one of the unique characte= ristics of the property was that it was cut in two by wetlands. He said the applicant was requesti= ng a variance for frontage. He sai= d it was an existing 2.3 acre lot and they proposed to create one lot of 46,000SF (1.07 acres) and a back lot containing 53,753SF (1.23 acres). The use proposed was allowed for a single-family home. Mr. Henne= ssey said the Board had received an area variance request for frontage and if approved the applicant would have to come before the Board and either stipulate they= had 35,000SF high and dry, or request an additional variance. Mr. Balquist said he would rather = do both variances at the same time.

Mr. McNamara said without= the calculation the request to take a conforming lot and create two non-conform= ing lots had added significance. = He felt it was best if all the issues were addressed at one time.

Mr. Gowan agreed with Mr. Hennessey. He said he had exp= lained to an interested party that both lots would need the 35,000SF of high and d= ry, but had not yet seen the calculation on a plan. He believed if the Board were to consider the proposal based on what had been submitted, it would only be if= the applicant were unable to prove to him that 35,000SF (contiguous) it would h= ave to come back for a variance. =

Mr. McNamara said if the applicant agreed, the variance request would be continued to next monthR= 17;s meeting (June 12, 2006) at which point a determination would be made (by Mr. Gowan) as to if there was 35,000SF on each lot.

The case was continued to= June 12, 2006.<= span style=3D'mso-spacerun:yes'> The applicant’s would not re= ceive additional notice, they were instructed to review the posted agendas, or contact the Planning Department. The applicant was encouraged to meet with Mr. Gowan regarding the project prior to it coming back before the Board.

MINUTES

April 10= , 2006

MOTION:

(Hennessey/O’Sull= ivan) To approve the Ap= ril 10, 2006 meeting minutes as written. <= o:p>

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 8:52 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;              &= nbsp;       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