BOA20060710

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 10, 2006

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, Robert Molloy, A= lternate Bob Haverty, Planning Director Jeff Gowan

None.

REHEARING

Case #2341 K &= K EQUIPMENT – Pulpit R= ock Road /= ML 41/6-138 – By abutter, Prolyn Corp.,

<= st1:address w:st=3D"on">5 Lawrence Corner = Road

Mr. McNamara said the Boa= rd granted a request for rehearing last month. He said the Board had since receiv= ed a letter dated Jun= e 26, 2006 from Attorney Paul DeCarolis (the applicant’s attorney) advising that= the applicant and the abutter had resolved the issues related to the recent mot= ion for rehearing. The letter con= firmed that the applicant withdrew the motion.&nb= sp;

The allowance of the vari= ance stands.

CONTINUED

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 case would not be heard at the present meeting and believed at a previous meeting that the Board determined after a continuance that abutters would n= eed to be re-notified of when the matter would be heard again.

Mr. McNamara confirmed th= at the matter was withdrawn and the applicant would come back to the Board at some point in time re-notifying the abutters.&n= bsp; Mr. Peter Zohdi of Herbert Associates (representing the applicant) answered yes.

The case was withdrawn an= d was not heard.

Case #2348 CHARAKA= LLC – 49 Atwood Road / ML 29/7-45 Seeking a Variance conc= erning Article VII, Section 307-41 (B) to permit the construction of a new building and a fire lane partially on the WCD area.

Mr. McNamara informed tha= t the case was heard at a previous meeting at which time the Board had decided to walk the site.

Mr. Peter Zohdi of Herbert Associates, representing the applicant, discussed the variance request with= the Board. He said since the last meeting a joint site walk was conducted with the Conservation Commission. <= span style=3D'mso-spacerun:yes'> He said at the Conservation Commission’s meeting a new plan was introduced which showed that the existing structure would be removed and the proposed building would be shif= ted NW to get the building further out of the Wetland Conservation District (‘WCD’). He said = since the site walk his co-partner Mr. Michael Gospodarek met with the Conservati= on Commission; the Conservation Commission (through its Chair, Paul Gagnon) subsequently forwarded a letter to the Board. Mr. McNamara read the letter submitted by Mr. Gagnon aloud which in summary the Commission voted unanimously in favor with recommendations as follows: 1) shift the Atwood Road parking area to the East a sufficient distance to allow the building to be moved toward Atwood Road and virtually= out of the WCD (may require a waiver of the minimum setback); 2) Eliminate the = fire lane from behind the building (if acceptable to the Fire Chief) – the fire lane on the east side be constructed with grass pavers; and 3) should = the building remain within the WCD, two upland areas (adjacent to the WCD) be included in the WCD as compensation.

Mr. Zohdi said shifting t= he parking area to the east wouldn’t work for the doctor’s office because the parking and drop-off area would be away from the building and a variance would be needed for the front setback. In reference to the fire lane, Mr.= Gowan said he reviewed the plan with the (new) Fire Chief who would like 10ft. ac= cess in the back between the building and the start of the fire lane and would a= lso like an 18ft. grass paver to get emergency equipment in. A written response from the Fire C= hief will be provided when the plan went before the Planning Board for review.

Mr. Hennessey said ordina= rily if in the WCD it would be a no-cut zone, but it couldn’t be so if grass pavers were in place. Mr. Gow= an said there would be less impact. He said a couple of WCD lines would be redrawn to make up for the proposed encroachment. Mr. Hennessey a= sked if the three (existing) parking spots (currently in the WCD) would remain.<= span style=3D'mso-spacerun:yes'> Mr. Zohdi reviewed the proposed pl= an and where the fire lane and grass pavers would be located. They had no objection to what the = Fire Chief wanted. Mr. Zohdi said = the three parking spaces would be eliminated.   Mr. O’Sullivan asked i= f the parking spaces were restricted. Mr. Zohdi said the major parking would be in the front of the building. He said they would be able to work= with the drainage and wouldn’t let anything go into the wetland or WCD wit= hout treatment. He briefly discuss= ed how the fire lane would be set and not used for parking spaces. Mr. Haverty asked if the fire lane= (on the east) would proceed down the entire length of the building. Mr. Gowan showed where the grass p= avers would be placed (based on what was submitted). Mr. Zohdi said they would minimize= the impact to the WCD.

There was no public input= .

Mr. McNamara read aloud a= letter directed to the Planning Board from the United States Postal Service (Postmaster Kevin Fossman) dated June 21, 2006 which in summary discussed the concern= s of the recent flooding at the Pelham Plaza and the effec= t it had to the Pelham Postal facility. There was concern that the current catch basin was in failure and any further water would escalate the problem.&= nbsp; Mr. Fossman outlined the concern (if the proposed project was allowe= d) of not correcting the situation in the event of future flooding. Mr. Zohdi said during the site wal= k the catch basin (in question) was reviewed.&nb= sp; He showed the Board the location of the basin, the associated cross-= culverts and how the drainage from the site (to Beaver Brook) would be handled. He noted that the pre- and post-development drainage could not increase, but they could help correct existing problems.

Mr. Hennessey wanted to r= eview the minutes from the site walk (which were sent electronically). He noted that a number of abutters= had concerns regarding flooding. = He discussed the encroachment and in acknowledgement of the abutter’s concerns he was convinced that the project would not exasperate their probl= em.

Mr. McNamara said floodin= g is serious and Mr. Hennessey was right to keep the abutter’s concerns in mind, but it wasn’t the primary responsibility of the applicant; the Variance is judged on the five criteria.&n= bsp; He went on to review the criteria in connection with the request. He noted that the applicant still = needed Planning Board review of the drainage, hydrology, parking, lighting etc. Mr. McNamara felt the applicant cl= early met the Variance criteria.

Due to the fact that ther= e was not an adequate number of voting slips, a Voice Vote was taken as follows: =

VOICE VOTE – Case #2348 - Article VII, Section 307-41 (B) = to permit the construction of a new building and a fire lane partially on the = WCD area

1. The variance will not be contrary = to the public interest because:

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative tha= t criteria have been met.

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:

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative tha= t criteria have been met.=

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:<= /p>

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative tha= t criteria have been met.=

3. The Variance is consis= tent with the spirit of the ordinance because:

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative tha= t criteria have been met.=

4. Substantial justice is= done because:

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative tha= t criteria have been met.=

5. The value of the surro= unding properties will not be diminished because:

VOICE VOTE:

McNamara – Yes

Hennessey – Yes
Paliy – Yes

O’Sullivan –= ; Yes

Molloy – Yes

VOTE:

(5-0-= 0) Unanimous in the affirmative that criteria= have been met.<= /p>

AREA VARIANCE GRANTED

HEARINGS

Case #2350 FIGUERO= A, Edith & Felix – 138 Windham Road= / ML 4/9-142-1 – Seeking a Special Exception concerning Article XII, Section 307-74 to permi= t an accessory dwelling. Also seek= ing a Variance concerning Article III, Section 307-7 & 307-12 to permit a 5ft= by 6ft entrance to be constructed 10.5ft from a neighboring property, so as to connect to the end of an existing porch.

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.

Mr. Peter Zohdi of Herbert Associates, representing the applicant, met with the Board to discuss the Special Exception and Variance requests which he wanted to handle separatel= y. He said this was a fairly new subdivision that he had done in 1999. The previous owner constructed the home (with an addition); the curr= ent owner had previously obtained an approval from the New Hampshire Department= of Environmental Services for their sewage design (a copy had been submitted).=

Mr. McNamara made Mr. Zoh= di aware of two abutter notifications that didn’t have returned card receipts; Larss & Mara Freimanis of 5 William Drive and Carl Smith of 1 Tallant Road. Mr. Zohdi decided to proceed.

Mr. Zohdi said the propos= ed addition complied with all the requirements. He said in the back of the buildin= g they left a 6ft.x7ft. jog because they didn’t want to have a Wetland Conservation District (‘WCD’) impact or wetland setback in that location. He noted that a por= tion of the (existing) house was in the WCD; the previous owner had obtained a proper variance for such (Case #2279 – granted April 12, 2004). Mr. Zohdi said they were requestin= g that the proposed addition be within (approximately) 10.5ft. from the boundary l= ine in the front. He said he want= ed to handle the variance first, and then the special permit.

Mr. Zohdi reviewed the ‘Area’ variance criteria as follows:

1.= The variance will not be contrary to the public interest because: The proposed entrance is 112 feet back= from Windham Road and will have little exposure or impact on the public.

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 existing house, garage, front steps, walkway and porch provide logical, convenient and safe access to the proposed accessory dwelling unit= .

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: = The residents of the accessory dwelling would be denied use of a separate exterior entry to the unit on the front s= ide or have to build a separate porch, steps and walkway which would encroach m= ore within the 15-foot setback.

3. The Variance is consis= tent with the spirit of the ordinance because: It will allow for safe convenient access to the accessory dwelling unit and wi= ll allow for a design which maintains the characteristics and appearance of a single family residence.

4. Substantial justice is= done because: The variance will allow fo= r a well designed access to the accessory dwelling which makes use of existing stairs, porch and walkways and will be functionally superior to alternative= s, with a vary minimal encroachment into the 15-foot building setback.

5. The value of the surro= unding properties will not be diminished because: The resultant building will be larger, more symmetrical, higher value and still maintain a consistent style and exterior finish.

Mr. Zohdi circulated phot= ographs showing the existing site.

Mr. Gowan asked for the t= otal square footage of the addition. Mr. Zohdi said it complied and believed it was approximately 700SF. Mr. Gowan wanted Mr. Zohdi to unde= rstand if the addition turned out to be greater than 750SF the applicant would not= be able to obtain a building permit, even if the requested variance was granted. Mr. Zohdi understood= . He said the plan read that the ext= erior was 734SF and the interior was 688SF.

Mr. Hennessey asked how o= ld the house was. Mr. Zohdi believed= the house was built in 1999 or 2000. Mr. Hennessey questioned if the house was built in the WCD. Mr. Zohdi answered yes and provide= d a brief history of the property and the fact that a variance had been granted= for the house being in the WCD. M= r. Hennessey said he would need to walk the site. Mr. O’Sullivan agreed that he would like to walk the site. = Mr. McNamara read aloud the Notice of Decision dated April 12, 2004 for Case #2279 for the = previous owner of the property.

Mr. McNamara read aloud a= letter dated July 6, 200= 6 from Albert and Shirley Choqu= ette of 140 Windham Road. In summary, the Choquettes asked t= hat the Special Exception and Variance not be granted and felt a site walk of t= he property would clearly define their concerns. The letter outlined the close prox= imity of structures; the fact that a variance had been denied (December 16, 2005) to add a= guest room and bathroom; concerns regarding house being located behind the right = rear boundary marker; conformance with WCD setbacks and no-cut zones. The letter also outlined the abutter’s concern about property values.

There was no public input= .

Mr. Hennessey didn’= t see the 50-foot setback to the WCD shown on the plan. He asked if the addition would be = put into the setback. Mr. Zohdi s= aid the wetland was shown and the WCD was 50-feet from such.

Mr. Zohdi said the applic= ant didn’t object to the Board conducting a site walk. The Board discussed when they coul= d walk the site.

A site walk was scheduled= for July 15, 2006 <= st1:time Hour=3D"8" Minute=3D"30" w:st=3D"on">8:30am at the site. Mr. Gowan asked Mr. Zohdi to stake= the location of the additional. M= r. Hennessey asked Mr. Zohdi to be prepared to discuss the property boundaries. Mr. Gowan didn= 217;t understand why the Planning Board allowed the lot configuration. He said the lots were having probl= ems because of the configuration.

The case was continued to= the August 14, 2006= .

MINUTES

June 12,= 2006

MOTION:

(Hennessey/O’Sull= ivan) To approve the Ju= ne 12, 2006 meeting minutes as written. <= o:p>

VOTE:

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

DATE SPECIFIED CASES

Case #2350 FIGUEROA, Edith & Felix –= ; 138 Windham Road /= ML 4/9-142-1 – Seeking a Special Exception concerning Article = XII, Section 307-74 to permit an accessory dwelling. Also seeking a Variance concerning Article III, Section 307-7 & 307-12 to permit a 5ft by 6ft entrance to = be constructed 10.5ft from a neighboring property, so as to connect to the end= of an existing porch.

SITE WALK – July 15, 2006 8:30am<= /st1:time>

Case #2350 FIGUEROA, Edith & Felix –= ; 138 Windham Road

ADJOURNMENT

MOTION:

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

VOTE:

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

The meeting was adjourned= at approximately 9:00 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