BOA20060814

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

August 14, 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.

CONTINUED

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.

Mr. McNamara said the cas= e was continued from last month so the Board would have the opportunity to walk t= he site. The minutes from the si= te walk were provided to the Board.

Mr. Wes Aspinwall of Herb= ert Associates, representing the applicant, met with the Board to discuss the Special Exception and Variance being requested. A copy of the plan showing the loc= ation of the leach bed was provided to the Board. The position of the proposed leach= ing system will fit outside the Wetland Conservation District (‘WCD’). Mr. Aspi= nwall said the general proposal was the in-law apartment which they believed conformed with the zoning requirements.&nb= sp; The applicant was also requesting a variance in order to have entry = into the in-law apartment because they were prohibited from having a door facing= the front of the building.

PUBLIC INPUT

Mr. Albert Choquette Jr. = 140 Windham Road said he was unable to attend the previous meeting but had a le= tter expressing his concerns read into the record. Since the last meeting the Board w= alked the site and believed they could understand his concerns and why he asked f= or the requests to be denied. He disagreed with the statement made by the applicant’s representative (= Mr. Peter Zohdi of Herbert Associates) that the entrance would have little expo= sure/impact on the public. He said this w= as a case of house stacking. He was concerned with the size of the home and existing proposal. Mr. Choquette noted that the home = was already subject to variances: 1) variance granted for a portion of the exis= ting home is in the WCD; 2) variance granted for street frontage; 3) variance granted for the He w

front porch; and 4) denied variance regarding a building permit to add a guest room above a detached garage. He asked the Board to protect him and deny the variance. <= /span>

Mr. Hennessey explained t= hat the Special Exception must be granted as long as the applicant met the regulations. He asked Mr. Cho= quette if it would be more harmful to him if the Board approved the Special Except= ion without granting the variance thereby forcing the entrance to be around the corner of the building. Mr. Choquette preferred that the apartment not be built. Mr. Hennessey said the applicant h= ad the right to the in-law apartment and wanted to know if it would be better to g= rant the variance and have the entrance be as proposed. Mr. Choquette preferred to not hav= e the property line infringed any more than it already had been.

Mr. Haverty reviewed the = zoning ordinance and questioned if there was anything to be gained by removing the ‘bump-out’ to possibly preserve the abutter’s boundary; t= he proposed showed the entrance on the front of the dwelling. Mr. Aspinwall said because an entr= yway and porch would be needed, the same area (where the entry was proposed) wou= ld be constructed. There was fur= ther discussion regarding the proposed. Mr. Aspinwall said the applicant’s parents would reside in the apartment, which, once built would last and be functional for a long time.<= span style=3D'mso-spacerun:yes'>

Mr. Molloy asked if conve= nience was the reason the entrance of the proposed apartment being located on the font. Ms. Figueroa said the proposed would be safer. Mr. = Molloy asked what the distance in feet was to move the proposed entrance. Ms. Figueroa said it would be a lot. Mr. Aspinwall believed t= here would be more people traffic if the entrance was moved because they would w= alk around the building versus going in the shortest way.

Mr. Hennessey felt architecturally it made sense to have the entrance in the front and by maki= ng it to go over to the side would cause more difficulty to Mr. Choquette, however, because Mr. Choquette didn’t agree he was reluctant to vote = for the variance. Planning Direct= or Jeff Gowan read aloud Section 12, 307-74d and discussed the history of the parcel and past subdivision. = He said the perception of the abutter was a strong thing and said if there was= a way to meet their perception while meeting the regulations would be his advice.

Mr. McNamara felt the har= dship criteria were met despite the neighbor’s opposition. Mr. Hennessey said he heard some inconvenience, but didn’t think that the inconvenience was a hardship. There was further discussion regarding the proposed. Mr. McNamara asked if there were issues other than the placement of = the door. Mr. Hennessey said the abutter had issue with the door placement.= Mr. Haverty questioned if two variances were needed. Mr. McNamara said it was within the Planning Director’s purview to make the decision; he had decided only= one variance request was needed. =

MOTION:

(Hennessey/Molloy) To a= pprove the Special Exception. <= /o:p>

VOTE:

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

BALLOT VOTE:

Mr. McNamara – Yes to all criteria

Mr. Hennessey – No to all criteria

Ms. Paliy – Yes t= o all criteria

VOTE:

Mr. O’Sullivan &#= 8211; 1) Yes; 2) No; 3) Yes; 4) No; 5) No

Mr. Molloy – 1) N= o; 2) No; 3) No; 4) No; 5) Yes

(<= st1:date Month=3D"2" Day=3D"3" Year=3D"2000" w:st=3D"on">2-3-0) The mot= ion failed.

‘AREA’ VARIANCE DENIED

HEARINGS

Case #2351 COOKE, Judy – Surrey Lane ML 16/13-125-15 – Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision o= f an 11.3 acre parcel into two (2) parcels.&nbs= p; One (1) containing 6.216 acres with 113.51 feet of frontage where 200 feet 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.&nb= sp; The abutter notification sent to Chaka Realty Trust of 12 Surrey Lane was returned stamped ‘attempted not known’.

Attorney William Mason, representing the applicant, said he obtained the current information from t= he Town’s Assessor’s office for the mailing list. He proceeded by summarizing the pr= oposed subdivision and variance request from the frontage requirement of 200 feet = to allow 113.51 feet. He then re= ad aloud the ‘area’ variance criteria as follows:

1. The variance will not be contrary = to the public interest because: Intended u= se for resident purposes is consistent with the use of other property in the immed= iate area.

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 applicant owns no other land fronting on Surrey Lane to satisfy the frontage requirements.

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: = That the construction of a town road of approximately 250 feet for one dwelling is not a reasonably feasible method= for the applicant to pursue.

3. The Variance is consis= tent with the spirit of the ordinance because: With the exception of the frontage requirement, the applicant will meet all other subdivision regulations.

4. Substantial justice is= done because: It will allow the applicant reasonable use of his property.

5. The value of the surro= unding properties will not be diminished because: The size of the lot to be created is significantly larger than is presently required by the Town Zoning Ordinance.

Mr. Hennessey asked where= the access for the existing house was located.= Attorney Mason said the existing house’s access was off Orchard Drive. Mr. Hennessey reviewed the definit= ion of frontage and questioned if an access would have to be created off Surrey Lane= to make the lot conforming. Attorney = Mason said it was a pre-existing non-conforming lot.&= nbsp; He said the non-conforming aspect of the remaining lot (with the existing house) would be the non-contiguous frontage at the time it got the building permit; the frontage staying with the house would not be made more non-conforming. Mr. Hennessey= felt the proposal would create two non-conforming lots. Mr. Gowan didn’t believe tha= t the ‘parent’ parcel would be any more non-conforming to cut off the proposed lot. Mr. Hennessey a= sked how old the house was. Attorn= ey Mason didn’t know; it was his understanding that the house didn’= ;t need a variance for frontage issues in order to be constructed. Mr. Gowan didn’t know the ag= e of the house. Mr. Hennessey said= if the house was built after 1978 and the access was to Orchard, the lot was non-conforming. Mr. Gowan sai= d he would have to research and noted there was a point which the Town considered frontage differently than it currently did.

Mr. McNamara asked if the= re were any variance actions on the parcel. Mr. Gowan said he saw none. <= /span>

Mr. O’Sullivan aske= d how much of the lot to be created was high and dry. Attorney Mason didn’t know.<= span style=3D'mso-spacerun:yes'> Mr. Hennessey said the Board had a recent advisory from Town Counsel indicating because the requirement for 35= ,000SF contiguous high and dry was in zoning, the Board needed a stipulation indicating such when lots came before them for review. He said there would be a stipulati= on to have the calculation on the plan. Mr. Gowan said he would confirm with Counsel.&= nbsp; Mr. Hennessey said because the requirement was in zoning, it couldn’t be waived a variance was needed. Attorney Mason said there was noth= ing in the request that dealt with high and dry.&= nbsp;

Mr. O’Sullivan aske= d if any consideration was given to shifting the lot line to create two conforming lots. Attorney Mason said bas= ed on the current 200-foot frontage requirements, shifting the line wouldn’= t do anything for frontage. He sai= d one reason to not do that was so the existing house would maintain the existing frontage it had when it was built. He said if the lot line was shifted, two non-conforming lots would be created. He also noted the pr= oposed plan was the practical approach to access.= Mr. Gowan reviewed the plan and noted it was within the Board’s authority to make a stipulation of variance for ‘no further subdivision’. Mr. Henne= ssey reiterated his belief that two non-conforming lots would be created due to creating a new lot. Mr. Gowan disagreed.

PUBLIC INPUT

Ms. Paula McLatchy of 24 Surrey Lane informed that there was a denial in 1993 (first Mr. Gorman, then Mr. Cooke). She was against the proposal due to the amount of water and wetlands. She discussed the current water problems. Ms. McLatchy believ= ed the proposed would cluster the neighborhood.&n= bsp;

Mr. Richard Matte of 16 Surrey Lane said the issue came up thirteen years ago when he addressed the Board about buil= ding on the lot. He said the propo= sed home would be directly in his back yard.&n= bsp; He said the 50-foot right-of-way was left to build homes in the back, but had been nixed years ago due to wetlands. He said there were culverts under = the proposed land to drain it. Ye= ars ago the Conservation Commission and Board of Adjustment walked the land and determined surrounding property values would be lowered if a home was put on the land. Mr. Matte believed = if the proposed were allowed it would set a precedent for allowing homes to be stacked. Mr. McNamara pointed= out that zoning was set up specifically to relieve landowners of an obligation = if they met certain conditions. =

Ms. Paliy asked what acre= age Mr. Matte owned. Mr. Matte said h= is property was 1.1 acres.

Mr. Haverty asked what ef= fects the recent rains had on Mr. Matte’s property. Mr. Matte said his cellar was floo= ded for the first time in years. = The right-of-way abutting his property line, which is a stream that helps to dr= ain the property came up onto his land. Mr. Matte discussed the flooding that occurred every spring.

Ms. Ethel Kelly of 17 Surrey Lane discussed the water that crossed the culvert and went onto her property dur= ing the recent storm. She was con= cerned with similar flooding if the property was developed.

Mr. McNamara said he woul= d like to walk the site. Ms. Paliy suggested having a survey of where the wetlands were located prior to walki= ng the site. Mr. McNamara said t= he Board couldn’t require the applicant to do so. Attorney Mason said he would check= with the engineer. Mr. Gowan was concerned that there was a referenced Board of Adjustment denial. He would research further. Mr. Hennessey asked for a consult = with Town Counsel regarding the frontage issue.= He also suggested that the Conservation Commission join the site wal= k.

The case was continued to= the September 11, 2006 meeting.

Case #2352 HACKETT, George & Carol – 17 Grace Road ML 17/11-187 – Seeking a Var= iance concerning Article III & VII, Section 307-12 & 307-41 (B) to permit= the construction of a small expansion of non-conforming use partially within the WCD area.

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. George Hackett, the applicant, met with the Board to discuss the variance request. He said they wanted to put a new arrangement (septic) in, which had been approved by the Board of Health and= the state. He then read aloud the ‘area’ variance criteria as follows:

1. The variance will not be contrary = to the public interest because: There is a= need for what is being requested.

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 variance will permit replacement of an old bathroom with a new arrangement served by a new septic system.

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: = This is the only feasible location for= the expansion to accommodate the new bathroom.

3. The Variance is consis= tent with the spirit of the ordinance because: We will meet all Town codes and requirements including having a septic system designed for the proposed use.

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

5. The value of the surro= unding properties will not be diminished because: The proposed addition will be aesthetically pleasing and add to the property th= us having no adverse effect on surrounding properties.

Mr. McNamara asked if add= itional rooms would be added. Mr. Hac= kett answered no. Mr. Hennessey as= ked if the change would affect the existing footprint of the property. Mr. Hackett said the existing foot= print would be extended 10-feet eastward. Mr. Hennessey said it would trigger the Shore Land Protection Act. He said the applicant would need a re-development waiver from the Department of Environmental Services. Mr. Hackett informed that he was currently on file; the application was submitted in June. Mr. Hennessey wanted Mr. Hackett t= o know that anything the Board did would be subject to a re-development waiver. Mr. Hackett understood.

Mr. O’Sullivan aske= d what size the current system was, and what it would be replaced with. Mr. Hackett discussed the current = system and explained that the proposed would be a Clear Water system.

There was no public input= .

Mr. McNamara said the Boa= rd had seen this type of change in the past and the Board’s position had been that pulling an old septic out of the ground was good for the property, neighbors and Town.

Mr. Hennessey questioned = if the Board wanted a vote for the variance being subject to the re-development waiver. Mr. Hackett understoo= d that he needed the waiver from the state.

VOICE 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.

MINUTES

June 17, 2006 – Site Walk

MOTION:

(Molloy/O’Sulliva= n) To approve the meeting minutes as written.

VOTE:

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

July 10,= 2006

MOTION:

(O’Sullivan/Mollo= y) To approve the meeting minutes as amended.

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 8:55 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