BOA20060911.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 11, 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

None.

CONTINUED

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.

Mr. McNamara said the Boa= rd heard the case at the last meeting and determined they wanted more information an= d a site was going to be scheduled.

Attorney William Mason, representing the applicant, said he spoke with the engineer who indicated to him that each of the lots would contain 35,000SF of high and dry land. He thought the purpose of the curr= ent meeting was to schedule a site walk with the Board and the Conservation Commission if they wanted to participate.&= nbsp;

Mr. Gowan said at the last meeting it was suggested that a variance had been formally denied (approximately 25 years ago under the ownership of Frank Gorman) November 14, 1988. He said Mr. Gorman had attempted to subdivide the parcel into two individual lots, however the variance was den= ied because a majority of the Board members (at that time) were not in favor of dividing a large conforming lot into two smaller non-conforming lots. He confirmed that the lot currentl= y had 200feet of frontage (on a Town road). Attorney Mason said the lot had 200-feet of frontage on Surrey Lane= . Mr. Gowan said the fact that the l= ot had 200-feet of frontage, if a portion with less frontage was cut off, one conforming lot and one non-conforming lot would remain.

Mr. McNamara asked if the= re had been any material change (i.e. topography) in the property since the last variance was denied. Attorney= Mason didn’t know; he said they were taking a conforming lot of 12-acres subdividing it to leave one conforming and one non-conforming lot (with 113-feet of frontage).

Mr. Hennessey explained t= hat the definition of frontage as contained in the Zoning Ordinance was the length = of the lot bordering on the public right-of-way and serves as the means for the access of the lot. He said the access to the building was on Orchard Lane; by taking presumably a grandfathered lot= (under previous definitions of frontage) and subdividing into two new lots, two non-conforming lots were being created because the lot didn’t conform= to the current definition of frontage. Mr. Gowan said if the frontage didn’t count, the lot would be non-conforming and by subdividing it the non-conformity would not be made worse. He said if the current frontage was counted as 200-feet (which he did), a subdivision would create= one conforming and one non-conforming lot.&nbs= p;

Attorney Mason was unsure= that the sole purpose of the frontage requirement was to insure access from the street to the lot. He was not trying to minimize the purpose of frontage and felt in this case, the lot h= ad used an alternative opportunity to get to the property other than the front= age created. He said it would be = another debate if the access bordered on fire, health and safety. He felt the variance was something= the Board could consider. He beli= eved the abutters comments that prompted the concern for a site walk was legitim= ate, which is why he believed the present discussion was taking place.

Mr. Hennessey was confuse= d as to what happened in 1988. He wan= ted to know the rational of where there were two non-conforming lots. Mr. McNamara read aloud a portion = of the minutes from Case #971 (13= -125-15 Surrey Lane) November 14, 1988. He reviewed the file and found the= re was a letter of November 22^nd from Mr. Peter Zohdi of Herbert Associ= ates regarding the Frank Gorman subdivision appealing the Zoning Board of Adjustment’s decision. = He then read aloud the notice of decision dated November 16, 1988 (on ML 13-125-15) for reasons that a variance would create a non-conforming lot and the land may = be used as it stood. Attorney Ma= son said it sounded like in the Gorman case the applicant was trying to subdivi= de the lot with the existing house having 59-feet of frontage; that was not the current proposal. Mr. Henness= ey said this was the first time he could recall that (technically) two non-conforming lots were being created.&nb= sp; He was willing to accept the portion of the argument that the propos= ed didn’t change the access to the existing house. With regard to the water and drain= age, Mr. Hennessey said he would like to have the Conservation Commission commen= t.

Mr. Haverty said there wa= s no solid documentation that each of the lots contained the appropriate 35,000SF high and dry land. He suggest= ed that the Board have documentation prior to walking the site. Mr. McNamara said the plan would h= ave to include the information. Mr. Hennessey believed the attorney understood if there wasn’t 35,000SF t= here would be no point to having a site walk.&n= bsp; Attorney Mason said at some point there was overlap in the Board of Adjustment and Planning Board responsibilities. He said if the Board was going to require specific information, it would be a significant expense. He asked what level the Board wanted. Mr. McNamara said the difficulty in this case was that the 35,000SF was a requirement of zoning.<= span style=3D'mso-spacerun:yes'> He said if the Board granted the variance, and the lot didn’t have 35,000SF high and dry, the Board wo= uld be creating a much more non-conforming lot or lots. Attorney Mason said he would like = the Board to look at the land and make the variance conditioned upon satisfying= all the Subdivision Regulations with the exception of the frontage requirements= . Mr. Hennessey understood the expen= se of having soils reviewed. He just wanted to make sure everyone understood, if the lot came in under 35,000SF = high and dry, the applicant wouldn’t have a variance because there wouldn’t be sufficient high and dry land to constitute a new lot. Attorney Mason questioned if the 35,000SF requirement was an issue for Planning. Mr. Hennessey said in the past the= Board had taken the argument that it was a planning issue; however, based on Town Counsel’s advice the Board of Adjustment had to deal with the issue.<= span style=3D'mso-spacerun:yes'> There was further discussion regar= ding what was being proposed. Ms. = Paliy said she didn’t have a problem with the frontage because the lot was large. However, she wanted pr= oof that the applicant had the high and dry land.

Mr. Gowan reiterated that= the 35,000SF high and dry was a requirement of zoning. He said the applicant was before t= he Board requesting a variance for frontage.&= nbsp; He said the Planning Board could not waive the 35,000SF requirement. He didn’t = see the harm granting a variance with conditions.

PUBLIC INPUT

Ms. Linda Matte, 16 Surrey Lane, said she hadn’t heard any discussion regarding the variance denial in 1993, which was the second denial. = She said high and dry land was a big issue at that time.

Ms. Wendy LeBlanc, Shakka= Realty Trust, said the variance was an issue in 1993. She said Mr. Cooke was trying to b= uild between her and her neighbor’s. She understood that the well on the Orchard Lane property had gone dry = and they were possibly drilling a new well; water was being brought in to the h= ouse that was allowed to be built in 1993. She said she had sewer on the side where Mr. Cooke wanted the variance. She also discussed = her issues with water/flooding. M= s. LeBlanc had a problem with any drilling.&n= bsp; She believed there were vernal pools in back of her house. There are salamanders on her prope= rty, which are endangered species in New Hampshire. Ms. LeBlanc noted that there were some rare azalea bushes located on= the property in 1993. She said Mr. Gorman was denied in 1988 and Mr. Cooke was denied in 1993. She wanted to be clear about= what was being requested. Mr. McNa= mara said the applicant was looking to subdivide one parcel into two. Ms. LeBlanc asked if the map was n= ew (from this year), or the same as submitted in 1993. Mr. McNamara said the map was subm= itted with the present proposal. Ms. LeBlanc reviewed the submitted map and said it looked to be the same map as= the one from 1993, just drawn a little differently.

There was a brief discuss= ion to set the site walk. Attorney M= ason will have the proposed property staked as well as the proposed new boundary line. A site walk was schedul= ed for September 23, 20= 06 at 9am; the Conser= vation Commission and the public will be invited.=

The case was continued to= Thursday, October 12, 200= 6.

HEARINGS

Case 2353 - ADVANCED INVESTMENTS, LLC /31 Hillcrest Lane ML 42/1= 0-18 & 10-31 Seeking a Variance concerning Article VII, Section 307-41 to pe= rmit construction of a residential septic dispersal field within 4 feet of a wet= land conservation district to a poorly drained soil where 25 feet is required fo= r a septic leach field.

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. McNamara informed tha= t the matter was currently before the Planning Board and the believed the need fo= r a variance was discovered after the Planning Board considered the matter and = was now being held in abeyance pending the Board of Adjustment’s action.<= span style=3D'mso-spacerun:yes'> Mr. Gowan said when Health Officer= Paul Zarnowski was doing the review of the septic designs he noticed there was a setback issue and it became apparent that it was appropriate to approach th= e Board of Adjustment. He reviewed a = letter (dated September = 6, 2006) forwarded from Mr. Zarnowski regarding the proposed Clean Solutions Aerobic Treatment System. Given the f= act that the Clean Solution’s system was being proposed, Mr. Zarnowski didn’t object to the setback being decreased to the state NH Departme= nt of Environmental Services 50-foot minimum.

Mr. David Jordon of SFC Engineering, speaking on behalf of Advanced Investment met with the Board t= o discuss the proposed variance. Mr. Se= an Harrington of Advanced Investment was also present. Mr. Jordan explained they were requesting a 24-unit senior housing development. They were currently before the Pla= nning Board for Site Plan review; all state applications have been filed. Mr. Jordon said the septic system = design had been submitted to the Town and the state. He said the Mr. Zarnowski had dete= rmined that the dispersal area for the septic system didn’t comply with the zoning requirements. He expla= ined the differences between the proposed (Clean Solution) system and a standard septic system. Essentially treatment is done within the closed tanks; water entering the dispersal fie= lds is essentially clean water. A= dditional information regarding the Clean Solutions system was provided to the Board.

Mr. Jordon then read alou= d the ‘Area’ Variance criteria (as submitted) as follows:

1. The variance will not be contrary = to the public interest because: It will al= low for the construction of 24 units of senior housing on the property, a need = that exists in the community and a use that is encouraged in the 2002 master plan update.

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: While the property is over 12 acres in size, the extent of the wetl= and areas plus the wetland conservation district severely restrict the buildable area to approximately 1/3 of the total site area.

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: = A standard septic leach field would be= much larger in size and would still be less than 25 feet from the WCD. In a standard septic tank and leach field system the treatment of the effluent occurs in the leach field. The ‘Clean Solution’ S= ystem that is proposed has a series of tanks where the treatment occurs. These tanks are over 75’ fro= m the WCD. The dispersal area is no= t a leach field since it is discharging clean water into the ground.

3. The Variance is consis= tent with the spirit of the ordinance because: The Clean Solution System with the dispersal field will be discharging clean wa= ter to the ground. This will actu= ally result in better protection of the WCD and the wetland than the zoning requirement of a 25’ setback to WCD for leach fields. =

4. Substantial justice is= done because: The development of this pa= rcel under the senior housing regulations is allowed by zoning and by implementi= ng this alternative method of wastewater treatment a greater degree of environmental protection will be achieved.

5. The value of the surro= unding properties will not be diminished because: The applicant is proposing a high quality development suitable for the needs of seniors and elderly persons. = The project will employ the latest in both storm water and waste water technolo= gies designed to fit into the natural environment.

Mr. O’Sullivan ques= tioned how the Clean Solutions systems where sized and how it fit with a 24-unit in terms of its ability to manage the waste from a community of that size. Mr. Jordon said the system was siz= ed in accordance with a specific number of units. Senior housing is designed for 100-gallons per day/per bedroom.

Mr. Hennessey said he was concerned with the density of the design.&= nbsp; He said according to the zoning law with the standard for review, 30= % of the total lot area needs to be open space, of which no more than 10% can be wetlands or poorly drained soil. He didn’t see three acres of open space on the plan. Mr. Jordon said the open space was essentially all the area not occupied by buildings, roadway or infrastructure. He said a por= tion of the area was wetland, and there were upland areas that were not counted. Mr. Hennessey said he would stipulate that the open space calculations be added to the notes.

Mr. McNamara asked that t= he maintenance requirements/replacement time of the proposed Clean Solutions system be explained. Mr. Jordon reviewe= d a handout provided to the Board that stated simple maintenance was required e= very 2.5 years; basically pumping and rebuilding the air pump. He said it was no more complicated= than a standard system; because it would be a condo association, fees would be s= et aside for such maintenance. <= /p>

PUBLIC INPUT

Ms. Kristine Lamarshe, 27 Hillcrest Lane asked if the lot had ever been denied as buildable prior to the present meeting. She believed there h= ad been a denial back in the late 1960’s and wanted to know if anything = had been denied since then. Mr. G= owan said some of the Town’s records from the past may be incomplete. He said previous variance applicat= ions wouldn’t preclude an applicant coming forward with a different varian= ce application. He said he could review the file, if nothing was contained therein, the Board wouldn’t= be aware of a variance being either granted, or denied.

Ms. Beth Philip, lot 10-32 abutting the proposed wanted to know what plastic media was being used in t= he septic design and what its life span was.&= nbsp; She also wanted to know if there were any materials (i.e. household cleaning materials) that could cause a problem with the system. Mr. Jordon said the proposed was an aerobic treatment system that had plastic media (with an indefinite lifespa= n) within the tanks (an example was contained in the handout given to the Boar= d; the tanks were subject to periodic maintenance and inspection. Ms. Philip wanted to know specific= ally what the plastic material was made of because the literature handed out was= not specific. Mr. Jordon said the plastic was dishwasher and garbage disposal compatible.

Mr. John Brunelle, 35 Hillcrest Lane wanted to know if the location of the proposed septic system would be moving. Mr. Jordon said the location shown= on the plan is where the system would be placed. Mr. Brunelle said he was concerned because the area was currently wet. Mr. McNamara said the plan was before the Planning Board and as part= of its review process would send it out to its engineering firm. The standard is that the runoff fr= om the parcel can be no greater, or less than it was prior to being built. Mr. Jordon said storm water runoff= was in the process of being reviewed by the Town’s engineer. The current discussion was in rega= rd to the waste water collection and treatment. Mr. Jordon noted that the plan would be further discussed with the Planning Board on September 18, 2006.

Mr. Gowan read aloud a po= rtion of the open space ordinance and noted that porous pavement was being proposed therefore the entire pavement technically counted toward open space.

Mr. Hennessey questioned = if the clean water coming out of the system was added to the calculations in figur= ing the water outflow for the entire project.&= nbsp; There was discussion regarding where the treatment was occurring. Mr. Jordon said storm water flows = were measured by water flowing across the surface. Mr. Hennessey felt if the Board ac= cepted the argument to not worry about the septic, it should be added to the storm water runoff. He asked that t= he Conservation Commission provide input.&nbs= p; Mr. Gowan said the key was ‘surface’ water. Mr. Hennessey questioned where the treated water would go, given the topography of the land. Mr. Haverty noted with a conventio= nal system, there would be .3 gallon per square foot, per day; with the proposed system, 15-90 gallons per square foot, per day. Mr. Jordon said the volume per day= was the same if using a conventional or dispersal system.

Mr. Hennessey asked if the Conservation Commission had reviewed the proposed. Mr. Jordon said they had appeared = before the Conservation Commission. = He reiterated the point that with a conventional leach field a larger bed, ove= r a larger area would be needed to get the same amount of water into the ground. He said in either sce= nario each unit would use 200 gallons per day (100 gallons per bedroom). Mr. Hennessey wanted to know how t= he wetlands would be affected in terms of protection and setback. He wanted consultation with the Conservation Commission because he believed it would add to flow, unlike standard calculations. Mr. Mc= Namara asked if the topic was discussed with the Conservation Commission. Mr. Harrington answered no. Mr. Jordon said the water that lef= t the system would not flow into the wetlands, it would enter the ground water. He said the state’s requirem= ent was 50-feet to a wetland. He believed the reason for the Town’s ordinance was to ensure that efflu= ent from a septic system didn’t make it near a wetland; the applicant has removed such by dispersing essentially clean water. He said with the Clean Solutions s= ystem, the state had granted variances for less than 50-feet from wetlands. The DES recognizes that the system= is advanced. Mr. McNamara asked = if Stantec had reviewed the drainage calculations. Mr. Gowan said it was under review= . He said the issue is for the Plann= ing Board and noted that the Town expert felt it posed less of a threat to the wetland than a conventional system. It was Mr. Gowan’s opinion that the Board should take action on the variance based on the information provided and not get into Planning Bo= ard issues.

Ms. Donna Shanahan, 38 Hillcrest Lane wanted to know where the holding tank where septic waste would be located. Mr. Jordon showed the proposed loc= ations of the tanks. Ms. Shanahan as= ked how close the solid waste tank would be to the wetland. Mr. Jordon said it appeared to be 60-feet at its closest point (it met both Town and state requirements). Ms. Shanahan questioned how ‘clean’ the water was. She was concerned with possible contamination in the event of a flood. Mr. Jordon said the wa= ter coming out of the dispersal field is cleaner than the water that comes out = of a (conventional) leach field. <= /p>

Ms. Iris Therriault, 36 Hillcrest Lane wanted to know if the land would be able to hold all the clean water being released. Mr. McNamara said it would be an issue the Town’s Engineer (Stantec) would review during t= he Planning Board process. Ms. Therriault questioned how the water flow wouldn’t increase on the sma= ll piece of land with the number of units proposed. Mr. McNamara said one aspect would= be that most of the pavement would have impervious surface versus drain off. Ms. Therriault questioned how much= water the land could hold since it was already near wetland. Mr. McNamara was hopeful that preliminary information would be heard at the next Planning Board meeting (= September 18, 2006). He said it would be the first in a number of meetings.

Mr. Brunelle questioned i= f the Board should wait to make a decision until hearing the Planning Board’= ;s opinion. Mr. McNamara said the request for a variance was much more limited in scope than what was in fron= t of the Planning Board. He said t= he present request for variance was to put the septic field closer to the WCD = than was allowed by Pelham’s rules. He said the Planning Board addressed the larger issues.

Mr. Peter Foley, 42 Hillcrest Lane asked if the 100-year flood plane would interfere with the septic tanks flooding over. Mr. Jordon said there was a mapped flood zone on the property; however, none of the work was within that flood plane. Mr. = Foley asked what would happen in the event of a flood. Mr. Jordon said they were up significantly higher than any flood plane.=

Mr. Jordon reiterated why= they were in front of the Board. H= e read a portion of the Town’s zoning that indicates residential and commerc= ial leach fields must be set back. He said they didn’t make the argument (but could have) that the proposed= is not a leach field; the treatment was occurring in tanks over 100-feet away = from the wetlands. He believed the zoning ordinance didn’t foresee the new technology.

Mr. Harrington addressed = open space. He said the developmen= t (whole buildable area) on the site was 2.9 acres; they weren’t using the ent= ire 5 acres. There was in excess = of 5 acres open space (excluding the porous pavement). Within the open space they would b= e adding trails. Mr. Hennessey asked t= hat a note regarding such be added to the plan.&= nbsp;

BALLOT VOTE:

Mr. McNamara – Yes to all criteria

Mr. Hennessey – Yes 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 GRANTED

Case #2354 - HUARD, Alfred /3 Windham Road ML 22/8-140 Seeking a Special Exception concerning Article XII, Section 307-76 (III) and a Varian= ce concerning Article XIII, Section 307-88 (D) to permit the operation of a transmission rebuilding shop in the Residential Zone.

Mr. Gowan discussed the r= eason why the applicant was before the Board.&nb= sp; He said while researching a complaint it was determined that there w= as a lapse in the variance formerly granted on the property for a carburetor shop and that the use didn’t continue uninterrupted; it was not in force f= or several years. He said the zo= ning for ‘use’ variances didn’t run with the land and after a lapse for one year (or more) would be null and void. Mr. Gowan said there was an oversi= ght in the Planning Office when the case was noticed. When the applicant received a lett= er from the Code Enforcement Officer it referred to Section 307-88d, which wou= ld only be applied for if the applicant was challenging the Planning Department’s findings (of a lapse in use). In fact, it was Mr. Gowan’s belief, that the Special Exception notice for a General Home Occupation was= not applicable given the nature of the business and that the applicant was appl= ying for a variance under Article V, Section 307-18. He said this was a minor technical= ity since the applicant was still requesting a ‘use’ variance. He suggested consulting the abutte= rs to see if they had an issue/objection to proceeding.

Mr. McNamara asked if any= one present had an objection to proceeding.

Mr. Philip Currier, 10 Tallant Road said the family trust owned property across the street on Windham Road. He was unclear (given the notice) = what was being applied for. Mr. Mc= Namara said there would not be a Special Exception. It was Mr. Gowan’s belief th= at the applicant needed to seek a ‘use’ variance under Section V, 307-= 18 and not a Special Exception or variance under Article XIII, Section 307-88. Mr. McNamara confirme= d that Mr. Gowan had made a determination that the previous variance that allowed = the use had lapsed and Mr. Huard was re-applying in order to operate his busine= ss in a residential zone. Mr. Go= wan answered yes. Mr. Currier ask= ed what section of the ordinance should have been referenced in the notice. Mr. Gowan said the notice should h= ave referenced Article V, Section 307-18. Mr. Currier had no problem proceeding, but wanted to be sure the applicant was in agreement of what the Board was doing.

Mr. Hennessey asked Mr. H= uard what he was requesting. Mr. H= uard said he wanted to reinstate the variances that were there. Mr. Hennessey asked if Mr. Huard w= as making a claim that there was no lapse.&nb= sp; Mr. Huard said when he bought the property, he didn’t understa= nd that there would be a lapse. = He thought the variances were still intact; in speaking to the Building Inspec= tor (prior to purchasing the property) he asked if the variances were still in = tact for automotive use. Mr. Henne= ssey said he was concerned that the request sounded like it might be an Appeal of Administrative Decision, which was different than a request for variance. He asked Mr. Huard if he was reque= sting a variance, or appealing Mr. Gowan’s decision. Mr. Huard said he couldn’t a= ppeal the decision because he didn’t know that variance had lapsed. He said he was applying for the va= riance again. Mr. Currier confirmed = that the Board would proceed with an application for use. Mr. Hennessey answered yes.

Attorney Tom Morgan, appe= aring for Mr. Lee Hayes, said as long as it was clear that the application was fo= r a variance, it made sense to go forward.&nbs= p; Mr. Hennessey said it was a new request for a variance. Mr. Huard said he had no choice at= this point than to go that route. = Mr. McNamara was somewhat concerned regarding the response. He said the applicant had choices.<= span style=3D'mso-spacerun:yes'> Mr. Huard said he had a lot of choices. He reiterated that he bought the property with the intent that the variances were in tact. He operated for two years; the Town hired a new code enforcer and asked if the place had automotive use and was told it did but it was unknown that the variances had lapsed. Mr. McNamara wanted it to be clear= that the applicant had certain rights, one of which was to appeal the decision of Mr. Gowan, which was a separate (distinct) action than a variance request.<= span style=3D'mso-spacerun:yes'>

Mr. Haverty suggested tha= t the ramifications of being declined a variance versus appealing a decision shou= ld be explained. Mr. McNamara explained if there was an appeal of Mr. Gowan’s ruling the Board would decide if his interpretation of zoning was correct; if it was, the applicant would then have the opportunity to request a variance. In the event the applicant decided= to seek a variance, and it is denied, the applicant had rights to appeal. Mr. Huard said Mr. Gowan had expla= ined a lot; he wanted to go forward. He noted that the papers he received indicated that the variance ‘died out’, however, he hadn’t received solid evidence that the varia= nce ran out. Mr. McNamara discuss= ed certain legal aspects regarding variances dying out.

Mr. Huard wanted to move = forward with the variance request. Mr. McNamara confirmed that the request for special exception would be withdrawn and the variance request would be for Section V, 307-18 business use in a residential zone.

Mr. Huard said he was try= ing to run a transmission rebuilding shop. He said he previously was in business on Gage Hill Road, when that property = was sold he found the property on Windham Road and asked if it had variances for automot= ive use and purchased it. Two yea= rs later, he was informed that the variance had lapsed.

Mr. McNamara asked what k= ind of business was being run. Mr. H= uard said he had a transmission rebuilding business. He takes transmissions out of cars, rebuilds them, and puts them back in. Mr. McNamara asked how large the business was and more detail regard= ing such. Mr. Huard said it was o= nly him. He’s been establis= hed since 1999; he runs a clean business. He does everything by the books and has waste oil removed by reputab= le companies.

Mr. Huard said he was new= at this and didn’t understand some/most of the questions and hadn’t requested variances before. M= r. McNamara confirmed that Mr. Huard had discussions with Mr. Gowan. Mr. Huard said he had discussions = with Mr. Gowan and the Building Inspector Roland Soucy and Tom Wakefield. He then read aloud the ‘use&= #8217; variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: All repair= s, rebuilding and servicing of transmission, etc. are, and will continue to be conducted in a professional manner inside the building.

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: A variance was granted to build a 48’x65’ garage for the use of ‘repairing and rebuilding of carburetors, fuel pumps, alternators, etc.’

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: Said property has been use= d for commercial business through variances since 1940, to the present.

iii. the variance would not injure the public or private rights of others since: There will be no stru= ctural changes to the building, all work is performed inside the building. The exterior of the building= and grounds are maintained in keeping with the neighborhood.

3. The Variance is consis= tent with the spirit of the ordinance because: Variance were in place for automotive use since 1940 to 1990.

4. Substantial justice is= done because: Because the property maint= ains the continued use of variances.

5. The value of the surro= unding properties will not be diminished because: Because there is no change in use of the granted variances in 1985 till now.

Mr. Molloy asked how many= cars would be on the lot (at any one time).&nbs= p; Mr. Huard said approximately five to ten. Mr. Molloy asked if during the pas= t two years there had been that amount of cars parked. Mr. Huard answered yes.

Mr. Hennessey asked if the applicant lived on the premises and if he used well water. Mr. Huard said he lived on the pre= mises and had well water. Mr. Henne= ssey asked if the soil had been checked for contaminates or MtBE (prior to purch= ase or recently). Mr. Huard answe= red no. Mr. Hennessey asked if th= ere were any signs on the property for the business and how it was advertised.<= span style=3D'mso-spacerun:yes'> Mr. Huard said he had a magnet on = the garage door and advertised through word of mouth. Mr. Hennessey asked if he was lice= nsed with the state or anyone else for the disposal of transmission fluid. Mr. Huard said he had documentation. Mr. Hennessey = asked if anyone reviewed/supervised the documentation of the waste generated in t= he area. Mr. Huard said no one h= ad asked to see the documentation.

Mr. Gowan said he instruc= ted the applicant if the variance was granted he would also need a limited site plan review in front of the Planning Board.&nbs= p; He believed the applicant purchased the property and operated in good faith being unaware of any problems with zoning.

Mr. Hennessey said the ap= plicant (in the paperwork submitted) referenced a variance dating from 1985 and wan= ted to know if it referred to the business or structure. Mr. Gowan said a copy of the varia= nce was in the file that described the transmission shop; it was recounted in M= r. Huard’s application properly. Mr. McNamara reviewed the date contained in the file that referred to parcel 8-140 (Edmund & Patricia LaPoint). He read aloud the letter/criteria = contained in the request for the variance dated April 16, 1985.

Mr. Haverty said referenc= e was made on the diagram submitted that lots would be combined. He asked if this had happened. Mr. Huard said it had been done wh= en the building was constructed.

Building Inspector Roland= Soucy said he had several conversations with the applicant and it wasn’t aware t= hat the (use) variance had stopped; he was under the impression that it had nev= er stopped until Mr. Gowan started researching and realized that it had stopped. With regard to recommending that the applicant buy the property, Mr. Soucy said he wouldn’t have been that reckless as to put someone in harms way to buy property without putting a recommendation in writing. He said the applicant ran a clean operation; the violations on the property (at the time the applicant purcha= sed it) were corrected.

PUBLIC INPUT

Attorney Tom Morgan, repr= esenting Mr. Lee Hayes, wanted to clarify if the applicant had an Administrative Decision that determined he was not eligible for a Special Exception for the property. Mr. Gowan said in response to a letter received about a lapse (of the variance over one year)= the applicant cited the section (in the ordinance) for such in the application = for the variance. He said the Zon= ing Assistance was not clear what to do (because Mr. Gowan was on vacation) and wanted the applicant to be covered with his application; therefore, they recommended adding a Special Exception.&nb= sp; Mr. Gowan felt it was appropriate that the applicant request a variance.

Attorney Morgan asked for clarification regarding the Administrative Decision that determined the variance was not continued on the property. Mr. Gowan said it had not been appealed. Attorney Morgan then addressed the request for the use variance on the property, specifically the criteria. He said the public = had an interest in maintain the Master Plan and honoring the districts in which properties were situated. He didn’t feel that the proposed use variance established an unnecessary hardship. He noted that the a= fter the Pelham Bank foreclosed on the property in 1989 and until they sold it to Mr. Borak in 1995, it was clearly only used as a residence and could contin= ue as such. He said the man that purchased the property from Pelham Bank ran an overhead garage door busines= s; the property could clearly be used as a residence as it is zoned. Attorney Morgan discussed the purp= ose of having zones and stated that a transmission repair shop was a commercial activity clearly not compatible with residential use. He said harming the rights of publ= ic and others would always exist when there was a commercial use in a residential zone. He didn’t feel th= ere was an opportunity to establish hardship.&= nbsp; He said spirit of the ordinance was to have a use consistent with the residential use. He said he verified with a loan officer that when Pelham Bank purchased the property f= rom the LaPoints, there was concern with it being used in a commercial nature.<= span style=3D'mso-spacerun:yes'> He said the bank rented it for residential purposed only. At= torney Morgan said having a transmission repair shop in a residential neighborhood would certainly have an impact on other residences. He provided information (found on = the NHDES website) to the Board regarding contamination that was discovered (in 1995), which Pelham Bank paid to clean it up. Mr. McNamara confirmed that the contamination was not an ongoing thing since the information stated it as closed. Attorney Morgan said = the bank paid to have it cleaned. Mr. McNamara confirmed that there was no indication of any problems at the site. Attorney Morgan was not= aware of any.

Mr. Hennessey discussed t= he fact that the Board had to be concerned with more than just lines on a map; since the bank had the property there has been somewhat of a change to the neighborhood. He asked if the attorney would still character the area as a residential neighborhood (aside from zoning). Attorney Morgan= said he was sensitive to that issue (because he had argued in front of boards) a= nd believed the important finding out of Simplex that made it easier for applicants to demonstrate hardship because the use that was proposed should= be consistent with the neighborhood (as opposed to simply the zone). In this case, Attorney Morgan said= the area was diluted with uses consistent with residential, such as the church use. Mr. Hennessey named some= of the uses in the area. Attorney Morgan said Simplex makes it clear that the use has to be consistent with t= he neighborhood. He said there w= as always the potential of a neighborhood having a mixed use, but the applicant’s use was more consistent with an industrial zone. He believed the other uses in the = area were more of a town center type use rather than a commercial use; the propo= sed use was more industrial. Ther= e was further discussion regarding the type of uses in the area.

Mr. Soucy said reference = was made to the previous owner having a garage door operation. He felt obligated to share with the Board that on several occasions he responded to complaints regarding the ga= rage and when he reviewed the site he found that they were doing repairs on 10-w= heel tractors/trucks. He believed = there was documentation in the file. Mr. McNamara questioned if there was any record of complaints in connection with the current owner. Mr. Soucy wasn’t aware of anything he dealt with; the only violations he dealt = with was a deck built without a building permit and an existing apartment above = the garage, both were brought into compliance.=

Ms. Paliy said in the pas= t couple years the Board had public discussions regarding the area. Attorney Morgan said he had review= ed the Board’s minutes that were available on-line. Ms. Paliy didn’t feel Attorn= ey Morgan was addressing anything that the Board hadn’t addressed in the past. She felt Attorney Morgan should already know what way the case might go and wanted him to address the area. She felt the area was a= lready commercial even though it was zoned residential. She thought it was already commerc= ial by the way it looked. She wanted= to hear something the Board hadn’t heard in the past. She said she wasn’t pro-busi= ness in residential areas, but wanted to hear something from the Attorney and wasn’t. Attorney Morgan believed he addressed the issue. He said the applicant requested a variance from the use restrictions from the zoning district in which his property sat and every one of the requests was= a denigration of the district. = He said if the district was denigrated to the point that it wasn’t recognizab= le as residential, then the planners should consider amending the master plan. He reiterated that the applicant was requesting a commercial use not permitted in the residential district. He didn’t fee= l the applicant met the criteria to be permitted to run a commercial business and posed a hardship on the surrounding residential uses. Ms. Paliy discussed Old Home Day, = an event that recently took place and questioned if his client did anything to stop it since it was also in the residential area. Attorney Morgan didn’t belie= ve his client would have expressed such an anti-civic opinion.

Mr. Hennessey discussed h= ow the 48’x66’ building was described in the application and asked how= Attorney Morgan characterized the building. Attorney Morgan reviewed the photograph from the Assessor’s records and said it looked like a farmhouse/residence. He provided a copy of the photo fo= r the Board to view.

Mr. Gowan said it was an abutter’s complaint that brought the issue of the garage to his atten= tion. He said it wasn’t a noise is= sue, but rather the storage of cars.

Mr. David Hazlewood, 7 Windham Road said he purchased his home a few months prior to the applicant purchasing next door. When choosing the home,= he specifically asked what the garage could be used for; the real estate agent reassured him that no businesses could be there because it was a residential zone. Mr. Hazlewood said from= the time the applicant purchased the home, it took him a year to start the business. He said he argued a= gainst the business (to the Planning Department) since it began last September. He explained to Mr. Gowan his understanding of the property at that time. He didn’t feel that the curr= ent business fell under the same category as a carburetor business. Mr. McNamara said the applicant was applying for a new business. = Mr. Hazlewood said he didn’t have a problem with his neighbor, it was just with the business. The noise = was minimal. Mr. Hazlewood asked = if there was a way the applicant could erect a fence on the property line not = just for screening, but to deter people from accessing his property. Mr. McNamara said if the Board gra= nted the variance they could add a condition that a fence be erected. Alternatively, even if the varianc= e is granted, the applicant has to go before the Planning Board for a limited Si= te Plan review. Mr. Hazlewood discuss= ed the fact that vehicles were parked on the property and his concerned with conta= mination of such. He circulated photog= raphs of the applicant’s property and his own property. He felt a screening fence was a priority. He was also concern= ed with contamination and suggested that test wells be put in place and tested periodically. He reiterated t= hat his property line bordered the applicant’s property/driveway which was the biggest problem. He said = it was a residence when he purchased his home, but now it’s a business.

Mr. Hennessey asked if at= the time Mr. Hazlewood purchased his property he saw it as a residential neighborhood. Mr. Hazlewood s= aid he did. He discussed the American Legion, which had functions periodically.&= nbsp; He said he purchased his home believing it was residential, non-busi= ness use. Mr. Hennessey felt Mr. Hazlewood’s recently purchasing in the neighborhood was important. He asked how Mr. Hazlewood charact= erized the building. Mr. Hazlewood s= aid it was an oversized garage meant to house a certain type of business that went sour (harsh chemicals went into the ground). It was his understanding that the variance was terminated because it had been seven years since the applicant acquired the property. Mr. Mc= Namara said the Board considered the previous variance as terminated. He said the application before the= Board was a new application for a new use variance.

Mr. Philip Currier, said = the Family Trust owned property across the street (lot 8-139) since 1970 and si= nce the early 1990’s had been occupied by his parents. He said he was also a member of the First Congregational Church as well as a member (and past President) of the= Pelham Historical Society. He wanted= to know what variances were needed if the application was being treated as a n= ew application to put a new business in the residential zone. He noted that the lot was approxima= tely .5 acre (commercial uses need 60,000SF) and lacking the proper frontage. There may also be a setback issue = on the side to the church parsonage. In summary, Mr. Currier didn’t feel the Board could proceed because thre= e or four variances would be needed.

Mr. Currier addressed the surrounding area. He said it = was a residential district by zoning; however, if Pelham had a Historic District = the application was in the midst of it. He discussed the historic buildings in the Town center and felt the = requested new commercial use would be contrary to the public interest. He didn’t feel the Board cou= ld decide to change the character of the center and ignore the historic center. He said if the area was going to be changed, the Town should vote on such.&nbs= p; He provided the Board with a copy of Reflections a Pelham history bo= ok as well as a list showing the various historic properties. Mr. Currier reviewed the informati= on contained in the variance application which didn’t indicate why the property couldn’t be used as residential. He stressed the fact that the application was for a new variance therefore, prior variances shouldn’= ;t be relied on to grant it. He didn’t feel that the answers to the criteria (as submitted by the applicant) had anything to do with the criteria the Board had to use to jud= ge the application. Mr. Currier believed there would be diminishment in value to the residences; the application would be contrary to the public interest taking in mind the historic nature taking in mind the historic properties in Pelham center, and finally, the hardship was plainly to the owner (finding a new place for his business). He had a copy of t= he deeds

Mr. Hen= nessey felt the historical background of the neighborhood was germane. He said Attorney Morgan acknowledg= ed that there were some ‘dents in the fabric’ of the residential n= eighborhood; however, under Simplex there is no obligation to grant ‘any/all’ changes. He asked if Mr. Curr= ier would acknowledge that the courts might require that the Town allow some commercial venture in the specific locale.= Mr. Currier said there had been ‘dents’ since 1746 (i.e. church, small stores, school). He said what had changed (in all small towns in New Hampshire) was increased traffic f= rom subdivisions on the outskirts filtering through the center. He felt it was imprudent to grant = new commercial variances in the center until the center had been addressed thro= ugh Contact Sensitive Solutions, which Mr. Gowan and Mr. Hennessey were members of.

There w= as a brief discussion regarding Simplex. Mr. Currier pointed out to the Board had to look at the applicant’s locale, which was surrounded by four residences. Mr. Gowan believed the other (dimensional) variances ran with the land because they are ‘area̵= 7; variances. He said ‘use= ’ variances terminate after not exercising it for one year. Mr. Currier said the old variances= for the business were now gone because the application was for a new commercial venture. He said variances fo= r the residential use could continue; but for a new commercial use the requiremen= ts are clear the lots needs 60,000SF, 200-feet frontage and 30-foot side setba= ck. Mr. Hennessey discussed the differ= ence between ‘use’ and ‘area’ variances. Mr. Gowan said there had been a lo= ng history of commercial uses on the site.&nb= sp; He interpreted the zoning in that ‘area’ variances run w= ith a property; ‘use’ variances do not. He said a use variance would also require a limited Site Plan review. Mr. Currier wanted to know if the prior variances granted for commer= cial use survive for a future commercial use, fifteen years later, even though t= he other lapsed. It was Mr. Gowan’s interpretation that any area variances ran with the land; use variances lapse when not exercised for a period of more than one year. Mr. Currier said as an abutter, as= ked if he could have a letter stating such. Mr. Gowan answered yes. Mr. Currier also wanted a copy of the letter from the 1985 variance. Mr. Gowan answered yes.

Mr. Hen= nessey asked if the Board could interpret Mr. Gowan’s opinion, or if the Boa= rd was restricted to only deal with the use variance in front of them and some= one would have to appeal Mr. Gowan’s decision in order to bring up the ar= ea variance. Mr. McNamara believ= ed if the area of decision was one under the purview of the Zoning Administrator, then it would have to be by appeal. It was believed that an appeal would have to be done separately from= a variance request.

Mr. Hua= rd said his house was built in the 1890’s and since 1985 had been reconstruct= ed from inside and out. He quest= ioned why the Historical Society allow a building to be erected behind him if the= re was such concern. He discusse= d the amount of traffic and didn’t feel his business would impact such.

Mr. McN= amara said the case was difficult because the Historic District was important to preserve, but on the other hand there was the reality of traffic and the fa= ct that there was mixed use.

Mr. Paul Staniec, 4 Nashua Road was not in favor of having more commercial usage in the area. He wasn’t interested in havi= ng additional traffic or fences.

Mr. McN= amara asked the Board if they wanted to walk the site. There was no interest by the Board members.

BALLOT VOTE:

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

Mr. Hennessey – <= span style=3D'mso-spacerun:yes'> 1) No; 2a) Yes; 2b) No; 3) No; 4)= No; 5) No

Ms. Paliy – Yes t= o all criteria

VOTE:

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

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

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

‘USE’ VARIANCE DENIED

SITE WALK – September 23, 2006 9am on site

Case #2351 COOKE, Judy &#= 8211; 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.

DATE SPECIFIED CASES – October 12, 2006

MINUTES

July 15,= 2006 – Site Walk

MOTION:

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

VOTE:

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

August 1= 4, 2006

MOTION:

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

VOTE:

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

ADJOURNMENT

MOTION:

To adjourn the meeting.=

VOTE:

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

The meeting was adjourned= at approximately 11:12 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