20070409.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 9, 2007

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

PRESENT:

ABSENT:

Peter = McNamara, Svetlana Paliy, Kevin O’Sullivan, Robert Molloy, Planning Director = Jeff Gowan

David Hennessey

Mr. McNamara said there wasn’t a full Board and everyone with an application in front of the Board was entitled to have a hearing before a full Board. He said each applicant had the opt= ion to either proceed with their hearing, or postpone until next month’s meeting. He explained if an applicant decided to proceed (with four sitting members) they would need a majority vote (yes from three out of the four members) to have their request approved; otherwise it would be denied.

ELECTION OF OFFICERS

The Board deferred the el= ection of officers to the next meeting because not all members were present.

Case #2369 PAPPALA= RDO, Gina - 17 Gaudet Lane -= Map 22 Lot 8-22-7 – Seeking a Special Exception concerning Art= icle XII, Section 307-76 (III) to permit the operation of a landscaping business= in the Residential Zone.

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.

Ms. Gina Pappalardo and h= er father Joseph Pappalardo came before the Board regarding the request for Special Exception. Mr. McNama= ra questioned if they understood their option to either proceed or postpone to= the next meeting because there was not a full Board. The options were explained and discussed. Mr. Pappalardo req= uested that the case be postponed until next month.

The Case was continued to= the May 14, 2007 me= eting.

Case #2370 ZELONIS= , J. Timothy – 61 Simpson Mill Road – Map 9 Lot9-5 - Seeking an ‘Area’ Va= riance concerning Article III, Section 307-12 to permit the subdivision of a 3.5 a= cre lot from a 36 acre lot. The c= reated lot having frontage of 170.82 feet of non contiguous frontage with 154.81 f= eet and 26.01 feet where 200 feet contiguous frontage 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.

Attorney Bill Mason, repr= esenting the applicant, met with the Board. Also present was Mr. Peter Zohdi of Herbert Associates to present the plan. Attorney Mason pointed out that the actual frontage for the proposed = lot was 180.82 feet; there had been an error in his calculation. Mr. Zohdi reviewed the plan for the Board and showed the wetland and high and dry land areas. He said they would like to create = a 3.5 acre lot which met all the criteria for creating a lot; the second lot cont= aining 32.215 acres with 8 acres of high and dry land. He said the lot being created woul= d have 154 feet of frontage and an additional section of frontage containing 24.71 feet (total 180feet). He expl= ained that the 24 feet of frontage would be divided between the two lots to provi= de access to the buildable areas of those lots. By doing this no waivers for wetla= nd or Wetland Conservation District (‘WCD’) would be needed. Mr. Zohdi noted that the remaining= lot would contain 200 feet contiguous frontage.

Mr. Molloy asked where the driveway would be located. Mr. Zohdi said he would put two driveways (side by side) along the 24 feet of frontage.

Mr. McNamara asked if Simpson Mill Road was the only road the parcel abutted. Mr. Zohdi answered yes. Mr. McNamara asked if the back area of Lot 9= -5 was land locked. Mr. Zohdi said t= here was no other access to it other than Simpson Mill Road.&nb= sp; He said when he and Mr. Zelonis spoke to the Planning Director, they explained if the Board granted an approval to the Variance, the remaining portion (10-15 acres) would be deeded to Conservation. He said there was an abutting conservation area it would connect to.&nbs= p; Mr. O’Sullivan confirmed that there was no intention to gain access to the back portion. M= r. Zohdi said they would add a restriction that the area would be under a conservation easement.

Mr. Gowan believed the ab= utting conservation land had no access and questioned if a portion of the 200ft. frontage would access. Mr. Zo= hdi said he could agree, but felt the best solution was to leave an easement along t= he driveway area so people could access the existing foot bridge (over Golden Brook). He said he would work= with Mr. Gowan and the Conservation Commission regarding such.

Mr. McNamara asked if Mr.= Zelonis had any present plans to develop the remaining parcel. Mr. Zohdi said he would put a conservation easement as long as he could have two buildable lots.

Attorney Mason said the l= and that would be available for conservation purposes would be approximately 20-25 acres. He said they were seek= ing to create two lots with relief being sought for the frontage of one lot; a substantial portion of the remaining lot would be deeded. Mr. Zohdi showed the area that he = wanted to have the buildable lots and what area would be deeded (approximately 29 acres). It was clarified that= one lot would be subdivided and contained within the remaining area there would= be an additional buildable lot. = The engineering had not been done yes. Clarification was made as to where the buildable area was located. Mr. Zelonis said his thoughts were= that the remaining property that wasn’t needed for the subdivision would be donated to the Conservation Commission because it adjoined with an abutting conservation parcel.

Ms. Paliy asked for clari= fication as to where the property would be divided to give to conservation. Mr. Zohdi showed how the property = could be subdivided and provide an easement.&nbs= p; He said it could be discussed with the Planning Board.

Attorney Mason read the V= ariance criteria aloud as submitted as follows:

1. The variance will not be contrary = to the public interest because: Residentia= l house Lots are a permitted use and the proposed Lot is large enough to insure the desired spacing between dwellings which the frontage requirement is intended to insure.

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: After the original subdivision of the frontage Lots, the Applicant = was left with limited frontage in which to access and use the remaining 36 acre= s.

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 Applicant is seeking to minimize i= mpacts to the WCD District and there is no other land available to provide the Applicant with additional frontage.

3. The Variance is consis= tent with the spirit of the ordinance because: With the exception of the requested relief for frontage, the Applicant will meet= all other State and Local subdivision requirements.

4. Substantial justice is= done because: It will allow the Applican= t to make reasonable use of the 35 acres he owns.

5. The value of the surro= unding properties will not be diminished because: The proposed Lot is across the street from a closed land fill and the proposed dwellings will be of equal or greater val= ue to properties in the immediate area.

PUBLIC INPUT

Mr. William LeBoeuf, 22 Kittredge Ave., Tewksbury, MA said he owned an abutting parcel that had access off Christopher Lane. He questioned if the applicant was= being allowed cut through his property to access the back portion of the applicant’s lot through his property. He wanted to know how large the ea= sement would be (on the applicant’s land) for access to the conservation land and if there would be a parking area. Mr. Zohdi said they would only be providing an easement they were not taking rights away from anyone. He said if someone had the right to pass and re-pass, they still would. Mr. LeBoeuf was concerned regardin= g the driveway configuration and the easement.&n= bsp; There was further discussion regarding the applicant’s intenti= on regarding the easement. It was noted that the plan would be going in front of the Planning Board for revie= w.

Mr. Manuel Silva, 71 Simpson Mill Road wanted to know how wide the access would be for the proposed lots. Mr. Zohdi said the total would be 50-feet; each lot would have a 12ft. driveway. Mr. Silva wanted to know how the d= riveway would be situated because his well would end up a few feet from the driveways. Mr. McNamara expla= ined if the variance was approved, the plan would go before the Planning Board w= ho would review a full set of engineered drawings. He said the Subdivision Regulations governed well placement.

Ms. Paliy was concerned t= hat a backlot type situation was being created.&= nbsp; Mr. McNamara said the driveways would directly access the lots. He asked how long they would be. Mr. Zohdi said they would be approximately 250ft. long. Mr. McNamara confirmed that they were on high and dry land. Mr. Zohdi said there were no wetla= nds or WCD. Ms. Paliy said the front= age was not continuous. There was= a brief discussion regarding the definition of frontage. Mr. Gowan said there should be an understanding/discussion that the short section of frontage would provide access. He explained that the proposed had significant frontage and there wouldn’t be a wetland impact. He felt given the protection to Golden Brook and the land in back would offset impacts, if th= ere were any. Ms. Paliy wanted to= know the Board member’s views. Mr. Molloy felt the proposal was clear; the second lot contained 200ft. and the= lot had direct access from the driveway. Ms. Paliy questioned if the Board wanted to walk the site. Mr. Molloy was clear about the pro= posal. Mr. McNamara noted that the plan w= ould have Planning Board review. H= e felt it was pretty much straight forward. He also felt the criteria had been met. Mr. Gowan said he was speaking wit= h the Conservation Commission Chairman on a different matter, but showed him the proposed as a ‘heads up’. The Conservation Chairman didn’t see a reason for the plan to = go in front of the Conservation Commission because there were no wetland impacts. Mr. Gowan said the Conservation Chairman was positive at the prospect of adding the parcel to conservation land. He also no= ted the importance of Golden Brook, which fed into Beaver Brook.

Mr. McNamara asked if the= Board needed a motion or an understanding regarding the area outlined by Mr. Zohdi for development. Mr. Gowan sa= id calculations had to be done to cut the line and felt it would be reasonable= to come to an understanding regarding: 1) that there would be a gift of land to conservation as a result of the line being drawn (for the lots); and 2) both the lot being created (granted a variance) and the remaining lot would both= be accessed from the 26.01ft. and 24.71ft. pieces of frontage. Mr. Zohdi gave the Board the plan = he had drawn on during the meeting. = Attorney Mason said the plan Mr. Zohdi provided as part of the record demonstrated t= he area (not yet engineered) that would be part of what would go to conservati= on. Mr. McNamara said one of the crite= ria the Board was relying on was the donation to conservation (which was import= ant) and that fact that there was an approximate location of where development w= ould occur.

BALLOT VOTE:

Mr. McNamara – Ye= s all criteria

Ms. Paliy – Yes a= ll criteria

VOTE:

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

Mr. Molloy – Yes = all criteria

(4= -0-0) The motion carried.

VARIANCE GRANTED

Case #2371 Benoit,= Paul & Elaine – 117 Dutton Road - Map 37 Lot 11-85 – Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory dwelling in the Resident= ial Zone.

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.

Paul & Elaine Benoit = met with the Board to discuss their request for Special Exception. Mr. Benoit said their intention wa= s to put an in-law apartment above their garage. He and his wife would reside in the in-law apartment and their daughter would take over the main residence for = her family. He said it was not for rental property; it would be for their use.

Mr. Gowan said he and the Building Inspector reviewed the application with the applicant’s architect and believed it met the criteria. He said the septic design had alre= ady been approved by the state. H= e said the application was in order and saw no problems with it. Mr. McNamara confirmed that it was= Mr. Gowan’s opinion that the application complied with Section 307-74. Mr. Gowan answered yes.

Mr. McNamara asked what t= he footage was for the apartment. Mr. Benoit believed it was 744sf. Mr. McNamara confirmed that the applicant understood if the Special Exception w= as approved, it was for an in-law apartment only, not as a rental unit. Mr. Benoit understood.

There was no public input= .

Mr. Molloy asked what the= sun room was. Mr. Benoit said it = was simply the entry way and went on to explain how it was laid out. Mr. Gowan said he and the Building Inspector met with the architect because of the configuration and to better understand where the original residential area ended and the in-law apartme= nt began. He explained the configuration. Mr. Molloy understood that the sun room/mud room was considered part of the living area of the original house. Mr. Gowan answered yes= . He noted at the top of the stairs = there would have to be a door at the entrance of the apartment.

MOTION:

(Molloy/O’Sulliva= n) To approve the Special Exception. <= u>

VOTE:

(4-0-= 0) The motion carried.

SPECIAL EXCEPTION GRANTED

Case #2372 GIRL SC= OUTS OF SPAR & SPINDLE COUNCIL, INC. – Webster Avenue – Map 23 Lot 8-17 – Seeking an ‘Area’ Variance concerning Article III, Section 307-14 to permit a lot with less than 200 feet of contiguous fronta= ge on a public right-of-way

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 told the Boa= rd that the proposed lot was adjacent to a development (9 lots) that the Planning B= oard considered several months ago during which there was a series of negotiatio= ns with the land owner/proposed developer concerning how the Planning Board would handle the subdivision. He sa= id ultimately, an agreement was reached. He said he wouldn’t step down, because there were only four me= mbers present, and believed he could be objective in deciding the case. He said if anyone had any question= s, or concerns they should let him know. There was no objection (by the Board or the applicant) to Mr. McNama= ra remaining on the Board for the hearing.

Attorney Mark Johnson, representing Webster, LLC (the Applicant) met with the Board to discuss the variance request. He began by discussing the parcel and explaining that the Girl Scouts agreed to enter i= nto a written agreement with the Town for a first right of refusal on the remai= ning parcel. This came about durin= g the original Planning Board hearings for a nine-lot subdivision and a tenth lot= which was to be configured and sold by the Girl Scouts. Attorney Johnson said when the nin= e lots went in front of the Planning Board, they weren’t sure of the tenth lot. He said it became appare= nt in order to finalize the Town’s right of first refusal they either they = had to be overly generous as to the land going into the tenth lot, or they had = to come up with a configuration that would make sense. He said they decided to go ahead a= nd design the tenth lot and seek approval so the legal description and right of first refusal could be finalized and signed by the Girl Scouts, accepted by= the Town and recorded at the Registry of Deeds along with the nine-lot subdivision. The determinatio= n was made to make the tenth lot in the configuration currently before the Board which required a variance for frontage.&nb= sp;

Attorney Johnson then rev= iewed the variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: The propos= ed use will allow the Applicant to enter into an agreement with the Owner which wi= ll provide the Town with a right of first refusal on the Owner’s adjacen= t property. This will give the Town an opportu= nity to preserve open space.

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: Applicant can not purchase additional land to conform to zoning.

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: = Failure to obtain a variance will resu= lt in the loss of open space and increased infrastructure costs. <= /p>

3. The Variance is consis= tent with the spirit of the ordinance because: Applicant is only requesting a variance to waive one of the zoning requirements. Lot 8-17-10 will me= et all other setbacks and codes.

4. Substantial justice is= done because: The proposed use is permit= ted in this district.

5. The value of the surro= unding properties will not be diminished because: The proposed structure will be of equal or greater value than the structures on= the surrounding properties.

Mr. McNamara noted that t= he frontage for the proposed lot was on a curve and asked if there would by any problems with sight distance for a driveway.

Ms. Cynthia Beauvier of C= uoco & Cormier Engineering said they reviewed the sight distance and didn’t believe there would be a problem in either direction (horizont= ally or vertically). Mr. McNamara = wanted to know if the variance was granted if the lot was in need of any waivers or further request for variance. Ms. Beauvier said following waivers were listed on the plan: 1) property line of the entire Girl Scout parcel was not surveyed; 2) locus map – scale of plan not done with 1in.=3D400ft. ; 3) topography not done for entire site, = only the area that would be affected by development; and 4) landscaping. Mr. McNamara asked if the land was= high and dry. Ms. Beauvier answered yes. She believed a copy of t= he plan, test pits and data was submitted with the application. She said they would all meet the state’s subdivision application requirements.

Mr. Gowan confirmed the a= ssertion that the presented information was correct. He explained when the information = first came into his office, the lot was shown much like the configuration being shown. He noted it was part o= f the original configuration. He al= so said the request for waivers were essentially minor (housekeeping).   Mr. Gowan said the proposed = was the last piece of the puzzle to get the right of first refusal recorded. He explained the recording process= . Mr. McNamara said the Planning Boa= rd, at the time of the nine-lot subdivision was aware that the tenth lot was there= and would be coming for approval. Mr. Gowan said the right of first refusal document contained a description of t= he tenth lot and felt the document would be stronger having such specifically described. Attorney Johnson s= aid they had trouble describing the tenth lot without having a plan; therefore, they went through the process of designing the tenth lot so when the right = of first refusal was recorded it would be known what land it was attached to.<= span style=3D'mso-spacerun:yes'> Mr. McNamara understood that Mr. P= atch had an agreement to purchase the land from Spar & Spindle if the variance w= as approved. Attorney Johnson an= swered yes.

Attorney Johnson asked th= e Board to consider reducing the application fee from $1000 to $250 given that they= were creating one lot.

PUBLIC INPUT

Ms. Sandy Drolett, 50 Webster Avenue wanted to know where the house would be located if the variance was approved and if it would face Webst= er Avenue. Ms. Beauvier reviewed the plan and showed the proposed house location. Ms. Drolett asked i= f the access for the house would be from Webster Avenue. Ms. Beauvier answered yes.

Mr. McNamara said the agr= eement for the right of first refusal was significant for the Town. He also noted his feeling that the proposed satisfied the variance criteria.&= nbsp;

BALLOT VOTE:

Mr. McNamara – Ye= s all criteria

Ms. Paliy – Yes a= ll criteria

VOTE:

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

Mr. Molloy – Yes = all criteria

(4= -0-0) The motion carried.

VARIANCE GRANTED

The Board then discussed = the request for application fee reduction from $1000 to $250. Mr. Gowan said the request was a m= inor variance and felt $250 would adequately compensate the Town. Mr. McNamara said the Planning Boa= rd had discussions regarding fee reduction and had different opinions regarding su= ch. There was further discussion regar= ding the request; the Board didn’t want to create a situation where every applicant was making the same request.&nbs= p; It was believed that the application before the Board was unique. It was noted that the applicant had significant expense with the subdivision previously reviewed. Mr. Gowan said he would review the application fee language and report back.&= nbsp;

MOTION:

(Molloy/O’Sulliva= n) To reduce the application from $1000 to $250.

VOTE:

(4-0-= 0) The motion carried.

MINUTES

March 12= , 2007

MOTION:

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

VOTE:

(3-0-= 1) The motion carried. Ms. Paliy abstained.

ADJOURNMENT

MOTION:

() To adjourn the meeti= ng.

VOTE:

(4-0-= 0) The motion carried.

The meeting was adjourned= at approximately 9:06 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