BOA20070514.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 14, 2007

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

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Robert Molloy, A= lternate Lance Ouellette, Alternate Bill Kearney, Planning Director Jeff Gowan

Alternate Ken Dunne

Mr. McNamara and the Board welcomed the newly appointed alternates.&n= bsp;

ELECTION OF OFFICERS

MOTION:

(Paliy/O’Sullivan= ) To elect David Hennessey as Chairman.

VOTE:

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

MOTION:

(Molloy/Hennessey) To e= lect Svetlana Paliy as Vice Chairman. <= /span>

VOTE:

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

MOTION:

(O’Sullivan/Henne= ssey) To elect Robert Molloy as Secretary.

VOTE:

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

CONTINUED

Case #2369 PAPPALA= RDO, Gina - 12 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.

Mr. Kearney stepped down.=

Mr. Molloy 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. Hennessey outlined the criteria for Special Exception.

Ms. Gina Pappalardo said = she would like to continue to run the landscaping business that she owned. She believed that she met all the requirements.

Mr. McNamara asked how ma= ny employees the business had. M= s. Pappalardo said she had four employees; two residents, two non-residents. Mr. McNamara asked if there were a= ny materials stored. Ms. Pappala= rdo said they stored materials (general lawn equipment and machines) in a 166ftx32ft shed. She said the= re would be no fertilizers or pesticides stored. She said they only kept enough gas= oline, oil, 2-cycle to run the machines. Mr. McNamara asked what type of machines they owned. Ms. Pappalardo said they had three= large walk-behind mowers and two small mowers.&n= bsp; Mr. McNamara confirmed that the business was currently being operated from the home and that it was seasonal in nature. Ms. Pappalardo answered yes. Mr. McNamara asked if anything was= sold from the property. Ms. Pappal= ardo answered no. She explained th= at the employees reported in the morning and returned in the evening. Mr. McNamara asked how many vehicl= es were used for the business. M= s. Pappalardo said they had a one-ton truck, a Chevy Silverado pickup and an enclosed trailer. She said the vehicles were screened from view behind a stockade fence. Mr. McNamara asked if any equipmen= t was repaired on site. Ms. Pappala= rdo said they sent their vehicles out for repair.

Mr. O’Sullivan conf= irmed that there would be no fertilizer or mulch stored on the property. Ms. Pappalardo said they didn̵= 7;t store such things on site. Th= ey were not licensed to put down pesticides; they did basic lawn maintenance.<= span style=3D'mso-spacerun:yes'> Mulch is delivered directly from t= heir vendor to the customer.

Mr. Hennessey confirmed t= hat the business had four employees; two were non-residents. He questioned if the business was a Minor Home Occupation. Mr. Go= wan said the request was for a General Home Occupation.

PUBLIC INPUT

Mr. Bill Kearney, 36 Gaudet Lane said it appeared that the applicant complied with the request and requested clarification for what the applicant was appealing. Mr. Hennessey said the applicant w= as seeking a Special Exception which was required for a General Home Occupation. He said if the applicant met the criteria, the Special Exception would have to be granted. Mr. Kearney asked if= the Special Exception was granted to the applicant or the property. Mr. Gowan said a Special Exception= was granted to the property owner; if they left the property it would no longer apply.

Ms. Pappalardo noted that= her address was 17 Gaudet Lane= , not 12 Gaudet Lane as shown on the agenda. Mr. Hennessey questioned if the notices were affected because of the difference= in street number. Mr. Gowan didn’t believe so. He s= aid notices were generated by using lot numbers.

Mr. Kearney wanted to kno= w if the applicant would have to come back before the Board if changes were made to = the business such as additional inventory to support the business. Mr. Gowan said it would depend if = the Board placed conditions on an approval.

Mr. McNamara asked for a = description of the storage shed building. Ms. Pappalardo said the shed was a 16ft.x32ft. 2-story shed with a concrete foundation. Mr. McNamara aske= d if there was either a drain around the perimeter to capture any spills that may occur. Ms. Pappalardo said th= ere was crushed stone around the shed ranging from 10ft. to 15ft. Mr. McNamara explained if the Board placed a condition on the approval she would have to come back before the B= oard for further approval if the business changed. Ms. Pappalardo said she understood= .

Mr. Molloy asked what the= hours of operation would be. Ms. Pappalardo said the employees reported to the house at 7:45am and returned when it was dusk.<= span style=3D'mso-spacerun:yes'> She felt it would be minimal noise= for the neighbors.

Mr. Gowan mentioned that = the applicant was aware if the Special Exception were granted they would procee= d to the Planning Board for Site Plan review.&n= bsp;

Mr. Hennessey reviewed the General Home Occupation requirements with the applicant.

Mr. McNamara asked that a condition be placed on an approval indicating that there is to be no exteri= or material storage on the property. Ms. Pappalardo didn’t object to the condition.

MOTION:

(McNamara/O’Sulli= van) An approval is conditioned upon there being no exterior material storage on = the property. =

VOTE:

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

MOTION:

To approve the Special Exception (with condition).

VOTE:

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

SPECIAL EXCEPTION GRANTED

Mr. Kearney returned to t= he Board.

HEARINGS

Case #2373 LOUF, R= ita – 15 Spaulding Hill Road - Map 38 Lot 1-133 – Seeking an ‘Area’ Variance concerning Article III, Section 307-12 to permit the creation of a road front lot with less than 200ft. frontage (150ft. + proposed to be remainder of lot frontage less 50ft.) and a back lot with less than 200ft. of frontage (50ft. propose= d)

Mr. Molloy 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.

Attorney Paul DeCarolis of Gottesman & Hollis, representing the applicant, met with the Board to discuss the requested variance. Mr. Bob Cormier of Cuoco & Cormier Engineering Associates posted a copy of = the proposed plan for the Board to review.&nbs= p; Attorney DeCarolis said the applicant had an existing 4.5 acre with 200-feet of frontage. He said= the property had come before the Board in December, 2006 (Case #2360) for a variance that was denied to create two new lots on the rear parcel to be serviced by a private driveway. He said several neighbors appeared and objected to the site and were basically concerned regarding the density of the use. He noted the current plan was significantly scaled down from the previous. Attorney DeCarolis said it was imp= ortant to note that there was enough property for the applicant to put in a Class V roadway and create two lots. = He felt the applicant’s plan to develop a single lot was significant. He said the remaining lot would co= ntain 3.2 acres which was larger than the surrounding.

Attorney DeCarolis said t= here was a recent New Hampshire Supreme Court case called Malachy Glen Associates Inc. v. Tow= n of Chichester (argued in January, 2007 – opinion issued March, 2007) in which the court addressed criteria 1 (not contrary to the public interest) = and 3 (spirit of the ordinance). = He provided a brief summary of how the court reviewed the case and compared su= ch to his client’s variance request.&nb= sp; He also discussed how the court viewed the hardship criteria (as pertaining to the Boccia case). He said the Board should discuss unnecessary hardship and consider if the area variance was necessary to avoid undue financial burden on the land owner. He said the alternative to the pro= posed plan would be for the applicant to build a Class V road (to Town specifications) costing approximately $165,000. The use would have twice the inten= sity, greater environmental impact, greater burden upon the Town and neighbors and twice the water use requirements. Attorney DeCarolis submitted that it was not reasonable to require the applicant to = spend $165,000.

Attorney DeCarolis addres= sed the uniqueness of the property and felt there was little doubt that the applicant’s property was unique with lot 1-136-22 being the closest in configuration (rear lot with 54ft. of frontage). He reviewed the parcels across the street which could easily be subdivided into two lots. He said without a variance, the Bo= ard would be forcing the applicant to be the only lot in the area that was 4.5 acres limited to one lot. He = noted there was no other access available because the surrounding area had all be= en developed. Attorney DeCarolis discussed substantial justice and pointed out that there would be no public gain to offset the injustice (restriction of the 4.5 parcel).

Attorney DeCarolis said a= lot of the abutters were concerned with the drainage (during the hearing in Decemb= er, 2006). He pointed out if the variance was approved, the project needed to go to the Planning Board. He said one requirement was that t= he post-development drainage was to be no greater than the pre-development dra= inage. He said the abutters also had conc= ern with water usage. He said the proposed use had no greater impact on water use than what was allowed on the property now. He noted that w= ith a variance the Board had the opportunity to impose restrictions (i.e. a no-cut buffer around the perimeter).

Attorney DeCarolis review= ing the variance criteria – the following was submitted to the Planning Department:

1. The variance will not be contrary = to the public interest because: These two = (2) variances will allow the Applicant to subdivide her property to create one = (1) additional backland lot on property that is approximately 4.5 acres in size. The front lot would bec= ome approximately 1.3 acres, and the back lot would be approximately 3.2 acres. All the surrounding properties are considerably less in size than this property, ranging mostly= in size from one to two acres. Creating one additional lot in Pelham would be in the public interes= t in that it will provide additional housing in a section of Pelham where there = is not much land available for further housing.

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 property is unique in that it is relatively large piece of land (approximately 4.5 acres) the majority of which is situated behind the exis= ting house at 15 Spaulding Hill= Road. The unique “L” shaped property has thus kept this property from being subdivided due to the frontage. As such, it has den= ied the Applicant the opportunity for fair and reasonable use of her quality ex= tra acreage.

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: = An area variance is needed on the prop= erty frontage in order to allow access to the backland lot. All the land on the abutting lots = was developed with minimal area, thus precluding an opportunity for the Applica= nt to purchase additional land to make this subdivision conforming or more conforming. The Applicant wou= ld disturb and develop more area if required to construct a roadway to create additional frontage to access the back portion of her property. =

3. The Variance is consis= tent with the spirit of the ordinance because: The intent of this ordinance for a minimum of 200-feet of frontage is to allow = for reasonable spaced lots along Town roads. The reduction in frontage from 200-feet to approximately 150-feet is consistent with several of the lots on Spaulding Hill Road and Applewood Road, which is parallel a= nd west of Spaulding Hill Roa= d. For example, just north of the pro= perty is a lot with 184-feet of frontage, to north of that is a backland lot with 54-feet of frontage and to the north of that is another lot with 184-feet of frontage.= Hence, reduced frontage is not unreasonable given that other lots in the area have less than the required 200-feet of frontage.

The backland lot will also be larger than many of the surrounding lots. For example, the abutti= ng lots along Applewood Road<= /st1:address> range in size from 1.0 acres to 1.7 acres.= Similarly, abutting lots along Spaulding Hill Road range in size fro 1.1 acres to 2.1 acres. Hence, the proposed subdivision will create a backland lot that is larger (approximately 2.3 acres), than most of the surrounding lots.

The arrangement and dimensions of the backland lot will meet the in= tent of the Ordinance for adequate space and setbacks.

4. Substantial justice is= done because: Granting this variance wou= ld result in substantial justice to the applicant since it would provide her t= he opportunity to subdivide the lot in a manner consistent with many other lot= s on Spaulding Hill Road and Applewood Road, providing her with reasonable use of her property.

5. The value of the surro= unding properties will not be diminished because: Surrounding property values would not be impacted if this variance is approved. The main reason is that the new lo= t that would result following subdivision will be larger in size than many of the abutting and adjacent properties.

In summary, Attorney DeCa= rolis said the applicant was proposing to create a single-family in a single-fami= ly neighborhood. He said the dis= tance between the home and the surrounding would be no different than what the neighborho= od was used to.

Mr. Cormier reviewed the property. He said the land was gently sloped with no known wetlands. The lot would meet all other requirements (i.e. buffers). The plan would be reviewed by the Planning Board where other conditions could be placed. Mr. Cormier said if a roadway were= put in to provide the proper frontage it would have to be approximately 600-fee= t in length and would cost approximately $165,000 ($275 per foot).

Mr. McNamara questioned t= he plan/survey. Mr. Cormier said= they had surveyed the front portion of the property where the existing home was located. He said for a subdiv= ision they would survey the entire property.&nbs= p; Mr. McNamara confirmed that there were no wetlands. Mr. Cormier said as far as they kn= ew, there were no wetlands. He sa= id when they went in for a subdivision; they would have a wetland scientist confirm such for the Planning Board. Mr. McNamara asked what the rear slope was. Mr. Cormier said it was gently slo= ping (approximately 8%). Mr. McNam= ara said the Subdivision Regulations contemplated back lot development (Section 11.04) that had a number of conditions, which he read aloud. He asked if the applicant would be opposed to a condition of ‘no further subdivision’.   Attorney DeCarolis said they= would not be opposed to such a condition. Mr. Cormier believed they would comply with the conditions. Mr. McNamara wanted to know how lo= ng a road would be if they decided to put one in. Mr. Cormier said a road would be approximately 600-feet. Mr. McNamara asked how many lots they would be able to develop. Mr. Cormier said they would be abl= e to develop the existing lot, plus two new lots to the rear.

Mr. Hennessey discussed t= he importance of the new court case (Malachy Glen) and the Boccia case. He said the Board had to focus on = the criteria for hardship on area cases.

PUBLIC INPUT

Mr. Chris Brunelle, 12 Applewood Road said during the process of searching for a house, he and his wife tried to = be aware of irregular situations (things that could cause conflict in the future). They were shocked wh= en they came to the meeting in December, 2006 and the current. Mr. Brunelle felt the plan would c= reate an irregular lot. He was conc= erned about problems with water, specifically the lack of such. He said some of his neighbors had = two wells. Mr. Brunelle said the = plan may set a precedent. He was c= oncerned with over-use of irregular lots and making more lots out of non-conforming lots.

Mr. John Nelson, 8 Applewood Road reviewed the hardship of the people in the neighborhood pertaining to water. He said when they purc= hased their property they didn’t expect someone to build behind him. He said the applicant had plenty of opportunity to purchase land on Applewood Road to access their property. Mr. Nelson said he had a water sup= ply inspection done for his property. He read a portion of the report which addressed the effects the prop= osed development could have on his property.&nb= sp; He also reviewed information from the Town of Pelham water supply water regulations a= nd from the Department of Environmental Services. Mr. Nelson felt an approval would = set a precedent for others to develop. He discussed the amount of development that was currently going on in the area. Mr. Hennessey asked if = Mr. Nelson understood that the applicant, under current zoning laws, could put three homes on the site. Mr. = Nelson didn’t feel the applicant had the frontage. Mr. Hennessey said there was enoug= h land for three home sites. Mr. Nel= son reiterated his belief that granting a variance would set a precedent. Mr. Hennessey asked for a copy of = the water test information for the file. Mr. Nelson provided a copy to the Board. He asked the Board how often a plan could come back. Mr. Gowan sa= id this was a different proposal from the plan previously before the Board. Mr. Hennessey said the current pro= posal was for two lots. He said his comments regarding the change in the law (as of March, 2007) pertained to t= he case currently before the Board.

Attorney Laurie Hogan, 6 Cindy Circle, appearing on behalf of Mr. John Nelson, said while there was new case law, = the principals found in the case law remained unchanged. She said the applicant previously = came before the Board with a proposal three lots, but with respect to the varian= ce, the issue was pretty much the same. She said the Board at that time denied the variance and their current position was that the current variance request should also be denied because the circumstances were unchanged and the property had not changed. She said nothing had changed other= than the last request was for three lots, and this time the request was for two lots. She recalled the Board = had taken a lot of things into consideration, one of which was the financial bu= rden of the lot for the applicant. With respect to use, Attorney Hogan said the applicant could continue to use the single family residence, or she could demolish the existing residence and e= rect a duplex. She suggested thoug= h the case law had changed somewhat, nothing else had changed.

Mr. Doug Campbell, 11 Spaulding Hill Road believed at the previous hearing there was some discrepancy concerning the neighbor on the other side of the applicant’s lot regarding frontage. He asked if the iss= ue had been cleared up. Mr. Hennessey believed that type of issue (documentation of title) would have to be verif= ied with the Planning Board. He said if the variance was approved, the applicant would still have to go before the Planning Board for Site Plan review and to meet the regulations. Mr. Cam= pbell discussed the water issue and noted that there was another abutter who was waiting to see if the applicant’s plan was approved because they want= ed to do the same thing. He reit= erated his belief that if the Board approved the request they were setting a precedent. He discussed his c= oncern regarding the water issue in the neighborhood. He wanted to know where the liabil= ity fell if the plan was approved and the surrounding wells failed. Mr. McNamara said that would be a = civil matter. He said if the varian= ce was approved, the plan would go before the Planning Board where the applicant w= ould have to prove that post-flow development was no greater than pre-flow development. He said it was w= ell known that there were problems in the area. He said Mr. Campbell could have his water quality and quantity documented prior to development. Mr. Campbell questioned if there w= ould be a venue for legal recourse if there was a problem later. Mr. McNamara didn’t want to provide legal advice, but said Mr. Campbell would have a cause of action if= he could prove that his well had been affected adversely by the development.

Ms. Susan Wilson, 11 Applewood Road, who was not an abutter, noted that she purchased her home knowing the water flowed at half a gallon per minute. She said they had run out of water approximately 15 times and it was scary. She discussed the other water problems in the area. S= he said when she purchased her property she looked at the lots in the neighbor= hood and purchased such not thinking that the land-locked woods would be develop= ed.

Ms. Gretchen Brunelle 12 Applewood Road wanted to know what the recourse was if they did a well test= to use for a base line (prior to development) and then lost their water. Mr. McNamara said he had referred = to a legal remedy, which would obviously take time. Ms. Brunelle discussed what action= s had occurred across the street prior to her neighbor purchasing the property. She said a tanker had put pool wat= er in the well three times per week to deceive her neighbor into purchasing their home. Ms. Brunelle wanted to = know what the recourse would be if they ran out of water. She said she wouldn’t be abl= e to live in, or sell her home.   It would take time for legal recourse. She said the Board was discussing one person’s hardship, but t= here were thirty abutters that had a hardship because they wouldn’t have w= ater. Mr. Hennessey said the Board couldn’t address the concern and suggested that Ms. Brunelle speak to= an attorney. He said the way the= Board used the term hardship was the way it was done in New Hampshire for handing variance cases. He said hardship was d= efined in law as to the applicant’s right to develop property. He said the abutter’s hardsh= ip was done in a different part of the criteria (i.e. substantial justice). He said primarily the criteria 5 (surrounding properties will not be diminished) was being reviewed. He said the Board wasn’t wei= ghing the applicant’s hardship against the abutter’s hardship. Mr. McNamara said the fact of the = water problems in the area was well documented.&= nbsp; He said the Board didn’t have scientific evidence that another well would impact; but did have testimony that people had suffered from hav= ing very little water. He said if= the Board granted the variance, the plan would then have to go before the Plann= ing Board who may require a drainage and water availability studies. Mr. Gowan said there were certain criteria the plan would have to meet. Mr. McNamara noted that there was a development going in on top of Spaulding Hill that would be supplied by private water. Ms. Brunelle knew about the development. She reiterated h= er position against the proposed plan and believed there were other alternatives. She said that s= he had just constructed a $200,000 addition to their home and wouldn’t have = done it if they’d known. They chose their lot based on the woods being land locked. Ms. Brunelle said the applicant ha= d the opportunity to purchase land in the late 1980’s. She discussed the water and noted = that they had no underground water, but had plenty on top of the ground. She said it was very wet on both s= ides of the street.

Mr. Randy Rutherford, 13 Applewood Road informed the Board that he had two wells on his property; one at 700ft. and= the other at 1200ft. He discussed= the water problems in the neighborhood and the connection between actions taken= at abutting lots that caused problems for others. Though not a direct abutter, Mr. Rutherford was extremely concerned regarding water quality and flow.

Mr. Roger DeRoche, 7 Applewood Road wanted to know what would happen at the Planning Board stage if the variance was denied. Mr. Hennessey sai= d if the variance was turned down, the recourse was to bring it back under appea= l and from there bring it to court to ensure there was due process. He said they applicant could also = go directly to the Planning Board with a subdivision. Mr. DeRoche asked if the plan would still need approval by the Planning Board.= Mr. Hennessey said the plan would go through an approval process at = the Planning Board. Mr. DeRoche a= sked if the abutters would still have the opportunity to go to the Planning Board too. Mr. Hennessey answered yes. Mr. DeRoche asked the Bo= ard to let the plan go to the Planning Board.&nbs= p;

The abutter at 8 Applewood Road shared the water concerns of his neighbors.

Mr. John Nelson, 6 Westfall Road, who was not an abutter, but had been familiar with the area over the past twenty years, confirmed that the applicant was requesting one non-conforming lot and one over-sized lot. M= r. Hennessey said the applicant was requesting two lots, one with 150ft. of frontage the other with 50ft. of frontage.= Mr. Nelson said he didn’t know what size structures were being proposed. He said the water r= unoff and surface water was amazing and confirmed that the applicant would be responsible for controlling such. Mr. Hennessey said runoff was the purview of the Planning Board and = per regulations must be contained on site.&nbs= p; Mr. Nelson asked if environmental issues would be handled by the Planning Board. Mr. Hennessey answered yes and added there would be a consultation with the Conservation Commission. Mr. Nelson questi= oned if the plan would by done per state and federal government guidelines. Mr. Hennessey said there would be hearings held by the Planning Board and possibly by the Conservation Commis= sion to hear any/all concerns. Mr.= Nelson asked if an environmental impact survey would be done and if the forestry w= ould be reviewed. Mr. Hennessey sa= id there would be public hearings on the proposal.

Attorney DeCarolis addres= sed the water issues. He said the applicant= had testified that she had resided on the property for forty-three years and ha= d no water problems. He said with = regard to substantial justice, he said everyone that resided on Applewood Road or Spaulding Hill Road was allowed to basically double the number of dwelling units because accessory dwelling un= its were permitted in the zone. H= e said to say that the one new lot would be the ‘straw on the camel’s back’ was unfair since everyone who spoke basically had the right to = add a new dwelling unit. He reite= rated that the applicant (in 43 years) didn’t have a (water) problem on her site. Attorney DeCarolis said= Mr. Cormier showed a plan for a subdivision that could be done.   There could be a cul-de-sac servicing two lots and the existing lot could be reconfigured to have 200ft= . on the new lot. There could be t= hree lots serviced by a Class V road without the need for a variance. The only variance required would b= e a 4ft. encroachment; or the lot could be reconfigured to not need the varianc= e.

Mr. Hennessey asked if th= e applicant would be adverse to a stipulation that no further subdivision was to be don= e on the site if the variance were approved.&nb= sp; Attorney DeCarolis said the applicant was not adverse to such a stipulation and invited the Board to make the stipulation.

The Board then reviewed t= he variance criteria and the standard by the New Hampshire Supreme Court. Mr. McNamara noted that the court suggested that both the public interest and the spirit of the ordinance criteria were related.

Ms. Paliy questioned if t= he Board was allowed to review water issues, or if that was only for the Planning Board. Mr. Hennessey said if = the problem with water was to be applied to the case; it would have to be logic= ally connected to one of the five criteria.&nbs= p;

Mr. Molloy said the Board= needed to review the request, which was for frontage. Mr. McNamara said the purpose for = the 200ft. frontage requirement was to permit adequate access to a home and als= o to provide adequate spacing between homes.&nb= sp; He said in reviewing the map, the two proposed lots (1.3 acres and 3= .2 acres) appeared to keep with the character of the area. He felt the proposed was a peculia= r case on its facts and should be distinguished based on such. Mr. Hennessey noted that criteria = #1 & #3 were linked explicitly per the court in the Malachy Glen case. He said the Board had to review th= ose criteria together. Mr. McNama= ra read portions of the case findings aloud.&= nbsp; He said the variance seemed to be consistent with the spirit of the ordinance; the use was appropriate with regard to that criterion particular= ly given the unique shape of the lot. He said the surrounding lot sizes were less than what the applicant = was proposing for lot sizes and would do nothing to subtract from the neighborhood. He reiterated t= hat the applicant could go directly to the Planning Board and construct a road = and double the current proposal. = In addition, he said the lot could possibly be clear cut to provide for the increased density. He said the applicant had been boxed in and had been denied a variance to build two additional homes; there was no additional frontage from which the applicant could get additional footage because the surrounding area had been developed. Mr. McNamara said = since he had been on the Board he didn’t believe that he had ever voted to create a non-conforming lot; however this case was different. The applicant was essentially boxe= d in and land locked. Mr. McNamara= said there was more than adequate area to supply another home lot feasibly. It w= as the applicant’s only other alternative, other than to build a road. He said under the hardship criteri= a, the Board could examine the economic feasibility.

Mr. Hennessey informed th= e Board that the courts were urging boards to discuss the individual criteria and if there was a no vote they asked that the issue be expressed. He said he would give Board member= s the opportunity to speak regarding their vote prior to the voting slips being collected.

Mr. Molloy didn’t f= eel the variance was consistent with the spirit of the ordinance. He said the lot had an affect on t= he neighborhood and rural charm of such. He had a serious issue in the way the non-conforming lot was set up. Mr. Hennessey said one of= the reasons there is hardship under Boccia was peculiar lot shapes. Mr. Molloy felt it was contrary to= the public interest and that outweighed the variance. He said the whole nature of the ne= ighborhood would be changed. Mr. McNamara questioned what his view was based on.&nbs= p; Mr. Molloy said his opinion was based on the way the lot would be tu= rned into a non-conforming lot with the frontage on Spaulding Hill Road. Mr. McNamara pointed out there wer= e four or five lots in the immediate vicinity with less than 200ft. of frontage.

Mr. O’Sullivan felt= if the variance were denied, the applicant would be left with no other alternative than to go to the Planning Board for a subdivision.

Ms. Paliy had no comment.=

Mr. Ouellette said he cou= nted seven non-conforming lots in the adjacent area. He asked how old the Applewood dev= elopment was. As he understood, the applicant had been in the neighborhood for approximately forty years. He then noted that every time peop= le had a well go dry, they were drilling new wells and didn’t believe two mo= re would have an effect. He said= the proposed lot sizes seemed to match the neighborhood.

Mr. McNamara said if the applicant’s plan went to planning and couldn’t pass Town standa= rds, they would have to truck water in, or keep drilling until they got adequate return. He said there was no = scientific evidence as to what an individual well would do. He noted almost every home in the property would qualify to put on an in-law apartment which would result in additional water use in the area.

Mr. Kearney confirmed what actions the applicant could take if the variance was denied. Mr. Gowan said the applicant, by r= ight, could go to the Planning Board and build the frontage for the two back lots= and make frontage on the new road for the existing lot. The Town would eventually have to own/maintain the road.

Mr. Hennessey said under = the Malachy case, in order to vote against the applicant (contrary to public interest) the variance must alter the essential character of the locality or threaten the public health, safety or welfare. He then asked the Board to discuss hardship (Boccia). He said the factors that needed to be considered for an area variance according to the court was if an area variance was needed to enable the applicant’s proposed use of a property, given the special conditions of such property.<= span style=3D'mso-spacerun:yes'> He said that’s why the applicant’s attorney discussed the uniqueness of the applicant’s property. He said the second = part of the Boccia case was whether the benefit sought by the applicant could be achieved by some other method reasonably feasible for the applicant to purs= ue, other than an area variance. = He said it also included consideration of whether the variance was necessary to avoid an undue financial burden on the owner. Mr. McNamara said the Malachy Glen= case said the Board could consider the feasibility of a scaled down version of t= he proposed use.

Mr. McNamara felt given t= he relaxation of the unnecessary hardship criteria that had occurred in the pa= st several years that the applicant had made a case that there was unnecessary hardship regarding the land. = He went on to say that the other method that could be achieved would be to bui= ld a road, which would result in a more intensive use and a more intense cutting/clearing of the property. As far as he was concerned, the applicant met the criteria.

Mr. Hennessey then asked = the Board to consider the substantial justice criteria. He said the applicant’s atto= rney had addressed these criteria that granting the variance would provide the applicant the opportunity to subdivide the lot in a manner consistent with = many other lots on Applewood Ro= ad and Spaulding Hill Road providing reasonable use of the property.&= nbsp; He said the Board had to determine if it was unfair of the Board to = turn the variance down compared to the other lots in the area.

Mr. Hennessey then review= ed the final criteria (value of surrounding lots). He said the Malachy case discussed= this. He said the Board heard abutter testimony about potential loss regarding water and the enjoyment of the woods. Mr. McNamara said the abutters didn’t have a right to enjoy the woods; it was the applicant’s property. H= e said the abutters had gotten used to the appearance of the home. He didn’t see that there was= any provable connection or scientific evidence that drilling one more well would adversely impact the whole area. He reiterated if the variance was denied, the applicant could choose to either sell the property, or go to the Planning Board to put in two additional lots. He said he would vote in favor for the variance based on the particular facts of the case. He didn’t believe that the variance would establish any kind of a precedent; in his view this was a un= ique case.



MOTION:

(McNamara/O’Sulli= van) Approval of variance is conditioned upon a suitable buffer being placed around the newly developed lot as determined by the Planning Board.

VOTE:

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

MOTION:

(McNamara/O’Sulli= van) There will be no further subdivision of the (3.2 acre) remainder parcel. =

VOTE:

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

Mr. Hennessey asked if Bo= ard members would like to address any of the criteria prior to collecting voting slips. There was no response = from Board members.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

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

Mr. Molloy – No t= o all criteria

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

‘AREA’ VARIANCE GRANTED

Case #2374 PETERSEN BUILT HOMES, LLC – G= oldfinch Drive - Map 21 Lot 2-102-43 – See= king a Special Exception concerning Article XII, Section 307-74 to permit an acces= sory dwelling unit in the Residential Zone.

Mr. Molloy 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. Jim Petersen met with= the Board to discuss his Special Exception request. He said he had a small subdivision= off Tenney Road= and a buyer who wanted to build a home with an ALU accessory living unit. He said a full set of plans had be= en submitted showing the unit, which would be 680SF. The septic design for 5.5 baths ha= d been approved.

Mr. Gowan felt the plans complied. He said the Building Inspector checked the calculations to ensure that they met the requirements= .

Mr. McNamara asked what t= he measurement of the area was. = Mr. Petersen said the unit would be 680SF. Mr. Gowan noted that the common wall requirement and other criteria had been met. Mr. McNamara confirmed that the se= ptic plan had been approved.

Mr. O’Sullivan aske= d how the parking was configured. M= r. Petersen said there was a two-car under proposed. He said there would also be a 24ft.x35ft. turn-around proposed.

Mr. McNamara asked if the= re were any water problems on the site. Mr. Petersen said the well was already dug; 265ft., 6 gallons per minute.

Mr. O’Sullivan conf= irmed that the Special Exception would stipulate that the usage was strictly in-law. Mr. Hennessey read a portion of the zoning pertaining to in-law use. Mr. Petersen said the buyer was aw= are of that fact.

There was no public input= .

MOTION:

To grant the Special Ex= ception.

VOTE:

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

SPECIAL EXCEPTION GRANTED

Case #2375   J= AREK, Nicholas & Paula – 378 Mammoth Road - Map 7 Lot 5-39 – Seeking an Equitable Waiver concerning Article III, Section 307-9 to permit the contin= ued existence of two dwelling units on one lot.

Mr. Gowan said he had been working with the applicant’s for the past 6-8 weeks to request relief from zoning. He said he belie= ved the applicant’s situation qualified for an equitable waiver because o= f a dimensional situation. He said based on past discussions and earlier advice from Town Counsel he advised t= he applicants they may want to seek a variance in the event the equitable waiv= er failed to be approved.   However, based on questions r= aised by Mr. Hennessey during a conversation earlier in the day he consulted Town Counsel who agreed with Mr. Hennessey’s comments. Mr. Gowan read a portion of counsel’s opinion, which in summary stated that the applicant’s issue couldn’t be addressed by an equitable waiver because it was a '= use' non-conformity, not a dimensional non-conformity. Counsel advised Mr. Gowan to sugge= st that the applicant withdraw their request for Special Exception and to inst= ead advise the Board to open the case for variance request.

Mr. Hennessey asked if the applicants understood that based on his, Mr. Gowan’s and Town Counsel= ’s reading of the RSA they wouldn’t be able to get an equitable waiver.<= span style=3D'mso-spacerun:yes'> He asked the applicants if they wi= thdrew their request for equitable waiver.

Paula and Nicholas Jarek = came before the Board to discuss their options.= Ms. Jarek asked if they would have the option to re-request an equit= able waiver at a later date if they withdrew the request now. Mr. Hennessey answered no. He said the opinion was that they didn’t qualify for the equitable waiver and asked if they were withdrawing such.

The Jareks withdrew their= request for equitable waiver.

Case #2376    JAREK, Nicholas & Paula – 378 Mammoth Road&= nbsp; - Map 7 Lot 5-39 – Seeking a Variance concerning Article III, Section 307-9 to permit the continued existence of two dwelling units on one lot.

Mr. Hennessey then discus= sed the type of variance that would be reviewed.&n= bsp; The applicants who filled out the application did so by answering the questions for both ‘area’ and ‘use’ variances. The Jareks said they would be requ= esting a ‘use’ variance.

Mr. Molloy 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.

Paula and Nicholas Jarek = met with the Board to discuss their request for a ‘use’ variance. Ms. Jarek explained that she and h= er husband owned 378 Mammoth = Road for approximately 14 years. S= he said they purchased the property the way it currently existed as a foreclosure.<= span style=3D'mso-spacerun:yes'> A copy of the listing sheet was pr= ovided to the Board with the application. Ms. Jarek said they spent a lot cleaning the property, but had not m= ade structural changes. She said = they had been charged and assessed as a two-family. Ms. Jarek said her in-laws resided = in the accessory dwelling and explained how the living situation was beneficial to= all of them. She said the accesso= ry unit had its own septic system and leach field. She provided the Board with a lett= er from the septic system company that had serviced it over the past several y= ears and confirmed that the system had been reviewed and was functioning. She said there were two wells on t= he property but they only used one. They didn’t know where the second well was located other than being told by neighbors that a second well existed. Ms. Jarek said they had no reason = to believe there was a problem by the way the garage was set up. She was shocked to receive a letter informing that the dwelling was not in compliance. She said at the time the buildings= were constructed (1986) there must have been a plan. In her opinion, to build something= of the building’s size, septic etc. on Mammoth Road must have been obvious= .

Ms. Jarek then reviewed t= he criteria as submitted:

1. The variance will not be contrary = to the public interest because: The propos= ed use has been adding to the tax base of the Town.

This is not a new dwelling it has existed since 1986 without modifi= cations or additions. Property has consistently been described and assessed as a two family on Town tax card b= oth past and present.

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 its environment such that: Distance bet= ween house and second dwelling are spaced 31+ feet apart. To join the two buildings would be aesthetically very unattractive and financially out of reach for the owners= to accomplish.

&= nbsp;

Great = cost was expended by original owner to construct the dwelling in 1986 and contributed desire for us to purchase property. Property was marketed and purchase= d as having a second dwelling when purchased by us in 1994. The second dwelling was a key reas= on we purchased the property. We ha= ve since invested a substantial amount of time and money in the upkeep of seco= nd dwelling. Taxes historically = been calculated on a two family dwelling. We will not be able to use our land to its fullest potential if the variance is denied.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: Property complies with use= by being a residence. Property complies with lot size by being over two acres. Residential character will not cha= nge.

iii. the variance would not injure the public or private rights of others since: Subject dwelling has existed for over 20 years without injury to public or private rights. Our property value equals or excee= ds that of our neighbors. Many t= wo and even three family dwellings located within neighborhood. Residential character will not cha= nge.

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance to waive one of the zoning requirements and = are in compliance with all other setbacks and codes. Subject property has two a= cres of land. Existing second dwel= ling was constructed with separate septic. Septic was inspected by Garside in January, 2007 and found to be in = good working order. Property conta= ins over one full acre of clear and usable land in the back should the need for another well or septic be needed.

4. Substantial justice is= done because: The use being requested is consistent with uses of the surrounding lots and variance being granted will allow us to use our property in the same manner. Subject dwelling has existed for o= ver twenty years in a highly visible location prior to notification of the zoni= ng violation. Subject dwelling i= s used for family member use only, no rent will be collected.

5. The value of the surro= unding properties will not be diminished because: There will be no change to the exterior or the interior construction of the dwell= ing as it presently stands. Curre= ntly our property is and has been one of the nicest looking properties in the neighborhood. This property i= s an asset to the neighborhood and increases local property values by increasing= the look of the neighborhood.

Mr. Molloy asked if they purchased the entire second acre with the duplex. Ms. Jarek said a couple years ago = they had the opportunity to purchase land from the abutters and as part of that = they took the acre for the back yard for the sole purpose of not wanting anyone build behind them.

Mr. McNamara asked how mu= ch acreage they presently owned. Ms. Jarek said they owned approximately 2.14 acres. Mr. McNamara asked if consideratio= n had been given to establishing two separate lots. Mr. Gowan said every possibility w= as reviewed, but because of the way the dwellings were situated on the propert= y, none of the possibilities were reasonable.= He said the Board could add a condition to the variance indicating t= hat the dwelling not be considered for a separate rental property. He requested that the Board consid= er adding a condition that the dwelling be inspected for code to ensure its safety. Mr. McNamara noted th= at the real estate listing indicated that the garage had an unfinished apartment above. Ms. Jarek said she hand wrote on the paper that the apartment had drywall, plumbing, toilet, shower, kitchen already in place, needed paint and flooring. She said they updated things (swit= ched out for a new toilet and put in a new sink) because what was in the apartme= nt was really unclean. Mr. McNam= ara said the Certificate of Occupancy noted that a variance was granted in 1986= for setbacks and indicated that construction of a garage for storage of cars, timber; personal use only. He= asked when they purchased the property. Ms. Jarek said they purchased the property in 1994. Mr. McNamara questioned if any tit= le examination or tax records should have disclosed that information. Mr. Hennessey said the broker shou= ld have disclosed the information; however with a foreclosure there are no warranties or representations. Ms. Jarek said the garage was nicely constructed and had no reason to believe t= hat it wasn’t legitimate. <= /p>

PUBLIC INPUT

Ms. Jarek said two of her neighbors submitted letters for the Board.= Mr. Hennessey read the letter aloud. The letters were submitted by Reje= an & Elizabeth Cusson of = 371 Mammoth Road and Kenneth & Patti Clough of= 370 Mammoth Road. The letters were added to the case file.

Mr. Gary Borak, 382 Mammoth Road said he owned the property but didn’t reside at that location. He said he had a similar situation= with his mother’s house; detached garage raised roof ready for an apartmen= t. He said he was told he would have = to connect the house and garage to make an in-law. He asked if the variance would also apply to him. Mr. Hennessey s= aid technically it didn’t apply to him because every case was different.<= span style=3D'mso-spacerun:yes'> He suggested having a discussion w= ith Mr. Gowan. He said each case = had to be taken on its own merits. M= r. Borak asked what the garage was used for.&= nbsp; Mr. Jarek said he worked on collectable cars. Mr. Borak asked if there were any chemicals or gas in the garage.   Ms. Jarek said they didn’t store gas in their garage. She said they had a storage shed f= or such items. Mr. Borak asked i= f the storage shed was on the Jarek’s land. Ms. Jarek answered yes. Mr. Borak asked if the second well= was located on the plot plan. Mr. Hennessey said he only saw one well and asked the applicant if there was a second well. Ms. Jarek said t= hey were told there was a second well, but they were only using one well. Mr. Borak reviewed the plan that w= as submitted. Mr. Hennessey aske= d if the leach field location was determined by the septic person. Ms. Jarek answered yes. Mr. Hennessey said if a variance w= as granted the Board would add a stipulation that the property be inspected, t= hey could also include leach. Mr.= Borak said he had a well he believed was on the Jarek’s land in the area of= the turn-around. Mr. Hennessey as= ked if the well was active. Mr. Borak answered no. Ms. Jarek said s= he didn’t have any information that Mr. Borak had a well.

Mr. Borak asked if all the permits were in place for the occupancy.&n= bsp; Mr. Hennessey answered no; the applicant was before the Board to see= if they would be granted permission to use it. He said right now the property was= not legal. Mr. Borak believed the property (upstairs garage) was finished after the Jareks bought it. Mr. Hennessey said the Board heard testimony that the Jareks purchased the property with the electric and plum= bing was in place.

Mr. Mark Borak, 390 Mammoth Road said he resided at 382 Mam= moth Road since 1993 and when the Jareks purchased their home in 1994 he helped them move things up to the second floor of the= garage and it was not finished. He s= aid there was no dry wall, lights or anything.=

Mr. Hennessey asked if th= ey were in opposition to the variance. Mr. Gary Borak said he was not in opposition to the variance if he could do the same thing on the property he owned. Mr. Hennessey said every case was individual. He asked if they were in oppositio= n to granting the variance. Mr. Ga= ry Borak said he opposed the variance.

Mr. Christopher Mann, 8 Mercury Lane (unit B), said he originally finished upstairs in the garage at the Jarek’s house. He said = in 1995 there was rough plumbing and rough electrical, but there was no sheet rock. He said he paid rent the whole time he was there.

Mr. Joseph Doyon, 8 Mercury Lane (unit A), said he was one of the purchasers involved with Mr. Jarek in purchasing the duplex. He sai= d they purchased it from his mother and father and always thought the house was legitimate. He questioned the statement regarding collectable cars and noted that a fence had been built = on one side of the property, but when he looked out the back of his home he co= uld see the cars. He said the fro= nt of the Jarek’s house was clean, but the back was not. He said he had taken some of the t= rees down (they were clearing) in the back.&nbs= p; He said the Jarek’s had a car in the back and when they drove = it dust blew up. He said there w= ere cars everywhere and should have to look at them when he was on his back porch. Mr. McNamara asked wha= t Mr. Doyon said about owning the property. Mr. Doyon said his mother and father sold the property out back to h= im and Mr. Jarek. Recently, he purchased half of it back from Mr. Jarek.&= nbsp; Mr. McNamara asked how long he had resided in the present location.<= span style=3D'mso-spacerun:yes'> Mr. Doyon said he lived there for approximately 10 years.

Mr. Jarek said he previou= sly owned a duplex out back and had purchased it so he wouldn’t have a ho= use behind him. In summary, Mr. J= arek said the neighbors were unhappy because he took the land out of the duplex because he didn’t want a house behind him. Ms. Jarek said it was a personal p= roblem they had right now and asked for the conversation to be redirected back to = the variance.

Mr. McNamara asked Mr. Ja= rek if he ran a business out of the home. Mr. Jarek said he repaired collectable cars; he had three in his garage. Ms. Jarek said they w= ere licensed as a Minor Home Occupation and had been for many years. She said last July they had pretty= much shut the business down. Mr. G= owan said there was another zoning violation on the property; the sale of more t= han two cars. He said after a conversation with the Jareks they were now in compliance. He didn’t think it was relev= ant to the variance request. Mr. McN= amara questioned if the unshielded cars were a violation of the permitted home occupation. Mr. Gowan said ‘unregistered’ cars were the key; the one place where the Town = drew the distinction was collectable cars because they are kept. He said the sale of cars would be = dealt with under code enforcement. = He said in conversations, the applicant decided to comply and not sell cars fr= om the property. Ms. Jarek said = the issue was a personal disagreement; they wouldn’t mind fencing in the = rest of the back yard. She didn= 217;t understand why the issue was so upsetting given that their children played = in the back yard. Mr. Jarek sugg= ested that the Board conduct a site walk.

Mr. Hennessey said the Bo= ard needed more information regarding the well. He said if it was in the location = where Mr. Borak stated there was a protective well radius problem with the leach field. Mr. Hennessey said theoretically the exterior building with a leach field didn’t exist u= ntil the zoning was created for it. Mr. Gowan said legally it didn’t exist, but physically it did. Mr. Hennessey said he was referenc= ing the well that the abutter had ownership of that resided on the applicant’s property. M= r. Gown said there was a burden of proof.&nbs= p;

Mr. McNamara said he woul= d like to review the site. Mr. Henne= ssey felt it was appropriate for the Board to review the site.

Ms. Jarek said she hadn&#= 8217;t seen documentation regarding a well and questioned if such documentation wo= uld be available prior to the site walk. Mr. Hennessey said the Board would ask for documentation to be submi= tted. Ms. Paliy questioned if there woul= d have to be a legal case if the well hadn’t been used in a number of years. Mr. Hennessey said the= site walk would be primarily to see the structure and the layout. He said they would have to provide evidence of the well. Ms. Jar= ek confirmed that the burden of proof regarding the well would be on the abutter. Mr. Hennessey answer= ed yes. He explained the current regulations regarding the well radius and leach field for the garage. The abutter would have to submit i= nformation regarding the well prior to the next meeting.

The Board scheduled a sit= e walk for June 2, 2007<= /st1:date> beginning at 9am. =

The case was date specifi= ed to the June 11, 200= 7 meeting.

MINUTES

April 9,= 2007

MOTION:

(Molloy/McNamara) To ap= prove the meeting minutes as written. =

VOTE:

(4-0-= 1) The motion carried. Mr. Henness= ey abstained.

SITE WALK- June 2, 2007 9am

Case #2376    JAREK, Nicholas & = Paula – 378 Mammoth Road - Map 7 Lot 5-39 – Seeking a Variance concerning Article III, Section 307-9 to permit the continued existence of two dwelling units on one lot.

MISCELLANEOUS DISCUSSION

The Board had previously discussed changing the meeting start time from 7:30pm to 7pm, but deferred a decision until everyone was present. There was no objection to the time change.

MOTION:

(O’Sullivan/McNam= ara) To move the start time of the Zoning Board of Adjustment meeting to 7:00pm.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/O’Sulli= van) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 10:40 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