BOA20070707.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 9, 2007

The Chairman, Mr. David H= ennessey called the meeting to order at approximately 7:00 pm.

The Secretary, Robert Mol= loy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Svetlana Paliy, Robert Molloy (arrived after t= he role was taken), Alternate Lance Ouellette, Alternate Bill Kearney, Plann= ing Director Jeff Gowan

Kevin O’Sullivan, Alternate Ken Dunne

Mr. Hennessey appointed M= r. Kearney to vote in Mr. O’Sullivan’s absence.

CONTINUED

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 said since = the last meeting the Board had conducted a site walk. He asked that a summary of the sit= e walk be given. Mr. Molloy said the= site walk was conducted on June 23, 2007 present was Mr. & Ms. Jarek, and Board members Hennessey, McNamara, Molloy, Paliy, and&nb= sp; Kearney. They walked t= o the back of the property to review the lot line and wall; based on what was see= n there was nothing in that area to determine it to be a public nuisance. From there the garage structure was review because there was some question regarding the porch in back and how close it was to the lot line. It was clear that the porch (where the stairs came down) didn’t encroach= the lot line. The lid to the sept= ic tank was viewed; from that, it was assumed where the leaching field was in = that area. There was a request to = look inside the dwelling; the members then went up the stairs and went inside the dwelling unit. The apartment = was viewed. A neighbor wanted the= Board to look at where the well was located because there was a statement about a well easement. The Board look= ed at where the well was thought to be, but the Board questioned the relevance of= the well in regard the garage and the case.&nb= sp; It was apparent that the well had been abandoned for some time if it= was in fact there. At that time t= here were no further questions and Mr. Hennessey adjourned the (site walk) meeti= ng.

Mr. Hennessey said the ca= se dated back to May 14, = 2007. The Board had a request for a vari= ance because the applicant was looking to put two units on a property without sufficient= side lines. Mr. Gowan said the applicants were originally asked to come in for an Equitable Waiver, but af= ter the Board raise questions he consulted with Town Counsel who suggested that it = was a use variance. He didn’= ;t believe there were any side line issues.&n= bsp; Mr. Hennessey reviewed information provided to the Board and asked t= hat they decide whether the case was ‘use’ or ‘area’. He said the Board had received ans= wers to both criteria. Mr. McNamar= a said the applicant was seeking to legitimize two dwelling units on one lot even though the lot was two acres; he believed there was prior testimony that the units couldn’t be split between the two acres. He said it was an in-law apartment= , but wasn’t under zoning because it wasn’t attached and couldn’= ;t be. Mr. Hennessey agreed that ‘use’ made sense. Ms. Paliy recalled something, but wasn’t comfortable making the decision.= Mr. Hennessey said the Board had l= engthy discussions regarding Simplex versus Boccia and were being asked at this ti= me to apply the ‘use’ criteria.&n= bsp;

MOTION:

(McNamara/Kearney) To a= pply the ‘use’ variance criteria to the case.

VOTE:

(4-0-= 1) The motion carried. Ms. Paliy abstained.

Mr. Hennessey indicated t= hat the criteria had been previously read into the record (May 14, 2007). He asked the applicants if they ha= d any testimony to provide. Paula a= nd Nicholas Jarek had nothing to say at this point in the hearing.

PUBLIC INPUT

Mr. Gary Borak, 382 Mammoth Road said during the first meeting there was discussion regarding two wells being on = the property. He said he had one = of the wells and could prove through documentation that it was there and dated bac= k to the 1960’s. He said the= re was a legal easement contained on his deed, the Jarek’s deed and the prev= ious owner’s deed. He said a= t one point the Board was concerned with the well easement, but it didn’t s= eem to be so at this time. He questioned if the Town had the authority to grant a variance if there was a well easement and the applicant had an unknown septic system. Mr. Hennessey answered yes. He said going forward when a varia= nce was granted it was permission for the land to be used a certain way. He said ability to use the land wa= s not before the Board the Health Department and Enforcement Officers could come = in and determine if the property was habitable. He said well radiuses were not con= tained in the zoning code. He said t= he Board could make note of it. =

Mr. Mark Borak, 390 Mammoth Road, didn’t understand how the Town could give permission to use an illegal septic system within the radius of a well.= Mr. Hennessey asked Mr. M. Borak to state his position regarding the case. Mr. M. Borak said he op= posed the variance because the septic system was within the well radius existing within the easement.

Mr. G. Borak believed an = easement was a very strong document on a piece of property. He said his attorney was unable to attend the meeting and requested that the hearing be continued so he could = have his attorney present. Mr. McN= amara asked to review the plot plan and the locations of the easement and the well. Mr. G. Borak showed a subdivision plot plan dated June, 1974.&nb= sp; There was a location of a well on a second lot previously owned by C= .W. Herbert. Mr. McNamara asked w= hen the well functioned last. Mr.= G. Borak didn’t have that information.&= nbsp; Mr. McNamara asked how the variance would impact the use of the well= /easement. Mr. G. Borak said the septic syste= m was located too close to the well. Mr. McNamara asked how close the septic system was to the well. Mr. Hennessey noted if the Board c= hose to approve the variance they could place a condition that the septic system location be verified and that the property met all the codes.

Mr. Paliy said in the pas= t she had put a septic system in and described the process, which had nothing to = do with the Town, it was the Department of Environmental Services (‘DES&= #8217;) who would have done the permitting. Mr. G. Borak didn’t know if there was a permit. Ms. Paliy questioned what the Boar= d had to do with the process. Mr. McNamara said the Subdivision Regulations contained a 75’ setback requirement. Ms. Paliy said s= he wanted to see the DES record. Mr. Hennessey said the Board didn’t know the status of the septic system. Ms. Paliy wanted to k= now what the septic system had to do with the Board. Mr. Hennessey said there was an ex= isting non-conforming use. He said t= he Town told the applicant they couldn’t continue illegally occupying the apartment. He said they didn’t have any idea regarding the status of the septic system. Ms. Paliy said she wanted to see t= he DES paperwork. Mr. McNamara said it happened a number of years ago and there may not be any paperwork.

Mr. G. Borak showed a dra= wing of the Jarek’s property that had a leach field drawn in next to the buil= ding. Mr. Hennessey said the Board alrea= dy had a copy. Mr. G. Borak asked the Board if they wanted to see a copy of the deeds. Mr. Hennessey answered yes. Mr. G. Borak brought the paperwork forward. Mr. Hennessey review= ed the paperwork and asked if there was a copy of the easement description. The deed being shown didn’t contain a description for the easement.&nb= sp;

Mr. Ouellette asked if Mr= . G. Borak witnessed a leach field being constructed in 1986 when the garage was being constructed. Mr. G. Bor= ak answered no. Mr. M. Borak noted that M= r. G. Borak lived in Reading, MA at the time and pointed out that ma= il is not being sent to the correct address.&nbs= p; Mr. G. Borak said he didn’t receive notice of the meeting, he found out about it because notice was sent to Mr. M. Borak’s house. Mr. Ouellette asked if the Boraks witnessed a septic system being installed since the Jareks purchased the ho= me in 1994. Mr. G. Borak answered no. Mr. Ouellette reviewed the documentation and noted his concern for holding the Jareks accountable for something that was done (prior to them).&n= bsp; He said he would like to know if the septic met current regulations.= He also would like the Planning Department to get a copy of the easement.&= nbsp; He felt Ms. Paliy brought up good points regarding the DES.

Mr. G. Borak didn’t understand what other documentation he needed for the easement. Mr. Hennessey asked if there was a= ny further testimony.

Mr. M. Borak reiterated a= point discussed at the May 14, 2007 meeting regarding the apartment not being finished when the Jareks purchased the property.

There were no other perso= ns who spoke in opposition to the variance.

Ms. Paula stated that they didn’t finish the apartment other than cosmetic repairs and new appliances. She said it was s= tructurally there. She then addressed the= well and her belief that the well (if it was there) had been abandoned prior to = the development of the three houses. She said the approximate location of the abandoned well in question was under a driveway and not disturbed since the house was originally built. She said well had been abandoned f= or possibly over thirty years. M= s. Jarek said if Mr. G. Borak were to use the well again, it would be a civil action. Mr. Hennessey said the Board was not concerned with the legal rights for the use of the well. He asked Ms. Jarek if she had any information regarding the septic. Ms. Jarek said their septic company Garside reviewed the well and estimated the septic to be the same size as the house and in working order. She explained that the original owner got the building permit for the garage, which had had plumbi= ng (with an original bathroom) and should have been covered in the permitting proces= s in 1986. She said with the house= being on Mammoth Road the work couldn’t have been done covertly.

Mr. McNamara asked where = the septic system was located. Ms. Jarek said the cover was visible. Mr. Jarek said the system was where the cover was. He said it was clean and in working condition. Mr. Ouellette aske= d if the system was maintained. Ms. Jarek answered yes; they had the system pumped out every year. Mr. Ouellette asked the Jareks if = they installed the septic system since they owned the property in 1994. Ms. Jarek answered no. Mr. Ouellette asked if the septic = was in place (when they purchased the property).&= nbsp; Mr. Jarek answered yes.

Mr. Molloy reviewed the h= ouse listing and the description which indicated there was an over-sized two-sto= ry detached garage with an unfinished garage above. Ms. Jarek said it was unfinished to flooring and lighting; the electrical wiring was in place. She said the bathroom was fully installed; the original shower was still in place. She said they changed the toilet a= nd sink. The kitchen was always = in place. Ms. Jarek said the pre= vious owner had friends periodically stay in the apartment. She reiterated that the plumbing a= nd water was working. Mr. Jarek = told the Board that he had to clean the apartment up to get the loan from the ba= nk (because it was a foreclosure). Ms. Jarek said all they had done to the property was clean and up keep it. She said if the only ‘sticking’ point for the variance was the well/well easement, s= he wanted the Board to know that the easement was for a well that had been abandoned for over thirty years; Mr. Borak had a functioning well on his property. Mr. Jarek asked if = the abutter still owned the well after a certain amount of years. Mr. Hennessey told them to check w= ith a land-use attorney.

Mr. Borak noted he had be= en an owner since 1981.

Mr. Hennessey brought the discussion back to the Board. He reiterated that the request was for a use variance and whatever rights the Board granted would run with the property.= Mr. McNamara said if he were to vote in favor of the variance he wou= ld make a condition that the use be for an in-law apartment, not a separate re= ntal property. There was further discussion regarding the variance request.=

Mr. McNamara reviewed the criteria and wanted the applicant to understand that a vote in favor of the variance was in no way an endorsement of any potential zoning enforcement issues that may exist on the property and that may come before the Board. He made a motion to have the varia= nce be conditioned upon: 1) the garage/dwelling unit be restricted to use as an in= -law apartment as defined in the Zoning Ordinance and that it carry with the property and used for no other purpose; 2) the septic system be inspected by the appropriate Town authorities and found to be in compliance with all Zon= ing and Subdivision Regulations at the present time. The was a brief discussion regardi= ng the proposed motion and a friendly amendment to have the septic, electric, plum= bing and all systems to make sure they are all up to code and conform with all appropriate Health and Safety Regulations.=

Ms. Jarek asked for clari= fication of the proposed motion. Mr. Hennessey said the Board wanted to make sure that the appropriate Town Officials reviewed the site and structure for compliance with Health & = Safety. Mr. G. Borak questioned why a sept= ic design wasn’t submitted at the time the building permit was issued for the garage. He suggested havi= ng a reputable septic person send a camera into the septic for review.

MOTION:

(McNamara/Molloy) Appro= val of Variance is conditioned upon: 1) the garage/dwelling unit be restricted to use as = an in-law apartment, as defined in the Zoning Ordinance, and that it carry w= ith the property and used for no other purposes; and 2) the septic, electric, plumbing water and heating to be inspected by the appropriate Town Author= ity and found to be in compliance with all Zoning and Subdivision Regulations= and confirm with all appropriate Health and Safety Regulations.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria; subject to use as in-law apartment and septic system inspec= ted by Town Health Officer

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. Molloy – Yes = to all criteria

Mr. Kearney – Yes= to all criteria

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

‘USE’ VARIANCE APPROVED

MINUTES

April 9, 2007 – motion reiterated approval made on May 14, 20= 07.

MOTION:

(Molloy/McNamara) To ap= prove the meeting minutes of April 9, 2007 as written. =

VOTE:

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

June 11,= 2007

MOTION:

(Kearney/Molloy) To app= rove the meeting minutes of June 11, 2007 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 8:06 pm.

           &n= bsp;            = ;                &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;     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