BOA20070813.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

August 13, 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, Kevin O’Sullivan, Alternate Lance Ouellette, Alternate Bill Kearney, Alte= rnate Ken Dunne (arrived after the meeting commenced), Planning Director/Zoning Administrator Jeff Gowan

None.

HEARINGS

Case #2378 BELLEVI= LLE, Laureen – 13 Countryside Drive – Map 2 Lot 5-76-10 – Seek= ing an Appeal from an Administrative Decision of the Zoning Administrator for approving a building permit at 13 Countryside Drive for a 110-foot Ham towe= r 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. Hennessey said a lett= er had been received from Laureen Belleville indicating that she was not able to attend the meeting. There were people seated in the public that were prepared to speak regarding the appea= l.

Mr. Hennessey said the Bo= ard was hearing an Appeal from an Administrative Decision. The sole question before the Board= was did the Town (in the personage of the) Zoning Administrator act in a reason= able fashion within the law. The l= etter submitted by the petitioner, Ms. Laureen Belleville, who opposed the application, was read aloud. A summary of the concerns referenced in the letter were: 1) tower being place= d on a relatively small piece of land; 2) tower would be in stark contrast to the surrounding neighborhood (that was developed with underground utilities; 3)= if the applicant will sell space on the tower to interested parties; 4) height limits; 5) tower interfering with television and computers interference; 6) safety of residents (with 19 being children 17 and under).

Mr. Hennessey asked for clarification why the decision was being appealed. He said under the statute, the Boa= rd could hear an appeal based on a faulty interpretation by the Zoning Administrator, or that it was simply unfair.

PUBLIC INPUT

Ms. Rebecca Russo, 25 Countryside Drive believed the abutters were notified because of the Marchand v. Town of Hudson Supreme Court case which indicates the Town had to more than accommodate a person operating a = Ham radio tower. The case states that t= he Town is not required to allow an amateur operator to erect any antenna he/s= he desires. She didn’t fee= l the tower belonged in a residential neighborhood. She didn’t know what qualifications there were for the applicant to erect a 110ft tower when they already had a substantial antenna on their roof. She was concerned that the applica= nt would place the existing antenna on top of the 110-foot tower making it much higher. Ms. Russo asked that a survey be done for exactly where the applicant would place the tower because the current markers appeared to be close to her property line. She discussed her concern regarding safety and the fact that there was no mention of a climbing barrier or fence around the tower. She said she worked with the Town of Atkinson Board of Appeals and had usually seen buil= ding permits denied and then they are brought before the Zoning Board of Appeals= . She wanted to know what reference = was given by the applicant for the need of the 1100-foot tower. She asked what would happen in the future when the tower wasn’t tall enough.

Mr. Hennessey asked Mr. G= owan to explain why the building permit was issued. Mr. Gowan said the applicant for t= he tower asked for a building permit approximately two years ago to put a towe= r up connected to his house. He sa= id at that point he reviewed some law, conferred with Town Counsel and followed t= he advice to ask the applicant to notify abutters of the issue of the building permit. No appeal was made at= that time. The applicant recently = came in seeking a permit for a larger tower that would have guide wires. Mr. Gowan said consulted legal cou= nsel again, and this time being a larger tower asked Attorney John Ratigan to provide a more detailed legal opinion (which had been provided to the Board). He noted that Attorne= y John Ratigan represented the Town of Hudson in the cited court case. He s= aid the advice received was that the applicant’s description of why he ne= eded the tower at the requested height was sufficient. He said the Planning Department pa= id for the notification of abutters to make sure everyone knew the permit had been issued. He read a potion of t= he legal opinion aloud.

Mr. Molloy asked if the P= lanning Department could restrict additional antennas being placed on the tower. Mr. Gowan said there was no situat= ion in which the applicant would sell or lease space on the tower other than what = was indicated in the application; the offer to the Fire Department.

Mr. Hennessey asked if the decision was based on the Town’s Zoning Code. Mr. Gowan said the decision was ma= de by reviewing the Town’s Zoning Code and by speaking with Town Council’s about the FCC’s preemptive capabilities with regard to zoning.

Mr. McNamara asked if the decision could only be ‘up’ or ‘down’, or if the Bo= ard could put conditions on it. M= r. Gowan believed it was ‘up’ and ‘down’ in terms of h= is Administrative Decision and felt items, to the extent that the applicant volunteer reasonable items to address, he would consider binding.

Ms. Russo wanted to know = how she would know if the applicant was placing the tower in the area specified. She said in reviewing the plans, t= he applicant’s entire backyard was wetlands. Mr. Gowan said the placement was i= n his and the (on his behalf) Building Inspector’s purview. He said there was a buildable area= that extended into the applicant’s back yard. They would ensure the tower = was properly located.

Mike Raisbeck and Attorney licensed in Mass= achusetts sat with Mr. Richard Feola (applicant requesting the ham tower). Mr. Raisbeck said he had worked on= one case in New Hampshire and it happened to= be the Marchand v. Town of Hudson= Supreme Court case and provided a summary of such.

Mr. Hennessey asked Mr. Feola why he needed a tower so large and in the location being requested. Mr. Feola discussed line to sight transmissions.&nbs= p; Mr. Hennessey asked if the transmissions would cause interference wi= th televisions and other electronic equipment. Mr. Raisbeck understood the concer= n and explained it was preempted by Federal Law through the Federal Communications Commission (‘FCC’).

Mr. Dunne asked Mr. Feola if he contacted his neighbors prior to attending the meeting. Mr. Feola said he wa= s able to discuss the tower with one of his neighbors. Mr. Dunne asked if there would be = any radiation from the tower. Mr. Raisbeck said the FCC required all radio amateurs to go through a radiation analysis. He discussed the technical aspects of exposure.

Mr. McNamara asked how tall the trees were on his lot. Mr. Feola said the trees were appr= oximately 80ft.-90ft. in height. He sai= d the antenna had to go above the tree line.&nbs= p; Mr. McNamara asked if the tower could be put 5ft.-10ft. above the tr= ee line. Mr. Feola said the trees would grow over the years. Mr. McNamara asked what would happen when the trees grew to 110ft. Mr. Feola said it would take years= for the trees to reach that height and it should be more than adequate. Mr. McNamara asked the significanc= e to the Rone tower. Mr. Feola dis= cussed the tower model and its limits. Mr. Raisbeck described the aesthetics of the tower.

Mr. Ouellette asked if Mr. Feola currently had a roof mounted tower. Mr. Feola said he currently had a = 50ft. tower mounted on the side of his house.&nb= sp; Mr. Ouellette asked if the tower was insufficient, or not tall enough. Mr. Feola said it didn’t suit his needs at this time.&= nbsp; Mr. Ouellette asked if any thought had been given to topping some of= the trees within the property. Mr. Feola answered no. Mr. Ouelle= tte said it seemed that progression of the request would lead to the applicant asking for a larger tower down the road. Mr. Feola said it wasn’t in his plans at this time. Mr. Ouellette asked if the Planning Department had been provided with information regarding the ‘fall zone’ of the tower. Mr.= Feola said he showed it to Mr. Gowan and could provide the Board with a copy. Mr. Ouellette said he was concerne= d that the tower may fall on an abutter’s property. Mr. Feola discussed the Rone specifications. Mr. Raisbeck = said the fall zone was typically 50% of the tower’s height.

Mr. Hennessey asked if the fall zone was within Mr. Feola’s property. Mr. Feola said the fall zone may be 10-feet over the adjacent property. He said there was no chance of it hitting any structures.

Mr. McNamara asked what the proposed tower would allow Mr. Feola to do that the current tower didn’t. M= r. Feola said the proposed would allow him to make other contacts. Mr. Raisbeck said there were diffe= rent frequencies that could be obtained.

Mr. Kearney asked if there were any safety provisions for around the tower. Mr. Feola said there were anti-cli= mb planks that could be installed. He showed the Board the specifications. Mr. Raisbeck described the planks in detail which were effective in keeping people from climbing the tower.&nb= sp; Mr. Feola said safety was a concern because he had a child.

Mr. O’Sullivan asked if the tower would fit inside the tree line. Mr. Raisbeck said the tower would = fit inside the tree line, but there would be problems putting the antenna on top. He also discussed the pr= oblems with trees coming down and hitting the guide wires. It was not typical for a ham tower= to be in the woods. Mr. O’Sul= livan asked if lighting/beacon was required.&nbs= p; Mr. Feola answered no. He said it was only at 200ft. where the FAA had to be notified.

Mr. Ouellette asked if Mr. Feola if he would be opposed to putting a perimeter fence around the tower. Mr. Hennessey wanted the Board to understand the only thing they were doing was deciding if Mr. Gowan’s decision was correct or not. Mr. Ouellette reiterated his quest= ion if Mr. Feola would consider putting a fence around the tower. Mr. Feola said of course he would = consider it, he was not unreasonable. =

Mr. Dunne asked if any feedback had been received from the Fire Department regarding the offer to place an antenna on the tower. Mr. Feola said the Fire Chief indi= cated he would refer the request to his communications person. He didn’t hear back from them.

Claire and Joseph Morin, 2 Countr= yside Drive had concerns and comments regarding the height of the tower and the contrast it created in the neighborhood. She submitted photographs of the c= urrent tower and of towers similar to the applicant’s proposal. She noted that WMUR TV, Nextel and Verizon currently used 110ft. towers. She told the Board that she her electronics had interference. She also had the following questio= ns: 1) who would be responsible for maintaining the tower and under what guideline= s, 2) would the tower be grounded properly; and 3) the possibility of trees falli= ng on the wires making the tower topple.   Mr. Morin pointe= d out that they had gone online and found that several accidents had occurred wit= h ham towers, which was a concern. = His major concern was having a commercial tower in a residential area. He questioned the permitting proce= ss. Ms. Morin believed a tower of the proposed height required an FCC permit also.

Mr. Hennessey explained that the hearing was being conducted because a building permit was issued and then appealed. He said the sole thing the Board was deciding was if the issuance of= the building permit legal and reasonable.

Rebecca and Jim Russo, 25 Countrys= ide Drive discussed the proposal. Mr. Russo said they had major conc= ern regarding the fall zone because it overlapped their property. He strongly felt the tower didn= 217;t belong in the residential zone. Ms. Russo said she had been told that the tower had to be completely within the applicant’s property. S= he was frustrated with the permit process because she felt it was done backwards a= nd the abutters had no recourse. She said currently there was nothing on the side of her property (in the area of the tower), and was concerned if they decided to put something there in the future that it would be in the fall zone.&= nbsp;

Mr. Dunne asked the Russos if their main concern was with the aesthetics of the tower or something on their property. He wanted to know if they planned to put anything in that location.<= span style=3D'mso-spacerun:yes'> Ms. Russo said they had option to = build a shed or the like in that location. Mr. Russo said there was a possibility building could happen. Their concern was the tower possib= ly crossing the boundary line. M= r. Dunne asked what the main opposition was to the tower. Ms. Russo said the main opposition= was the size of the tower being in the residential area. She didn’t feel it was reaso= nable, the safety concerns weren’t addressed and the fact that there were ot= her locations on the property to place the tower. Mr. Dunne asked if there were other locations for the tower that the Russos would be agreeable to. Mr. Russo answered no. He said the fall zone was currentl= y onto his property. Overall, the Ru= ssos didn’t want the tower in the residential neighborhood, but to be reasonable, they wanted it placed in the best possible location. Ms. Russo said she was told Mr. Fe= ola couldn’t put anything on top of the tower, but was unsure if that had been clarified. She wanted to= know if the existing antenna could be placed on top of the tower.

Mr. Dan Salois, 22 Countryside= Drive wanted to know if the Board gave permission for the tower to be constructed= if it would be allowed to begin immediately.&= nbsp; Mr. Hennessey said the Board had to determine whether Mr. Gowan̵= 7;s decision to issue the building permit was reasonable. Mr. Salois was simply concerned to= see where the situation would go from this point.

Mr. Gowan said solely based on legal review the abutters were notified. He said a comment was made about t= he permitting process being backwards. He said it was not. He= said he had signed off for zoning on dozens of permits every week; the ones that were typically discussed by the Board were those of either use or dimension= al issues. He said Attorney Rati= gan found no fault in the process and reviewed every word of the Administrative Decision and found no flaw in it. He said it was an odd coincidence that Attorney Ratigan is the legal expert with regard to the Supreme Court case. He wanted the Board to know there wouldn’t be any hard feelings if the Administrative Decision were overturned.

Mr. Hennessey understood that if the decision wasn’t overturned, Mr. Gowan’s involvement wouldn’t be over. Mr. Gowan said if the tower were t= o be erected there would be several inspections that would occur for the foundat= ion and the erection of the tower. Mr. Hennessey asked if there were 80ft. trees that could fall on the abutter’s property. Mr.= Gowan said there was a fair amount of tree coverage set further away from the houses. He noted that he was = one of the authors of the Town’s Cell Tower Ordinance because he didn’t feel structures of this type should be in residential neighborhoods; howeve= r, a lot had been learned since that Ordinance.= He said since the Federal case it put the preemption on the project = and therefore he felt he couldn’t reject it given legal council.

Mr. Salois urged the Board to review the site prior to making a decision. Mr. Dunne asked Mr. Salois what hi= s main opposition was to the tower; aesthetics or safety. Mr. Salois said the first concern = was safety. He wanted to see a pl= an showing the location and height of the tower and where the guide lines would be. He said second was the wi= dth being 50ft. on top of the tower. Mr. Dunne asked where Mr. Salois’ lot was located. Mr. Salois explained where his lot= was located. He said the tower wo= uld be an eyesore.

Mr. Dunne asked if there was any location close to the Wetland Conservation District (‘WCD’) that the tower could be located so it wouldn’t fall onto the neighbor’s property. Mr. Gowan said there was. He said the first thing he would do would be to revisit the exact location and get measurements.

Mr. Ouellette wanted to know Mr. Gowan would take into consideration locating t= he tower so it didn’t fall on the abutter’s property if the Board didn’t uphold the decision and the applicant reapplied for the permit. Mr. Gowan said he int= ended to take that position anyway. He discussed other items that he would also oversee.

Mr. McNamara asked the applicant to address the testimony that the tower was mo= re of a commercial tower than residential.&nb= sp; Mr. Feola said the tower was heavy duty with a substantial base. It was used all the time for amate= ur radio. Mr. McNamara asked if = the full height of the tower would be 110ft.&n= bsp; Mr. Feola answered yes. He said he would take 10ft. off so it wouldn’t reach any abutting proper= ty. Mr. Hennessey asked if Mr. Feola w= as stipulating that he would leave the tower at 100ft. Mr. Feola said yes, he would leave= the tower at 100ft.

Mr. Ouellette wanted to know who would prevent the applicant from increasing the height of the tower in the future. Mr. Hennessey said it would go back to Mr. Gowan. Mr. Ouellette asked if there was a height limit for residential use. Mr. Gowan believed the current height for cell towers was 180ft., but they were= not allowed in anything but the commercial/business district without a variance. He said council gave advice that the ‘not allowed in a certain district’ wouldn̵= 7;t hold in court. Mr. Gowan said= he would hold the applicant to the testimony of the 100ft. height and the ‘no climb’ paneling. Mr. Feola said he didn’t have a problem doing that at all.

Mr. Ouellette asked if a stipulation could be added that stated the tower at the address would not exceed the height during the applicant’s ownership = of the home. Mr. Hennessey said = the only thing before the Board was whether to uphold Mr. Gowan’s building permit or not. Mr. Feola said= the Board could take him at his word, that he would keep to the 100ft. Mr. Gowan said he would ask the applicant to submit an amended building permit with the stated restrictions included so what is permitted is the specified height and anti-climb panels.

Mr. Dunne asked if Mr. Gowan could work with the neighbors and go to the edge of the WCD and make the tower hidden more than it is. Mr. Gowan said reducing the height wouldn’t hide the tower, but it would keep it on the property.

Mr. McNamara discussed his feelings regarding the hearing. He said the Federal Government had decided that they couldn’t stop the building; all the Town could do w= as reasonably regulate it. He ur= ged the applicant to place the tower so it wouldn’t fall on any abutting land, except perhaps conservation. <= /span>

Mr. Hennessey then discussed the case and the research Mr. Gowan had done with regard to the building permit.

Mr. Hennessey then explained how the Voice Vote would be taken. He said an ‘Aye’ vote = would uphold the appeal which meant that Mr. Gowan’s decision would be overturned.

MOTION:

To uphold the Appeal of= the Administrative Decision.

VOTE:

(1-3-1) The mot= ion carried. Mr. O’Sulliv= an voted ‘Aye’ // = Mr. McNamara, Mr. Molloy and Ms. Paliy voted ‘No’. Mr. Hennessey abstained.

Mr. Gowan’s decision was uphe= ld.

APPEAL DENIED

Case #2379 DEMERS, Michael & Catherine – 28 West Shore Drive – Map 30 Lot 11-1= 33 – Seeking a Variance concerning Article VII & III, Section 307-37 & 307-12 to permit a shed that was constructed 2.5 feet from the lot li= ne and 2 feet from the pond violating a side setback, WCD setback and Shore Li= ne Protection Act.   ** Appl= icant submitted a request for withdrawal **

The applicants withdrew t= heir case.

Case 2380 KUILAN, Jenifer – 2 Claudine Drive – Map 15 Lot 8-189-14 – Seekin= g a Special Exception concerning Article XII, Section 307-76 to permit the operation of a family group child care home day care out of the home. =

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 reviewed the conditions for a General Home Occupation.&= nbsp;

Ms. Jenifer Kuilan came b= efore the Board to discuss her request for a Special Exception. She explained that she would like = to open a home group daycare which would allow her to have twelve children in = her home during the day.

Mr. Hennessey asked Ms. K= uilan if she met all the conditions for the Special Exception. Mr. Kuilan believed she did.

Mr. Dunne asked how many = children and at what age they would be. Ms. Kuilan said with a group license she would be allowed to have 4 children un= der the age of thirty-six months the remainder could be preschool with five children that could be after-school. She said she would have an assistant. Mr. Dunne asked if there had been = any opposition from neighbors because of the added traffic. Ms. Kuilan said between her and her assistant four spots would be taken so there would be eight additional spot= s to be filled. She said one of her neighbors was concerned about additional traffic, but as Ms. Kuilan explain= ed her house was located at the beginning of the cul-de-sac and her driveway c= ould hold ten cars. People coming = to her house wouldn’t turn around in the cul-de-sac.

Mr. Molloy asked what the= hours of operation would be. Ms. Ku= ilan said she would be open from six to six; her assistant would be there from e= ight to five.

Mr. O’Sullivan aske= d if the yard would be fenced in. Ms. = Kuilan discussed where her yard was currently fenced and where a fence would be constructed next Spring.

Mr. McNamara reviewed the= diagram of the home that was submitted and questioned what percent would be used. Ms. Kuilan reviewed the diagram wi= th the Board and what areas would be utilized.&nb= sp; Mr. McNamara said there was a requirement that not more than 49% of = the home could be used and she would have to comply with such.

Mr. Dunne asked Ms. Kuila= n if she had applied to the state for a license yet. Ms. Kuilan said obtaining the Spec= ial Exception was the first step toward obtaining her permit.

Mr. O’Sullivan aske= d if there was a fence around the existing pool. Ms. Kuilan said she needed to put a fence around the pool. That p= ortion of the yard would be for personal use only. Mr. Ouellette asked if the pool was above ground. Ms. Kuilan answ= ered yes.

Mr. McNamara asked if hou= rs of operation would be Monday through Friday only. Ms. Kuilan answered yes.

PUBLIC INPUT

Mr. Edward Lynch, owner of property on Simpson Mill R= oad, was concerned about noise. He= said there could be noise problems with the day care having a lot of children playing outside. He said Simp= son Mill was a nice area and asked if the number of children could be trimmed b= ack to possibly ten. Mr. Hennessey asked if there was any buffering to the property. Mr. Lynch said there wasn’t = much, the area was kind of open.

Mr. Hennessey asked Mr. L= ynch if he was opposing the application based on the possibility of noise. Mr. Lynch said he would prefer to = trim the number of children.

Ms. Kuilan said any play structures would be placed away from Simpson and more toward her driveway.<= span style=3D'mso-spacerun:yes'> She explained that not all the chi= ldren would be out making noise at the same time. Most of the children will be under= 5 and still needed naps during the day.

Mr. Hennessey said the Or= dinance stated that any outside activity of a business was to be screened from neig= hboring view. Ms. Kuilan said she pla= nned on installing a six-foot plastic or stockade fence for the children’s safety, which would also act as screening.= Mr. Hennessey said if the Special Exception was granted Ms. Kuilan w= as obligated to keep her neighbors happy.&nbs= p; Ms. Kuilan understood. She said anyone was free to contact her.

Mr. McNamara reviewed the= information for what outside space would be used and questioned where the screening wou= ld be placed. Ms. Kuilan explain= ed what outside area was being proposed for use.

Mr. Ouellette confirmed t= hat the business would not operate during the weekend. Ms. Kuilan shook her head no.

Mr. Dunne questioned if t= he Board could grant a conditional approval that a fence be installed. Mr. Hennessey answered yes.

Ms. Paliy said the applic= ation appeared to draft the plan so the parents would understand how the day care would be run. She noted the difference with this application versus other businesses in that the space being used didn’t appear to be absolute.

MOTION:

(McNamara/O’Sulli= van) If the Special Exception is granted, the Planning Department is to verify th= at the business use would be 49% or less of the whole structure.

VOTE:

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

MOTION:

(McNamara/O’Sulli= van) To grant the Special Exception with the stipulation that a six-foot (6ft.) f= ence be erected.

VOTE:

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

SPECIAL EXCEPTION GRANTED

Case #2381 TEE PEE Realty Trust - 30 Hillcrest L= ane – Map 42 Lot 10-131 – Seeking an ‘Area’ Variance to Article III, Section 12&14 to permit a lot with frontage on an unimprov= ed paper street and access to dwelling of frontage less than 200 feet of contiguous frontage on a public right of way.

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 Bill Mason and M= r. Peter Zohdi of Herbert Associates discussed the variance request with the Board.<= span style=3D'mso-spacerun:yes'> Mr. Zohdi said they were requestin= g a variance for the frontage onto a Class V road. He said he would be glad to answer= any technical. Attorney Mason pro= vided the Board with updated plans. He discussed the history of the lot which had been a lot of record since 1969. He said for some reason= when the original subdivision went to record a portion of Hillcrest Lane was not completed. He said the applicant would like t= o construct a home on the lot. Two areas = of relief are being requested: 1) frontage not being on a Town accepted street; and 2) to have access to the lot from Westview Terrace.

Attorney Mason reviewed t= he plan set noting that the state septic approval for a three-bedroom home was attached. He discussed the regulations that would be applied by the Planning Board for a back lot. He then read a loud the ‘Area’ Variance criteria as submitted with the application as follows:

1. The variance will not be contrary = to the public interest because: The propos= ed residential dwelling is a permitted use for the parcel of land in question.=

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 parcel is a pre-existing lot of record, but the public dedicati= on of that portion of Hillcre= st Lane which fronts the lot has lapsed.

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: = There is no other available frontage o= n the Town accepted street which could provide the Applicant with the required ro= ad frontage.

3. The Variance is consis= tent with the spirit of the ordinance because: With the exception of the relief requested for frontage the Applicant will meet = all other state and local safety, health and building codes.

4. Substantial justice is= done because: It will allow the Applican= t to make reasonable use of a pre-existing lot of record.

5. The value of the surro= unding properties will not be diminished because: The proposed dwelling will be of equal or greater value than existing propertie= s in the neighborhood.

Mr. Hennessey said the re= quest was for an ‘Area’ Variance so the Board would use the ‘Boccia’ analysis. He summarized how the Board would review the request.

Mr. McNamara reviewed the= lot loading calculations and questions if the wet areas included Wetland Conservation District (‘WCD’).= Mr. Zohdi said it was wetlands.&nbs= p; Mr. McNamara said in looking at the plan the lot seemed to be diffic= ult to develop. He saw that the w= ell radius overlapped Lot 10-144. Mr. Zohdi said that was permitted according to the state. Mr. McNamara asked what waivers would be requested from the Planning Board in o= rder to construct the property. Mr. Zohdi said they wouldn’t request any. Mr. McNamara asked if the plan cur= rently in front of the Board would be the same plan presented to the Planning Boar= d. Mr. Zohdi said it was what they wo= uld build. Mr. McNamara asked if = any attempt had been made to purchase additional frontage. Mr. Zohdi said the abutting lots didn’t have extra frontage. Attorney Mason said the neighborhood basically contained non-conforming lots, based = on current zoning, and if they were to obtain additional frontage it would make one of the other lots more non-conforming.=

Mr. Hennessey asked if ut= ilizing the unpaved portion of Hillcrest could be done feasibly and economically wi= th the wetland crossing. Mr. Zoh= di answered no. Attorney Mason s= aid the lot was impacted by wet areas and there would be more disturbances in t= hose areas if they tried to have access from those points. Mr. Hennessey asked if a structure= could be built economically by doing the wetland crossing. Mr. Zohdi answered no; not for one lot.

Mr. McNamara asked Mr. Zo= hdi if he was involved with the variance request of 2005. Mr. Zohdi answered no. Attorney Mason also answered no. Mr. McNamara asked if the variance= was denied on its merits. Mr. Zoh= di said the applicant didn’t show up for the hearing. Attorney Mason said that was what = the meeting minutes reflected. Mr. Zohdi said in 2005, the applicant had continued the case a couple times and then one night they didn’t show up and the Board decided to deny the variance. Attorney Mason said= the applicant (in 2005) had applied for a ‘Use’ Variance as opposed= to an ‘Area’ Variance; three other sections of the application weren’t filled out. Mr. McNamara asked if it was the same owner.&n= bsp; Attorney Mason said it was a different owner.

Mr. O’Sullivan aske= d if Lot 10-130 was developed. Mr. Zohdi said no but went on to s= ay the owner had done a septic deign and would be building on the lot. Mr. O’Sullivan asked if that= lot would front onto Hillcrest. M= r. Zohdi said the lot had frontage onto Westview Terrance.

PUBLIC INPUT

Ms. Susan Maiocchi, a dir= ect abutter, was not opposed to the proposed access and felt it would be advantageous to not go through the wetland.

Ms. Christine Lamarche, <= st1:Street w:st=3D"on">27 Hillcrest Lane, was not opposed to having the entrance on the Westview Terrance side of the= lot given the traffic and construction occurring behind her home. She felt development may deter cer= tain activities that were occurring, such as children drinking and people dumpin= g on the lot.

Mr. Timothy Zelonis, who = was involved with the property, spoke in favor of the variance. He felt coming in from Westview Te= rrace would be better than accessing from Hillcrest and adding more traffic and construction to the area.

Mr. David Cronin, 6 Westv= iew Terrance, directly abutted the property to the south, and provided a brief history regarding the development of the area and the past variance requests. He said the reason = that portion of Hillcrest was a paper street was due to the amount of wetland and the fact that there was a considerable pond that absorbed the water from th= e Birch Lane hill. He was concerned with c= onstruction being allowed which in turn would disturb the pond and the wetland. He said the Town was aware of the problem because of the various catch basins that had been installed to carry water down beyond the Dracut line. He said people had prob= lems in the area because of the water and told the Board that he had replaced his leach field three times in the past thirty years. Mr. Cronin said felt allowing the = lot would cause a hardship on the abutters since at this point, the neighbors didn’t know what effects the Boulder Heights development= (on Hillcrest) would have on them. Mr. Croni= n said he spoke to the surveyor who surveyed the property. He paraphrased the conversation wh= ere the surveyor said he didn’t understand how or why the owner could bui= ld on the property because it was so wet.&nbs= p; He said if the variance was granted it would be a detriment to the abutters directly to the south of the property. He said possibly conservation coul= d pick up the property as a piece of wetland.&nbs= p; He discussed the topology of the property and where the water would = go if the land was changed. Mr. = Cronin ended by asking the Board to deny the variance.

Ms. Lorraine Christedes, = 17 Melody Lane said she lived at her residence for thirty four years and over the last ten years had seen the front of her property become a duck pond in the spring because= of the increased water flow. Ms. Christedes said she was opposed to the variance request and noted her conce= rn for how the Boulder Heights development= would affect her.

Mr. David Aubin, 15 Melody Lane discussed how his property had changed since the storms of 2006. He said because of this FEMA had h= elped him and he now carried flood insurance.&nb= sp; He believed he had Mr. Gowan come to his house to view the water lev= el which appeared swollen. He was concerned about the pipe failing and it ended up his concerns were justified because the pipe did fail. Mr. Aubin said the water drainage wasn’t adequate now and additional construction would cause problems. <= /span>He said walked the property a couple week ago and commented that the lot held a lot of water.

Mr. Zohdi said the survey= ing crew went to the property and assured the Board that they wouldn’t have ma= de the comments as on abutter said they did.&= nbsp; He then informed the Board that the wetland on the lot was flagged by Gove Environmental Services and the flags were then located by Herbert Associates. He said the area = where the house would be built is a high and dry area close to Westview Terrace.<= span style=3D'mso-spacerun:yes'> He said the Town’s Deputy He= alth Officer, Paul Zarnowski, approved the plan; and the New Hampshire Departmen= t of Environmental Services also approved the plan.

Mr. Hennessey asked if the property would need flood insurance. Mr. Zohdi answered no; the property was not within the 10-year flood plain. Mr. McNamara asked if a dredge and fill permit would be needed.&nb= sp; Mr. Zohdi answered no. Mr. McNamara asked why that statement was made on the plan. Mr. Zohdi said that statement was = made on every approval. It indicat= ed if a dredge and fill permit was required, they would have to obtain one.

Mr. Dunne reviewed the 19= 83 denial and questioned what had changed since that time. Mr. Zohdi said in 1983 the (then o= wner) wanted to fill the wetland and build a home in the middle of the property.<= span style=3D'mso-spacerun:yes'> He posted a plan and pointed out t= he location for the Board. Mr. D= unne questioned what hardship the applicant had. Attorney Mason said under the curr= ent law with regard to ‘Area’ Variances, the situation was not prud= ent, practical or financially feasible to build out Hillcrest Lane in order to get fron= tage onto a Town accepted street. = He said another hardship was the applicant didn’t have any additional frontage available. Mr. Zohdi= also noted that the lot was currently a location that people used for a dump site. He said if it was built, those actions would stop.

Mr. McNamara asked Mr. Go= wan to comment regarding the water. = Mr. Gowan said the general vicinity had some water issues and it was difficult = to always determine the source. He felt= the specified location was the only responsible location to place the structure. He then said there= was a requirement that there be no additional runoff as a result of the project.<= span style=3D'mso-spacerun:yes'> He said the Board had to rely upon= the engineering of the applicant and the regulation so as to not have additiona= l runoff. He said he would consider the plan= as being site specific in terms of the Board reviewing such.

Mr. Kearney said the issu= es he saw with the plan were: 1) proposed well location overlapping with an exist= ing well; and 2) septic system location in relation to well. Mr. Hennessey said the well radius= could go onto other lots (and overlap another radius). Mr. Gowan said if it was a subdivi= sion, the well radius would apply, but not in this case.

Mr. Ouellette said he wou= ld like to see the lot in correlation to the pond that people have testified to.

The Board discussed sched= uling a site walk and continuing the case. <= /span>

A site walk was scheduled= for August 18, 2007= , beginning at 7:30am.

The Case was date specifi= ed to September 10, 2007.

Case #2382 THE LOR= ETTA L. WOEKEL Revocable Trust of 2002 – 40 Woekel Circle – Map 31, = Lot 11-277 – Seeking an ‘Area’ Variance to Article III, Secti= on 307-12 to permit reconstruction of a seasonal dwelling on a lot having 7390= SF where 43,560SF is required and a front set back to stairs of 25ft. where 30= ft. is required. <= /b>

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 Bernard Campbell= of Beaumont Campbell Professional Association = and Mr. David Woekel a member of the family met with the Board to discuss the request to allow the reconstruction of an existing seasonal dwelling with a= n updated/modernized seasonal dwelling. The plans = had been previously submitted to the Board.&nb= sp; The plan was to demolish the existing single-story camp structure th= at was in relatively poor condition and fairly close to the shore Island Pond = and replace with a new 24ftx36ft structure that would now meet the Wetland Conservation District (‘WCD’) setback line. The new structure will comply with= the WCD setback and side setbacks. It requires a small relief for front stairs.&= nbsp; The existing structure is seasonal and the proposed new structure wo= uld also be seasonal. The previou= sly existing, and permitted, holding tank would be utilized for the new structure. Attorney Campbell = said he suggested to the family in constructing the dwelling that they should lo= ok at the potential of a future year-round conversion; the family did so in the sense of cited a potential future location for a septic system in the front= of the structure, but this was not part of the current proposal to build at th= is time. Attorney Campbell discussed the background of the surrounding properties.

Attorney Campbell then read aloud the ‘Area’ Variance criteria; following is the language submitted in the application.

1. The variance will not be contrary = to the public interest because: reconstruc= ted dwelling will be set back further from waterfront in compliance with W.C.D. setback; minor front setback is consistent with setbacks of other structure= s.

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: Lot was created prior to adoption of zoning restrictions; property is currently developed with non-conforming seasonal structure. =

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: = Compliance with W.C.D. setback requires minor front setback relief; there is no additional land to acquire from adjoining properties to satisfy area requirement.

3. The Variance is consis= tent with the spirit of the ordinance because: Request makes site more conforming to wetland and side setbacks.

4. Substantial justice is= done because: Property was created to be= site of residential structure; proposal will enhance the construction and qualit= y of the dwelling.

5. The value of the surro= unding properties will not be diminished because: Variance will allow upgrade of existing seasonal structure enhancing value of proper= ty and surrounding properties.

Mr. Dunne asked how old t= he existing structure and holding tank was.&n= bsp; Attorney Campbell said the structure is approximately fifty-five to sixty years old. The holding tank was recently repl= aced approximately three or fours years ago.&nb= sp; Mr. Dunne asked if the existing structure had been used on occasion. Mr. Woekel answered yes. Mr. Dunne asked if the t= ank was pumped out regularly. Mr. Woekel answered yes.

Mr. McNamara asked how ma= ny bathrooms and bedrooms were in the existing structure. Attorney Campbell said there was one bathroom; no shower. There were two bedrooms. Mr. McNamara asked = what was being proposed. Mr. Woeke= l said two bedrooms and one bathroom was being proposed. He said he was hoping to increase = his living and kitchen areas. Mr. McNamara said he was concerned regarding the existing holding tank. He asked if any soil testing was d= one on the proposed site for the future septic.&n= bsp; Mr. Woekel said when he went to change the septic three years ago, t= est pits were dug, and he was informed he couldn’t put a leach field in because the soils were too wet in that area. Mr. McNamara asked if the proposed location could accommodate a septic system. Mr. Woekel answered yes. Attorney Campbell said preliminary was done to s= ee if a system could be located there; a test pit was done in 2006 with Town Depu= ty Health Officer Paul Zarnowski present.&nbs= p; He said some engineering was done to determine if a Clean Solutions system could be installed.

Mr. Hennessey asked if a = waiver was needed from the Shore Land Protection Act if the house was razed. Attorney Campbell said they had investigated the= issue and didn’t believe they needed a waiver because they would be behind = the 50-foot based reference line. Mr. Hennessey said he would ask for verification from the state that it didn’t fall under the Shore Land Protection Act. Attorney Campbell said the primary building refe= rence line, as he understood it, was the 50-foot line that was established. Mr. Hennessey said he would ask th= at the state indicate they waive any jurisdiction on the Shore Line Protection.

Mr. Molloy asked what the= current height of the structure. Atto= rney Campbell said it w= as a relatively small, one-story structure.&nbs= p; Mr. Molloy asked what height was being proposed. Attorney Campbell said the replacement would be a two-story structure. Mr. Woek= el had a floor plan. Attorney Campbell reviewed = the floor plan and guessed that the new structure may approximately twenty-six = feet in height. Mr. Hennessey said= in the past, the Board had placed height restriction. He said discussed height was close= to where the Board placed the limit. <= /p>

PUBLIC INPUT

Mr. Steve McKellen 33 Woe= kel Circle thought the proposed would be a great improvement to the neighborhoo= d.

Mr. Richard Radcliffe, Jr= . 48 Woekel Circle was in favor of the proposal. He thought it would be great.

Ms. Karyn Martin, 39 Woekel Circle opposed the variance. She sai= d the land allotted was one sixth of the land required. She didn’t want a 26ft. buil= ding looking down at her deeded beach access while she was enjoying the beach area. She felt this would be a detriment to her property value. She said she would be looking at the structure instead of the lake a= nd it would detract from the value of her house. Ms. Martin believed that the Board= had the responsibility to protect her property value and uphold the ordinance.<= span style=3D'mso-spacerun:yes'> She said the proposed was in viola= tion of the ordinance.

Mr. McNamara asked if the testimony was that the proposed structure would block her view. Ms. Martin believed it would be a = good portion of her view. Mr. McNa= mara asked if the beach was a common beach area. Ms. Martin said she and some of the neighbors had deeded access to t= he beach area. Mr. McNamara aske= d what type of dwelling Ms. Martin owned. Ms. Martin said she had a two-story year-round home.

Mr. Dunne asked Ms. Marti= n if she could see the existing building and if it currently obstructed her view. Ms. Martin said she saw the existi= ng building; the new building would probably be taller than the trees and the trees would have to be taken down. Mr. Hennessey asked how many trees were currently there. Ms. Martin said two trees would ha= ve to come down. Mr. Dunne asked to review the house plans.

Ms. Denise Caissie, 49 Woekel Circle felt it would be an improvement to replace the current structure, but to keep it= in the same footprint. She felt = it would be a distraction if the structure was made larger. She said going forward mistakes fr= om the past should be corrected.

Mr. Dunne asked if the pr= oposed house would have a basement. = Mr. Woekel said it would be put on a cement slab. Mr. Dunne asked how much larger th= e new structure would be. Mr. Woeke= l said the current structure wasn’t on a slab.

Mr. McNamara wanted to kn= ow what would prevent a new owner from using the property as a year-round residence. Mr. Gowan explaine= d the new owner would have to use the unit only for seasonal purposes unless they= met the standard for year round, which in this case would require a state appro= ved septic design.

Mr. Ouellette asked if the application before the Board was a simple way for the applicant to tear down the old structure and come back in the future with an upgraded unit (with h= eat plumbing electric etc) and then want a septic. Mr. Gowan said that sounded like t= he difficult interpretation when a seasonal could convert, which was governed = by the New Hampshire Administrative Rules.&nb= sp; In his opinion, granting a variance would in no way make the unit ye= ar round. Mr. Ouellette was conc= erned with taking a seasonal property, that didn’t meet Town standards for year-round, and having it come before the Board to be rebuilt so later they would have a good argument for a septic system. Mr. Gowan said there was nothing i= n the regulations precluding someone from insulating their home or doing that kin= d of work as long as they pulled the proper permit and had the proper work done. He discussed at what po= int a unit was reviewed to be year-round.

Mr. Dunne asked if an acr= e of land was required for the structure to become year-round. Mr. Gowan answered no and said the= lots were created long before the Town had Zoning.

Mr. O’Sullivan aske= d for clarification of the proposed square feet of the building. Attorney Campbell said the proposal was for a two-story building with a 24x36 footprint; a total of approximately 1700SF.

Attorney discussed the is= sue of conversion under state law. He reviewed the request and pointed out that many of the properties in the area were two-story year-round homes. He didn’t think it was uncommon to upgrade the structure. He went on to review the variance = being requested and reiterated the criteria for such.

Mr. Paliy asked where the applicant drew their water from. Attorney Campbell said they drew their water from the pond.

Mr. McNamara asked Mr. Wo= ekel if he intended on resided in the property on a seasonal basis. Mr. Woekel said he would during th= e two or three months of the summer.

Mr. Hennessey discussed t= he fact that the Board had reviewed cases for properties near the pond and discussed what the Board should be contemplating when placing their vote.

Ms. Paliy was concerned w= ith the upgrades and wanted to know if the tank would still be good enough for the demand. Mr. Hennessey asked i= f the unit would have one or two bathrooms. Mr. Woekel said he was seeking to have one bath. He said he wanted a bathroom with a sink. Mr. McNamara said the variance could be conditioned upon the unit having one bathroom. Mr. Gowan reminded the Board that = the septic was based on the number of bathrooms, not bedrooms. He said with regard to the water, = having to drill a wall would be another ‘bar’ to be met for year-round occupancy.

Mr. Hennessey confirmed t= hat there would be two bedrooms in the 1700SF unit. Mr. Woekel shook his head yes.

Ms. Paliy felt the applic= ation was inconsistent.

Mr. Ouellette wanted the = Board to discuss the height. Mr. Henne= ssey said generally the height restrictions the Board had made were 22ft-30ft. He said the Board had also put site restrictions, but with this application, there wasn’t much room to mo= ve the unit.

Mr. Hennessey suggested i= f a variance were granted it would include a stipulation that verification be provided that it didn’t fall under the Shore Land Protection Act. He said if the site was walked he = was mainly interested in the height, layout and footprint.

The Board discussed walki= ng then set up a site walk for August 18, 2007

The plan was date specifi= ed to September 10, 2007.

Discussion

Mr. Gowan explained what = would be discussed at the upcoming joint Planning Board meeting.

Handouts for upcoming sem= inars were provided to the Board members. The Board members were encouraged to attend.

SITE WALK – August 18, 2007

Case #2381 TEE PEE Realty Trust - 30 Hillcrest Lane – Map 42= Lot 10-131 – Seeking an ‘Area’ Variance to Article III, Secti= on 12&14 to permit a lot with frontage on an unimproved paper street and access to dwelling of frontage less than 200 feet of contiguous frontage on= a public right of way.

Case #2382 THE LORETTA L. WOEKEL Revocable Tr= ust of 2002 – 40 Woekel Circle – Map 31, Lot 11-277 – Seeking an ‘Area’ Variance to Article III, Section 307-12 to permit reconstruction of a seasonal dwelling on a lot having 7390SF where 43,560SF= is required and a front set back to stairs of 25ft. where 30ft. is required.

DATE SPECIFIED CASES – September 10, 2007

Case #2381 TEE PEE Realty Trust - 30 Hillcrest Lane – Map 42= Lot 10-131 – Seeking an ‘Area’ Variance to Article III, Secti= on 12&14 to permit a lot with frontage on an unimproved paper street and access to dwelling of frontage less than 200 feet of contiguous frontage on= a public right of way.

Case #2382 THE LORETTA L. WOEKEL Revocable Tr= ust of 2002 – 40 Woekel Circle – Map 31, Lot 11-277 – Seeking an ‘Area’ Variance to Article III, Section 307-12 to permit reconstruction of a seasonal dwelling on a lot having 7390SF where 43,560SF= is required and a front set back to stairs of 25ft. where 30ft. is required.

MINUTES

July 9, 20= 07

MOTION:

(Molly/O’Sullivan= ) To approve the meeting minutes of July 9, 2007 as written. =

VOTE:

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

ADJOURNMENT

MOTION:

(O’Sullivan/Mollo= y) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 10:38 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