BOA20071115.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 15, 2007

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

The acting Secretary, Sve= tlana Paliy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Svetlana Paliy, Alternate Bill Kearney

Robert= Molloy, Kevin O’Sullivan, Alternate Lance Ouellette, Alternate Ken Dunne, Planning Director/Zoning Administrator Jeff Gowan

Mr. Hennessey appointed M= r. Kearney to vote for the evening’s proceedings. He informed the public that there = were only four members present which constituted a quorum. He said an approval would require = three ‘yes’ votes and noted that a split 2-2 vote constituted a denial. He said applicants ha= d the option to either proceed or to postpone their hearing to next month for the= ir case to be heard in front of a full Board.

CONTINUED

Case #2387 D= EMERS, Daniel & Tina - 391 Gage Hill Road – Map 10 Lot 13-167-7 – Seeking a Special Exception to Article XII, Section 307, 76 (III) to permit= the sales of firewood from their property.

Mr. Hennessey said the ca= se had been continued and a site walk conducted.&= nbsp; He said testimony was given at the last hearing

Mr. McNamara said the wood appeared to be placed close to the lot line and wanted to make sure that the applicant understood that it would have to be placed 15 feet off the proper= ty line. The applicant, Mr. Dani= el Demers understood where he was allowed to locate items. He said there was an opening that = had apple trees in one area that would be removed. Mr. McNamara noted that the Planni= ng Board would also review the site plan.

There was no public input= .

Mr. Kearney was concerned= about large delivery trucks coming into the area. Mr. Demers said the deliveries wou= ld be four cords at a time. He said= there wouldn’t be large trucks coming in.&= nbsp;

Mr. Hennessey said the ap= plicant testified (during the site walk) that the business would be a relatively sm= all operation with limited scope, hours and noise. He was unsure how to make that tes= timony a stipulation and asked the Board if they wanted to add it to any approval = made by the Board. Mr. Kearney bel= ieved the record indicated the hours of operation would be 4pm-7pm. Mr. Demers said the hours would probably be 4pm-6pm. Mr. Kearney made a stipulation that the hours of operation would be = from 4pm-7pm, Monday t= hrough Friday. Mr. Demers said he ma= y have some Saturday hours too; possibly four or five hours. Mr. Hennessey said the Planning Bo= ard could also place a stipulation. He said the Board could either make a stipulation, or leave it for the Planning Board.

Ms. Paliy had an issue wi= th the business having Saturday hours. Mr. Demers said the business was part-time and probably wouldn’t be done everyday. Ms. Paliy asked if = any of the neighbors had a problem with the business. Mr. Demers said he before coming t= o the Board he went to all of his neighbors twice and asked if they had a problem with his business and no one did.

MOTION:

(Kearney/McNamara) To l= imit the business hours of operation between Monday and Friday, 4pm-7pm and four hours on Saturday.

VOTE:

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

MOTION:

To grant the Special Ex= ception

VOICE VOTE:

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

SPECIAL EXCEPTION GRANTED

HEARINGS

Before hearing the new ca= ses, Mr. Hennessey polled the applicants to see if they wanted to proceed or postpone their hearing to the December meeting.&nbs= p;

Case #2388 TESSIER, Dennis, Jr. – St. Margaret Drive – Map 16 Lot 13-87 – Seeking an “Area̶= 1; Variance to Article III, Section 307-12 to permit a single family home on a= lot with less than 200ft. of frontage.

Ms. Paliy read the list of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification.

Mr. Dennis Tessier came f= orward to discuss his request for an ‘area’ variance for a lot without road frontage. He said it was situated on a right-of-way. H= e then read aloud the variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: It would b= e a new home of equal or greater value than the surrounding homes. The home will add value to the pro= perty and increase the taxes being paid on the property.

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e:

“Use”

i. the z= oning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in it’s environment such that: The property= meets all requirements except the 200ft. road frontage, but it has access to a 50= ft. right-of-way.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: nothing written on applica= tion submitted.

iii. the variance would not injure the public or private rights of others since: We already live in the Town and would= like to build our own home to raise our family.

“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 does not meet the zoning requirement because it does n= ot have 200ft. road frontage.

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because: = The property only has access to a 50ft. right-of-way and not a public street.

3. The Variance is consis= tent with the spirit of the ordinance because: We are requesting a variance to waive one of the zoning requirements we will m= eet all other requirements.

4. Substantial justice is= done because: The use being requested is consistent with uses of surrounding lots the variance would allow us to use= our lot in the same way as the others.

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

Mr. Hennessey understood = that the applicant was applying for the variance because they had no frontage on a r= ight-of-way. Mr. Tessier, Jr. said they had fro= ntage on a right-of-way, but they didn’t have frontage on a public road.

Mr. Tessier said they rec= eived a letter from the Superior Court stating that they had a right-of-way and they could use it to access the property.

Mr. Hennessey recalled th= at the case had come before the Board several times and there were questions regar= ding the ownership of the right-of-way that has now been settled. Mr. McNamara believed the letter indicated that the applicant had access over the 50-foot right-of-way. He read aloud a portion of the Hillsborough County Superior Court judgment (dated September, 2006), which = to him indicated that the applicant had a right to access their property; it didn’t establish a right title to the right-of-way. Mr. Tessier said the only thing requested of them by the Board was in regard to access of the right-of-way. He said there h= ad been an issue of right of passage. Mr. McNamara said the Board had been provided with meeting minutes f= rom previous years. He said the p= roblem he had was there was no frontage and the right-of-way was private. He said if the Board granted relie= f and the applicant then went on to receive approval from the Planning Board and = the Selectmen, the Town would be left with a situation where a variance was gra= nted to someone with access onto no public road, but only a right-of-way. He believed if anyone else on that right-of-way, or anyone else in the Town, then came forward with a similar situation it would become a problem. Mr. Tessier, Jr. said = there was only one other lot on the right-of-way. He said there was land behind it, = but it was already developed off another road.&nb= sp; Mr. McNamara said his general concern was the effect a variance would have on other similar lots. H= e said it had a confusing history and noted that the lot was created in conjunction with a subdivision, but the road was never built.

PUBLIC INPUT

Mr. Mark Schmidt, 19 St. = Margaret’s Drive said he was the closest abutter to the applicant. He said he owned the other piece of property located on the right-of-way (lot 2a). He provided the Board with a summa= ry of the history of the lot. He wa= s not opposed to the applicant’s request.

Mr. McNamara asked Mr. Sc= hmidt if lot 2a had been merged with lot 2, or it remained separate. Mr. Schmidt said lot 2a was a sepa= rate lot. Mr. McNamara asked who o= wned the land behind his lot. Mr. Tessier Jr. explained that the land behind them was owned and developed by separate land owners (on C= ote Drive). Mr. McNamara said he just wanted the record to be clear since the pl= ot plan submitted to the Board was dated from 1974.

Mr. Kearney asked if lot = 1 had been developed. Mr. Tessier, = Jr. said it had been. Mr. Kearney= asked if the right-of-way was being used. Mr. Tessier, Jr. said the right-of-way was partially used; the Town = had paved approximately 100ft. of it. He said it was currently used as a turn-around for trucks. The remaining was a semi-dirt road= and woods.

Mr. Hennessey read aloud a portion of the meeting minutes from a meeting in which the lot was discussed and questions arose whether the lots were separate or intended to be combined. Another question wa= s the ownership of the right-of-way. Mr. Hennessey said the question that remained was whether an approval should be granted to build on a property with zero frontage. He said the minutes also noted tha= t the applicant attempted through a warrant article (at Town Meeting) to grant the parcel to themselves so they would have the fifty-foot right-of-way which w= as turned down by voters.

Mr. McNamara said the oth= er aspect was that the applicant had the ability to propose a subdivision and proceed directly to the Planning Board and put a road to the right-of-way.<= span style=3D'mso-spacerun:yes'> He understood there was a question= of expense, but noted it was an alternative to the variance request. Mr. Tessier, Jr. said it didn̵= 7;t seem feasible for them to subdivide and add a road for just one house.

Ms. Paliy asked if the To= wn had any responsibility to build the road (after the land ended up in the Town’s hands) because originally there was an intention to build a ro= ad. Mr. Hennessey went back to the min= utes from the previous hearing and read a portion aloud which discussed the right-of-way. Mr. Tessier, Jr. pointed out that the lots had never been joined and a right-of-way had been left to access the (back) property. He said the area mentioned in the previous meeting minutes referred = to the balance of the land which was the land at Cote Drive and had been developed; = the right-of-way was left to access the lots currently being discussed. Mr. McNamara said the Town didn= 217;t have an obligation. He said t= he builder, at the time, chose not to develop and leave a paper road. He said just because it was approv= ed didn’t mean anyone had an obligation. Ms. Paliy discussed how the situat= ion would be handled in the present day. Mr. Hennessey said if the Board approved the variance it must go bef= ore the Planning Board and they would have to agree to present the case to the Board of Selectmen. The Selec= tmen would have to grant approval for the applicant to build on an unapproved lot.

Mr. Kearney had issues wi= th granting the variance from a safety and emergency standpoint because of the access. Mr. Tessier, Jr. didn’t understand the concern. He said the lot would remain open and they would maintain a paved driveway to the back.

The Board discussed the r= equest for variance and reviewed the criteria.&nb= sp; Mr. Hennessey said the Board understood that the applicant could construct a road therefore giving them another avenue to satisfy their need. Mr. Tessier, Jr. said t= he question was if putting a road in was ‘reasonably feasible’ to access one or maybe two lots; he didn’t think so. He said installing a driveway was = of far less standard than a road. Mr. Hennessey said the applicant was entitled to put up an economic defense aga= inst any proposal. Mr. McNamara fe= lt the Town had an interest and believed there would be significant problems if ev= ery property that lacked frontage on a public road were to come in and try to g= et a similar relief. Ms. Paliy sai= d the Board couldn’t look at requests in that manner. Mr. McNamara agreed that cases had= to be looked at individually, but went on to note a recent case (of a woman installing a gas burner on the side of her house) that was denied based on = the argument (by Judge Broderick) that it could have been done in other areas on the property. Mr. Hennessey recalled the case. Mr. McNama= ra said in certain situations the Board had to see if there were alternatives = and if applying the request to other lots similarly situated would cause proble= ms.

BALLOT VOTE:

Mr. Hennessey – 1= ) No 2) Yes 3) No 4) Yes 5) Yes

Ms. Paliy – Yes t= o all criteria

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

VOTE:

Mr. Kearney – 1) = No 2) Yes 3) No 4) Yes 5) Yes

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

&n= bsp;

VARIANCE DENIED

Case #2389 RATHEON COMPANY – 50 Bush Hill Road – Map 20 Lot 3-137 – Seeking a “Use” Variance to Article III, Section 3-137 to permit construc= tion of concrete test pad retaining walls and placement of ancillary support ite= ms such as electrical services, fencing and mobile office trailers for testing= of JLENS program equipment.

Ms. Paliy read the list of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification.

Mr. Bill Cummings, Raythe= on Manager Facilities Engineering began by informing that he provided notification fur= ther that the required 200-feet. H= e said in the year 1968 Raytheon was granted a variance to use the property at 50 Bush Hill Road that is a 47-acre parcel. He = said they also leased 20-acres to the north that was used as a buffer. He said the original variance stip= ulates if they are to do anything on the property (i.e. add equipment) that they h= ave to come back before the Board. M= r. Cummings said he filed a building permit knowing that he would have to come= before the Board. He said the constr= uction was relatively minor and consisted mainly of electrical work. He said there were three concrete = pads involved. Test equipment woul= d go on the pads and some would have canvas covers. One side there would be three tie-= downs for a mobile tower that comes in. He said it would come in on a trailer and would be part of the test system.

Mr. Cummings then present= ed the Board with a depiction of the site showing the location of the concrete pads and mobile tower (maximum height 107ft.).&= nbsp; He said they had come before the Board in the past and had neighbors that had issues with noise. A= s part of the last time they came before the Board they constructed a sound wall a= long the entire side of the property and to his knowledge hadn’t had a complaint since.

Mr. Hennessey noted that = the applicant had submitted an air and noise compliant report. Mr. Cummings said that as part of = their application, knowing that noise had been an issue in the past, they went out and electronically simulated the noise and found nothing that was measurably audible.

Mr. Cummings then read al= oud the variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: Electrical system upgrades and pad installation will generate additional tax base to t= he Town of Pelham.

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e:

“Use”

i. the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in it’s environment such that: R= aytheon Company will not be able to use the property to it’s potential if 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: left empty on application.=

iii. the variance would not injure the public or private rights of others since: left empty on applica= tion.

3. The Variance is consis= tent with the spirit of the ordinance because: If variance is granted Raytheon will meet Town requirements, building codes &a= mp; will obtain all necessary permits.

4. Substantial justice is= done because: The use requested is consi= stent with the original variance granted December 9, 1968.

5. The value of the surro= unding properties will not be diminished because: The proposed construction is in a remote area of the lot and is in keeping with other structures on the property.

Mr. McNamara reviewed the= request and asked for clarification of the number of pads. Mr. Cummings said there were three= pads in total. Mr. McNamara asked = for a description of the functions that would be tested at the facility and questioned if they would be different from what was currently being tested. Mr. Cummings said it = would be very similar to what was being done there now except the particular radar needed the stable pads because of its mount. He said it was not the typical rad= ar and went on to describe the mount for the radar. He said the testing would be done = on a temporary basis. Testing would occur over a two year period during approximately ninety days in each year. Mr. McNamara asked if i= t was a program that would continue indefinitely. Mr. Cummings said they hoped it wo= uld continue indefinitely because it was a good program for the United States Government and for Raytheon. = He said all services were interested in the program. Mr. McNamara asked for a descripti= on of the new test equipment. Mr. Cummings discussed the systems and where they would be located. Once the equipment was in place it= would stay for awhile and would be similar to a construction crane. Two similar towers had just been permitted in Andover, Ma. The tower would come down= at night and during high winds; it would only be up during test operations. Mr. McNamara asked if any of the equipment would be visible from abutting properties or the road. Mr. Cummings answered no; he said because of the tree cover he didn’t think the tower would be visible either. Mr. McNamara understo= od in the past there had been concerns regarding the noise being shielded. Mr. Cummings said they had used a consultant from New Hampshire= who measured the noise and made some recommendations of how to make it a li= ttle bit better. He said since the= y put the wall up they didn’t have a complaint in three years. He said at that time there were al= so questions about what was on the property so with the variance application he submitted a stamped survey that showed everything that was on the property. Mr. McNamara noted = the plan indicated there would be mobile office trailers. Mr. Cummings said two trailers wou= ld come in. He showed where they= would be located. Mr. McNamara aske= d if traffic to the site would be increased.&nb= sp; Mr. Cummings said traffic may increase by approximately ten to twelve people per day. He said curre= ntly there were approximately twenty five people on site per day.

Mr. Kearney asked for add= itional information regarding the radar system and radiation involved. Mr. John Toath from Raytheon said = the system was active that both transmitted and received. He said in the areas outside their property the levels (of radiation) were way below the National Standards. He said throughout the entire test= the level would be below the specified and noted there would be controls in pla= ce to make sure of it.

Mr. Hennessey asked if th= e other facilities on the site were active. Mr. Cummings said the other facilities were active and operated under the same standards. Mr. Henne= ssey said the Town was not capable of monitoring the site and questioned if there was= any state or federal agency that would monitor the output of the systems. Mr. Cummings understood when a rad= ar went up the entire perimeter was checked with a detector to make sure nothi= ng was going on.

Manager of Raytheon Pelha= m Test Site Phil VanSteensburg (who was also a Pelham resident) said every time a radar came to the site it was tested per the Government Standard (FCC and military branch). He discusse= d the safety margin that Raytheon that was used for personal safety and noted it = was ten times more stringent than the federal government.

Mr. McNamara asked if the= testing involved the use of aircraft. Mr. VanSteensburg said it could involve testing with those aircraft, but at thi= s point it was not planned. Mr. McNam= ara asked if it would be the exception rather than the rule. Mr. VanSteensburg said that was correct.

There was no public input= .

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Yes to all criteria<= /p>

VOTE:

Mr. Kearney – Yes= to all criteria

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

VARIANCE GRANTED

Case #2390 SCHMIDT, Raymond 31 West Shore Drive &= #8211; Map 30 Lot 11-104 – Seeking an “Area” Variance to Article III, Section 307-12 to permit construction of an (existing) 26x23 garage not meeting setback requirements.

Mr. Hennessey said he was= not an immediate abutter, but owned land in the immediate vicinity. He asked the applicant and anyone = who was present, either for or against the request, if they felt there was a conflict with him being involved with the case. He said he didn’t have a fin= ancial interest in the case. The app= licant indicated they didn’t have a problem with Mr. Hennessey hearing the c= ase.

Ms. Paliy read the list of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification.

Ms. Louise Schmidt came f= orward and read the variance criteria aloud as submitted:

1. The variance will not be contrary = to the public interest because: No one liv= es near it and there is not that much difference in the original/previous variance.

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 lots are so small.

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 was no other land available for purchase to accommodate.

3. The Variance is consis= tent with the spirit of the ordinance because: The building is centered between the lot lines. If the variance is granted we will= meet all the other requirements that Town will place on us.

4. Substantial justice is= done because: Permits utilization of a v= ery small lot size. The use being requested is consistent with uses of surrounding lots.

5. The value of the surro= unding properties will not be diminished because: This is a wooded area. The proposed structure will add to= the property and have no adverse effect on the surrounding properties.

Mr. Raymond Schmidt Jr. s= aid the problem was that the lots were very small and his father wanted to construc= t a garage. He said his father maintained West Shore Driv= e (with a small grader) and was looking to house the equipment during the winter.

Mr. Hennessey noted that = the applicant was granted a variance for a 24ft.x24ft. garage and questioned if= it was built. Mr. Schmidt said t= hat garage had been built. Mr. Hennessey read aloud a letter given to the Board from Planning Director Jeff Gowan which indicated that the structure had already been built. Ms. Schmidt said the structure was= up, but it was not yet finished. = Mr. Schmidt Jr. said one garage was already constructed, and the second one was just a shell. Mr. McNamara as= ked if the second garage was constructed in 1987.= Mr. Schmidt said it was done since then. Mr. McNamara reviewed the informat= ion he had. He said the variance was= for a certain size and the garage was built a different size than the variance. He said it was his/Board’s understanding that the Schmidt’s were being sent to the Board to corr= ect that mistake because they were not in compliance with the variance granted = on the first garage. He said the= Board was now hearing that there was already a garage in the back and questioned = what the new garage would be used for. Mr. Schmidt, Jr. said the road grader would go in the new garage. Mr. McNamara asked what would happ= en to the old garage. Ms. Schmidt s= aid it was a single family house that they were paying taxes on.

Mr. Schmidt said the inte= nt was to have an additional building that would be slightly larger than the origi= nal variance. Mr. Kearney asked w= hat size the building further in the lot was.&= nbsp; Mr. Schmidt said that was the original building and it had been built per the variance. Mr. Henness= ey confirmed that the building (seasonal cottage) was 24ft.x24ft.x12.5ft. Mr. Schmidt said it was. Mr. Hennessey said there was a cur= rent request for a 26ft.x23ft garage to house a grader that would help do the road. He asked the proposed h= eight of the structure. Ms. Schmidt= said it would be a story and a half. Mr. Hennessey asked if it would be less than 20ft. Mr. Schmidt, Jr. believed that was correct. He said the ground f= loor was like a regular garage and there would be a storage area on top. Mr. Hennessey asked if the applica= nt would be comfortable with a stipulation that the height be no higher than 22ft. He said traditionally t= he Board had restricted height in that area.&= nbsp; He asked if the structure was within 200ft. of the pond. Mr. Schmidt, Jr. said it was the t= hird lot back from the pond. He sa= id it was more than 200ft. from the pond. Mr. Hennessey confirmed that the structure was a straight shelter for equipment. Mr. Schmidt, Jr. s= aid that was correct.

Mr. Kearney asked if ther= e was an additional garage on the lot. Mr. Schmidt said there was another one further toward the bottom of the lot. Mr. Kearney confirmed with Mr. Sch= midt where the other garage was located.

Mr. McNamara said he woul= d have a problem voting for case at this time because he wanted to straighten out exactly what was being requested. Ms. Paliy suggested conducting a site walk. Mr. Hennessey said there was confu= sion as to what the Board was voting on because of the application that was in f= ront of the Board.

The Board scheduled a sit= e walk for November 18= , 2007 beginning at 8am.<= span style=3D'mso-spacerun:yes'>

MISCELLANEOUS DISCUSSION

The Board discussed an is= sue that was currently being debated in the state regarding whether or not alternate members of land-use boards should be allowed to participate in discussions.

Mr. Hennessey said the Bo= ard should also discuss the attendance of the alternates. He said per the by-laws, after thr= ee absences the members should consider having those alternates not be members= of the Board.

MINUTES

October = 11, 2007 – deferred.

SITE WALK – November 18, 2007 8am

Case #2390 SCHMIDT, Raymond 31 West Shore Drive – Map 30= Lot 11-104 – Seeking an “Area” Variance to Article III, Secti= on 307-12 to permit construction of an (existing) 26x23 garage not meeting set= back requirements.

ADJOURNMENT

MOTION:

To adjourn the meeting.=

VOTE:

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

The meeting was adjourned= at approximately 9pm.

&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