BOA20080128.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 28, 2008

The Chairman David Hennes= sey called the meeting to order at approximately 7:00 pm.

The Secretary Robert Moll= oy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Robert Molloy, Svetlana Paliy, Kevin O’Sullivan, Alternate Bill Kearney, Alternate Lance Ouellette, Plan= ning Director/Zoning Administrator Jeff Gowan

Altern= ate Ken Dunne

CONTINUED

Case # 2390 SCHMID= T, Raymond 31 West Shore Drive - 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 the ca= se had been continued. He said sever= al Board members had walked the site.

Mr. Ray Schmidt Jr., and = his mother, Louise Schmidt came before the Board to discuss their variance requ= est. Mr. Schmidt summarized their request. He explained that the garage would house a road grader that his father had purchased several years ago that was used to help maintain West Shore Drive.&= nbsp; He said the side setbacks were not proper.

PUBLIC INPUT

Mr. Roger LeMay, 17 West Shore Drive came forward to speak in favor of the variance. He had been neighbors with Mr. Sch= midt for thirty-five years. He dis= cussed what Mr. Schmidt had done over the years to help neighbors in need as well = as work to maintain the private road. He felt the variance was not only just and fair, but was also the ri= ght thing to do.

Mr. Hennessey said he was= not an abutter to West Shore Driv= e, but over the years his wife had contributed towards the upkeep of the road. He said he would not be= nefit from the variance being granted. He asked if there were any objections to him remaining seated for the case. There were no objections from thos= e in the public and no objections by Board members.

Mr. McNamara said there h= ad previously been some confusion regarding which building was being discussed= and where it was located. He assu= med that the site walk cleared up those questions.

Mr. Paliy asked if the ap= plicant was constructing a new building. Mr. Hennessey said the garage was already in existence.

Mr. Gowan said it would m= ake sense in a variance to describe the height, which was approximately 23ft. to ridge line; the building was 24ft. x32ft.&= nbsp; Mr. Hennessey said the Board could also stipulate that the variance = was for the building that was currently in existence with no additional additions.

Mr. Ouellette said he wasn’t present for the site walk, but had visited the site at a later time. He was concerned, since= the building was already in existence, if the building met building codes. Mr. Gowan said inspections are gen= erated by the issuance of a building permit. He said if the variance is granted, he would sign the building permit and the full range of inspections would be triggered.

Ms. Paliy questioned the = building size and location. She recall= ed that there was a question about the building being larger than what was on = the application. Mr. Hennessey su= mmarized the case and the previous variance.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

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

AREA VARIANCE GRANTED

Case #2391 TENNEY = ROAD DEVELOPMENT, LLC Tenney Road – Map 21 Lot 3-101 - Seeking an “Area” Variance to constr= uct a single family house partially in the WCD, a well in the WCD, and a septic system that does not comply with the required setback to wetland.

Attorney Paul DeCarolis, representing the applicant, met with the Board to discuss the variance request. He said the applicat= ion included a variance for the well, but questioned if it one was needed. He understood that the well could = be located in the Wetland Conservation District (‘WCD’) subject to= the approval of the Planning Board. He said the issue was a variance for a home in the WCD and a septic system bei= ng less than 75ft. from the edge of poorly drained soils.

Mr. Hennessey also believ= ed there was a question whether the request was for an ‘area’ or a ‘use’ variance. Attorney DeCarolis said although the application refers to a ‘use’ variance, he felt it was actually, in light of the Malach= y case, an ‘area’ variance. He said the plans were the same, and the evidence was the same, but they would like to proceed under an ‘area’ variance under the Malachy case= . Mr. Hennessey said the case was ma= rked as ‘area’ on the agenda and questioned in light of the change f= rom ‘use’ to ‘area’ if the abutters list should be read again. He asked if the abutte= rs were re-notified. Attorney DeCarolis informed that J.R. Gauthier (who was seated in the public) told h= im that he received a notice for the evening’s meeting.

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 DeCarolis said t= wo separate lots were being discussed; lot 3-101 and 3-101-10 (separate two ac= re parcel owned by Mr. Gauthier). The proposal was to build a single family home as far away from the edge of WCD= and the wetlands and at the same time permanently restrict the two rear lots by= a conservation easement deed. Attorney DeCarolis said the back land had not been flagged or soil tested, but understood there were pockets of dry land. He said there was an issue of acce= ss to the two acre lot; they were not aware of any other access except through lot 101at Tenney Road. One alternative was to allow for t= he construction of a 700ft. long driveway, but felt the proposed had the lesse= r disturbance of any of the wetland issues. The septic system would be kept outside the WCD. The home would be constructed with= a front-facing garage/driveway in order to minimize any disturbance in the WCD. The well would be locate= d in the WCD, but would be reviewed by the Planning Board. They were trying to minimize any impacts.

Attorney DeCarolis said o= ne of the criteria, particularly under Malachy was that the proposed use would not adversely impact the wetland or cause any harm to the wetland or WCD. He asked that Mr. Zohdi explain the septic system.

Mr. Peter Zohdi of Herbert Associates provided the Board with a summary of the project. He said that he had been in front = of the Selectmen and met with the Conservation Commission approximately two or thr= ee times. He said they proposed = to combine two lots so the total area would be 7.438 acres. He reviewed the plan and discussed= what was being proposed. The septic system would be outside the WCD and complied with all the state requirements. He said the Town’s requirements were more stringent. He said per the Town, he was suppo= sed to have the system 75ft. from the edge of wet and the closest part was 55ft. Mr. Zohdi informed that they were proposing the Clean Solutions system. He explained how the system worked.

Attorney DeCarolis read a= loud a letter dated October 14, 2007 that was submitted by the Chairman of the Conservation Commission. The Conservation Commission walked the site and provided their opinion and voted 4-1 to send a positive recommendation to the Board of Adjustment because the proposal was less destructive to the environment than the alternative and approximately six acres of uplands and wetlands would be protected as mitigation for the encroachment of the WCD. The member that voted against felt= that the surrounding area was developed in the past and the lot was not developed at that time due to the size of the wetlands contained on it.

Mr. Zohdi said if the var= iance was approved he would have to go in front of the Planning Board for the well location in the WCD. From the= re he would have to go back to the Selectmen for a hearing with the Board of Health. He explained he had d= one the original subdivision plan and said at the time they lost a season and c= ould not flag the wetland; the client was anxious to get some of the lots approv= ed so the lot was put on the ‘back burner’ until later.

Mr. Hennessey wanted to k= now when construction might begin given the long process of going to the various boards. Mr. Zohdi said he was hoping to meet with the Selectmen and the Planning Board in February. He would like to begin in April.

Attorney DeCarolis then r= eviewed the criteria as done through the Malachy case. (the application had the ‘use’ criteria filled out)

The neighborhood was zoned residential as was the proposed. The plan satisfied all criteria other than WCD issues. The septic system would mitigate t= he disturbance and would be located outside the WCD. They were also attempting to mitig= ate any disturbance by having the driveway as close as possible to the front. Attorney DeCarolis said the property’s uniqueness was the configuration/location of the wetlands. They were doing wha= t they could to minimize the disturbance. <= /span>The lot didn’t have the traditional acreage in order to build on. This case was very similar to the Malachy case with respect to the WCD/wetland and the lot’s configuration. The cost of bu= ilding a road to get to access the back of the property would cost over $75,000. Attorney DeCarolis said the pros a= nd cons would need to be weighed in connection with the cost of the road and greater disturbance of the wetland. As for substantial justice, Attorney DeCarolis said there was no gai= n to the public by denying the application because the alternative would be furt= her construction or disturbance to the wetland.

Mr. Hennessey said in ter= ms of ‘public good’ the applicant was agreeing to a stipulation that a portion of the land would be put over to conservation. Attorney DeCarolis answered yes. He said they were offering (perman= ent) restrictions the back land.

The following answers were provided in the application:   (note: ‘use̵= 7; criteria were answered, however the applicant applied for an ‘area’ variance)

1. The variance will not be contrary = to the public interest because: The propos= ed use is consistent with the residential zone and will preserve significant prope= rty from further development and will add to the taxes being paid on the proper= ty.

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

“Use”

i.   the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environment such that: The applicant seeks approval to build a single family home wit minimal disturbance to the wetlands and the Wetland Conservation District. There is very limited buildable ar= ea available without a wetland crossing which would include substantial and permanent disturbance to the wetlands.&nbs= p; The reasonable use proposed is for a single family home which is not permitted without the variance.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: The proposed use would not involve any disturbance to the wetland, only the Wetland Conservation District. The alternative and allowed use, by way of a special exception would permit the construction of= a right of way over the existing wetland.&nb= sp; The restriction of the ordinance seeks to minimize any disturbance, = and to preserve the wetland area. The alternative allowed use would be counterproductive to the goal of preserving wetlands.

iii. the variance would not injure the public or private rights of others since: Additionally, grantin= g the variance would allow the applicant to permanently dedicate approximately six acres of land for conservation purposes which would be beneficial to the pu= blic and surrounding properties. <= o:p>

3. The Variance is consis= tent with the spirit of the ordinance because: The owner will meet all building codes and a unique type of septic system is to= be installed that treats effluent in a sealed tank before it is released to the dispersal area. The spirit of= the ordinance is to limit the property to residential use. The proposed use is consistent wit= h the ordinance.

4. Substantial justice is= done because: Substantial justice would = be done in that the proposed use would minimize any impacts on the wetland, minimize the need of a crossing of the wetlands and allow the dedication of significant conservation land.

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. The surrounding properties will also benefit by the granting of the permanent conservation easement. The proposed locati= on of the house, septic system and well are not in conflict with the general purp= oses of the zoning (Article VII, Section 307-37) because: A. These areas are not subjected t= o high water tables, are not within naturally occurring or compensatory wetlands; = B. sufficient erosion control will be in place during construction to protect these areas; C. are not unique or unusual natural areas; D. are not believe= d to be significant wildlife habitat areas; E. the project will protect water su= pplies and aquifers by utilizing an advanced aerobic “Clean Solutions” treatment system for the septic system; F. The proposal will not use expenditure of municipal funds or interfere with utilities or essential services any more than any other house lot; and G. will not interfere with = the encouragement of low intensity uses in the wetlands.

Mr. McNamara asked what percentage of the home would be in the WCD. Mr. Zohdi said 80%. Mr. McNamara asked how much area w= as contained in the uplands. Mr.= Zohdi said the lots combined were approximately seven acres. Mr. McNamara asked what percent wa= s dry and what percent was wet. Mr. Zohdi believed out of the seven acres (includ= ing the gas line easement) there was close to 40,000SF (1 acre) high and dry. Mr. McNamara confirmed that there = was no other access to the parcel other than Tenney Road. Mr. Zohdi said that was correct.&nb= sp; They could not gain any easements.&= nbsp; Mr. McNamara also confirmed that the parcel bordered the gas line. Mr. Zohdi said that was correct. The gas line was shown on the plan= set. Mr. McNamara asked where the public access to the back area would be located.&= nbsp; Mr. Zohdi said there was walking access, or it could be obtained thr= ough the gas line. Attorney DeCaro= lis said there was a public access easement on another parcel. Mr. J.R. Gauthier (who was seated = in the public) said they had already recorded a pedestrian easement from Independence Drive. Attorney DeCarolis said if the Boa= rd made that a condition, he could provide verification of such. Mr. McNamara recalled that the pla= n had come before the Board in July, 2006, but it was withdrawn. He wanted to know if there was any substantial discussion or if the applicant didn’t show up and the case was withdrawn. Mr. Zohdi didn’t recall the Board as having substantial discussion. Mr. Hennessey recalled that the Bo= ard wanted input from the Planning Board and the Conservation Commission prior = to handling the case and at that point it was withdrawn. Attorney DeCarolis had the same recollection. Mr. Zohdi said = since that time, he had a couple meetings with the Conservation Commission and th= ey had walked the site and voted 4-1 in favor of which.

Mr. Ouellette asked if th= e lot was in a flood plain. Mr. Zoh= di answered no. He said they wer= e only in the WCD, which was the 50ft. setback for the wetland.

Mr. Kearney asked if the = high and dry land was 700ft. from T= enney Road. Mr. Zohdi answered yes; they would have to go through at least 600ft= . of wetland.

Mr. Molloy asked how many= feet the proposed driveway would go through the wetland. Mr. Zohdi said the proposed drivew= ay was approximately 60ft. from T= enney Road. <= /span>He showed what they previously proposed, but at the suggestion of the Conserva= tion Commission they got the garage as far outside of the WCD as they could. He showed the small portion (less = than 200SF) of the driveway that was contained within the WCD.

PUBLIC INPUT

Mr. Gary Ross, 24 Tenney Road said in looking at h= is original plot plan dated April 5, 1982 (prepared by Robert Thorndike), the wetlands came within approximately 12ft. from the right-of-way. He said the lot looked very differ= ent from when his house was built. He said even though he had been around, he didn’t know how the land got changed. He wanted to know who would be liable if something went wrong.&n= bsp; He showed the Board members, Mr. Zohdi and Attorney DeCarolis his pl= ot plan. He showed the plot plan= that had elevation lines that were very different than was presently being shown. He reiterated his ques= tion of who would be liable if something went wrong.

Mr. McNamara asked if Mr.= Ross was witness to anything going on at the lot. Mr. Ross believed during the time = Partridgeberry Lane was being built, some of the ledge taken out ended up on the lot in question. However, he had no proof.

Ms. Kelly Ciampa, said her husband was not able to attend the meeting, but due to postponements/cancellations, she had multiple letters written for the past hearings. She said she had the pipelines in her back yard, but when they came in to change the pipes, they didn’t grade her back yard correctly. She said she was now told that it = was wetlands and could not be fixed. She was concerned if a road came in through the wetlands that it wou= ld increase the water on her property and in her basement and she wouldn’= ;t be able to do anything. She s= aid the water problems happened after the pipeline was done; the grade of the l= and with the slope added the water to her property. Ms. Ciampa showed the gas transmis= sion line and where her property (lot 3-101-7) was located. Mr. Zohdi said they were not propo= sing to construct the driveway through the area of concern. He explained that they were propos= ing to construct one home near (approximately 60ft.) Tenney Road. Ms. Ciampa was still concerned wit= h any work being done in the WCD or wetland because of the effects it could have = on her property. She said she has pictures of her lot when it was dry and now it never is.

Mr. Zohdi began by addres= sing Mr. Ross’ concerns regardin= g the topography. He explained that= in 1982 having soils mapped was not required; today wetlands are flagged by certified soil scientists. He discussed how the topography was done in the past versus the present. He then addressed the comment rega= rding the location of the wetlands. He said Tenney Road had been redone in the late 1980, it was widened and some areas had been filled. He pointed out that a= test pit had been dug by his staff and Town Health Officer Paul Zarnowski. The results indicated there were sandy/loam soils with no indication that fill or ledge had been put in place. Mr. Zohdi said they we= re dedicating approximately six acres of land without impacting any wetland. He said the only impact the house = would have was the impervious area of the driveway and the roof. He noted that the WCD was the 50ft. buffer to the wetland.

Mr. Ouellette asked if fi= ll would be brought in to raise the lot. Mr. Zohdi showed the elevations and said they would only be filling approximate= ly four feet at the front of the house. Mr. Ouellette said it appeared that the footing would be at current elevation, which would be an eight foot foundation wall. He asked if they would be raising = it eight feet. Mr. Zohdi said th= ey could construct a split entrance and only go four feet.

Mr. McNamara asked if Mr.= Zohdi would be seeking any waivers to the subdivision regulations when at the Planning Board stage. Mr. Zoh= di said he would request a special permit for the well. Attorney DeCarolis said they would request a waiver for the driveway. Mr. McNamara asked if the building envelope was sufficient. Mr. Zohdi said the lot pre-dated c= urrent zoning. Mr. McNamara question= ed if the applicant would need to comply with current Subdivision Regulations. Mr. Gowan said because it was a lo= t of record, they wouldn’t have to meet today’s standard.

Mr. Gowan pointed out if = the Board didn’t specify otherwise, he would assume that the variance was= for the house to encroach in the WCD with the dimensions as shown. He said there would be no lea way = for it to extend beyond that, such as, there would be no deck, no yard of any kind what so ever unless the variance specified some conditions that would allow that to happen. As Zoning Administrator, he considered footings for a deck within the WCD an encroach= ment. He said he would require WCD signs= to be posted as best they can be to show the delineation.

Attorney DeCarolis said t= hey would ask for a stipulation such as to allow a rear deck, not to be covered, not enclosed and not to exceed 12ftx12ft.&= nbsp; Mr. Gowan encouraged the Board to put a provision for a deck. Mr. Hennessey said the Board would address the stipulations for 1) an unenclosed deck, maximum size 12ft.x12ft= with footings, and 2) remainder of the land to be placed under conservation ease= ment as approved by Town Counsel. =

Mr. Hennessey reviewed th= e notes on the plan where it indicated the type of septic system (Clean Solutions) = and indicated the type of maintenance that was necessary. He said that information should be brought to the end user and was unsure if it was the Board’s purview = to make a stipulation, or to pass it off to Planning.

Mr. Ouellette noted that = there was an area of approximately 40ft. from the well to the house and assumed t= hat space would be cleared and there would be a back yard.

Mr. Zohdi said when the s= tate approved the design, the plan is sent to the Town and the state. He said then they had to enter int= o a contract with the company that produces Clean Solutions. He said when the state approved th= e plan they provided an approval number. He said they could record the state’s approval at the Registry= of Deeds. With regard to the back yard, Mr. Zohdi said the area to the well would be cleared because they had= to get the rig in.

Mr. Hennessey said the Bo= ard had to address the issue of having a house with a septic system that required specific maintenance. Mr. Zoh= di said all the information regarding Clean Solutions would be added to the plan. Mr. Hennessey said the end-user had to obtain and understand the information.

Mr. Gowan noted that ther= e would not be a back yard unless the variance stipulated such. He said he would allow a well to be drilled with minimum encroachment; any planting will be with wetland species seed. He said the area would = be treated as WCD unless the Board specified otherwise. Attorney DeCarolis said when they went for Site Plan approval to the Planning Board they could put = some radius as no-cut, no disturbance. Mr. Hennessey said that would expand the encroachment into the WCD.<= span style=3D'mso-spacerun:yes'> Attorney DeCarolis said they would= need access to the property beyond just the foundation itself. He said the question was how much = of it the Board would be comfortable designating as no-cut/no-disturb area.

Mr. O’Sullivan said= the property was over 300,000SF and asked if there was a reasonable way to take= the footprint and have an offset of impacts.&n= bsp; Mr. Hennessey said the Conservation Commission had recommended that = the plan be approved in order to protect the remainder of the site.

Mr. Ouellette discussed t= he difficulty with the lot not having a back yard. Mr. Hennessey said the point was w= ell taken. He said the applicant = had requested designating a reasonable amount around the back. Ms. Paliy said there was a differe= nce with people playing in the back yard versus adding a structure. She believed that the home owner w= ould cut where ever they wanted to because restrictions were only notes on the plan. Mr. Gowan suggested all= owing an area 12ft. on either side of the house to the well with the stipulation = that it would be a grassed, non-pervious surface. Mr. Hennessey asked if Mr. Gowan w= as asking the Board to specify or have it left for the Planning Board. Mr. Gowan said the Planning Board = didn’t have that authority. In his o= pinion it was the Board of Adjustment that would have to make the stipulation.

Ms. Paliy said she had ex= perience around the property last summer due to her husband doing work in the proxim= ity of the property and recalled it being referred to as swamp land. She questioned the Board if they w= anted her to vote because she had experience around the property. Mr. Hennessey said everyone brought their personal experiences to the Board.&n= bsp; There were no objections to Ms. Paliy voting.

The Board then reviewed stipulations.

There was a question how encroachment would be addressed. Attorney DeCarolis said if the variance was violated, it would be a zoning violation enforced by the Code Enforcement Officer.

MOTION:

(McNamara/O’Sulli= van) Stipulation that there be an envelope around the property sufficient for a yard 12ft. on either side (of the house) extending back to the well head.=

VOTE:

(3-2-0) The mot= ion carried. Mr. Molloy and Ms.= Paliy voted no. =

-------------------------= ---------------------------------

MOTION:

(McNamara/O’Sulli= van) Variance subject to the conservation easement as described and Town Counsel approv= al.

VOTE:

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

-------------------------= -----------------------------------

MOTION:

(McNamara/O’Sulli= van) Conditions as described on the plan for the maintenance of the septic sys= tem be so noted on the plan as recorded at the Registry.

VOTE:

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

-------------------------= ---------------------------------

MOTION:

(McNamara/O’Sulli= van) Placement of no-cut/no-disturb signs around the ‘back yard’ t= hat was designated.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria; with stipulations

Ms. Paliy – 1) Ye= s; 2) No; 3) No; 4) No; 5) Yes

Mr. Molloy – No t= o all criteria

Mr. McNamara – Ye= s to all criteria; with stipulations

VOTE:

Mr. O’Sullivan – Yes to all criteria=

(<= st1:date Year=3D"2000" Day=3D"2" Month=3D"3" w:st=3D"on">3-2-0) The mot= ion carried.

AREA VARIANCE GRANTED

The Board made the decision to combine the hearing for the following two cases. The representing attorneys agreed.

Case #2392 CURRIER, Priscilla G., Trustee of the M&P Real Estate Trust - 3 Windham Road – Map 22 Lot 8-140 – Seeking an Appeal from an Administrative Decision of the Zoni= ng Administrator which finds that Variance granted to Edmund & Patricia LaPoint (Case 780) on May 13, 1985 remains in force and reasonably encompas= ses transmission repairs.

AND<= /u>

Case #2393 HAYES, = Lee & Mary - 3 Windham Road -= Map 22 Lot 8-140 – Seeking an Appeal from an Administrative Decision of the Zoning Administrator which finds that Variance granted to Edmund & Patricia LaPoint (Case 780) on May 13, 1985 remains in force a= nd reasonably encompasses transmission repairs.

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 Bradford Westgat= e of Winer and Bennett representing Priscilla G. Currier Trustee of the M&P = Real Estate Trust and Attorney Tom Morgan representing Lee & Mary Hayes came forward to discuss the Appeal from an Administrative Decision of the Zoning Administrator. Attorney Westg= ate provided the Board with a package of Exhibits that were a compilation of documents contained in Town records. He said the reason they were before the Board was because an appeal = had been made of an administrative decision by (Planning Director/Zoning Administrator) Jeff Gowan on November 3, 2007 relative to the property at 3 Windham Road owned by Alfred Huard. The decision made was = that a 1985 variance granted to the property (at 3 Windham Road) which pertained to = the repair of carburetors, fuel pumps and alternators remained in force today a= nd encompassed the transmission repair business Mr. Huard conducted on the property. He said to reach th= is decision Mr. Gowan would have to have concluded that the one year rule that= was contained in the Zoning Ordinance (and eliminated in 2007) didn’t cau= se the 1985 variance to terminate. He said they maintained that Mr. Gowan’s decision was incorrect. He discussed what actions the Boar= d was allowed to take per the RSA’s.

Attorney Westgate provide= d the Board with a summary of the background.&nb= sp; Approximately in 1946 Harry Edward was the proprietor of a carburetor repair business at 3 Windh= am Road; his son Norman Edward later took the business over. The nature of the business was the repair of carburetors on site; meaning the parts were picked up repaired and brought back to their original source (such as trucking companies and later local garages). In 1985 the property was purchased by Patricia and Edmund LaPoint. Mr. LaPoint had previously worked = for Mr. Edwards. In 1985 Mr. LaPo= int sought a variance to permit expansion of existing non-conforming commercial use, repair of carburetors, alternators, fuel pumps, etc. This variance Mr. Gowan found to be still viable and encompassed the transmission Mr. Huard undertakes. Attorney Westgate said the focus o= f the 1985 variance was to allow the construction of a new building (48ftx65ft) to house what had been a non-conforming pre-existing use that had grown. Under Exhibit 3 was a letter that = accompanied the 1985 variance application which indicated the nature of the business, t= he building, the need for the variance and an explanation that there would be = no change of use and all the commercial activity would be contained within the= new building. He said it was clea= r in 1985 that the variance request was to allow for a growth of their carburetor repair business, but not a change in its scope or nature or to encompass ot= her elements of automotive repair. The variance was approved May, 1985.

Attorney Westgate said the LaPoint’s owned the property for approximately four more years and in November, 1989 the property was foreclosed by Pelham Bank. The bank owned the property for approximately six years; the carburetor business ceased at that point. In 1995 the bank sold the property= to Gary & Sherri Borak. In A= ugust, 2004 Mr. Borak conveyed the property to Mr. Huard (Exhibit 10 - copies of t= he deeds). Attorney Westgate reiterated that the carburetor business effectively ceased in November, 198= 9 at foreclosure and never was revitalized and essentially abandoned/terminated. This fa= ct was noted in a number of documents filed with the Town. A property summary printout (dated= July 8, 2005) co= ded the property as ‘single family’. Another example of the exhibits was a letter drafted by Tom Wakefiel= d, (Pelham) Code Compliance Official dated August 3, 2006 which was sent to Alfred Huard. In that letter Mr. Wakefield noted= that it was true a use variance was obtained by Edmond and Patricia LaPoint to operate a business to repair carburetors, fuel pumps, alternators, etc., Pe= lham Bank & Trust foreclosed on the property and took ownership November 14, 1989; later it was noted that if variances were not used for one year they shall expire at the end of said one year period the one year rule and the u= se variance (granted to the LaPoint’s) expired on November 14, 1990. Mr. Huard reacted to Mr. Wakefield’s letter by filing an application for variance which came b= efore the Board of Adjustment September 11, 2006. Attorney Westgate said apparently Mr. Huard started the transmission business at som= etime in 2005 which may have precipitated the letter from Mr. Wakefield.

The Board of Adjustment&#= 8217;s meeting minutes of September 11, 1006 were then highlighted. Attorney Westgate felt there were = some very important things to note from the meeting, such as 1) Mr. Gowan noting that the reason the case was before the Board was because it was determined that there was a lapse in the variance formerly granted on the property for= a carburetor shop and that the use didn’t continue uninterrupted, it was not in force for several year and use variances didn’t run with the l= and; 2) when asked if the request should be a Special Exception, Mr. Gowan told = the Board it was his belief that the applicant needed to seek a use variance; 3) Mr. Gowan answered yes when asked if he had made a determination that the previous variance lapsed and Mr. Huard was re-applying to in order to opera= te his business in a residential zone – Attorney Westgate said this point was important because a clear administrative decision had been made by a zo= ning official - Mr. Wakefield noted (in his letter) that the (1985) variance had lapsed because the carburetor business use had ceased and the one-year rule applied – Mr. Gowan confirms that an administrative decision had been made when questioned. He said= a variance could not be applied for without an administrative decision. He said there was no doubt that an administrative decision had been made prior to the variance case in 2006, a= nd that administrative decision was to the effect that the (1985) variance had expired; 4) Mr. Huard understood that he had a number of choices and made c= lear that he was moving forward with his variance application; 5) the Board deni= ed the variance application sought by Mr. Huard.

Attorney Westgate said Mr. Gowan had rendered an Administrative Decision on November 2, 2007; a copy of which was included with the Exhibits. He said that Mr. Gowan’s dec= ision was that the variance granted in 1985 was still alive, the one year rule ha= ving been repealed by the voters in March, 2007, and that 1985 variance encompas= sed the transmission repair business. Attorney Westgate reviewed the fundamental and independent reasons w= hy the decision was incorrect. O= ne being, Mr. Gowan’s decision (in effect) was a reversal of the 2006 Administrative Decision with no factual changes. Another reason was at the time Mr. Wakefield (as reiterated by Mr. Gowan) made the decision in 2006 that the variance had lapsed, there was no variance anymore for which ‘life co= uld be breathed into’. Atto= rney Westgate said in 2007 when Mr. Gowan states that the 1985 variance is still alive, he ignored the fact that he and Mr. Wakefield concluded it was dead = in 2006.

Mr. Hennessy said prior t= o the change in the ordinance, use variances expired after one year, but understo= od under the new ordinance that use variances ran with the property for perpetuity. He asked if it wa= s counsel’s opinion that in this case the use had expired prior to the change in the ordinance and could not be resuscitated.&n= bsp; Attorney Westgate said that was his opinion. He explained that the general prin= cipal was that variances ran with the land, but they had to be implemented. Mr. Hennessey said he had done res= earch (looked at the RSA’s and some of the court decisions) and found several cases that construction did not take place on the basis of a variance. He said the courts held (in effect= ) that the variance ran out because construction did not take place in a prescribed period of time. He said he couldn’t find anything on a use variance that had expired that the co= urts later said (in the absence to a similar ordinance to the Town’s), tha= t it no longer existed. He asked if there were any court cases that bolstered his point. Attorney Westgate said there was o= ne case (that was not reported, but had gone to the Supreme Court and came bac= k in a non-reported decision) which effectively said that the provision in an or= dinance that puts time limits on the effectiveness of a variance are valid provisions. Mr. Hennessey said there were no time implements on this case. Attorney Westgate said there were = from the 2006 event. He said in 20= 06 the ordinance said if a variance wasn’t used for a year it expired. He said clearly the variance for t= he carburetor use had not been implemented since November, 1989. In August, 2006 Tom Wakefield, the Town Code Enforcement Of= ficer, concluded that the variance had expired.&n= bsp; He said there was no appeal of that decision, either to the Board or= to court; there was no timely appeal made of the determination of Mr. Wakefield that the variance had expired. He said that brought to rest and ‘put to bed’ the status of the 19= 85 variance. He said a year late= r, when the one year rule was lifted, there was no variance to ‘breath n= ew life into’; it had died by zoning determination in 2006 un-appealed to any forum.

Attorney Westgate then di= scussed the Fisher v. Dover= case which is that a property owner, once denied a variance, cannot apply f= or the same variance (some years later) if there had been no material change in the underlying facts or circumstances in the area. Mr. Hennessey said there had been = some changes in state law, there had been some circumstances in which case law had chang= ed the way the Board reviewed things. Attorney Westgate said that was correct, but didn’t believe th= at the Supreme Court had undone Fisher v. Dover in light of the Simplex and Boccia standards. He said by Mr. Gowan’s decis= ion he had overturned the Fisher v. D= over principal. He said the Board = denied the variance for the transmission business in 2006; the same business that = Mr. Gowan now says is encompassed by the 1985 variance. He said if the variance was in fro= nt of the Board tonight, they would deny it on the Fisher v. Dover analysis; the Board would say tha= t the applicant could not apply for the same variance that they applied for a year ago. He said Boccia and Simpl= ex were in place a year ago. He = felt Mr. Gowan’s administrative scope was also bound by Fisher v. Dover, otherwise t= here would be no finality to that concept of not applying for the same variance twice. He said Mr. Gowan had effectively given administratively what the Board could not give by varianc= e; and the Board’s powers are broader than Mr. Gowan’s powers. Mr. McNamara said the decision was= done pursuant to a court order. At= torney Westgate said the court order gave Mr. Gowan the opportunity to make an administrative decision. Mr. = McNamara questioned what point there was in sending it back to the Board because Mr. Gowan could not have reached any other decision but to re-affirm their vote= to deny. Attorney Westgate said = he couldn’t speculate because he wasn’t party to that case. Mr. Hennessey said if there was on= ly one outcome that was legal and right it seemed ridiculous that the court would return the decision to Mr. Gowan to be made. Attorney Westgate didn’t fee= l Mr. Gowan could make any decision other than to not administratively approve the transmission business. Mr. Hennessey believed the court, by returning it to Mr. Gowan, had stated that there was a decision to be made. Mr. McNamara said it was also implicitly implying that there was not= an administrative decision made which was contrary to the argument. Attorney Westgate said this was a stipulation made by the parties approved by the court. He said it wasn’t a court or= der made after hearing an open forum. He then reviewed the court stipulation, which didn’t contempla= te any particular decision it was open for him to make a decision. He said the fact that the court ap= proved a stipulation to allow Mr. Gowan to make an administrative decision it didn’t stipulate what the decision should be, that’s what the B= oard was analyzing.

Attorney Westgate address= ed Fisher v. Dover again. He said the interested parties deserved some finality in zoning decision. He said it a person received a zon= ing determination, like Mr. Huard did, that states their variance is expired and they don’t appeal it to the Board and then to court, that would be the final determination of the facts. He said there were two other reasons why Mr. Gowan’s decision should be overturned. One bei= ng if the use is viewed as pre-existing, non-conforming use the result would stil= l be the same because Section 307-8 of Zoning states that a non-conforming use can’t be changed to another non-conforming use, re-established after discontinuance for one year. =

Attorney Westgate said th= e last reason why the decision should be overturned was that on its merits the transmission repair business was fundamentally different and broader than t= he carburetor repair business. H= e said even if the Board concluded that the 1985 variance was still in effect, des= pite the fact that eighteen years had passed without the carburetor business bei= ng operative, it was not credible to think that the transmission business was encompassed in that. He said = the carburetor business contemplated repair of parts on site; the proprietor pi= cked up the carburetors, repaired them and brought them back. He said the transmission repair bu= siness was broader, that contemplates vehicles coming to the site, staying on the = site and being repaired on site. H= e said during the 2006 hearing, Mr. Huard estimated there would be five to ten vehicles on site at any one time. He asked the Board to contrast that to a carburetor business and the material difference in the residential area.

Mr. Hennessey asked if At= torney Westgate was implying if the Board found the 1985 variance to still be in effect that the owner would only be able to do carburetors. Attorney Westgate said the owner w= ould only be able to do what was carburetors, fuel pumps, alternators, etc.; a repair business of those types of parts in which the vehicles are not broug= ht to site, but the parts were brought to the site. He reviewed the LaPoint’s application for the 1985 variance where they stated no change of use was proposed with the new building, all commercial activity would be contained = in the building. He said the LaP= oints weren’t seeking to expand the business beyond the carburetor, fuel pu= mp business and the nature how they did it.&n= bsp; He questioned how, eighteen/nineteen years later, it could be expand= ed to encompass full blown automotive repair of vehicles brought to the site.<= span style=3D'mso-spacerun:yes'> He showed the Board an advertiseme= nt for Mr. Huard’s business that was contained within the Pelham Old Home Day booklet. He said even if the 1985 variance was still ‘alive’ it= was not that broad.

Attorney Morgan believed = there was some confusion about how the variance becomes resurrected when the ordinance eliminates the provision that says they expire through non-use. He said by taking the position tha= t Mr. Gowan had, that elimination of an expiration revives a variance that doesn’t exist would potentially create havoc in Town. He said if by using the analysis t= hat a 1985 variance (that was discontinued in 1989), was now revived eighteen year later would give anyone, anywhere in Pelham the right to bring back old var= iances. Mr. Hennessey questioned if that w= as how the ordinance now read. Attor= ney Morgan said the ordinance was silent on that issue and didn’t say anything in terms of a granted variance.&n= bsp; He said he always understood that variances ran with the land, not t= he owner, but that didn’t mean if they were discontinued they could be revived by a subsequent owner. He said if variances could be resurrected years later, any abutter could buy into a neighborhood that they saw as residential only later to see their neighbor = set up shop. He said this would c= reate essentially, the ability to have businesses anywhere where one once was, as long as they were the same. Attorney Morgan reviewed a portion in Peter Laughlin’s Land Use and Planning book (which is part of a National Treatise consisting of twenty volumes) that indicates non-use whether the ordinance provides it or not mu= st expire. He said the circumsta= nce allowing Mr. Huard to ‘piggy back’ onto a former non-conforming= use that was discontinued many years ago was sort of a twisted ipso-facto law; = in general laws can’t be enacted that jeopardize/effect rights as they currently exist and was not acceptable under the constitution principals to change the laws that effect someone retroactively. He said the decision effectively r= evives a use that was abandoned and unfortunately (from his client’s perspective) also turned it into something that gives it credence in front = of the Planning Board when it was a vastly different use from what his client = had observed since Mr. Huard owned the property than ever existed when LaPoint = (or their predecessor) owned the carburetor business. He said Mr. Hayes grew up on the property and lived there for many years and was familiar with the carburetor repair business. He said the = worst thing Mr. Hayes could tell someone about that business is that a parts pick= up truck would go in and out of the property and occasionally a UPS truck delivering parts.

Attorney Morgan said prio= r to Mr. Huard being cited by the Zoning Administrator, the Town file reflects that there were a number of photographs taken that showed a multitude of cars in= cluding delivery trucks; recovery services (recovering fluids) were also observed.<= /p>

To limit the scope of the hearing, Mr. Hennessey summarized counsel’s arguments as, despite the change in the ordinance, the (1985) variance had lapsed and the Board’= ;s decision (in 2006) should still be in effect; that Mr. Huard should not be allowed to use the building for the non-conforming use requested. Attorney Westgate answered yes. He said the other part was if the = Board found that the variance was in effect, the use to which the owner was putti= ng the building and site was not the same as the one that was originally grant= ed a variance for in 1985 and the scope of this business (Mr. Huard’s) exc= eeds this. Attorney Westgate answe= red yes. Mr. Hennessey said if the Board found that the variance was in effect, the Board would go back to the Administrative Decision and the Administrative Officer to decide what the s= cope of the 1985 variance was in today’s terms. He said it was self evident that t= here were restrictions in the variance that were purely administrative, such as = the number of cars. Attorney West= gate said in the Administrative Decision Mr. Gowan made November 3, 2007 he concluded that the= 1985 variance encompassed the transmission business. He said the scope was not defined = in that decision. He said the two issues present were: 1) the vitality of the 1985 variance; and 2) the scope= of the 1985 variance.

Attorney Westgate provide= d the Board with a memo that summarized his presentation to the Board.

Attorney Morgan said the = present court action raised a number of issues that appeared to be essentially an estoppel argument against the Town; Mr. Huard argued that Building Inspector Roland Soucy assured him he could run a transmission shop at that location = and that the Town should now be stopped from preventing him to do so. Mr. Hennessey said the Board was n= ot concerned with estoppel arguments. Attorney Morgan said getting Town Counsel to stipulate that the Code Enforcement Officer could rehear things gave him more credence than he ough= t to have come time to present a case in front of Superior Court.

Mr. Ouellette questioned = if an appeal had been made by Mr. Huard, though his application for variance. Attorney Westgate explained that t= he Town’s variance applications contained the words ‘Application f= or Appeal’ in the header. = He said Exhibit 14 was Mr. Huard’s variance application that the Board denied in September 2006. Mr. Hennessey said if the meeting minutes (of September 11, 2006) were reviewed, the Board steered the applicant, in= good faith, toward a variance request. He said Mr. Huard came before the Board in general confusion, the Bo= ard gave Mr. Huard ample opportunity to seek legal counsel, but it ended up as a variance hearing. He said the wording by which it came in reflected the confusion of the applicant. It was Mr. Hennessey’s feeli= ng that the Board urged Mr. Huard to seek counsel and he ultimately made his o= wn decision to go for a variance.

Mr. Gowan provided the Bo= ard with a description of how his Administrative Decision came to be. He said he had a hand at drafting = the letter that came from Tom Wakefield with regard to the passing of the one y= ear period and was very much his opinion at the time. He said at a later time, after the= variance sought in 2006 was denied, he= spoke with Attorney John Ratigan regarding a different case, they discussed that section of zoning and was informed that it was widely held that both dimensional and use variances run with the land. The Planning Board discussed the s= ubject and was advised that, that section of zoning was likely unenforceable and should come out. They later p= laced an article on the Warrant, which was passed by the voters in 2007. At the recommendation of Attorney Ratigan, Mr. Gowan will now compose Administrative Decisions and explained = how they would be formatted. He s= aid in the past he had not issued that type of administrative decisions, but had clearly held the opinion that the one year rule applied. Mr. Gowan said then when asked as = part of the court’s stipulation to write a formal administrative decision,= he did it base on the fact that the variance that existed described the type of business and didn’t limit it by use of the word ‘etc.’ He said the Administrative Decisio= n (dated November 2, 2007) also stated that the lot needed limited Site Plan Review = by the Planning Board to deal with issues such as parking, screening and thing= s of that nature.

Mr. Hennessey asked if Mr= . Gowan concurred that there were two appeals: 1) appeal based on the overturning on the lapse on zoning; and 2) transmission work doing is not covered under the original variance. Mr. Gowan = felt that was a reasonable description. Mr. Hennessey said his feeling was that the Board would need two separate votes if Mr. Gowan concurred.&nbs= p; Mr. Gowan deferred to Town Counsel for the answer.

Attorney John Ratigan sai= d he was at the meeting in the capacity of having advised Mr. Gowan as Administrative Officer. He said he was not p= resent to advise the Board. He said = the applicants counsel accepted the Chairman’s summary of the case and fe= lt it was reasonable as how the Board may want to present the case. He said one issue was that importa= nt was that the last page of the Administrative Decision put the person receiving = it on notice formally that an administrative decision had been made and set fo= rth the appeal process and time period. He thought the problem with the August 3, 2006 letter (sent by Tom Wakefield) was th= at it didn’t contain information about the appeal period. He said by the time the Board hear= d the application, more than thirty days had passed. He said at that time any rights th= ey would have had expired under the statute.&= nbsp; He felt Mr. Gowan was correct in concluding that no formal/informati= ve Administrative Decision had ever been made. He said the decision issued recent= ly was distinguished from the earlier decision he may have made in his mind, but didn’t inform the applicant or other persons what their rights were.<= span style=3D'mso-spacerun:yes'>

Attorney Ratigan said the original application talked about a commercial use and carburetors, fuel pu= mps and things of that like and used the word ‘etc.’. He said in his discussion they approached it that the use was for commercial and the description was carburetors, fuel pumps and etc. He felt the Board had to make the decision of whether they would uphold the decision or not. He said the = Board should examine the fact that the application talked about a commercial use variance and look at the actual descriptive wording which included ‘etc’.   Atto= rney Ratigan felt that Attorney Westgate appropriately summarized that the Board= had all the powers that Mr. Gowan had, and then some because they had the right= to modify his decision as they saw fit as well as uphold it or over turn it.

Mr. Hennessey reviewed the meeting minutes from the September 11, 2006 Board meeting when Mr. Huard was being asked by Board members what his application was for. He said it sounded to him like there was no Administrative Decision according to the applicant. A= ttorney Ratigan thought the Chairman could draw whatever references the meeting min= utes suggest to members of the Board. Attorney Westgate said when he read the minutes it seemed like the B= oard tried to analyze carefully with Mr. Huard what his options were. He said Mr. Huard chose to go with= a variance and left the administrative decision un-appealed. He said it had never been appealed= to this day.

Attorney Westgate said Mr= . Gowan was combining two thought processes one being the concern about the one year rule and his discussions with Attorney Ratigan which lead to the March, 2007 meeting to eliminate the rule; and the other being the elements of the Augu= st 3, 2006 letter from Mr. Wakefield, that administrative decision not having express statements that it could be appealed. He said Mr. Huard’s variance application was dated August 25, 2006. He said= Mr. Huard timely filed something before the Board who gave him ample opportunit= y in September, 2006 to treat as an administrative appeal, a variance, seek legal counsel, defer, whatever the case may be.&= nbsp; He said Mr. Huard timely filed something with the Board and let it l= ie without appealing the administrative decision or variance denial. He said the abutters have some reasonable expectation that that ended that story. He said otherwise, anyone that came before the Board could do so without counsel, the Board tries to extract fr= om them what they want to do, they make a judgment to go one way, a year later they maintain they didn’t understand which direction they were going = and somehow they could breath life back into the process. He said that would be zoning chaos= .

Mr. McNamara said the pre= mise by which the case was brought to court he assumed was estoppel because all of = the time requirements for appealing the variance were gone. He said the basis of the suit was = not before the Board. He question= ed if it was a valid concern that variances from years ago could have new life ‘breathed into them’ with the change in the law. Attorney Ratigan believed that the= Board was balancing the interpretation that was advance by Attorney Westgate and = the intent of the voters in appealing that restriction. He said Mr. Gowan had made a determination, but the decision was now with the Board. He said he was concerned that lay = people didn’t know what an administrative decision could mean under the law = in New Hampshire. He said if a decision is made, int= erpreting the zoning ordinance, and it is not appealed, it is binding and there was no further recourse. He said when representing his municipal clients, he always insists that they adopt a procedure that has a prominent paragraph that puts them on notice; this sho= uld also be published for abutters.

Attorney Westgate said fortunately for Mr. Huard, he did file something within thirty days and came before the Board who outlined to him the options. He wasn’t a person who recei= ved a letter and did nothing in response to it.&= nbsp; He said the present court case was not analyzing on an estoppel type basis. He said what happened = in August, 2006 with Mr. Wakefield and in September, 2006 with the Board, that case was premised on Mr. Soucy’s verbal discussions with Mr. Huard ab= out being okay to run the business. He said the court case was not the equivalent of an appeal of the 2006 actions before the Board. He said they would stray away from that because they would raise the fact that they never appealed it. Attorney Westgat= e said fundamentally there were two issues before the Board: 1) the validity of the variance, and 2) the scope. He believed there were three independent reasons why the variance had expired:= 1) an Administrative Decision said it expired and was never appealed; 2) the one-year rule was in effect at the time the variance expired; and 3) the Fi= sher v. Dover concept that administratively the applicant would be getting what = the Board couldn’t give them by a second variance.

There was no public input= .

Mr. Ouellette believed th= ere was confusion on the original request by the applicant. He wanted the Board to consider th= at the applicant may have missed something.

Mr. Hennessey said the Bo= ard could request independent counsel. He felt there were two issues: 1) does the repeal of the ordinance change the basis of Mr. Huard’s appeal to the Board in 2006 for a variance; and 2) does it resurrect Mr. Huard’s case because the peopl= e in Pelham now say that variances no longer expire. Mr. Molloy felt the time from when= the variance expired should be taken into account since it had been eighteen years. Mr. Ouellette question= ed what stipulated the expiration of the variance. Mr. Molloy said they foreclosed on= the house. Mr. McNamara said as he understood it, the Town’s statute had a time limit, usually concomita= nt with the time limit there had to be proof of a presumption of an intent to abandon the use. He felt the presumption was obviously there in this case. He was bothered about the time tha= t went on from the time that the property was last used as a carburetor repair shop and the time that Mr. Huard came in.

Being a real estate pract= itioner, Mr. Hennessey explained the process of which properties were researched pri= or to being sold. For example he= would look at the property cards, look at the property, the structures, the build= ings and he would look around the neighborhood and check the zoning map. He said he would tell his client t= hat it was a residential property with no existing business and sell the property = next door in full faith that the zoning laws of the Town applied to the property. Mr. Hennessey said = in the midst of the lapse in the usage of the property being discussed (with or without the one year limit), he could see himself assuring his clients that= the adjoining property did not have to fear a carburetor or transmission shop n= ext door because he could physically look at the building, it was not in operat= ion, the property card was checked. He said the property is what it was, it’s not a business, it’s a residential use. He said the = use lapsed and the abutters had every reason to believe that there was no longe= r a shop there.

Mr. McNamara said the Boa= rd had to balance the information with the intent of the voters when they passed t= he new zoning. He said he couldn= ’t believe that people in Town had the intent of reinstating any past variance= by removing the time limit. Mr. Hennessey said removing the one year limit didn’t eliminate the princ= ipal that usage could lapse.

Ms. Paliy viewed the prop= erty as commercial based on the existing building.= She said the area wasn’t really residential because it was nea= r a fire station, funeral parlor and a church.= She said it was very busy and didn’t know how a buyer who want= ed a residential area would look at it and see anything but a business area. She said she knew it was residenti= al but didn’t feel it looked like it. She said the property was different from the surrounding residential properties because of what was allowed to be built there. She said because of the building, = it was a unique property. Mr. Hennes= sey said Ms. Paliy was making a terrific Simplex argument. He said the Board voted on the iss= ue. He said during the case the Board discussed the issues, Simplex, the mitigating factors in the area and ultimately after weighing the pros and cons the Board voted down the request for variance. Ms. Paliy said = during the hearing there were issues that came up but right now the Board was just looking at a legal issue. In = her view the area could not return to be residential because of the way the lar= ge garage was built. Mr. Henness= ey asked if Ms. Paliy believed that the structure irretrievably changed the character. Ms. Paliy answered yes. Mr. Hennessey reiterated= that the Board voted down the variance. Mr. Molloy said the Board did so using the same information they had= at the present hearing. Ms. Pali= y said the information wasn’t exactly the same thing, the one year issue had changed. Mr. Molloy asked what nature of the property had changed. Ms. Paliy said in just looking at the property someone couldn’t say it was just residential, because it’s something more.

Mr. McNamara said it was = a shame Mr. Huard wasn’t present. Mr. Huard was seated with the public and indicated so to the Board. Mr. Hennessey said if Mr. Huard wa= nted to speak regarding the appeal, he would be able to. Mr. McNamara said at the hearing f= or the variance he believed he tried to give Mr. Huard every advantage to seek cou= nsel because Mr. Huard came in confused as to what he was looking at. He said Mr. Huard didn’t kno= w if the prior variance was in place, if he needed a new variance or if he neede= d a special exception. Mr. McNama= ra said the Board went through the process and made a decision. He said the area was zoned residen= tial and reiterated that for years the property was vacant and not run as a business. He said there was q= uite a lapse. He was troubled with ‘breathing new life’ into something that essentially had lapsed. He questioned what fi= nal resolution it would give any resident of the Town.&nb= sp;

Mr. Hennessey said the Bo= ard would take two separate votes: 1) whether to uphold the Administrative Deci= sion – that the change at Town Meeting reinstated the 1985 variance; and 2= ) Mr. Huard’s use meets the terms of the original variance.

MOTION:

To uphold the Administr= ative Decision (that the original variance has been upheld and now still in effect). <= /p>

VOTE:

(2-3-0) The mot= ion failed. Mr. Hennessey, Mr. McNamara and = Mr. Molloy voted no. <= /u>

-------------------------= ------------------------------------

Mr. Hennessey said the Bo= ard now had to decide if the use of the current property, per the information in fr= ont of the Board, conformed to the original (1985) variance. He said the point made by counsel = (for Currier and Hayes) was that a transmission business (as practiced by Mr. Hu= ard) did not conform to the terms (1985) variance. Mr. McNamara said Mr. Huard’= s use seemed to be a more intensive use in terms of cars on the property, traffic= in and out, cars stationed there, and perhaps leakage of fluids. He said it seemed to be a more complicated business than simply bringing in a carburetor. Mr. Ouellette said the wording (in= the 1985 variance) included the word ‘etc.’ which he felt encompass= ed any automotive repair. Mr. Hennes= sey said the only thing the Board was reviewing was if the transmission busines= s, as practiced by Mr. Huard, so fundamentally different than the variance gra= nted (in 1985) that the Board should overturn the decision. Mr. Ouellette questioned how the B= oard could make that decision when the word ‘transmission’ could fall under the word ‘etc.’. Mr. Hennessey said if Mr. Ouellette was voting, he would vote to uph= old the decision. He said there c= ould be restrictions. He said the question was if the transmission business was covered under the original variance.

MOTION:

Those feeling that the = decision by Mr. Gowan that the (current) business is a normal/reasonable extension= of the original (1985) variance should vote in the affirmative.

VOTE:

(3-2-0) The mot= ion carried. Mr. Molloy and Mr. O’Sullivan voted no.

Attorney Ratigan discusse= d the motions voted on by the Board was not a motion to overturn. He didn’t think there was a = motion that voted to overturn and asked if counsel would be more comfortable with a motion that stated such. Mr. Hennessey questioned if they wanted the Board to take a motion to overturn = the original Administrative Decision. Attorney Westgate wanted the record to be clear that the Board’s second vote w= as to uphold Mr. Gowan’s decision that the transmission business fell wi= thin the scope of the 1985 variance. Mr. Ratigan said his concern was that the first vote was to uphold (Mr. Gowan’s decision) and failed, which didn’t mean that the conver= se was true.

Mr. Hennessey then entert= ained a motion to overturn the Administrative Decision that the original 1985 varia= nce was still in effect. He said = the Board previously voted that the variance had lapsed. The Board reiterated its first mot= ion and voted on the following:

MOTION:

The 1985 variance lapse= d.

VOTE:

(3-2-0) The mot= ion carried. Ms. Paliy and Mr. O’Sulliv= an voted no.

Case #2394 DUCHARME, Eric C. -&= nbsp; 4 Butternut Drive - Ma= p 15 Lot 8-237 – Seeking and “Area” Variance Article XII, Sect= ion 307-74F to permit an exception to the 75% common wall that separates the li= ving space of the primary dwelling unit from the living space of an accessory dwelling.

AND

Case #2395 DUCHARM= E, Eric C. - 4 Butternut Drive &= #8211; Map 15 Lot 8-237 – Seeking a Special Exception to Article XII, Section 307-74 to permit an accessory dwelling in the Residential Zone. =

Mr. Hennessey said Case #= 2394 and Case #2395 would be combined. The Board would first make a ruling on case #2394.

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. Eric C. DuCharme and = his mother Maureen DuCharme met with the Board to discuss their variance request. Mr. DuCharme said he= would like to finish an existing accessory dwelling in the garage. He explained that after the house = was built, the garage was constructed; later a breezeway was constructed connec= ting the two. He said because of t= he breezeway the dwelling unit didn’t meet the common wall requirement.<= span style=3D'mso-spacerun:yes'>

Mr. DuCharme read aloud t= he criteria as submitted:

1. The variance will not be contrary = to the public interest because: The genera= l look of the house will not change.

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

“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 proposed accessory unit is already pre-exiting and we can not m= eet the 75% common wall in the special exemption category.

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: = of financial burdens and space availab= le.

3. The Variance is consis= tent with the spirit of the ordinance because: we need to waive one of the zoning requirements. We will meet all the other codes s= et by the Town, including a new septic design for the proposed dwelling.

4. Substantial justice is= done because: our request is permitted b= y the district and this will allow us to use our property in the correct manner. =

5. The value of the surro= unding properties will not be diminished because: the proposed accessory dwelling will not change the look of the house and thus = will not affect the surrounding dwellings.

Mr. Gowan didn’t ha= ve any concerns except to reiterate that an accessory unit could not be used as a rental unit.

Mr. McNamara asked if the= applicant had a picture of the house or a plan for the Board to reference. Mr. DuCharme submitted several photographs of the house depicting different angles. Mr. McNamara explained the nature = of the variance was in connection with the condition of the property. He asked if the applicant investig= ated other ways to comply with the requirement.= Mr. DuCharme said in order to comply he would have to completely dismantle the back porch and enclose the addition of the living room all the way to the garage connecting them. He explained that the shape of the breezeway structure ran diagonal. Mr. McNamara asked = if the house and garage were constructed at the same time. Mr. DuCharme answered no.   He said the garage was built= in 1983. Mr. Molloy asked if the= house was built after that time.   Ms. DuCharme said the house was built in 1966/1967; she purchased the home in 1973. She said when t= he built the garage with the space on top there were no specific guidelines li= ke there were today. She said wh= en they went to finish it, they were shocked that they needed to come before t= he Board. She informed the Board= that they sent their neighbors letters and they were all supportive of their pla= n.

Mr. McNamara asked if the= re was any way of interpreting the breezeway as being some kind of common area. Mr. Gowan said he struggles with t= hat requirement and noted that it had to be ‘living space’ and heat= ing seemed to be the main element. He said if it was a non-heated room, it wasn’t really living space. He said in this case, to be called living space, the applicant would have to close in part of the deck and wou= ld end up a fairly odd visual concoction in order to meet the rule. He said this would ‘fly in t= he face’ of another part of zoning that in-law apartments shouldn’t look like a separate apartment. Ms. Paliy asked if the applicant could heat the garage. Mr. Gowan said the garage was sepa= rate from the ‘living’ space.

Mr. Kearney asked if the applicant would be changing anything on the exterior. Mr. DuCharme answered no. Mr. Gowan said if the applicant was granted the variance they would have a series of inspections.

There was no public input= .

Mr. McNamara felt in this= case where the unit was already pre-existing and a modification to comply with t= he 75% requirement would change for the worse the appearance of the house. He said the variance was probably = needed to enable the proposed use of the property because there were special conditions. He said there was= an economic argument and to make such extensive renovations to the space, would have been financially impractical. He felt granting the variance would be aesthetically pleasing. He said values of surrounding prop= erties would not be diminished because there was a very attractive exterior; and p= robably making changes would diminish surrounding properties.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

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

AREA VARIANCE GRANTED

The Board then addressed = Case #2395 for the Special Exception. Mr. McNamara read aloud the section pertaining to Special Exceptions ensuring t= hat the applicant complied. Mr. G= owan wanted it clear that if the applicant’s situation changed and they didn’t need to use the space as discussed that the space would then revert back to household space. He said the exception to that would be if the applicant sold the house to some= one else who had a qualifying need for an in-law apartment; this would have to = be approved by the Planning Director and eligible for appeal.

MOTION:

To grant the Special Ex= ception.

VOTE:

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

SPECIAL EXCEPTION GRANTED

MINUTES

October = 11, 2007 – deferred to the next meeting=

November = 15, 2007 – deferred to the next meeting=

December = 10, 2007 – deferred to the next meeting=

ADJOURNMENT

MOTION:

To adjourn the meeting.=

VOTE:

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

The meeting was adjourned= at approximately 10:50 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