BOA20080609

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 9, 2008

The Chairwoman Svetlana P= aliy called the meeting to order at approximately 7:00 pm.

The acting Secretary Robe= rt Molloy called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Robert Molloy, Peter McNamara, Alternate Bill Kearney, Alternate L= ance Ouellette (arrived after the meeting commenced), Alternate Chris LaFrance= , Planning Director/Zoning Administrator Jeff Gowan

David Hennessey, Kevin O’Sullivan

Ms. Paliy appointed Mr. K= earney and Mr. LaFrance to vote in place of Mr. Hennessey and Mr. O’Sullivan.

CONTINUED



Case #2401 – ARISTA DEVELOPMENT, LLC - 151 Bridge Street -= Map 29 Lot 7-119 & 7-120 – Seeking a Variance to Articles = III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construct= ion of a retail pharmacy with setbacks of 77.8 feet and 76 feet where 105 feet = and 81 feet, respectively, are required. To allow site development on a lot with 27,400SF on contiguous dry u= pland where 35,000SF is required; also to permit the construction of a building a= nd related lot improvements and alterations within the WCD<= /p>

And New Business:<= o:p>

Case #2406 - ARISTA DEVELOPMENT, LLC - 151 Bridge Street   - Map 29 Lot 7-119 & 7-120 - Seeking an ‘Area’ Variance concerning Article XI, Section 307-69 (O.4) &am= p; (OO.1) to permit a wall sign size 40.35ft. on the east side of the building= and 40.35ft. on the west side of the building for a total of 80.70sf. when one sign of 50sf. is allowed.= Also to allow an electronic message display measuring 2ft.8in. in height by 8ft. 8in. in length where the maxim= um allowed is 2ft.8in.

Attorney Paul DeCarolis, representing the applicant asked if both the Arista cases could be heard at= the same time. He introduced John Stewart of Arista and Nicole Duquette of TFMoran who would provide informat= ion to the Board if needed. Attor= ney DeCarolis said they didn’t have comments from the Conservation Commis= sion regarding the pending wetland issues. He said the application was pending (not yet accepted) before the Planning Board because they were waiting for the Zoning Board decision. They had already had two/three hea= rings with the Planning Board. He s= aid in reading the Zoning (307-40,b), comments from the Conservation Commission we= re not required for a variance. = He said it was suggested at the last Planning Board meeting for them to meet w= ith the Zoning Board to see if they could move forward with the variance requests. Attorney DeCarolis = said they were prepared to move forward on all the variances with the understand= ing that they still needed to meet with the Conservation Commission and the Planning Board.

Mr. McNamara said at the = previous Planning Board meeting he urged the applicant to appear before Zoning. He said there were a couple differ= ent issues; there were four variance requests (two for the frontage/setback, one for the wetlands and one for the signs).&n= bsp; He didn’t know if there was enough information to move forward= in regard to the wetland/setback issue, but urged the applicant to come forwar= d to make that decision. He said t= he Planning Board shouldn’t be taking items for consideration that are in violation of the code.

The Board discussed how t= hey would proceed and decided they would proceed with the requested variances excluding those in connection with the wetlands.

The Board began by addres= sing the variance request for Case #2406. Mr. McNamara read the variance request description aloud (as written= on the posted agenda).

Mr. Molloy read the list = of abutters aloud.

Attorney DeCarolis read a= loud the variance criteria as submitted (as follows):

1. The variance will not be contrary = to the public interest because: The signs = which are permitted in the business district are intended to be consistent with t= he style of the building and utilize the tenant’s trademark signs and lo= gos and provide awareness of the products available to passing motorists and are consistent with the commercial use of the property.

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

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: The property is at the corner of two well traveled roadways in the commercial district. The prop= osed signs provide advertisings and awareness of the products provided. The unique feature or ‘speci= al condition’ is the dual frontage of the property.

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 signs cannot be installed without = the granting of a variance. Signs allowed under the ordinance are insufficient for adequate display of the trademarks and reasonable advertising of the products available that are visible from both Route 38 and Bridge Street. The tenant has agreed to reduce all other signs in order to comply w= ith the sign ordinance. Construct= ion of a non-standard electronic message board to strictly comply with the ordinan= ce will increase the cost of the sign drastically.

3. The Variance is consis= tent with the spirit of the ordinance because: The signs are permitted in the business zone and will be facing the street. The intent of the ordinance is to protect the safety and welfare of the citizens, maintain the aesthetic appearance of all districts and enabling businesses and industry to adverti= se effectively. All of these goa= ls are satisfied by use of the proposed signs.&nb= sp; With respect to the electronic message display, the total area of the ground sign complies with the sign ordinance as it is not more than 50sf. .=

4. Substantial justice is= done because: The signs as proposed are appropriate in the commercial zone and are consistent or smaller than signs= of other commercial uses in the immediate area.

5. The value of the surro= unding properties will not be diminished because: The surrounding properties are commercial uses with signs of similar, if not la= rger signs. The proposed signs are consistent with the neighborhood and will not reduce property values.

Attorney DeCarolis provid= ed a description of the proposed signs and the locations for each.

Mr. Stewart said they app= roached Walgreen’s relative to the read-a-board sign (with exterior dimensions of 8’8”x2’8”). He said the sign portion, outside of the frame, was 1’10”x8’2”. He said they looked into having a sign made that would be 2’x8”, but found out the cost would be three times the amount.<= span style=3D'mso-spacerun:yes'>

Mr. Gowan said in the pas= t he worked with the former Planning Director to draft the sign ordinance and la= ter he worked with Hammar & Sons to draft the electronic signage. He noted what the applicant was proposing would hardly be noticeable. There was further explanation of the what the Walgreen’s script sign would be designed.

Mr. Molloy asked where th= e ground sign would be located on the property.&nbs= p; Ms. Duquette showed that the ground sign would be located in the lim= ited access drive, off Route 38. It would be on the property line. Mr. McNamara wanted to know how far the sign would be from the edge of pavement. Ms. Duquette said it would be approximately 80ft.-100ft from the edge of pavement. Mr. McNamara asked if the sign wou= ld be on 24/7 and comply with all other respects to the limitations in the ordinance. Mr. Stewart said t= he sign would be on 24/7 and would comply with the other limitations in the ordinance. Mr. McNamara asked= if the mortar and pestle would be on the building and the ground sign. Attorney DeCarolis said there woul= d be a mortar and pestle on the ground sign and also contained within the tower (4= ft inside). Mr. McNamara asked i= f it would be lit. Attorney DeCaro= lis said the room would be lit. M= r. McNamara asked if the mortar and pestle was included in the square footage calculation. In Mr. GowanR= 17;s opinion, it should be; typically code enforcement didn’t pursue signs in windows (unless it = was something similar to a strobe light). Attorney DeCarolis said if the mortar and pestle trademark was inclu= ded the total would be 114 ¾ SF. Other typical signs at Walgreen’s would not be included, since they were not depicted on the plan. Mr. Ouellette asked if the ‘drive-thru pharmacy’ sign wo= uld be included in the sign calculations. Mr. Stewart said that was not part of the request. Mr. Gowan said that would be consi= dered a directional sign (item N in the ordinance), and not typically considered = as corporate identity. Ms. Paliy= asked if the sign in the window would be visible from the west. Mr. Stewart believed it would only= be visible from straight on (east facing).&nb= sp; Ms. Paliy asked if there would be any lit signs facing west. Attorney DeCarolis said not that h= e was aware of.

Mr. Ouellette asked if banners/store special signs would be included as part of the original sign footage. Mr. Gowan said that = would be a temporary sign and banner required a separate permit, not included in = the variance request.

Ms. Paliy asked if there = were any persons present who did not have their name read, or who had a problem with notification. There was no response. She then asked for = public input for those either in favor or against the request.

PUBLIC INPUT

Mr. Nate Boutwell, 107 Bridge Street said the sign issue was another issue that the applicant wouldn’t sto= p to get anything they wanted. He = said the proposed site was the most fragile and delicate site in Pelham to be developed on and didn’t think a decision should be made in a hurry; t= he Board should have ample time to make a decision for the good of the people.= He said he would like to see the q= uote for the sign indicating a cost increase for a reduced sign.

Mr. Stewart explained to = reduce the sign size would be a custom order from the Walgreen’s sign company and would be three times the cost. He said the proposed lit area would be within 8ft2in.x8ft.10in; the total area would be 2ft. longer than listed in the by-law. The proposes sign is the smallest = one Walgreen’s has off the shelf. Mr. McNamara said the electronic sign was not significantly larger t= hat what was called for in the ordinance. He commented that it would meet all other criteria/standards and wou= ld be set back from the road because of the right-of-way. He reviewed the request in connect= ion with the criteria and felt it met such.&nb= sp;

Ms. Paliy said her main c= oncern was that there would be no lit/flashing signs facing west. Attorney DeCarolis said the signs = were on the south and east side. <= span style=3D'mso-spacerun:yes'>

The Board further discuss= ed the proposed signage. Mr. Gowan s= aid he had not written an Administrative Decision that stated the sign inside the (tower) window should be included in the variance, but the applicant stated= it would be. He said the standar= d he would use is that the sign was part of the corporate identity, illuminated = at night and should be incorporated in the variance application.

MOTION:

(McNamara/Molloy) If ap= proved, the variance would be conditioned upon: 1) the plans remain essentially unchanged (in terms of exterior dimension, size, and shape of building); = 2) the variance runs with the land; and 3) sign contained within the tower is included in the variance request/approval.

VOTE:

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

It was noted that the var= iance request was for 114 ¾ SF; anything larger would have to come back be= fore the Board.

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria – including the logo inside the tower.

Mr. Molloy – Yes = to all criteria – including the motion made by Mr. McNamara.

Mr. McNamara – Ye= s to all criteria – with the conditions made in the motion.

VOTE:

Mr. Kearney – Yes to all criteria

Mr. LaFrance – Ye= s to all criteria

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

“AREA” VARIANCE GRANTED

The Board then addressed the variance request – Case #2401. Because Mr. Ouellette had been pre= sent for the site walk and previous discussion, he was appointed to vote regardi= ng the matter in Mr. LaFrance’s place.&= nbsp; Mr. Kearney would also vote. Ms. Paliy informed that the Board would only review the height setba= cks; they would not address the Wetland Conservation District.

Attorney Paul DeCarolis, representing the applicant, provided the Board with a brief summary of the application (because it had been reviewed in detail at a previous meeting). He reviewed the sit= e and said that the variance being requested was for the height of the building in regard to the building setback. He reviewed a summary of the rulings in the Malachy Glen case in connection wi= th the proposed variance request. He said in the locality nearly all surrounding properties were commercial use = or zoned. He outlined the change= s that would occur on the site. He n= oted from a financial point of view, the proposed building was as small as Walgreen’s could go to have a return on their investment to justify t= he expenditures; the cost of the building (with the engineering) will be over = five million dollars. He then read= aloud a letter drafted by John Stewart, Project Manager Arista Development which outlined the review process taken prior to choosing the proposed site and building design. Attorney DeC= arolis continued reviewing the variance criteria.= He said when the building was constructed it would greatly increase = the tax base and improve the environmental conditions. In summary he believed they met the criteria and complied with the spirit and intent of the ordinance.

Mr. McNamara clarified th= at the Board was making a decision regarding Article 307-12 – relief from the dimensional requirements. He = said the required setback was 105ft, and the applicant was requesting 77.8ft. He asked how far Route 38 was from= the location specified. Attorney DeCarolis said the distance was at least doubled (150ft.). Mr. McNamara noted that there was a large open area between the site and the roadway. Attorney DeCarolis said it was tha= t open area that made the site unique. Mr. McNamara said the second aspect was a variance request from 81ft. to be 76ft and questioned the distance from that point to the roadway. Attorney DeCarolis said the roadwa= y was at least 100ft.-150ft. from that location.= Mr. McNamara asked if the architects rendering being shown to the Bo= ard was the same one shown to the Planning Board. Attorney DeCarolis said it was. Mr. McNamara asked if the applican= t was attempting to address financial feasibility of alternative projects in presenting the letter from John Stewart.&n= bsp; Attorney DeCarolis answered yes.&nb= sp; He said Walgreen’s had already reduced the size of their proto= type and for a return on the investment it would not be financially feasible to construct a building with a footprint smaller than 11,590SF.

PUBLIC INPUT

Mr. Nate Boutwell, 107 Bridge Street, didn’t feel the applicant had proven hardship because they were opera= ting a business on the corner of Willow Street and Bridge Street that was roughly 6000SF. He reviewed the crite= ria and reiterated his belief that there was no hardship.

Mitchell Dyer, 35 Old Bridge Street North had trou= ble understanding the hardship since the company was already operating a busine= ss in Town. Ms. Paliy said the B= oard was reviewing the property not the other business. Mr. McNamara said the hardship ref= erred to the proposal for the land in question, not to the applicant. He said the applicant/owner of pro= perty had the right to do what they wanted within the confines of zoning. They had a legal, constitutional r= ight to request a variance. He sai= d the proposal to build the building at the location didn’t mean it was a self-created hardship.

Mr. Boutwell said the cur= rent building was roughly 6000SF and the proposed building was 12,000SF-14,000SF, creating their own hardship. = Mr. McNamara said the Board, for this variance request, was not comparing the two. Mr. Boutwell said the applicant was creating their own hardship, it was not being created by the zoning ordinance. Mr. McNamara said legally, that was not what the law states.

Shawn Murphy, 4 Chagnon Lane didn’t believe= there was a hardship because the applicant didn’t have to purchase the lot = if it was a bad piece of land. H= e said if it was a regular lot, the applicant wouldn’t need to request so ma= ny variances. He said if Walgreen’s was building in that location because Rite Aid was across = the street, he wouldn’t consider that a hardship.

Mr. McNamara questioned w= hy the applicant couldn’t put a 6000SF pharmacy on the proposed piece of land. Attorney DeCarolis said= the cost to do so would be so high, it would not be economically feasible given= the extraordinary amount of engineering, mitigation, purchase of abutting prope= rty etc. Mr. Stewart said in the = past 10-15 years, all national pharmacies had gone to 12,000SF-15,000SF buildings. With 6000SF they w= ould not be able to get a return and would not be competitive. Mr. McNamara asked if it was the applicant’s testimony that the costs for construction, grading, hydro= logy for a 6000SF building      would stil= l be a factor. Mr. Stewart answered yes.

Ms. Paliy asked if the St= antec letter/information was available to the public. Mr. Gowan said a new letter was ju= st received; but anything generated thus far was available for viewing. Ms. Paliy believed the Stantec let= ter would answer a lot of questions for abutters.

Mr. Boutwell said in rega= rd to developing a 6000SF store, there wouldn’t be setback issues, and the building would be a fraction of the cost.&= nbsp; He said numerous court cases had established precedence that the board of adjus= tment should keep in mind while considering applications. He said value alone was not the pr= oper criteria in determining hardship. He reiterated that a 6000SF store could be built that wouldn’t impact the wetlands. He said = there was no hardship for the applicant and they had not proven that there wouldn’t be a diminution of property or unnecessary hardship being cr= eated on someone else’s property. Mr. Boutwell reiterated that he didn’t believe the applicant h= ad a hardship.

Mr. Ouellette said during= the site walk he had asked for information regarding the surrounding sites, specifically the heights. He = asked if the applicant had that information.&nbs= p; Mr. Stewart said in looking at Rite Aid, the tower was similar to wh= at was being proposed. Mr. Ouell= ette said during the site walk it was agreed that information would be provided = as to the height of the Citizen’s Bank and Rite Aid in correlation to the proposed building. Ms. Paliy = said just looking at the buildings, it appeared the land was higher. She said the Board had to review e= ach application on it’s own. Mr. Molloy believed the question came up. Ms. Paliy asked if the applicant could get information to the Board = as to the height of the other building.

Ms. Deborah Brewster, Pro= ject Engineer with TF Moran said they understood that the Board was referring to= the finished floor elevation with regard to height. She said architecturally, the exis= ting building on site was a little less (almost comparable) to what was being proposed. She reviewed the re= quest and the uniqueness of the property with the expanded right-of-way and the f= lood way.

Mr. Molloy asked how the = proposed tower compared to other Walgreen’s.&= nbsp; Ms. Paliy asked if the Walgreen’s at 102/Mammoth Road had a tower. Mr. Stewart said the building was comparable to other Walgreen’s. Ms. Brewster said compared to rece= nt Walgreen’s buildings they had done, the height was reduced from 37ft = 7in. down to 35ft. She discussed t= he footprint of the building and the fact that it had been designed so the sto= rage area didn’t look higher than the building itself.

Mr. Boutwell reviewed the= real estate inquiries for the Walgreen’s drug store location information a= nd noted that they required 75,000SF of land to accommodate 70 cars with a building being 14,560SF. Mr. Boutwell said the proposed was a huge building being placed on a small lot. He said there appeared t= o be a lot of flooding area in the rear of the property.

Mr. Murphy said if the he= ight was such a requirement and the finished grade of the lot was unknown, he wanted= to know if there would be an amendment for the height to go with another lot.<= span style=3D'mso-spacerun:yes'> Mr. McNamara said the variance req= uest was specific to the lot.

The Board addressed the p= roposal as it pertained to the hardship criteria.&= nbsp;

MOTION:

(McNamara/Kearney) If a= pproved, the variance is conditioned upon the configuration and location of the building remaining essentially unchanged.

VOTE:

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

The Board then voted rega= rding the setbacks only.<= /p>

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria – setbacks only.

Mr. Molloy – Yes = to all criteria – subject to the approved motion.

Mr. McNamara – Ye= s to all criteria – with conditions as contained in motion.

VOTE:

Mr. Kearney – Yes to all criteria

Mr. Ouellette – Y= es to all criteria

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

VARIANCE GRANTED

The remaining items in the variance were date specified to July 14, 2008.

Case #2404 BOUMIL, Michael & Jennifer – 20 Pulpit Rock Road /= Map 41 Lot 6-140 – Seeking an “Area” Variance concerning Article III, Section 307-7 & 307-12 to permit construction o= f a building for a conforming use (industrial-commercial) on a lot that is undersized by current standards.

The applicant submitted a= written request to have the hearing date specified to the July 14, 2008 meeting.

The plan was date specifi= ed to June 14, 2008. =

HEARINGS

Case #2405 FICHERA, Frank Jr. & CROOKER, Constance - Dutton Road -= Map 36 Lot 10-358 – Seeking an ‘Area’ Variance concerning Article III, Section 307-7, 307-12 & 307-14 to permit the creation of a residential building lot with no frontage on an approved Town Road. Access to the new lot (10-358-2) will be over a 50ft. right-of-way to Diamond Hill Drive. =

The representative for th= e applicant was not present. Two abutters= were present.

The Board date specified = it to July 14, 2008.<= span style=3D'mso-spacerun:yes'>

Ms. Paliy informed that t= he abutters would not receive additional notification.

DATE SPECIFIED PLANS – June 14, 2008

Case #2401 – ARISTA DEVELOPMENT, LLC - 151 Bridge Street - Map 29 Lot 7-119 & 7-120 ̵= 1; Seeking a Variance to Articles III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construction of a retail pharmacy with setbacks of 77.8 feet and 76 feet where 105 feet and 81 feet, respectively, are required. To allow site devel= opment on a lot with 27,400SF on contiguous dry upland where 35,000SF is required; also to permit the construction of a building and related lot improvements = and alterations within the WCD

Case #2404 BOUMIL, Michael & Jennifer = 211; 20 Pulpit Rock Road /= Map 41 Lot 6-140 – Seeking an “Area” Variance concerning Article III, Section 307-7 & 307-12 to permit construction o= f a building for a conforming use (industrial-commercial) on a lot that is undersized by current standards.

Case #2405 FICHERA, Frank Jr. & CROOKER, Constance - Dutton Road -= Map 36 Lot 10-358 – Seeking an ‘Area’ Variance concerning Article III, Section 307-7, 307-12 & 307-14 to permit the creation of a residential building lot with no frontage on an approved Town Road. Access to the new lot (10-358-2) will be over a 50ft. right-of-way to Diamond Hill Drive.

MINUTES

March 10= , 2008

MOTION:

(McNamara/Molloy) To ap= prove the March 10, = 2008 minutes as amended.

VOTE:

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

May 12, = 2008

MOTION:

(Molloy/Kearney) To app= rove the May 12, 2008 minutes as amended.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/Molloy) To ad= journ the meeting. <= /b>

VOTE:

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

The meeting was adjourned= at approximately 9:20 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