BOA20081208

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 8, 2008

The Chairman Svetlana Pal= iy called the meeting to order at approximately 7:00 pm.

The acting Secretary David Hennessey called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Robert Molloy, Peter McNamara, David Hennessey, Alternate Bill Kea= rney, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zo= ning Administrator Jeff Gowan

Kevin O’Sullivan

Ms. Paliy appointed Mr. L= aFrance to vote in Mr. O’Sullivan’s absence.

Ms. Paliy stated that any= one in the audience that was going to testify during the meeting would be sworn in= all at once. She asked the member= s in the public to raise their right hands and swear that the testimony they wou= ld provide was the truth, the whole truth and nothing but the truth. The response from the public was ‘I Do.’ There wer= e no objections, or persons indicating that they would not provide truthful testimony.

REQUEST FOR REHEARING

#2417 BENOIT, Bruce & Patricia - 333 Mammoth Road - Map 7 Lot 4-181 – Seeking = an Appeal from an Administrative Decision which finds that the property owners= are in violation of Pelham’s Zoning Ordinance, Article XII, Section 307-76,II,8 which states that the sale of three (3) or more vehicles per ye= ar shall be considered a home occupation and shall not be permitted [ within the Residential District]. <= /o:p>

Mr. Hennessey read the li= st of abutters aloud. There were no persons present who had a problem with notification or who didn’t have their name read aloud.

Attorney David Groff, 79 Bridge Street, Pelham, representing the applicant Bruce and Patricia Benoit came forward to discuss the appeal from an Administrative Decision. Mr. Benoit also came forward. Attorney Groff stated they were appealing the Administrative Decision regarding the sale of motor vehicles within the residential zone. = He summarized the case by stating Mr. & Mrs. Benoit purchased the property= in 1965 and at that time Mr. Benoit, as part of his home occupation business u= se, would sell cars at the location. He would have one car out at a time and did so for a number of years. He had letters from people who pur= chased cars as far back as 1970. Att= orney Groff stated in July, 2008 Mr. Benoit received a letter from Mr. Tom Wakefi= eld (Town’s Code Enforcement Officer) and responded to it. He then received a letter from Mr.= Jeff Gowan (Town’s Planning Director) saying that he had reviewed Mr. Wakefield’s decision and determined that it was a violation of the section of Pelham’s Zoning Ordinance which prohibits the sale of three (3) or more motor vehicles per year. Attorney Groff indicated that the Ordinance had changed over the years. He stated up until 199= 2 home occupations were permitted in the residential zone without any special exce= ption or site plan review; this was changed in 1992.    He noted that more rec= ently in 2005 the ordinance was changed to its current configuration which has wording regarding the sale of three or more (motor vehicles). It is the applicant’s conten= tion that Mr. Benoit’s operation, since it pre-dated the change in the ordinance, was a grandfathered non-conforming use; he was operating since 1= 965 and would be under the original zoning ordinance that didn’t contain = the restriction for the sale of three (3) or more motor vehicles per year and didn’t contain restrictions about site plan reviews or special exceptions.

Attorney Groff pointed ou= t to the Board that Mr. Wakefield or somebody sent a State Police Officer to Mr. Benoit’s property to question whether or not he was in violation of t= he state law. He told the Board = that he wasn’t. He said the = only question was if Mr. Benoit’s home occupation, the sale of the occasio= nal motor vehicles, was a grandfathered use.&n= bsp; Attorney Groff stated that he had a few notes from abutters that were either unable to attend the meeting or chose not to come. He proceeded to read the letters i= nto the record. The first letter = was dated December 4= , 2008, submitted by Mr. Gary Dallaire, who resided in Pelham and purchased his fir= st car from Mr. Benoit in 1970. = Mr. Dallaire wrote that his family had purchase many cars from Mr. Benoit over = the years dating back to 1965. The second letter was dated December 7, 2008, submitted by Mr. & Mrs. Frede= rick Godbyr (332 Mammoth Road, Pelham) they had been a resident of Pelham and neighbor of the Benoits’ for twenty years and had no problem with the occasional sale of a car from his residence; it seemed to be more of a hobby. The third letter was d= ated December 6, 2008 submitted by Stephen and Barbara Lanthier (334 Mammoth Road, Pelham) had no issue from the selling of cars from Mr. Benoit’s property. The Lanthiers’ had no object= ion to the practice continuing as long as it remained an occasional proposition wi= th not more than one car at a time being offered for sale.

Ms. Paliy felt Attorney Groff’s statement and the written statement by Mr. Benoit (contained = in the application) contradicted each other.&= nbsp; She said Mr. Benoit’s statement (in the application) was that = he never ran the business from his property; the property was only being used = for display purposes. Attorney Gr= off questioned where the statement was noted.&= nbsp;

While Ms. Paliy reviewed = the application, Mr. Hennessey asked to speak.=

Mr. Hennessey stated from= what he read there wasn’t a dispute of the facts. He believed there was an agreement= that Mr. Benoit sold up to five cars per year; the question was if he had a right because it was grandfathered prior to the change. He asked if that was correct. Attorney Groff said they were aski= ng the Board for the interpretation. Mr. Hennessey said there was no question of the facts, it was a matter of the administrative law and zoning being disputed. Attorney Groff stated that he didn’t know if there was any dispute about the facts.

Ms. Paliy asked Mr. Benoi= t if he actually had a business on the property, or if he had a business somewhere = else and the cars were displayed on the property. Attorney Groff stated in the past = Mr. Benoit had a business somewhere else. Ms. Paliy asked in what year. Her question was from what point the sales were made on the property= and from what point were they not from the property. Attorney Groff said the earliest t= hey had documentation from Mam= moth Road was from 1970 (from Gary Dallaire). Ms. Paliy asked if the contract ha= d the property address or a different dealership address (from a different location). She questioned if = there was a sales agreement noting the property address or an address from another location. Mr. Benoit said he = only used a personal bill of sale; it had nothing to do with a business. Ms. Paliy asked if the cars were registered in Mr. Benoit’s name when he was selling them. Mr. Benoit stated that the cars we= re either registered in his name, or they weren’t registered; it had nothing to= do with a business.

Ms. Paliy was trying to d= etermine a couple issues; the applicant was stating they were running a dealership f= rom the property. Attorney Groff = told Ms. Paliy that Mr. Benoit was not stating that he was running a dealership;= that was a separate type of operation that required a license. Ms. Paily asked if the cars that w= ere being sold had been personally owned by and registered in Mr. Benoit’s name. She questioned if the B= oard was dealing with a case of three or more cars being sold by Mr. Benoit or if they were dealing with Mr. Benoit running a company from the location. She also asked if Mr. Benoit had a dealership in another location and having the display at his home. Mr. Benoit stated that they were h= is own personal cars. Attorney Groff believed Ms. Paliy was confused about the times when Mr. Benoit placed a car out for sale. He said if a ca= r was put out and it didn’t sell, it was not left out forever. Ms. Paliy said she was trying to determine if the Board was dealing with multiple personal sales against the regulations, or unregistered vehicles being sold from the property because = they belonged to another entity, or if a business had been run since 1965 on the property. She said to be grandfathered it would have to be a business and questioned where the evide= nce of the business was.

Mr. Hennessey understood = that the Town didn’t dispute the fact that it was a business. He asked if they were acknowledgin= g it was a home occupation and as long as Mr. Benoit kept it within the rules (of three vehicles) he would be legal in doing so.

In the opinion of Zoning Administrator Jeff Gowan, it is within the rules for any homeowner to sell = two cars per year or to display (for sale) two cars in any twelve month period. He believed the spiri= t and intent of the ordinance was clear that the idea was it could be done not as= a business. Ms. Paliy said she didn’t see any proof of grandfathering a business and also couldnR= 17;t understand if they were personal sales that grew or if there was a business= at a different location that came to the property. Attorney Groff said the ordinance didn’t talk about any of those things and he was present for the meet= ing to discuss the ordinance which talks about the sale of three or more motor = vehicles in a calendar year being a home occupation that was prohibited in the residential zone. Ms. Paliy s= aid the testimony was the applicant was grandfathered from 1965. Attorney Groff stated before the ordinance took effect (in 2005) Mr. Benoit was selling three or more motor vehicles from his house, which was a home occupation. Ms. Paliy asked if there was proof= such as contracts that showed it. Attorney Groff said they at the meeting and trying to get to the tru= th. Mr. Hennessey said the Board wasn’t disputing that. =

Mr. Gowan told the Board = that Attorney John Ratigan (Town Counsel) was present if they had questions rela= tive to the home occupation issue. He may ask questions, through the Chair, of the applicant.

Attorney Groff stated he = was trying to address the issue before the Board.&nbs= p; He said other state agencies may have jurisdictions to do things abo= ut unlicensed sales, unregistered motor vehicles, etc. but noted that the Board should only be concerned about its ordinance. With regard to providing evidence,= he said everyone had been sworn in, Mr. Benoit was present and there were othe= rs to provide testimony, as well as letters provided. The Board could consider the evide= nce if they wanted to. Attorney Grof= f said it was the same type of evidence that would be produced in a court room, if they were in a court room.

Attorney John Ratigan, wh= o was present on Jeff Gowan’s behalf to provide legal counsel, thought he m= ight be able to ask through the Chair a couple questions of the applicant that m= ight assist the Board in its decision making.&n= bsp;

Ms. Paliy asked Attorney = Ratigan to proceed.

Attorney Ratigan said he = would turn to Mr. Groff with his questions since he was seated in close proximity beside him and because he knew him. He said in the appeal application and in statements provided to the Board (by Attorney Groff) reference was made to the belief that Mr. Benoit = was grandfathered through a legal non-conforming use dating back to 1965 when t= he property was purchased. Attor= ney Groff stated that was correct; at least until the date the ordinance took effect in 2005. He said there= was no challenge to Mr. Benoit’s occasional sales of the motor vehicles w= hen the 1992 ordinance went into effect. It wasn’t until more recently when the current ordinance went = into effect that Mr. Benoit had the challenge to his occupation.

Attorney Ratigan, who had= a copy of the 1964 ordinance as it existed, said Article III, A addressed resident= ial uses and went on to read a portion of Section IV aloud which outlined uses. He asked Attorney Groff= if that was the section (of the 1964 ordinance) that he was relying on to say = that it was a home occupation. Att= orney Groff answered in the affirmative. He said the ordinance provided examples, but there were other exampl= es before the Board, such as contracting businesses which weren’t named,= but were certainly a home occupation. He said he brought that kind of challenges of past violation notices= to the Board. He said the current ordinance defines sales of motor vehicles as a home occupation; it was just= the sale of three or more that they were having an issue with. Attorney Ratigan asked if Attorney= Groff would agree that the definition of what types of things that could be done = in the residential district (contained in Section IV) remained the same all the way up to 2005. Attorney Groff answered no, the language changed significantly in 1992 when there was a ch= ange for special exceptions; minor and major home occupations were made and were broken out into a different fashion. He said up until then it was pretty much the same; there were amendm= ents in 1976 and 1998 neither of which he felt significantly changed the home occupation.

Attorney Ratigan asked if Attorney Groff agreed that if the applicant was saying that he had a grandfathered use that dated back to 1965, the Board would first have to ma= ke a conclusion that the use was one of those home occupations. Attorney Groff answered no because= the ordinance defined home occupation as including the sale of motor vehicles a= nd they weren’t challenging that. Attorney Ratigan questioned if Attorney Groff was making any claim t= hat his client’s rights arise out of having a lawful home occupation based upon the ordinance in 1965. Attorney Groff stated that there wasn’t any ordinance in 1965. He said the ordinance pre-dated 1965 and Attorney Ratigan read the home occupation section. He stated they were claiming that = a home occupation that was valid, prior to the adoption of the new ordinance, woul= d be grandfathered under the current ordinance.= He said the definition of home occupation (which they didn’t dispute) included the sale of motor vehicles from a house. He said now the Town was saying th= at the house had to be in somewhere other than the residential district, which he interpreted to mean the commercial or industrial districts.

Attorney Ratigan question= ed if Attorney Groff’s client had a Special Exception. Attorney Groff was not aware of one.

Mr. McNamara asked if Mr.= Benoit currently had a business from the address (on Mammoth Road). Attorney Groff stated Mr. Benoit&#= 8217;s occupation was that he sold cars there and had been doing so for years; at least back until 1970 according to a letter he had. Mr. McNamara wanted to know what t= he mailbox with the name Benoit Auto Sales was used for. Attorney Groff said there had been= a mailbox with the name, but Mr. Benoit was asked to remove it and had done so. It had been taken down si= nce photographs of the property were taken (and provided to the Board). Mr. McNamara questioned if Mr. Ben= oit was presently employed outside of his home. Attorney Groff answered no. Mr. McNamara wanted to know if the business being run was registered with the Town or with the state. Attorney Groff answered no. He said the only reason he would h= ave to do so was if he wanted to become a licensed dealer and sell a certain numbe= r of vehicles or have an entity name. Mr. McNamara confirmed that it was not a corporation, LLC, or anythi= ng of legal stature. Attorney Gr= off answered no. Mr. McNamara ask= ed if Mr. Benoit had any interest in any other business of auto sales or leasing. Attorney Groff said = there was a property on Route 38 (across from PIPS) that Mr. Benoit owned (and le= ased to someone), but it was run by a different company. He said Mr. Benoit was not selling= cars from that location. Mr. McNam= ara asked if Mr. Benoit had an interest in (or receive profit from) the vehicles sold at the Route 38 location, other than having a lease arrangement. Mr. Benoit answered no.

Mr. Molloy asked how many= cars were sold from the property in any calendar year since 2005. He wanted to know what was the mos= t cars sold during a calendar year. = Mr. Benoit said it was probably five. Mr. Molloy asked if five was the most. Mr. Benoit answered yes. Mr. Molloy asked what was the least amount of cars sold in any calendar year.&= nbsp; Mr. Benoit said he hadn’t counted but it was between two and f= ive. He said he had one car at the end = of his driveway at a time and didn’t exceed five cars per year.

Mr. Kearney questioned if= there was any vehicle servicing involved. Mr. Benoit answered no. Mr. Kearney asked if the sale of two to five cars had been going on since 1965.= Mr. Benoit answered yes. Mr. Kearney asked if the sales had= been a secondary source of income. Mr. Benoit supposed that could be said. He said he had been retired for fifteen years. It was partly a hobby; something he liked to do.

Ms. Paliy reviewed a phot= o that showed a car with a dealer plate, which would be a non-registered car. Mr. Benoit said it was a car that = he picked up to come home. Ms. P= aliy believed there was a problem and questioned if there was evidence that there were sa= les in 1965. She said she previou= sly asked if the cars were registered to Mr. Benoit or if they were for another entity and now was viewing a photo of a car with a dealer plate. She questioned who the plate belon= ged to if it was a personal sale. Sh= e said the issue mattered in regard to grandfathering. Her concern was if the business wa= s run from another property and if the sales belonged to another property then how could the Board discuss grandfathering of sales from 333 Mammoth Road. She said if the applicant couldn&#= 8217;t prove there were sales from 1965 then they weren’t discussing grandfathering, they would be talking about today’s law. Ms. Paliy said reviewing the photo= it appeared there was another business involved and questioned who it was.

Mr. Hennessey understood = that Attorney Groff’s argument was grandfathering; Mr. Benoit had been doi= ng it (selling cars) and why shouldn’t he continue. He noted in Mr. Benoit’s ori= ginal response, dated July 21, 2008 he stated he wasn’t in violation becaus= e he sold two within a year. It ap= peared that portion of the original letter was on a narrower ground; based on (sal= es) the definition of within a year according to the ordinance. Mr. Hennessey asked Attorney Groff= if he wanted the Board to consider the narrower ground. Attorney Groff answered no.

Ms. Paliy went back to the question regarding the dealer plate. She said dealer plates are usually non-registered and questioned if = Mr. Benoit had a business. She questioned if Mr. Benoit was running a business and if there was proof of it since 1965. She asked if it w= as a business that was grandfathered, or if it was a business that was being run today. Attorney Groff explain= ed that the car had a dealer plate because Mr. Benoit brought it home from a dealer. He said he doesn̵= 7;t have plates because he’s not a dealer. Ms. Paliy questioned who the plate= belonged to. Mr. Benoit said he would = have to look at the plate. Ms. Pal= iy asked if Mr. Benoit had re-registered the cars at some point. Attorney Groff noted that cars didn’t have to be registered to be sold, they had to be titled. He said the registration had nothi= ng to do with the ordinance.

Mr. Hennessey said the is= sue in front of the Board was if it was grandfathered or not.

Attorney Ratigan told the= Board that Mr. Gowan had provided them with information as follows: 1) 1964 ordin= ance that was in effect prior to when Mr. & Mrs. Benoit purchased their property; 2) 1987 ordinance; = 3) 2005 ordinance; and 4) file materials – exchanges/correspondence 2004-2005 (the last time there was an enforcement action brought against Mr. Benoit) where he agreed (through his legal counsel) to limit sales to one p= er year until such time as the ordinance was changed. He directed the Board’s atte= ntion to review the ordinance from the time when Mr. Benoit purchased his property Article III, A, Section IV which gave a list of four types of home occupati= ons (hairdresser, dress maker, manufacturer of craft products or manufacturer of food product). He said unless= there was some sort of ‘administrative gloss’ that the Board had cons= istently given to that language Mr. Benoit was out.= He said the grandfathering argument was being founded on the fact th= at used auto sales fell within the scope of the four definitions, which it didn’t. He said it rema= ined the ordinance in effect for many years.&nb= sp; In Attorney Ratigan’s reading of the ordinance Mr. Benoit never had a legal non-conforming use. He stated in New Hampshire the law says unless the use is permitted, it can’t be done. He said when the ordinance changed= in 2005, unless Mr. Benoit had a legal non-conforming use, he would have to comply. The only way to comply would be to sell two vehicles or less per year or get a special exception.<= span style=3D'mso-spacerun:yes'> Attorney Ratigan pointed out that = there was no testimony prior to 1970 or before the property was purchased. He explained the law for ‘ad= ministrative gloss’ which would need to have an ordinance that is 1) ambiguous and= 2) consistently interpreted by the administrators in a certain way to address = the ambiguity. He noted there was nothing ambiguous about the ordinance and hadn’t heard that it had be= en consistently interpreted.

Mr. Hennessey said there = seemed to have been cases in Town where it seemed to go beyond the narrow definition. He questioned if = there had been a case in Town where selling cars had been interpreted under that = clause as permitted. Mr. Gowan had n= o recollection of that being the case. He wasn’t aware of it ever being interpreted in that manner and in fact believed it had been interpreted for many years in the manner described by Attorney Ratigan.

Mr. Hennessey asked if th= ere was anything in the case law that addressed the issue of ‘calendar’ year versus a year duration. Attorney Ratigan believed the common sense interpretation was a cale= ndar year.

Mr. McNamara reviewed the= packet of information provided to the Board. He referenced a letter dated December 15, 2004 in which there was an agreement re= ached by Attorney Ratigan and Mr. Benoit’s attorney to limit sales to one vehicle per year. Attorney Ra= tigan said that was correct; it was under the pre-2005 ordinance. Attorney Groff was provided a copy= of the documents being reviewed.

Attorney Groff responded = to the legal arguments. He stated th= at the ordinance was not an exclusive ordinance.&= nbsp; He said Attorney Ratigan left out two words ‘such as’ wh= en he read the ordinance; those are the two words that qualify the four things mentioned. He said the Board = would have to answer if those were the only four things permitted as home occupations, or if used auto sales was a permitted home occupation. He said the current ordinance incl= uded home auto sales as a home occupation. Attorney Groff stated in 1964 the uses were in a ‘such as̵= 7; list; in 2005 the ordinance was changed to have a list of permitted uses. In regard to home auto sales from residences, Attorney Groff couldn’t think of a specific case in the l= ast twenty-five years that dealt with the issue. He could recall several cases that= dealt with home auto repair, which was not contained on the ‘such as’ list; those cases did involve home occupations.

Ms. Paliy questioned if a= ny of the ordinances allowed for a display of the cars. Attorney Groff said the ordinance didn’t talk about display, it simply talks about three or more vehicl= es. Ms. Paliy questioned if the case w= as before the Board because of today’s ordinance, or because (of the bel= ief) it (used auto sales) was grandfathered from 1964. Attorney Groff said the ordinance = in 1964 didn’t talk about displaying anything. He said the current ordinance (200= 5) also doesn’t talk about displaying vehicles, it simply states more th= an three can’t be sold. He= said Mr. Benoit hadn’t been given a violation notice for displaying vehicl= es; the violation notice was (the claim) for selling three or more vehicles in a calendar year.

Mr. Gowan stated that his= Administrative Decision was the fact that he interprets the spirit and intent of the ordin= ance to mean that the display of a third car for sale is a violation. He said to suggest that the Town h= ad to somehow prove that the cars had been sold for there to be a violation was n= ot in the spirit and intent.   He believed the ordinance was clear when written that they didn’t want people running a business of constantly having cars for sale (for a hobby or business). It was also clear = that an automotive junkyard was two or more unregistered vehicles.

Mr. McNamara believed whe= n the Planning Board proposed the zoning change, part of the imputes was because = of the complaints the Planning Department was getting about cars on display. He recalled that the display of th= e car was an important part of the sale. <= /span>

Ms. Paliy opened the disc= ussion to the public. She reminded t= hose speaking they were under oath.

PUBLIC INPUT

Mr. Paul McAveeney (Jr.),= 336 Mammoth Road who resided diagonally across the street from Mr. Benoit for approximately three years noticed the car sales. = He told the Board they appeared to be quality vehicles. He said Mr. Benoit never sold more= than one vehicle at a time and didn’t deface the area. He said people came viewed the veh= icles and either purchased or not. = Mr. McAveeney didn’t see the harm of someone like Mr. Benoit wanting to display a vehicle. He said it= was okay with him and his wife. <= /p>

Mr. Molloy confirmed that= Mr. Benoit would only sell one car at a time.&= nbsp; Mr. McAveeney said he only saw one car for sale at a time. Mr. Molloy asked how quickly anoth= er car would be put for sale once one was sold.&n= bsp; Mr. McAveeney said sometimes a car sat there for months. The most he ever saw sold was two = or three per year; they appeared to be fairly new (no more than eight years old).

There were no other membe= rs of the public who wished to speak.

Mr. McNamara noted that t= he pictures of the property submitted to the Board showed at least four or five different cars on display.

Mr. Hennessey said the Bo= ard didn’t have to get in a discussion about the number of cars because it wasn’t the issue. The B= oard was only talking about was Mr. Benoit’s right to sell and the reading= of Article III, A. Mr. Hennessey= said he was trying to stretch it to cover the sale of cars, but couldn’t stretch it much beyond craft items, homemade items and defined professions. He didn’t = see anyway that paragraph four under Article III, A (1996 zoning) could be stretched to cover cars. Mr. = Molloy asked if there had been other situations of people having home occupations = that weren’t covered under the description. Mr. Hennessey said it might be abl= e to be stretched, but felt it was difficult.&n= bsp; He stated that there was no assertion that because it wasn’t enforced over the years, that the Board couldn’t go back to the 1996 zoning ordinance and question if it was legal for Mr. Benoit to sell cars u= nder a home occupation under that ordinance whether it was enforced or not.

Ms. Paliy still had issue= that there was a business going on in 1964.&nbs= p; She said if the applicant was selling one or two (personally registe= red) cars per year there was no proof that a car business was being run. She said there was only proof that= it was being done today. Mr. Hen= nessey didn’t see that it made any difference whether the cars were being so= ld as a business or a hobby. He = said in the past the zoning was also residential.&= nbsp; Ms. Paliy felt it did make a difference because if Mr. Benoit was not running a business in the past and was running a business now it would be relevant to look at the 1964 regulations.&= nbsp; She said the applicant was asking to sell five cars per year today, which is what the Administrative Decision was looking at. She sees the case as a decision ma= de today based on today’s laws unless the applicant could prove otherwise.

Mr. McNamara stated that = the Board had evidence, both stated and submitted, that there had been car sale= s at the property over a number of years. He said if there was an illegal non-conforming use, subsequent changes/modifications (to zoning) wouldn’t change it. He believed the Board had to decid= e if number four of Article III,A encompassed automobile sales.

Ms. Paliy questioned if t= he use was legal. She didn’t f= eel that the Board had to review the regulations because the applicant couldn’t prove that there was a business being run at that time. She discussed the testimony that w= as provided.

Mr. McNamara asked the Bo= ard if they had enough information to make a decision. Ms. Paliy felt ready to make a dec= ision. She asked if the Board was ready.<= span style=3D'mso-spacerun:yes'> Attorney Ratigan provided the Boar= d with further information. Mr. McNa= mara asked, for clarity of the record, suggested that the Board possibly table t= he case and take an opportunity to review the information and come back at a l= ater date. Ms. Paliy said the Boar= d had discussions about grandfathering and reviewing the 1964 regulations. She felt testimony showed that the= re had not been a consistent business on the property and that the vehicles were personally owned and there were one or two sales per year. She didn’t see that there wa= s a non-regulation use on the property in prior years. She said what the enforcement offi= cer did was as of today and not as of 1964.&nb= sp; She said it didn’t appear to be a business with legal sales th= at would qualify grandfathering.

Mr. Hennessey believed the information provided by Attorney Ratigan reiterated what was being said. He stated that the applicant didn’t purchase the house until 1965; the ordinance went into effect = in 1964. He said it was clear that the ordi= nance preceded whatever the applicant was doing.= He said Attorney Groff gave his understanding that the ordinance didn’t exclude car sales. Mr. Hennessey said the Board was only dealing with their interpretation of the ordinance.

Ms. Paliy said the applic= ant would have to prove that they ran a business in 1965 because there was no p= roof presented.

Mr. Molloy said testimony= was given that the ordinance didn’t specifically exclude automobile sales, but it didn’t exclude a lot of things.

The Board discussed how t= hey would proceed.

Mr. Hennessey made a moti= on to uphold the Administrative Decision. Mr. Molloy seconded the motion for discussion. Mr. McNamara said he would conditi= on his vote based on the findings, facts and rules of law. The Board members were polled and = agreed with the stipulation. Attorney Ratigan asked that Board exclude number three if they were going to adopt t= he request for findings and rulings. He said Attorney Groff made a point that he believed the language changed at some point in time. Mr. Hennessey and Molloy were fine with the amendment.

MOTION:

(Hennessey/Molloy) To u= phold the Administrative Decision, conditioned upon the findings, facts and rul= es of law, excluding number three.

VOTE:

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

Attorney Groff introduced= the letters into record that he read aloud earlier in the meeting.

The photographs of the pr= operty were also placed into the file.

CONTINUED

8:27

NEW CINGULAR WIRELESS PCS, LLC (AT&T) c/o Stephen D. Anderson / Owner – DETELLIS, Geoffrey= & Nora - 9 Rocky Hill Road - Map 7 Lot 4-185-2 – Seekin= g a “Use” Variance to Articles III, IV, V, X, XII Sections 307-7, 307-16(A), 307-18, 307-58(B)(3), 307-58(C)(2), 307-58(C)(3), and 30788A to permit a Personal Wireless Facility and Tower use on property situated in t= he Residential Zone, not in the Telecommunications Overlay Zone, and with Side Setbacks of less than 175ft. and a Fall Zone of less than 100% of the heigh= t of the Tower including any antennas or other appurtenances.

Attorney Doug Wilkins of = Anderson & Kreiger, LLP, came forward to discuss the requested variance. His partner Attorney Stephen Ander= son presented the case at the last meeting.&nb= sp; He stated there were a number of questions that had come out of the previous meeting which he would address.&n= bsp; He noted that letters had been submitted by a Lieutenant of the Fire Department (Raymond Cashman, Jr.) as well as the Police Chief both of which outlined the difficulties they had with communications in the area.

Mr. Gowan wanted the Boar= d to understand that there was a clear need for communication as outlined in the letters submitted by the Fire Department, Police Department and Town Administrator.

Attorney Wilkins summariz= ed each letter and important factors for needing communications for public safety.<= span style=3D'mso-spacerun:yes'> He stated that they submitted an appraisal report applied to the area using six comparables. He read the bottom line conclusion= from the result of the analysis in which it was the appraiser’s opinion th= at the citing of the of the proposed cell phone tower would not result in diminution of value in the subject neighborhood. The next set of materials discusse= d was a set of photo simulations (prepared by Ben Carin). Attorney Wilkins discussed how the balloons were flown and adjusted in the simulations. He believed it was apparent during= the site walk that the location was very well selected in terms of limiting visibility. He then addressed= the question of if the tower would need to be lit, or if there would be an FAA problem. He said a report was= done that indicated the tower would not require registration with the FAA or hav= e a problem regarding lighting. <= /p>

Attorney Wilkins stated t= hat they had provided funds to the Town to hire its own independent radio frequency expert. He received a copy of= the report today and went on to summarize the findings (by Mark Hutchins) for t= he Board. There was an explanati= on of why the proposed location was important to other cell tower locations. The report concluded that a 130ft. monopole structure, expanda= ble to 150ft was reasonable in this case and had been justified by the applicant’s submissions. Attorney Wilkins said they were content with the proposal Mr. Hutchi= ns made. They would still seek t= he variance for a 150ft. tower. =

Mr. Gowan said on behalf = of the Board he engaged Mr. Hutchins based on his proposal compared with another.<= span style=3D'mso-spacerun:yes'> He concurred with the interpretati= on of the document and pointed out that the report was done by a third party peer review.

Attorney Wilkins reviewed= the variance criteria (following is the information submitted): <= /p>
1.= The variance will not be contrary to the public interest because: The requested area variances will not = be contrary to the public interest; indeed, it will promote the public interes= t by improving the provision of wireless communications services in the Town of = Pelham through use= of a multi-carrier Facility, appropriately screened by the surrounding property. The multi-carrier F= acility will also serve the public interest by minimizing the number of new monopol= es, towers or other support structures in Pelham. The requested are variance meet the public interest test set forth in Chester. Id. At581. The Facility will conf= orm to the general purposes of the Pelham Zoning Ordinance, at S. 307-2 and the performance standards for wireless facilities at S. 307-56. =

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e: The Applicant has an immediate and compelling need for a Facility in this area = of Pelham. This site is appropri= ate due to is topography, its location and proximity to the area requiring serv= ice. Specifically, the site is uniquely situated because of the surrounding terrain, high tree canopy and location below the top of the closest hill.

“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 Applicant has an immediate and compelling need for a Facility in this area = of Pelham. The proposed tower he= ight is necessary to provide wireless service to the target coverage area. Due to the narrow shape of the lot= , the tower cannot be sited without variances for setbacks from lot lines and for fall zone.

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: = As noted above and as amply demonstrat= ed by the radio frequency coverage maps submitted with this application, the Faci= lity must be 150ft. high, necessitating lesser side yard setbacks and a fall zone than set forth in S. 307.58C.2. The Facility has been carefully sited to minimize the required setback and fall= zone variances; despite the narrow lot shape, the Facility will be located 560ft. and 629ft. from the southerly (front) and southeasterly property lines, respectively. With respect to= the fall zone, the Facility will be located 369ft. +/- from the house on the subject property and 303ft. +/- from the house on the adjacent property to = the northwest.

3. The Variance is consis= tent with the spirit of the ordinance because: AT&T’s proposal is designed and located to protect property values and reduce or eliminate adverse impacts including, but not limited to impacts on visual, environmental and historical resources and to flight corridors, health, saf= ety and prosperity. AT&T̵= 7;s proposed Facility will allow for future co-location by other carriers. The proposed Facility will not be located within the Aquifer Conservation or Wetlands Conservation District, = or within a floodplain. The prop= osed Facility conforms to the general purposes of the Pelham Zoning Ordinance. <= o:p>

4. Substantial justice is= done because: Substantial Justice would = be done by granting the area variances. The substantial gap in coverage cannot be closed by any other feasib= le means, and use of the subject site is necessary for the Facility. The proposed Facility will improve= the provision of wireless communications services in the Town of Pelham in an area that currently has a significant gap in coverage. = See Daniels, 953 A.2d at 414 (“A tower at this site would also serve the public interest in that it would alleviate a significant gap in coverage and would be used to provide service for at least two other wireless telecommunications companies to limit the need for any further towers. In addition, Omnipoint showed that substantial justice would be done in granting the variances because it was = the only reasonable way to remedy an existing gap in coverage.”)

5. The value of the surro= unding properties will not be diminished because: AT&T’s proposed Facility has been carefully sited to minimize adverse impacts to surrounding properties. The tower’s location approximately 100 feet below the crest of the nearest hill, high tree canopy and terrain will minimize its visibility from surrounding properties. =

Attorney Wilkins told the= Board that they had offered the Police and Fire Departments location on the tower consistent with their stated needs.

Mr. McNamara asked for clarification regarding the energy absorption of the pine trees and what it would do to the trees. A gent= leman (who was in attendance with Attorney Wilkins) came forward and explained th= at the trees essentially blocked it (the energy); there were special relations= hips at different points in the spectrum. He discussed how energy being transmitted was diminished by the tree= s.

Mr. Molloy asked if there= would be any more than five carriers on the pole. Attorney Wilkins said they were bu= ilding the pole to accommodate as much as was reasonably appropriate. He said if a sixth carrier came in= and the pole was structurally sound they wouldn’t say no.

There was no public input= .

Mr. Gowan said if varianc= es were granted the plan would then go to the Planning Board for site plan review.<= span style=3D'mso-spacerun:yes'>

Mr. Hennessey discussed h= is observations from the site walk. He said he couldn’t see the balloon and could attest to the fact that the tower would be well hidden. H= e was surprised and pleased on the lack of impact on abutters. He said it would be hard to argue = that the site was not good for the pole.

Mr. McNamara agreed that = the location was good in terms of concealing the pole. He asked how much the pole weighed= . Attorney Wilkins didn’t have= that information. Mr. McNamara not= ed that there was no structure close to the fall zone. He believed the variance criteria = was clearly addressed by the fact that there was a problem with coverage in the= area and the information contained in the letters that both the Police and Fire submitted. He confirmed that = there were currently no ‘takers’ for co-location. Attorney Wilkins said there were prospects and anticipated more than one.&n= bsp; Mr. McNamara suggested that the Board accept Mr. Hutchins’ vie= w of the pole being 130ft.

Ms. Paliy said if the tow= er were to be allowed, she felt the height should be too so people would have their choice of providers. Mr. McNa= mara felt the height should stay at 130ft. to keep the visual intrusiveness to a minimum. Ms. Paliy said the abutters didn’t care; there was no one present and there were no objections at the last meeting either by testimony or by written correspondence.

Attorney Wilkins reiterat= ed that the application was for a fall zone variance for a 150ft. tower. Mr. McNamara asked if they were to= allow the variance for 150ft. if there could be an understanding with the applicant would built to 130ft. at = this point and have the additional 20ft. (for the future). Attorney Wilkins believed the appl= icant should only have to come before the Board once.

Mr. Molloy asked if the simulations in the pictures were at 130ft. or 150ft. Attorney Wilkins said they were at 150ft.

Ms. Paliy said she would = have a hard time approving 130ft. because it may limit the carriers that may want = to locate on the tower. She said= the added height could mean the difference in coverage, which was important.

Mr. McNamara said Mr. Hutchins’ report read that 130ft. tower (with expansion to 150ft.) was reasonable and justified at this point.&nb= sp; It was understood by the Board that the approval would be 130ft. expandable to 150ft. and the applicant would not have to come back to do the expansion. It was also unders= tood that the approval was not for = the tower to be 150ft. expandable to 170ft.&nb= sp; Mr. Gowan believed it served the public’s interest to have five carriers on the tower and if the variances were granted he would be recommending to the Planning Board that they approve the tower at 150ft.

Mr. Hennessey asked that = the Board review the reasons why they would grant an approval in anticipation t= hat some of the abutters may end up changing their mind. In his point of view the applicant’s reading of the criteria was one of the best he heard beca= use it provided reasons. He felt = the applicant had sited the property properly, there was a reason the tower was being sited where it was, the benefits to the Town were clear and the detrimental impact on abutters= was minimal. He didn’t see = anything under the Boccia or Simplex criteria to oppose the variance.

Mr. Molloy agreed and add= ed with the correspondence provide by the Fire and Police the tower was in the publ= ic interest.

Ms. Paliy agreed. She said in the past ten years people’s minds had changed and were relying more on cell phones. She said the abutters not being pr= esent or having an issue like there had been in the past with a previous case sho= wed her something.

Mr. McNamara said the Board’s responsibility was to uphold zoning until the Town changed it. He felt in this case the applicant had made a very strong case for both the use and the area variance being granted. He said the is= sue was still a balancing act under the communications act. In this particular case he felt th= ere was a substantial amount of evidence that the particular site was in an appropriate location.

The Board did not have “area” variance voting slips.&= nbsp; The began by addressing the “use” variance.

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria – with stipulation of 150ft.

Mr. McNamara – Ye= s to all criteria – with stipulation that the height of the tower including = the

20ft. extension is limi= ted to 150ft.

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. LaFrance – Ye= s to all criteria

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

USE VARIANCES GRANTED

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

The “area” vo= ting slips could not be found; the Board altered the “use” voting sl= ips for the vote.

Mr. McNamara read each cr= iterion aloud so the members were clear regarding what they were voting on.

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria – 150ft. limit stipulated

Mr. McNamara – Ye= s to all criteria – note: using instead of the three items listed, using the= a) b) portions of the Boccia test of hardship. Height restriction as recorded.<= span style=3D'mso-spacerun:yes'>

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. LaFrance – Ye= s to all criteria

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

AREA VARIANCES GRANTED

HEARINGS

9:28pm

Case #2416 MAKO De= velopment LLC - [off] Old Gage Hill Roa= d - Map 25 Lot 12-33 – Seeking= an “Area” Variance to Article III Section 307-12, 307-13,B-1 & 307-14 to permit a residential subdivision of a parcel into (2) two lots, o= ne having 50.44’ and the other having 52.69’ of frontage on Old Ga= ge Hill Road, and the construction of houses on the two proposed lots.

Attorney William Mason, representing the applicant, told the Board that he had been asked to participate in the case on Wednesday of the last week. In reviewing the materials he want= ed the Board to know that the applicant was participating in a development in the = Windham, NH village district. He stated t= hat he had attended public discussions for such and indicated at one or two of the public discussions Ms. Paliy spoke.

Ms. Paliy asked if Attorn= ey Mason wanted her to sit out for the discussion.&= nbsp; Attorney Mason said Ms. Paliy would have to make that decision. He stated that he made his client = aware of the fact and was told to present the information to the Board.

There was a brief discuss= ion in which Ms. Paliy didn’t feel she had a conflict, but had the desire to= leave the meeting early. Ms. Paliy appointed Mr. Kearney to vote in her absence. Vice Chairman Molloy conducted the remainder of the meeting.

Mr. Hennessey read the li= st of abutters aloud. There were no persons present who had a problem with notification or who didn’t have their name read aloud.

Mr. Peter Zohdi of Herbert Associates reviewed the plan for the Board. He stated the proposal was to subd= ivide the parcel of land into two lots and transfer some of the land; one lot would be 6.041acres with 50.44 ft. frontage and the other lot wo= uld be 9.82 acres with 52.69ft. of frontage on Old Gage Hill Road. Parcel ‘A’ on the plan= set containing 3.109 acres would be separated and given to the abutter. Mr. Zohdi reviewed the packet of information provided to the Board. The applicant was requesting relief from zoning in regard to frontage requirements where 200ft is required. They were willing to add a note to the plan indicating ‘no fur= ther subdivision’ of the parcel. They would also place a conservation easement on the two parcels (working with the Planning Board for such).

Mr. Hennessey asked what = the high and dry are was for the nine acre lot.&nbs= p; Mr. Zohdi said in looking at the lot there appeared to be approximat= ely six acres high and dry. Mr. Hennessey asked if there were any slope issues. Mr. Zohdi said they were complying= with the requirements. They also were = in compliance with each lot having 35,000SF of contiguous high and dry.

Mr. McNamara asked if the= y would be requiring waivers from the Planning Board in the even the variance was granted. To the best of Mr. Zohdi’s knowledge they would request a variance for frontage front the subdivision requirements. Mr.= Gowan said they would also need a special permit for the wetland crossing. Mr. McNamara questioned the purpos= e of transferring the acres into lot 25-12-37. Mr. Zohdi said they were making the abutting parcel square shaped. Mr. McNamara asked if the abutting parcel was located in Dracut, MA. Mr. Zohdi said the abutting parcel= was located entirely in Pelham. <= /p>

Attorney Mason read the v= ariance criteria into the record (as submitted):

1. The variance will not be contrary = to the public interest because: The propos= al will not be contrary to the public interest because it will provide for a relatively low density and low impact with only two houses on 15.8 acres. The proposed use will increase tax= es being paid on 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: There is only 100 feet of road frontage existing on Old Gage Hill Road. Also the presence and configuratio= n of wetlands and relatively steep topography means that this parcel is not easi= ly accessed by constructing a new road.

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because: = There is no contiguous land along Old = Gage Hill Road that can be acquired to increase the frontage and as stated above= it does not appear to be reasonably feasible to acquire road frontage by constructing a new road.

3. The Variance is consis= tent with the spirit of the ordinance because: The requested variance is not contrary to the purposes of the ordinance as stat= ed in Article I Section 307-2 and statements of intent in Article XIII Section 307-88. We are only requestin= g a variance to one of the Zoning requirements and will meet all other setbacks= and codes.

4. Substantial justice is= done because: Approval of this variance = will allow the owner to make reasonable use of this 15.8 acres by creating only = two house lots.

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

Mr. McNamara asked when M= AKO Development purchased the property and if it had been before the Board for a variance request. Attorney Ma= son said they purchased the property four or five years ago and had not been be= fore the Board of Adjustment. Mr. = Zohdi said the property had been before the Planning Board as an open space discussion.

Mr. Hennessey asked if the property was currently in current use.&nbs= p; Attorney Mason didn’t believe that it was.

PUBLIC INPUT

Mr. Kevin Hale, 396 Old Gage Hill Road who was a direct abutter, didn’t see how they had 100ft. of frontage. He discussed the co= ncern with sight distance onto O= ld Gage Hill Road due to the heavy traffic volumes. He also noted that there was a wat= er problem in the area both in the winter and the spring. He reiterated his question of if t= he applicant had 100ft of frontage and wanted the Board to confirm the fact.

Mr. Hennessey read aloud = a letter submitted by Mr. Robert Braciska (co-owner of property at 396 Old Gage Hill Road) who didn= 217;t feel a variance should be granted due to the following: 1) wells running dry and water contamination occurring because of construction; 2) road running close to property; = and 3) aesthetics of property changing – trees being removed. Another point written in was when entering the road sight distance looking to the right was limited; traffic traveling quickly is a safety concern.&nbs= p;

Mr. Hale questioned if th= e matter would be settled at the present meeting.&n= bsp; Mr. Hennessy explained that the applicant was requesting variances, = the matter would still go before the Planning Board for layout etc. Mr. Molloy questioned if Mr. Hale = was recommending a site walk. Mr.= Hale answered yes.

Mr. Arthur Lacroix, Old Gage Hill Road said most of his concerns were safety concerns for that particular spot. He said it was difficult to see ve= hicles coming over the rise. He outl= ined the difficulties with traffic, line of sight and ice in the winter. He felt it was good for the Board = to review the site. Mr. Hennessy= asked if Old Gage Hill Road was a state road. Mr. Gowan answered yes. He noted a state driveway permit would be needed. Mr. Molloy asked if Mr. Lacroix felt he was in jeopardy if the development went in. Mr. Lacr= oix answered yes. He stated he was really concerned about what would happen if blasting occurred. He said he dug a trench so as to n= ot have water problems. With the change in the land he was concerned there would be problems.

Mr. Gowan said some of th= e issues brought up by abutters were more for the Planning Board. He noted that the Board was being = asked to consider the frontage issue. He was unsure if it would be appropriate to conduct a site walk to confirm the viability of the driveway and the context of the land.

Mr. Hennessy asked if the= re would be easements to cross the property for a turnaround. Mr. Zohdi said that was correct; i= t was a requirement of the Fire Department.

Mr. Zohdi addressed the s= ight distance and noted that the state and the Planning Board had jurisdiction o= ver them; it was their responsibility to prove that their sight distance was sufficient. He addressed drai= nage and believed the Planning Board would review the matter and review to make = sure that in pre- and post-development they were not increasing any drainage to = the abutting property or to the road. In reference to wildlife he agreed that he would like to enjoy the wildlife, but a person has the right to develop their land. He said they were required to obta= in a state curb cut and if they couldn’t get it, they couldn’t do the subdivision. He also noted th= at the Planning Board would check their frontage measurements.

Mr. McNamara questioned w= hat changed Mr. Zohdi’s mind about doing a conservation subdivision. Mr. Zohdi said it was the economy.=

Mr. Kearney asked for more information regarding the distance between the driveways. Mr. Zohdi explained how they situa= ted the driveways so there weren’t curb cuts next to each other. Attorney Mason further explained t= hat there would be a shared driveway to a certain point and the drives would sp= lit across cross easements for maintenance.&nb= sp; There would be one curb cut but each owner would have a driveway on their lot. Mr. Zohdi said they designed it to have minimal wetland disturbance.

Mr. Hennessey asked how f= ar from the street the houses would be located.&nb= sp; Mr. Zohdi stated they would be 400ft. from the street. Mr. Hennessey said if the Board wa= lked the site, he would like a flag of where the buildings were located. He confirmed that there would be a stipulation for no further subdivision.&nb= sp; Mr. Zohdi said that was correct.&nb= sp;

The Board agreed to condu= ct a site walk. The site walk was scheduled for D= ecember 13, 2008 beginning at 9am.

The case was date specifi= ed to the January 12, = 2009 meeting.

Case #2418 BOYDEN, Charles - 136 Marsh Road - Map 34 Lo= t 2-14 – Seeking a Special Exception to Article XIII Section 307-76-111= to permit the operation of a General Home Occupation – Landscaping Busin= ess.

Mr. Molloy read the backg= round information into the record. = In summary, the Planning Departm= ent recently became aware that the applicant’s landscaping business had n= ever been granted the required special exception under zoning.

Mr. Hennessey read the li= st of abutters aloud. There were no persons present who had a problem with notification or who didn’t have their name read aloud.

Mr. Molloy informed the B= oard that the applicant plowed for him. He didn’t have a problem remaining impartial for the hearing.<= span style=3D'mso-spacerun:yes'>

Mr. Charles Boyden came f= orward to explain his case and review why he was requesting a Special Exception. He summarized the information that= had been provided to the Board which included photographs of the property. He read aloud the letter of intent previously submitted. He then= read aloud two letters from abutters: George & Carol Brousseau who had no objectio= n to Mr. Boyden conducting business from his property; the second was from Auriel & Theresa Plamondon who also didn’t object to Mr. Boyden conducti= ng business from his property. <= /p>

Mr. Hennessey asked if th= e case was before the Board as a result of a complaint and if there was a letter.<= span style=3D'mso-spacerun:yes'> Mr. Gowan stated someone called a complaint into the Planning Department.&nb= sp; Doing some research it was determined that the procedure had not occurred.

Mr. Kearney asked if ther= e were any signs advertising the business. Mr. Boyden said there was a small unlit sign (approx. 2.5ft. x 2.5ft= .) out front. Mr. Gowan said if = the special exception was granted and went on to the Planning Board the size of= the sign would not be a problem. =

Mr. McNamara discussed the business and commented that it was always well screened and in great shape.= He appreciated the clarity of the submitted diagram.

There was no public input= .

The Board then voted rega= rding the Special Exception.

BALLOT VOTE:

Mr. Molloy – Yes =

Mr. McNamara – Ye= s

Mr. Hennessey – Y= es

VOTE:

Mr. LaFrance – Ye= s

Mr. Kearney - Yes

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

SPECIAL EXCEPTION GRANTED

SITE WALK – December 13, 2008 – = 9am

Case #2416 MAKO Development LLC - [off] Old Gage Hill Road - Map 25 Lot 12-33 – Seeking= an “Area” Variance to Article III Section 307-12, 307-13,B-1 & 307-14 to permit a residential subdivision of a parcel into (2) two lots, o= ne having 50.44’ and the other having 52.69’ of frontage on Old Ga= ge Hill Road, and the construction of houses on the two proposed lots.

DATE SPECIFIED PLANS – January 12, 2009

Case #2416 MAKO Development LLC - [off] Old Gage Hill Road - Map 25 Lot 12-33 – Seeking= an “Area” Variance to Article III Section 307-12, 307-13,B-1 & 307-14 to permit a residential subdivision of a parcel into (2) two lots, o= ne having 50.44’ and the other having 52.69’ of frontage on Old Ga= ge Hill Road, and the construction of houses on the two proposed lots.

MINUTES

November = 10, 2008 – deferred.

ADJOURNMENT

MOTION:

(McNamara/Kearney) To a= djourn the meeting. <= /b>

VOTE:

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

The meeting was adjourned= at approximately 10:38 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary