BOA 11-9-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 9, 2009

The Chairman called the meeting to order at approximat= ely 7:00 pm.

The acting Secretary Peter McNamara called rol= l:

PRESENT:

ABSENT:

Robert= Molloy, Svetlana Paliy, Peter McNamara, David Hennessey, Alternate Bill Kearney, = Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

Kevin O’Sullivan, Alternate Lance Ouellette

Mr. Molloy appointed Mr. = LaFrance to vote in Mr. O’Sullivan’s absence.

HEARINGS

Case #2429   &nbs= p;      Fichera, Frank Jr. & Crooker, Constance /52 Dutton Road Map 36 Lot 10-358 seekin= g an “Area” Variance to Article III, Section 307-12 to permit the subdivision of land to allow two lots without 200 feet of frontage.

Mr. McNamara read the list of abutters aloud. There were no persons present who= did not have their name read, or who had difficulty with notification.

Attorney Paul DeCarolis of Gottesman & Hollis, representing the applicant, came forward to discuss= the variance request. He showed t= he Board two plans, one being the potential development of the property (witho= ut the variance) showing seven developable lots (that complied with the zoning ordinance) and the other being the proposed plan to create two lots (each containing approximately 2.5 acres) without the construction of a Class V r= oad. He stated if the plan was approved= , the applicant would need to go to the Planning Board for a subdivision approval= of the lots and driveway design. Attorney DeCarolis stated they are proposing a less intensive use for the property than what is permitted under the Zoning Ordinance, for which t= hey are requesting a variance. The existing right-of-way currently services two homes coming in off Diamond Hi= ll Road, and would continue to do so as well as serving the two proposed lots.

Attorney DeCarolis review= ed the variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: The propos= ed use is for two residential lots which are permitted in the zoning district. The variance request does not conf= lict with the zoning ordinance’s basic zoning objectives. <= /p>

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 unique in that the area to be developed is set back approximately 450 feet from Diamond Hill Road.&nb= sp; The proposed use is allowed under the zoning ordinance and therefore presumed to be reasonable. The other special condition is that if the variance is denied a Class V road wo= uld be built which would allow the development of the property into four residential lots.

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 construction of a Class V roadway = will involve significant disturbance of the land and to the neighborhood and wou= ld cost approximately $200 per lineal foot.&n= bsp; It would also require that the Town maintain the roadway which would essentially be privately used. If a public road is built in lieu of the proposed private drive, the property wo= uld include four lots rather than two.

3. The Variance is consis= tent with the spirit of the ordinance because: The proposed use is allowed and all other setback and zoning requirements will = be met. It preserves more of the= land and increases the separation between homes.

4. Substantial justice is= done because: The proposed use will mini= mize the disturbance to the land, minimize expense to the town, minimize the imp= act to the neighborhood, state approved septic systems will be installed and th= ere will be no threat to public health, safety or welfare.

5. The value of the surro= unding properties will not be diminished because: The proposed use will be consistent= with the uses in the neighborhood as the use will be limited to residential. The proposed use is a less intensi= ve use than what is permitted under the zoning ordinance.

Attorney DeCarolis believ= ed the request fell squarely within the criteria for a variance and asked for the Board’s approval.

Mr. Hennessey questioned = why the application had changed from the proposal before the Board a year ago. He stated that the same parcel had= come before the Board in 2008 for a single lot.= Attorney DeCarolis stated he wasn’t aware of the earlier application until speaking with the Planning Director on the phone last week. It was his understandin= g that the Zoning Board had recommended that it go before the Planning Board. Mr. Hennessey reviewed the minutes of the meeting (in 2008) where the applicant’s representative (Peter Zohdi of Herbert Associates) reques= ted to table the plan without prejudice so he could meet with the Planning Board and later come back to the Zoning Board; rather than date specifying the pl= an, it was suggested that Mr. Zohdi withdraw his plan without prejudice. It was noted if the plan was resub= mitted the abutters would be re-notified. &n= bsp; Mr. Hennessey asked how the applicant had done in front of the Plann= ing Board. Attorney DeCarolis reiterated that he didn’t know that the plan had gone before the Zoni= ng Board or Planning Board before the application was submitted. It was his understanding that the current application was significantly different from the plan submitted in = 2008 so it could be considered new. Mr. Hennessey reviewed the application and commented that there was no frontage. Attorney DeCarolis = stated that there was frontage for the (9.5 – 10 acre) parcel on Dutton Road= ; they proposed to subdivide the property which would then have 50ft. of frontage = on the right-of-way coming in off Diamond Hill Road.&nb= sp; He reviewed a plan done in 1996 and how the lot would have no less t= han a 50ft. right-of-way when subdivided. Mr. Hennessey said Mr. Zohdi stated (in the 2008 application) the lot would have zero frontage.

Mr. Gowan recalled that t= he lot they wanted to cut out (in 2008) didn’t touch the right-of-way. He said in the current configurati= on, it appeared each lot would have 25ft. <= /span>

Mr. Hennessey said the la= nd on Dutton Road= (according to last year’s application) had only 102ft. (of frontage) and would require a variance. He said t= he Board was looking at (if the variance was approved) two undersized lots. It was Attorney DeCarolis’ understanding that there was 200ft. of frontage on = Dutton Road shown on the plan. He stated that the applicant had a= copy of the plan approved by the Planning Board in 1992 (Recorded in the Registr= y of Deeds #263) that also shows 200ft. of frontage on Dutton Road. Mr. Hennessey said the previous pl= an noted that the barn would be razed and questioned if it was encumbered under the state law allowing for reduced taxes.&= nbsp; He requested a stipulation that it was not encumbered.

Mr. Frank Fichera, 50 Dutton Road stated that the barn being discussed was not a historic barn and was actual= ly a shed for all intents and purposes. He said they currently paid taxes on it and it would be torn down ne= xt year. Mr. Hennessey questione= d if there had been a reduction in taxes per the 2002 RSA. Mr. Fichera was not aware of a reduction.

Attorney DeCarolis stated= that they would be willing to go to the Planning Board, but felt the application= was different enough from whatever previous application was submitted that they= could probably go forward. He knew = that the abutters may be concerned with the driveway access, drainage etc. which were Planning Board issue and suggested it might be a case for a joint meeting. He said they didn= 217;t have a problem ‘tabling’ the case to seek input from the Planni= ng Board prior to making a decision.

Mr. Hennessey said he wouldn’t have a problem tabling the case.

Mr. McNamara stated he wouldn’t have a problem tabling the case. He said his difficulty with the ca= se was the same that he raised last year; when the surrounding properties were developed (per the meeting minutes dated October 7, 1996) the Planning Dire= ctor (John Tucker) recommended that the right-of-way going to ML10-358 (with the proposal for a driveway for two houses) be constructed to Town road standar= ds so that in the future the driveway would not have to be torn out for a road= to go through, the owner of the property was in agreement with this recommenda= tion as well as the applicant. He = said it was clear that there was an expectation at that time if the land were to= be developed it would be done by way of a road. He felt it would be a good idea to= have a joint meeting with the Planning Board and he wanted to hear from abutters= to get an idea of their concerns.

Attorney DeCarolis review= ed the minutes from the October, 1996 meeting which he felt were vague and thought they meant that the (then) applicant should have built the road to Town standards at that time.

PUBLIC INPUT

Mr. Dennis Habib, 37 Diamond Hill Drive, told the Board that he had a tax map that showed 200ft. of frontage on Dutton Road= . He didn’t understand what the hardship was to put a cul-de-sac in from Dutton Road. He said when he purchased his prop= erty in 1996 he was guaranteed by the Town that any access to the back property = was to be used, it would be through a Town road built to Town specifications. He said with four people using one right-of-way he wanted to know who would maintain it, who would argue about= it and how he would sell his house (if he decided to) with three other people using the right-of-way.   He was located to the right of the right-of-way. Mr. Habib said he had no problem w= ith someone using their property to build and would be all for it if they wante= d to construct a road and maintain it. He believed his property value would be reduced if he tried to sell. He said he would like t= he Board to conduct a site walk to see the parcel.

The Board discussed how t= hey would proceed. They decided t= o have a joint meeting with the Planning Board.&n= bsp;

The case was continued to= December 14, 2009; abutters would not receive further notification regarding Zoning Board of Adjustment meetings. In the meantime, the applicant would have information submitted to the Planning Bo= ard.

MINUTES

October = 15, 2009

MOTION:

(McNamara/Hennessey) To= approve the October 1= 5, 2009 meeting minutes as written.

VOTE:

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

ADMINISTRATIVE BUSINESS

Review ZBA By-Laws and discuss changing the appeal periods so th= at they are all 30 days rather than 20 & 30 days.

Mr. Gowan stated that dur= ing a recent consultation with Attorney John Ratigan (Town’s Attorney), he = was advised that the Board should consider changing all the appeal periods to thirty (30) days. He said cur= rently the By-Laws read that appeals of Administrative Decisions or appeals of Planning Board decisions that are based on Administrative Decisions have a twenty (20) day appeal period, where as other decisions have thirty (30) day periods. Attorney Ratigan dre= w Mr. Gowan’s attention to RSA 676:5 (appeals to the Board of Adjustment) s= tipulates that such appeals shall be taken in a reasonable amount of time provided by= the rules of the board. Mr. Gowan stated that having appeal periods all be thirty (30) days would be simpler = for his staff and for him when advising applicants. It also would give applicant’= ;s ten days more to appeal.

Mr. Hennessey stated that= he had three issues to discuss: 1) policy to allow applicant’s to pull back their application in the absence of a majority of membership. He said if the Board wanted to keep allowing it, it should be included in the By-Laws. There was no objection. 2) Participation of alternates. He said named alternates should be= able to be involved in the discussion, however, unless appointed to vote, altern= ates should cease their discussion at the point the Board deliberates. 3) Public notice. Mr. Hennessey asked if the Town pl= aced notice in the newspaper. Mr. = Gowan said they did for every hearing. Mr. Hennessey said it wasn’t necessary based on recent classes= he took. He said public posting = was the requirement and suggested the Board seek Counsel’s opinion. Mr. Gown stated that he would seek Counsel’s opinion and pull together language for meeting postings. Mr. McNamara read aloud a portion = of RSA676:7 which outlined notification requirements.

The Board decided to revi= ew the By-Laws and have further discussion at their next meeting.

Mr. Hennessey stated that= the law was changing regarding area variances and asked that the Board review a moc= k up of the new ballot that would be used in January. He believed it should be approved = at the next meeting.

Mr. Gowan suggested that a meeting be set up with Town Counsel to update the Board on recent laws.

ADJOURNMENT

MOTION:

To adjourn the meeting.=

VOTE:

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

The meeting was adjourned= at approximately 8:00 pm.

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

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

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