BOA 5-11-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 11, 2009

The Vice Chairman Robert = Molloy called the meeting to order at approximately 7:00 pm.

The Secretary Kevin O’Sullivan called roll:

PRESENT:

ABSENT:

Svetla= na Paliy (arrived at the end of the meeting), Robert Molloy, Kevin O’Sulliva= n, Peter McNamara, David Hennessey, Alternate Bill Kearney, Alternate Chris LaFran= ce, Planning Director/Zoning Administrator Jeff Gowan

Altern= ate Lance Ouellette

Mr. Molloy appointed Mr. = Kearney to vote in Ms. Paliy’s absence.

ELECTION OF OFFICERS

Nomination of Robert Moll= oy for Chairman was made by Mr. O’Sullivan, motion seconded by Mr. McNamara. Mr. Hennessey made a motion to close nominations, Mr. O’Sullivan seconded the motion.

MOTION:

(McNamara/O’Sulli= van) To elect Robert Molloy as Chairman.

VOTE:

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

Nomination of Svetlana Pa= liy for Vice Chair was made by Mr. McN= amara, motion seconded by Mr. O’Sullivan.

MOTION:

(McNamara/O’Sulli= van) To elect Svetlana Paliy as Vice Chair.

VOTE:

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

Nomination of Kevin O’Sullivan for Secretary was made by Mr. McNamara, motion seconded by= Mr. Molloy.

MOTION:

(McNamara/Molloy) To el= ect Kevin O’Sullivan as Secretary.

VOTE:

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

CONTINUED

7:06

Case #2422 Applica= nt: NEW CINGULAR WIRELESS PCS, LLC (AT&T)&= nbsp; c/o Douglas H. Wilkins - Owner: ZOLKOS, Charles & Janice - 1 Bush Hill Road - Map 27 Lot 2-81 – Seeking “Use” Variances to Articles II, III, IV, V, X, XIII –Sect= ions 307-6, 307-7, 307-12, 307-16(A), 307-18, 307-58(B)(3) of the Zoning Ordinan= ce to permit a Personal Wireless Service Facility and Tower use on property situated in the Residential Zone,= not in the Telecommunications Overlay Zone, and with access from a Class VI hig= hway known as Gumpas Hill Road

Attorney Doug Wilkins of = Anderson Krieger, Attorney for AT&T came forward and stated that at the previous meeting the application was reviewed. He said few questions were raised, such as whether the facility coul= d be built with access on a Class VI road and whether the Board had the power to grant a variance to allow no frontage on a Class V road (or better). Attorney Wilkins hoped that a site walk/balloon test could be scheduled. He also assumed that the Town would want to engage an independent ra= dio frequency engineer. He stated= that a letter had been submitted April 21, 2009 addressing the Board’s questions citing RSA 674:41,1.

Mr. Gowan said he concurr= ed with the applicant’s comments. He stated that he sought legal counsel regarding the questions. He read aloud an e-mail he received (rather than the formal communication) which indicated that the closure of = Gumpas Hill Road had been reviewed. Per RSA 674:41,1,C there was a means of permitting the applicant’s request by allowing the Selectmen, following review/comment by the Planning Board, to issue building permits for the erection of= buildings on Class VI roads. Mr. Gowan continued to review the e-mail which had information for t= he Planning Board to follow.

Mr. Hennessey questioned = if the application for frontage was moot based on legal’s opinion. Mr. Gowan said that was not stated= . He believed the variance was still required because the applicant couldn’t meet the standard that was in Zoning. He said the variance = itself was not enough, the applicant would need the variance as well as the permis= sion of the Selectmen. Mr. Henness= ey said if the Board chose to not grant the variance it appeared they could do= so based on some of the items cited in the attorney’s correspondence. Mr. McNamara felt it could be fact= ored in. Mr. Hennessey said for the abutters he was interested not only in the fear of additional development; = the development of houses was different than the permission to build a cell tow= er. He said it was clear that just bec= ause a variance could be granted for a cell tower, it didn’t immediately ope= n it up for development. He was interested in reviewing the site to see the impacts of opening it up for maintenance. He was concerned= with the traffic onto the site once it was opened.&= nbsp; He wanted to know how the abutters would be impacted.

Mr. Gowan said legal addr= essed the access concern and commented that the improved roadway could not be used for frontage because it was closed by gates and bars per Town meeting, which would need the vote of the Town Meeting to remove such.

Mr. Hennessey wanted a si= te walk scheduled. Attorney Wilkins w= as in favor of a site walk. There w= as a discussion about what height to have the balloon test done. Attorney Wilkins stated that they c= ould put balloons at various heights. Mr. Gowan asked that the balloon show the highest point of the tower= as well as 20ft. above that height to show the allowed one-time extension of w= hich to show the growth potential. Mr. McNamara asked if the road could be staked. Attorney Wilkins said they would.<= span style=3D'mso-spacerun:yes'> There was a brief explanation abou= t the difficulties with having the balloon remain in place for a period of time; weather/wind is also a factor when conducting a test.

A site walk was scheduled= for May 30, 2009 at= 9am. The rain date would be May 31, 2009. Mr. Gowan will notify and invite t= he Planning Board and the Conservation Commission members to attend the site walk. The site walk would beg= in at the point of the proposed access.

Attorney Wilkins asked if= the Board desired an outside consultant to review the Radio Frequency report. <= span style=3D'mso-spacerun:yes'> There was a general consensus of the Board to have an outside consultant review the radio frequency information = as they had for the previous tower (on Rocky Hill Road).&n= bsp; Mr. Hennessey wanted the abutters to know that the federal law preem= pted the local discretion regarding radio frequency and impact there wasn’= t a lot the Board could do. Mr. G= owan will contact Mark Hutchins to review the radio frequency information. Mr. McNamara wanted Mr. Hutchins t= o pay specific attention to the coverage of the second tower as it related to the first tower (on Rocky Hill= Road).

PUBLIC INPUT

Ms. Lisa O’Rourke, = 132 Mammoth Road asked if comment had been received from the Conservation Commission. Mr. McNamara said requesting comme= nt from the Conservation Commission was more a function of the Planning Board.= Ms. O’Rourke asked if Raythe= on would be allowed to buy a spot on the tower. She said Ms. Paliy raised a questi= on at the last meeting. Mr. Henness= ey said Raytheon had been granted a variance for an expansion of their site it wasn’t a tower. He wasn’t sure what Ms. Paliy was asking. He said Raytheon was not a direct abutter; they didn’t have a tower, except to test their radar. Ms. O’Rourke questioned the lot’s zero frontage. Mr. Hennessey said frontage is what the Board had been discussing. The Board had been told by both the applicant and legal counsel was yes, the Board could grant a variance. Ms. O’Rourke asked if anyone= could attend the site walk. Mr. Hen= nessey said the site walk was a public hearing, and anyone could attend.

The variance request was = date specified to June= 8, 2009.

7:36pm

Case #2420 COLEMAN, William & SCIRE, Connie -= 51 Bearhill Road - Map 20 Lot 3-133 – Seeking= an “Area” Variance to Article III, Sections 307-12, 307-13 (B.I) a= nd 307-14 to permit the creation of two (2) lots with 25.80 feet of frontage on lot 3-133 and 25.81 feet of frontage on lot

3-133-1 on Bear= hill Road and the construction of a house on lot 3-133-1.

Mr. O’Sullivan read= the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification.

Attorney Bill Mason, repr= esenting the applicants, and Mr. Peter Zohdi of Herbert Associates came forward to discuss the variance request. Attorney Mason provided the Board with a description of the parcel a= nd how the subdivision was proposed. Currently Bearhill = Road ends in a temporary cul-de-sac and the applicant accesses their lot over the 50-foot right-of-way that was left at the end of the street. The applicants would like to have = two lots (one existing, one new) have access through the end of the cul-de-sac = at Bearhill Road and create two lots with access from Mammoth Road. The applicant is seeking relief for frontage. Attorney Mason told the Board that= the applicant’s had spoken with their immediate neighbors on Bearhill Road and had letters of consent from them. He said his client contacted the owner of Lot 3-130- had been contac= ted and was not opposed to the proposal although they had nothing in writing.

Attorney Mason read aloud= the variance criteria as follows:

  1. The variance will not be contrary = to the public interest because: It will al= low an existing dwelling to remain on 1.155 acres parcel as currently accessed fro= m Bearhill Road and will permit one additional ne= w dwelling on a 2.207 acre parcel with sufficient access and spacing from neighboring homes.

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: Given the existing structures presently located on the property, the elimination of the present cul-de-sac and the extension of the road into an area of relatively steep terrain does not represent a reasonable planning alternative.

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: = It would not be cost effective nor ben= eficial to the Town to extend Bearhill Road to create another cul-de-sac to be maintained by the Town when the access and spacing of the buildings can be achieved with this requested variance.&nbs= p;

3. The Variance is consis= tent with the spirit of the ordinance because: The requested variance is not contrary to the purpose of the Ordinance as state= d in Article I, Section 307-2 statements of intent in Article XIII, Section 307-88. Only a single relief = is requested all other zoning, subdivision and code requirements will be met.<= span style=3D'mso-spacerun:yes'>

4. Substantial justice is= done because: It will allow the owners t= o make reasonable use of their property.

5. The value of the surro= unding properties will not be diminished because: The proposed homes will be of comparable or greater value than the neighboring properties.    =

The letters of consent we= re provided to the Board. Mr. Mo= lloy noted that the letters were submitted by Dough Hirsch, Robert and Florine Hirsch, Geraldine Barrie, Svetlana Stegalkina and Kirill Kalnin.

Mr. Hennessey asked if th= e lot had been subdivided. Mr. Zohdi answered no. Mr. Hennessey fe= lt the variance request was premature because if approved it would carve two lots = out and make a temporary cul-de-sac permanent.= He said there were provisions for joint meetings with the Planning Board.

Mr. McNamara told the Boa= rd when Bearhill Road was put in a 50-foot right-of-way was left to extend the road farther in. He said if the relief was granted,= the intent of the Planning Board would be destroyed in order to subdivide the parcel. He also commented tha= t the plan called for adding two driveways onto Mammoth Road, as opposed to extendi= ng the road through Bearhill.

Mr. Hennessey questioned = how the Board would grant a variance for two lots that didn’t exist. Attorney Mason said they couldn= 217;t go to the Planning Board without the variance. He said they were showing the Boar= d the plan that would be brought to Planning.&nb= sp; Mr. McNamara commented that they could bring the plan to the Planning Board as a conceptual plan because he felt there would be some strong opinions. He also commented t= hat the lot shapes were crazy.

Mr. Hennessey understood = what Attorney Mason said about not being able to bring the plan to the Planning Board. He said they would nee= d to have a joint meeting.

Mr. Gowan said the Board = had the ability to conduct joint meetings with the Planning Board and the Conservat= ion Commission.

Attorney Mason said he didn’t have a problem with having a joint meeting with the Planning Board. He discussed the cul-d= e-sac and said additional facts would need to be researched regarding the rights = to extend it.

PUBLIC INPUT

Mr. Greg Nickerson, 28 Blue Jay Drive was curious how the items on the lots were situated, such as the 4K areas.<= span style=3D'mso-spacerun:yes'> Mr. Zohdi explained what the 4K ar= eas were and the requirements of the state law to be able to show a reserve are= a. Mr. Nickerson understood that ther= e were supposed to be two buildings, but saw on the plans that three buildings were represented. Mr. Zohdi stated= that they were proposing four lots. Attorney Mason said there would be three additional houses on the parcel; one from Bearhill = Road and two from Mammoth Road<= /st1:address>. There is an existing house off Bea= rhill.

Mr. John Jeanson, 239 Mammoth Road (owned lot 3-134-1) stated that he had been in front of the Board in 2006 f= or a different proposal for the same lot that never went anywhere. His concern with the development w= as the surveyed lot line, specifically with the abutting lot 3-133-3. He explained that the surveyed line running between the properties was off and ran approximately 100ft. onto his property. Mr. Mr. McNamara as= ked if Mr. Jeanson had the property surveyed.&nbs= p; Mr. Jeanson said the land was surveyed August 12, 1987 when the property was built. He reiterated that he = had no problem with the applicant’s proposal. Mr. McNamara asked if there was a discrepancy of 100ft. along the entire lot line. Mr. Jeanson said beginning at Mammoth Road the mark is correct, but as the line runs toward Raytheon it skews. He said he knew where his markers were. Along the back of the p= roperty was an original field stone wall that had pins inserted when Mr. Jeanson had his lot surveyed. He noticed = that a red flag was hung in a tree approximately 100ft. onto his property and assu= med that it was the surveyed line done for the proposed. Mr. Hennessey said the surveying w= as beyond the scope of the Board, but was sure that Herbert Assoc. would check their surveying because no one would want a cloud on their title. Mr. Jeanson reiterated that he had= no problem with the proposal, but for his own satisfaction he wanted to know t= hat there would be a stone marker. He wanted his point known if there was any issue later on. Mr. Hennessy suggested that Mr. Je= anson meet with Mr. Zohdi’s surveyors to confirm the points.

The Board discussed how t= hey would proceed. Mr. Zohdi felt= it might be difficult to schedule a joint meeting and if the Board would allow, they would present the plan to the Planning Board as a conceptual plan.

The plan was date specifi= ed to the July 13, 200= 9 meeting. The abutters would n= ot be re-notified of the hearing. M= r. Gowan advised that the abutters be notified of the Planning Board meeting if the Planning Board would be making a recommendation to the Board of Adjustm= ent. Mr. Zohdi said he would apply to t= he Planning Board as a public discussion and notify the abutters.

DATE SPECIFIED CASES

June 8, = 2009

Case #2422 Applicant: NEW CINGULAR WIRELESS P= CS, LLC (AT&T) c/o Douglas H. Wilkins - Owner: ZOLKOS, Charles & Janice - 1 Bush Hill Road - Map 27 Lot 2-81 – Seeking “Use” Variances to Articles II, III, IV, V, X, XIII –Sect= ions 307-6, 307-7, 307-12, 307-16(A), 307-18, 307-58(B)(3) of the Zoning Ordinan= ce to permit a Personal Wireless Service Facility and Tower use on property situated in the Residential Zone,= not in the Telecommunications Overlay Zone, and with access from a Class VI hig= hway known as Gumpas Hill Road

July 13,= 2009

Case #2420 COLEMAN, William & SCIRE, Connie - 51 Bearhill Road - Map 20 Lot 3-133 – Seeking= an “Area” Variance to Article III, Sections 307-12, 307-13 (B.I) a= nd 307-14 to permit the creation of two (2) lots with 25.80 feet of frontage on lot 3-133 and 25.81 feet of frontage on lot

3-133-1 on Bearhill Road and the construction = of a house on lot 3-133-1.

MINUTES

Ms. Paliy arrived.

April 13= , 2009

MOTION:

(McNamara/O’Sulli= van) To approve the Ap= ril 13, 2009 meeting minutes as written. <= o:p>

VOTE:

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

ADJOURNMENT

MOTION:

(O’Sullivan/Henne= ssey) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:10pm.

           &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