BOA 9-14-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 14, 2009

The Vice Chairwoman Svetl= ana Paliy called the meeting to order at approximately 7:00 pm.

The Secretary Kevin O’Sullivan called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Kevin O’Sullivan (arrived after the meeting commenced), Peter McNam= ara, David Hennessey, Alternate Bill Kearney, Alternate Chris LaFrance, Altern= ate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan

Robert= Molloy

Ms. Paliy appointed Mr. K= earney to vote for Mr. O’Sullivan and Mr. Ouellette to vote for Mr. Molloy.<= /p>

Mr. O’Sullivan arri= ved.

HEARINGS

Case # 2399 LU= SSIER, Gerald & DOOLEY, Douglas /Dracut Line Map 39 Lot 1-62 seeking an “Area” Variance to Article III, Section 307-13 (B) 1&2 to p= ermit the subdivision of the parcel into residential lots without direct access t= o a street that is directly accessible to police, fire, medical emergency and school transportation vehicles without these vehicles first having to leave= the corporate limits of the Town of Pelham. Applicant is seeking to amend conditions #1 (Public water connection from Dracut through parcel into Pelham) and = #5 (Emergency access to be provided through Pelham Veteran’s Memorial Pa= rk) of the Variance granted on May 12, 2008.

Mr. O’Sullivan read the list of abutters aloud. There were no persons pre= sent who did not have their name read, or who had difficulty with notification.<= /p>

Attorney Jeffrey Zall, representing the applicants, came forward to discuss the requested variance amendment. He stated they had come before the Board in May, 2008 requesting a variance, w= hich was granted with conditions. = He was now before the Board requesting that two of the conditions be amended to co= mply with conditions that the Planning Board placed on the development in July, 2009.

Attorney Zall explained what the original variance application was for and why it had been requested. His clients o= wn a piece of property (approximately 10 acres) located immediately south of Pel= ham Veteran’s Memorial Park (PVMP) on Long Pond. The property is bounded on the sou= th by the state line and on the north by PVMP.&n= bsp; The property is completely land-locked in Pelham with the only access being from Clement Road in Dracut, Massachusetts. Approximately one year prior to the original variance request, Pelham’s Zoning was amended so a subdivisi= on could not be created that created residential lots without direct access through a street that was directly accessible to police, fire, medical emergency and school transportation vehicles without these vehicles having = to leave the corporate limits of the Town. The property could not comply with = the ordinance because it was land-locked, therefore it was a hardship case. An eight lot subdivision with acce= ss off Clement Road= (a private road) was proposed. Water would be brought in from Dracut Water to service the lots. The developer proposed to provide = public water to the buildings within PVMP, at the developer’s cost. The developer also agreed to creat= e a separate means of egress for emergency purposes for PVMP; a gated gravel ro= ad would be constructed at the end of the cul-de-sac within the development. Attorney Zall stated that the appl= icants had agreed to provide the stated benefits to the Town and on May 12, 2008 a = variance (for case #2399) was granted with conditions.&n= bsp; The reason for the applicant coming back before the Board of Adjustm= ent is in regard to conditions #1- public water connection from Dracut through parcel into Pelham; and #5 -= emergency access to be provided through Pelham Veteran’s Memorial Park.

Attorney Zall stated that during the Planning Board review process, the applicants learned that in order to make any improvements to PVMP it would need to be approved by Town Meeting. He = said the Planning Board approved the plan contingent upon the developer either building/bonding for two of the conditions specified by the Board of Adjustment. He questioned what would happen if the voters turned it down after years of going through the planning process and a great deal of money had been spent. He said with the Planning Board= 217;s approval, the applicant had agreed as a condition of such to build the items specified in the variance, only after the Town’s approval. He said as an alternative, the dev= eloper could post a bond, satisfactorily to the Town and its engineers in an amount equal to pay for the cost of the two improvements. If the Town Meeting does not appro= ve the improvements to PVMP for three years, the Town could use the money for any other Town purpose.

Attorney Zall discussed the Planning Board’s approval conditions from their Ju= ly 20, 2009 meeting: condition #= 4 - In addition to the bond and escrow amo= unts established for restoration, roadway and drainage structures for private portions of the Hawk Ridge Road subdivision the Developer shall post a sepa= rate cash bond or letter of credit in an amount corresponding to Stantec’s estimate of the value of the offsite improvements to PVMP or the Developer = may establish a cash escrow account in the same amount to complete the work himself. Stantec’s esti= mate shall include the detailed design of the roadway and any required wetland crossings, peer review of the design detail, construction of the gravel acc= ess road, installation of the emergency access gates, installation of the water line, hydrant and stub for future water connections and inspection services for t= his work. The Board of Selectmen (‘BOS’) will determine if they support the improvements to PVMP, and will seek authorization at Town Meeting as described in paragraph #5 be= low;     Condition #5= - The Developer shall construct an emerg= ency gated gravel access road and install water lines to a hydrant from the Hawk Ridge Road cul-de-sac to the vicinity of the building located in PVMP as reflected on the proposed improvement plan dated June 1, 2009 and as descri= bed during the Planning Board review process.&= nbsp; Based upon opinion from Attorney Rattigan that the improvements to P= VMP must be approved by Town Meeting, the Developer may satisfy this condition = by paying the cost to construct the improvements described above, which funds shall be held in escrow by the Town until acceptance of the improvements at an annual Town meeting. Upon such accep= tance, the Town shall use the funds to construct the improvements provided that the developer may choose to construct said improvements at that time. In the event that the improvements= are not accepted at a Town meeting after three (3) successive warrants, the fun= ds may be used by the Town of Pel= ham for any other park improvements at the discretion of the Board of Selectmen= . And Condition #6 - Fulfillment of all conditions of the May 12, 2008 decision of the Pelham Zoning Board (‘ZBA’) of Adjustment in Case #2399-ML 39/1= -62 with consideration of the Planning Board’s recommendation to the ZBA decision to include the provisions listed in condition #5 above.=

Attorney Zall asked that = the Board amend its approval granted on May 12, 2008, to amend conditions #1 and #5 to be consistent with conditions #4 and #5 of the Planning Board’s decision= of July 20, 2009.<= span style=3D'mso-spacerun:yes'> He stated that he wasn’t presenting the area variance all over again, he was requesting an amendment= to the variance already granted.

Mr. McNamara said he felt= the applicant had done a good job with their proposal and had satisfied the engineering concerns. He was concerned about the timing of the request for an amendment. He recalled there had been a lot of discussion regarding bringing water to the park and having an emergency acc= ess to the park, which had outweighed some of the concerns that the development= was approximately a mile away from Town roads.= He said nothing material had changed from that time until the present except that the Planning Board approved the subdivision with conditions that varied from the Zoning Board’s conditions. Mr. McNamara believed if an amended variance was now granted there would be no incentive on behalf of the appli= cant to go forward to meet the conditions of bringing water into the park or hav= ing emergency access. Attorney Za= ll said one of the reasons they worked on the condition with the Planning Board was because they realized it may not be approved by Town Meeting and it wouldn’t be fair to the developer to wait three years to begin the project. He said they could p= ost a cash bond so they would be able to begin the development now. He noted that they couldn’t = wait three years to come back to the Board to amend the conditions. Mr. McNamara understood what Attor= ney Zall was stating. Attorney Za= ll recognized that the benefits the applicant was giving the Town was one of t= he things that swayed the Board regarding the public interest issue. He said the developer fully intend= ed to build the improvements because they could be done for less than the bonded amount. He questioned what wo= uld happen if the Town Meeting didn’t grant an approval. Mr. McNamara said if the amended variance were granted, the Town would be able to use the money for a differ= ent purpose, other than that which the variance was originally granted. Attorney Zall felt the issue was m= ore academic based on the complexity of the case. He felt they needed a little more assistance and flexibility so the developer could see the project through to completion. Mr. McNamara stat= ed that his only concern was if the Board was to grant the variance, the devel= oper would have less of an incentive for the developer to push the work. Attorney Zall said they could acce= pt a condition that the developer would continue to be an advocate to the Select= men and to Town Meeting supporting the process through all Town meetings.

Ms. Paliy said it seems t= he developer came to the Board and took on a very difficult project. She didn’t feel requesting leniency because the development was more difficult that originally believed was a good enough reason. She= said it was a very complex case. <= /p>

Planning Director Jeff Go= wan stated that he had been in consultation with the Town’s attorney (Att= y. John Rattigan) and Attorney Zall as they were working out the details of ho= w to handle the requirements and the idea of the success of Town Meeting etc. He told the Board that it was Atto= rney Rattigan that recommended that the Zoning Board amend the variance to remove the specified conditions. He = said uniqueness of the situation was that the Veterans had a warrant article (wh= ich passed Town Meeting) that put decisions regarding improvements to PVMP into= the hands of the voters. He belie= ved the variance was flawed in the way it was set up. He said if a bond wasn’t pla= ced as recommended, there would be no subdivision.

Ms. Paliy questioned if t= he condition was added because of safety reasons. Mr. Gowan said the condition was included as part of the public interest portion of the variance requirement= . He agreed with Mr. McNamara regard= ing having an advocacy position and suggested that a condition could be added stating such. Ms. Paliy quest= ioned if the Board was treating the request as a new variance, or as an amendment= . Mr. McNamara stated that the appli= cant was requesting that the Board amend two of the conditions from its prior variance. Attorney Zall said = the application was submitted as an amendment, not a new variance.

There was no public input= .

Mr. Hennessey felt approv= ing the conditions was not just to bring water into the park. He said there were regulations (un= der public safety) that stated the need for frontages and access on a public way. The water connection was important to him on a public safety issue.= Mr. Hennessey said without the water supply, he would like to receive input from the Highway Safety Committee (‘HSC’). Attorney Zall noted that water to = the subdivision remained a condition of the Zoning Board and the Planning Board= ; he said it was the water being brought into the park and accepted by the Town = that was in question.

Mr. O’Sullivan unde= rstood the concept of posting the funds to do the work, but questioned why the work couldn’t be done. Mr. G= owan stated that the work could not be done until the citizens of the Town voted= to support a warrant article for those improvements. He discussed the history of the wa= rrant article that passes in regard to the requirement of Town Meeting vote prior= to any improvements occurring to the park.&nb= sp; He reiterated that Attorney Rattigan recommended that this was an appropriate way to handle the issue. Mr. O’Sullivan asked if the development was in conflict with s= ome other plan that might take place in the next thirty-six months. Mr. Gowan answered no.

Mr. McNamara said he woul= d accept Attorney Zall’s representation that both he and Mr. Lussier would rem= ain involved in advocating the emergency access and water into the park. Attorney Zall stated that he repre= sented to the Board that his client would continue to stay as an advocate in the approval process through the Town to get the Town to accept the improvements being offered to PVMP.

Mr. Gowan recommended to = Attorney Zall to schedule an item on the Selectmen’s agenda because the Select= men were about to begin warrant article preparation.

Mr. Hennessey asked if th= ere was emergency access to the park (a means of second egress). Attorney Zall answered no. Mr. Hennessey believed the HSC sai= d that egress was important in order to approve the variance. Mr. McNamara believed that was cor= rect, based on his recollection. Th= ere was further discussion regarding the access for public safety purposes. Mr. Hennessey asked that the Board= delay its decision until receiving a recommendation from the HSC.

Mr. Gowan stated that the= HSC cared about was having emergency egress in and out of PVMP. He said the decision was not for t= he safety of the subdivision residents; it was about getting the children in a= nd out of the park in the event of an emergency. Mr. Hennessey understood that the applicant wanted to build the subdivision, but noted that part of the Board’s decision was based on public safety to the subdivision as wel= l as public safety for the children in the park. He believed that the access was the recommendation of the HSC. At= torney Zall didn’t recall the safety to the subdivision being an issue that = was argued. He didn’t belie= ve that there was anything in the Town’s regulations regarding the means= for a second egress. Mr. Hennesse= y said the location of the subdivision was the essential issue and the reason why there were regulations stating the need for frontage onto a public way. He said because the development wa= s so far away from Dracut and Pelham, it was important to him that there was access if the road became blocked.

Mr. O’Sullivan ques= tioned what would happen if a resident of the subdivision called 911. He wanted to know if Dracut or Pelham respond. Mr. Gowan said it would depend if = there was a mutual aid agreement in place at the time. He said the reason the language wa= s in the zoning was because it had somehow become uncodified and the voters supported putting the language back in.&nb= sp; He said the issue of access had more to do with getting children out= of the park. In regard to using = the lake for fire suppression, Mr. Gowan explained the impracticality of such b= ased on the time it would take to ready the equipment.

Mr. Ouellette recalled the discussions during the variance hearing and felt taking the conditions out would be a disservice to the Board because if those conditions weren’= t in it the outcome of the variance may have been different. He suggested that the costs for th= e road and brining water into the park should be tallied and taken into considerat= ion.   Because of the present economy, he didn’t want to see a development half built and then have= the developer walk out. Attorney = Zall commented that the full cost of bringing the road and water into the park w= ould be determined by the Town’s engineer and included in the bond; if the developer walked the money would be there for the Town to complete the proj= ect. Mr. Gowan added that the bond woul= d also include the cost for detailed engineering design for the road and wouldn’t be an insignificant number.= He said the uniqueness of the situation was in this case, the varian= ce was based on something that was completely out of the developer’s control. He noted that prior = to the plan being recorded, the bond would be posted.

Mr. Hennessey commented t= hat if the conditions were ‘off the table’ at the time the original variance was discussed, he would not have voted in favor of the variance. He questioned why he should vote f= or the amended variance; he didn’t think the project should be built without= the improvements.

Ms. Paliy wanted to know = if the water was an actual safety requirement, if it would have to be done without= a Town meeting. Mr. Gowan said = the HSC could only make recommendations and had no authority to make requirements. He said he could bring the Board a letter from the HSC indicating that their belief that the Planning Board ensconced the requirements and covered the issues.

Mr. Hennessey said if the= Board had a letter from the HSC then he would vote for the variance, but as it st= ood, he went back to his original deliberation and commented that the added conditions were the requirements that caused him to vote in favor of it. He said if the conditions were ‘taken off the table’ he would be against the project. Mr. Gowan said if the Board would = like something in writing, he could make it happen.

After further discussion,= the Board agreed they would like a letter from the HSC indicating that the seco= nd means of egress through the park was not a safety issue for the subdivision. Mr. Hennessey be= lieved that the second egress was also needed for the project because of its location.

The Board agreed that the= case would be continued to the next meeting, October 15, 2009. They asked for a letter from the H= SC stating whether the project was contingent upon the improvements.

Case #2426 FEDERAL HOME LOAN MOR= TGAGE CORP. / 23 Lane Road Map 7 Lot 4-12 seeking an Equitable Waver to Article I= II, Section 307-12 to permit an existing garage that is within the required 15’ side setback

Mr. O’Sullivan read the list of abutters aloud. There were no persons pre= sent who did not have their name read, or who had difficulty with notification.<= /p>

Ms. Ellen Grant Realtor/Listing Agent for Freddie Mac and Mr. Dan Carne, potent= ial buyer came forward to discuss the case.&nb= sp; Ms. Grant said during the recent listing they had a company do a certified plot plan and it was discovered that there was an encroachment on= the right lot line (right rear corner of the garage shows 4.93ft. from the lot line, where 15ft. is required). When reviewing the property file with the Town, it was determined th= at the previous owner had applied for a permit for the structure and miscalcul= ated the distance to the lot line (as 33ft.).&n= bsp; The potential buyer would like to proceed with the purchase, and not have to remove the two-car garage. Ms. Grant noted there was a buffer and distance to the adjoining property and home.

The Board reviewed the Equitable Waiver Conditions; Ms. Grant read aloud the information that had been submitted with the application. Mr. McNamara asked if the applican= t had an estimate cost for the removal of the garage. Ms. Grant said she would have to h= ave a contractor provide an estimate.

PUBLIC INPUT

Ms. Stephanie McDevitt Cote, 25 Lane Road and Mr. William McDevitt a Lane Road resident came forward. Mr. Mc= Devitt said his family, the Cote family and res= idents of Lane Road were delighted to see something happening at the property. However, he said they had some ser= ious concerns about the circumstances that lead to the location of the structure. He pointed out tha= t the edge of the structure was four feet and a few inches from the edge of the <= st1:place w:st=3D"on">Cote’s property. In reviewing the RSA’s relat= ive to Equitable Waivers, there were some concerns about whether it was willful and intentional or continuance of the law.&nbs= p; Mr. McDevitt said their position was that it was not an honest mista= ke, it was willful and intentional. He said it was a very difficult mistake to make. He said it was not a portion of the house built in the 1960’s, but was an addition that was put on by the prior owners (who moved out in the middle of the night) approximately four = to six years ago without the benefit of a building permit. He said a local official (who aske= d to remain anonymous) informed the Town. He said the prior owners were concerned and asked Mrs. Cote who had turned them in for the building permit. Mr. McDevitt said it wasn’t e= asy to show evidence, and was not sure that it (constructing the garage) was an innocent mistake. He said the= y (the Cote family) cared about the case becaus= e they were concerned about the effects on their property and the concerns from a future buyer. He said there w= ere a number of things that could be done, one would be to turn down the request = and tear down the building, another would be a lot line adjustment (at the expe= nse of the applicant. He noted th= at Mr. & Mrs. Cote have 237ft. of frontage and approximately two acres of land; the lot line could be moved with no problem.

Ms. Paliy asked if Mr. McDevitt was suggesting that the applicant purchase land from Mr. & Mrs. Cote to satisfy the 15ft. setback requirement. Mr. McDevitt said he didn’t = have a specific proposal in mind, but felt there was a way to do it that would be easier than tearing down the garage, or casting doubt upon the Cote property.&nbs= p; Ms. Paliy asked the applicant if they had thought about what was bei= ng suggested. Ms. Grant said she didn’t present any options to the bank because they didn’t know there would be opposition. She didn’t know what the bank would want to do. She questioned why something wasn’t done at the time the previous owner pulled the building permit.

Planning Director Jeff Gowan stated when his department reviewed the file, there was= no indication that there had ever been any prior code enforcement concern. He said he wasn’t the Planni= ng Director at the time the building permit was pulled and could not answer for the building inspector. He sa= id the recommendation was made for an equitable waiver versus a variance because t= here was nothing in the file to indicate that it was anything anyone knew about until recently. He said there= was no indication on the building permit that it was pulled after-the-fact. Mr. Gowan felt a lot line adjustme= nt would be easily achievable and satisfy both parties.

Mr. O’Sullivan said this was the first time that the Board had the opport= unity to do a lot line adjustment and not create a non-conforming parcel. He felt the case was before the Bo= ard prematurely and the applicant should speak with the abutter. Mr. Gowan agreed. In his opinion, a lot line adjustm= ent was a completely reasonable solution to the matter and not difficult to achieve.

The Board briefly discussed the situation. Mr. Hennessey didn’t feel the = task of going back to FHLM would be easy. Mr. McNamara asked if the Board wanted to go through the requirement= s of the ordinance (674:33-a) and read them aloud. Ms. Grant questioned if the abutte= rs were notified when the original application to build the structure. She asked if they had any obligati= on to know where their lot line was in regard to the structure being built. Mr. McNamara asked when the struct= ure was built. Mr. Gowan said the Building Inspector’s signature appears on the building permit to construct the garage on April 3, 2000. He said = there was no comment that there had been a violation or that it was an after-the-= fact permit. Mr. McNamara asked if= there was any indication that there were any calls or correspondence to the Plann= ing Department. Mr. Gowan said th= ere was nothing in the file that indicated such. Mr. McNamara continued to read alo= ud the ordinance. Ms. Grant said she wasn’t an appraiser and wouldn’t be able determine diminished v= alue for any of the abutters, however, assumed that adding a two-car garage on an adjacent property would enhance value.&nbs= p; She said when they took over the listing, they couldn’t determ= ine if anything was done intentionally. She said she reviewed the file and saw that the garage was estimated= to be 33ft. from the lot line; it was upon a previous buyer doing a mortgage p= lot survey that it was determined there was an encroachment. She said they then hired an engine= ering company to do a certified plot plan and the situation became apparent. She believed there could have easi= ly been a mistake (when the garage was constructed) because a plot plan had not been done. She said if she th= ought the bank could have done something by going directly to the neighbors they probably would have done so; she didn’t have the authority to make th= at judgment.

Mr. McNamara asked Ms. Cote when she became aware of that the garage was in vio= lation and five feet away. Ms. Cote = said she became aware of the garage with the present case, but had a ‘red flag’ (through word of mouth) when the fence was taken down. Ms. Grant said a couple months ago= , when they had the survey done, they saw that the fence and part of the driveway offshoot encroached on the neighboring lot they had it removed immediately. Ms. Cote said wh= en the fence went up, they didn’t have such an issue it because they had oth= er issues with the neighbors. Sh= e said part of the attitude was that a fence would be a good thing, so they let it be. Mr. McDevitt said the Cotes didn’t know where there lot lines were = and guessed that a large number of Town residents didn’t know their lot l= ines either.

Mr. Ouellette reviewed the plan and said the previous owner may have tried to establish the line when constructing the fence. He asked if Ms. Cote was aware of = what was going on when the fence and some of the driveway was removed. Ms. Cote said she was not. Mr. Ouellette asked if she would m= ind negotiating a lot line change if it was brought forward. Ms. Cote said she wouldn’t mind. She was concerned about= what may happen in the future if she were to sell her home and the abutting prop= erty was within the limit. She sai= d it would be a problem for her to sell her house. Mr. Ouellette asked if the house c= ould be sold the way it was. Ms. P= aliy answered no. Mr. Hennessey al= so answered no and commented that it was a title defect, unless and equitable waiver or variance was granted, or a lot adjustment was done it couldn̵= 7;t be sold. He said since the Bo= ard couldn’t vote for an equitable waiver, they also had no right to impo= se a solution to such. =

Ms. Paliy felt at the least, the case should be continued so the applicant and = the abutter could speak to one another. Mr. Hennessey said continuing the case wouldn’t change what wa= s in front of the Board. He said t= he application either was or wasn’t eligible for an equitable waiver; an= d he felt at this time it wasn’t. <= /span>

Ms. Grant asked what the procedure would be if the current owner and the abutter were to come to an agreement on a lot line adjustment. Mr. Gowan said if a conclusion was= made, the lot line adjustment would go in front of the Planning Board. He explained what would be needed = for a hearing.

Mr. McNamara said it was an unfortunate situation for all parties involved. He said the Board had heard testim= ony that called into question the violation was not a completely innocent transaction. Mr. Gowan said h= ad they been aware of the issue, the applicant would have been advised to seek= a variance. Mr. Hennessey said = there was still a problem with a variance because a variance had a thirty day wai= ting period, presuming one is granted.

It was noted that unless the applicant wanted to withdraw the case, the Board would have to vote on the matter. There was a brief discussion regarding the case and how it would proceed. Ms. Grant said they would withdraw their case.

The case was withdrawn.

CONTINUED CASE(S) – October 15, 2009

Case # 2399 LU= SSIER, Gerald & DOOLEY, Douglas /Dracut Line Map 39 Lot 1-62 seeking an “Area” Variance to Article III, Section 307-13 (B) 1&2 to permit the subdivision of the parcel into residential lots without direct access to a street that is directly accessible to police, fire, medical emergency and school transportation vehicles without these vehicles first having to leave the corporate limits of the Town of Pelham. Applicant is seeking to amend conditions #1 (Public water connection from Dracut through parcel into Pelham) and = #5 (Emergency access to be provided through Pelham Veteran’s Memorial Pa= rk) of the Variance granted on May 12, 2008.

MINUTES

July 13,= 2009

MOTION:

(Hennessey/O’Sull= ivan) To approve the Ju= ly 13, 2009 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/O’Sulli= van) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:30 pm.

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

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

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