01-11-10

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 11, 2010

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

The acting Secretary David Hennessey called ro= ll:

PRESENT:

ABSENT:

Robert= Molloy, Svetlana Paliy, David Hennessey, Alternate Bill Kearney (left the meeting prior to the end of the meeting), Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

Peter McNamara, Kevin O’Sullivan, Alternate Lance Ouellette

Mr. Molloy appointed Mr. = LaFrance and Mr. Kearney to vote in the absence of Mr. McNamara and Mr. O’Sullivan.

HEARINGS

Case #2431 – AUGENSTEIN, Howard E. - 956 Bridge Street -= Map 17 Lot 12-180 – Seeking a “Use” Variance to Article IV, Section 307-16 to permit a third living unit for the owner̵= 7;s personal use in the Residential Zone.

There were no person̵= 7;s present to represent the case. This case was addressed later in the meeting (see below for the Board’s action).

Case #2432 - VERHO= FSTAD, Joost – 1 Wood Road - Map 11-333 – Seeking an “Area” Variance to Article II, Sections 307-7, 307-8, 307-12, T= able 1, 307-13 & 307-14 to permit the expansion of a pre-existing non-confor= ming use whereby the existing home shall be razed and a new two-bedroom dwelling with an attached 23ft.x24ft. garage to be constructed in its place on a lot having approximately 15,900 square feet and 88ft. of frontage on Wood Road

Mr. Hennessey 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 and Mr. Joseph Maynard of Benchmark Engineering (pro= ject engineer) came forward to address the case. Attorney DeCarolis began by provid= ing information regarding the parcel. He said it was a prior non-conforming lot containing 15,000ft. which didn’t meet the requirements for lot size or frontage. He stated there would be a number approvals required to develop the site, such as the Wetlands Board and Shore Land Protection. He noted tha= t the Selectmen had approved the home for year-round use. The applicant had worked with the = Health Officer with respect to the septic system.= Attorney DeCarolis pointed out that the applicant had gone before the Conservation Commission and would be meeting again to discuss the property. He said if the Board wanted to take that into consideration as to when to vote, the applicant wo= uld be agreeable to defer until after that meeting.

Attorney DeCarolis review= ed the proposal, which was to raze the existing structure on the site. He said the improvements to the si= te would be substantial. One ite= m to be improved was the neighbor’s 15-foot easement by way of widening it, removing the boulders and improving the boat ramp. The beach area (on the westerly si= de of the property) that they (the neighbors) would continue to have access to. Drainage improvements would be mad= e to the property. The septic syst= em would be completely upgraded to state standards. Mr. Maynard has met with a representative of the Wetlands Board on the site. The Town Health Officer has asked = that a Clean Solutions tank be used to minimize any potential contamination. The driveway will be a permeable t= o the maximum extent allowed; there are limits as to its proximity to the septic = tank and leach field. The home wil= l be improved and enlarged. Attorn= ey DeCarolis stated that the proposal was to allow for a two-bedroom, cape-sty= le home with an attached garage and a 10-foot wide deck as shown on the submit= ted plan. The footprint would be 24ft.x34ft. with an attached garage. The home would be more conforming by sliding the structure to the so= uth to meet the side setback requirement. All other dimensional requirements (distances) are met, such as well radius, septic, front yard setback and side setbacks. The applicant doesn’t have t= he required acreage, or the required 200-feet of frontage onto a Class V, or better, right-of-way. Attorney DeCarolis stated they felt that the proposed would be an overall improvemen= t to the site and a benefit to the neighbors in the area and an improvement to t= heir property values. He said the = lot was in conformance with the surrounding neighborhood. All of the adjoining lots were undersized without adequate frontage. The proposed home was consistent with the neighborhood and would be a great improvement to it.

Attorney DeCarolis then a= ddressed the criteria as submitted. He= noted that they had to consider whether or not it was economically feasible to bu= ilt a smaller property, or maintain the 576-foot home. The cost to install a septic syste= m with all the proper permits was an expensive venture given the site work, engine= ering, drainage improvements, boat ramp improvements, the permeable driveways, rip= rap discharge along the drainage at the beach and given the sensitivity of the area. Attorney DeCarolis said= the improvements to the site could not be justified to maintain the existing home.

1. The variance will not be contrary = to the public interest because: The proposed use will not be contrary = to the public interest because the proposed structure would not only provide aesth= etic improvement to the property and the neighborhood, but would also involve the removal of a non-conforming septic system located in the wetlands of the lo= t and provide other drainage improvements to the property. The new septic system will be a Cl= ean Solutions system with the construction of a new septic tank located souther= ly of the proposed building. The proposed use will be an improvement to the public interest particularly the health, safety and welfare of the area.

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 a prior non-conforming lot with an inadequate area= to comply with all of the provisions of the zoning ordinance. The surrounding lots are developed= and additional property cannot be purchased in order to consolidate neighboring parcels. The property is uniq= ue in that the lot is not located on a Class V right of way which also restricts = the use of the property.

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because:<= span style=3D'mso-spacerun:yes'> It is not reasonably feasible to provide the improvements to the property for = the drainage and septic system without also improving the structure as it would cause an extreme financial hardship to require improvements to the site work without improving the value of the home.

3. The Variance is consis= tent with the spirit of the ordinance because:&= nbsp; The spirit of the ordinance = is to provide for the health, safety and welfare of the residence in the area. The proposed variance will provide significant improvements to the property including improvements to the sept= ic system, drainage, complying with the wetland setbacks fro the lake and improving the quality of the home on the property.

4. Substantial justice is= done because: If the variance is granted it will enable the property owner to rem= ove the existing septic system within an area of poorly drained soils and provi= de for the construction for a new state approved septic system 75 feet from the existing well and 125 feet from Little Island Pond; the construction of the= new home will be further back from the lake; approval will also allow infiltrat= ed dry wells to capture roof runoff and erosion and sediment controls will be installed to stabilize the drainage areas.

5. The value of the surro= unding properties will not be diminished because: The proposed use will be consistent= with uses in the neighborhood and will also be providing a great improvement to = the area as it will allow for a newly constructed home and septic system which = will improve the overall area and will not cause any diminution to surrounding properties.

Mr. Hennessey was surpris= ed on the financial prong under hardship, not to see any financial analysis since= it was part of the application. = He was focusing on the need for the garage. He said he would expect to see some kind of cost analysis, general estimate for the cost of building and the differentiation between the value with and without a garage. Mr. Molloy asked if it was a two-car garage.&n= bsp; Attorney DeCarolis answered yes. Mr. Molloy asked if there were other two-car garages in the neighborhood.= Mr. Maynard said there was. <= /span>

Mr. Hennessey asked if the applicant was requesting a redevelopment waiver. Mr. Maynard stated he was asking f= or a redevelopment waiver and a variance to the Shore Land Regulations. Mr. Hennessey said any approval wo= uld be contingent upon the other approvals. He understood that the road was not a Town road and questioned who w= ould enforce the conditions attached to a variance.

In Mr. Gowan’s view= , Town zoning applied if the property was in the Town’s zoning. He said there were certain nuances= the Town had to follow on private roads with regard to rights. Mr. Molly confirmed that any restr= ictions made, based on the variance would be enforced by Mr. Gowan. Mr. Gowan answered yes and also ag= reed with making clear during the proceedings.&= nbsp; Attorney DeCarolis stated he would represent that to the Board. He knew there was a court case that indicated representations made in an application to the Board were basically binding and conditions of an approval.&nbs= p; He noted that before a Certificate of Occupancy could be issued, the applicant would be obligated to complete the improvements shown on the plan.

Mr. Maynard explained to = the Board the process of when Shore Line Protection issued a permit. Mr. Hennessey wanted it on the rec= ord that it was the ongoing responsibility of the Town to ensure that the condi= tions imposed by the Board (and by extension Shore Land Protection) can be enforced by the Town’s Code Enforcement. Mr. Gowan stated that he had conversation with legal counsel on that subject. He said if the road was open to the public (which in this case it was, even though it was not a Town maintained road), the Town Officials could use the road as any other member of the public. He said there were po= rtions of Wood Road= that the property owners (on either side) owned up to the center portion of= the road. If and when a property = owner asks a Town Official to leave the property, they were obligated to do so, at which point they would go to court to seek an Administrative Search Warrant that would allow them to go onto the property if there was something they really needed to see. Mr. Gow= an said he would be advising the Selectmen that they should only be accepting written complaints on properties such as these, because if and when he had = to go to court he would need a signed complaint as part of that process.

Mr. Gowan asked how large= the hydric B soils were and questioned if it was less than 2000SF. Mr. Maynard answered yes. Mr. Gowan said the soils would not= qualify for Wetlands Conservation Protection. Mr. Maynard said that was correct.

Mr. Kearney asked if the = existing structure was a single floor. Mr. Maynard answered yes. Mr. Kea= rney asked if the proposed structure would be single floor. Mr. Maynard said it was a cape sty= le. Mr. Molly asked for the height of = the roof at the peak. Mr. Maynard= said it was a twelve pitch with a dormer around it. Mr. Molloy asked for the height in= feet because it was important for him to have the information. Mr. Maynard believed it was 32’6” from the lowest ground corner. He said the sight would have a lit= tle bit of slope across the house. Mr. Kearney asked for the height of the existing house. Mr. Maynard didn’t know exac= tly, but believed it was approximately 20’-22’ to the peak.

Ms. Paliy questioned if t= he Board would conduct a site walk as they normally did with cases involving the sho= re line. Mr. Hennessey said the = Board had usually conducted site walks as well as requested a way of determining = what the proposed height would be for structures.

PUBLIC INPUT

Mr. Marshall Rogers Jr., supported the request. He fel= t the proposed would be an improvement to the area. He believed the proposed would be a remedy to a lot of the problems that had existed in the area over the last several years. His parents re= side approximately seven or eight houses from the applicant’s home. Their concern was to keep the water quality of the pond as good as it currently was. They also wanted to ensure that the fauna and flora were not affected. <= /span>

Mr. Fred Keene, 14 & = 19 Wood Road was not opposed or in favor of the proposal.&n= bsp; He was concerned with the quality of the pond water. He said he wanted to be assured th= at the proposed waste disposal system would follow the code as accepted by the Town and state. He asked where the= septic system would be located as well as the overflow and leach field. He asked if the system would accep= t a year round home. Mr. Keene st= ated that the water quality of the pond had deteriorated over the years and beli= eved it was from septic systems that were not up to code.

Attorney DeCarolis stated= that fertilizer is regulated by the Shore Land Protection Act. He said it was illegal to fertilize within a certain distance of the pond.&nbs= p; Mr. Maynard commented that the lot was limited with regard to landscaping. He said as part = of the application, the applicant would bring one of the quadrants into compliance with the state requirements. =

Mr. Maynard informed that= the Town Health Officer in general (when near the lake lots) pushed to use the = best system as possible. In this c= ase the Clean Solutions Septic System was being proposed. Mr. Maynard provided a description= of how the system would function. He noted that the system met all Town restrictions, which were more stringent = that than the state restrictions. =

Ms. Jean McAndrew, 3 Wood Road= (89 Webster Avenue) stated she was not present for the original hearing, but her daughter atten= ded and was impressed with the plans. She commented that the Clean Solutions system was the best that could possibly = be installed. She asked if the h= ouse would have a slab. Mr. Maynar= d said they were ‘tiering’ the house because of the grade. He explained the drainage and wher= e the roof runoff would be sent to. Ms. McAndrew said they had a big problem with runoff from the road making gullies. Mr. Maynard said he = had been trying to work with the association.&= nbsp; Ms. McAndrew informed that it was not a public road. She discussed the problems occurri= ng with people accessing the road and parking in the yards.

Mr. Steven Eriksen of Nor= se Environmental Services, representing Roland Perron, Jr. of 1 Wood Road, came forward and read = aloud a letter objecting to the requested variance. The objections were based on multi= ple factors, such as (to the best of their knowledge): 1) a subsurface sewage disposal plan had not been approved for the new construction; 2) Shore Line permit had not been issued from the Department of Environmental Services Wetland Bureau; 3) a dredge and fill permit had not been received from the state Department of Environmental Services; and 4) permit filed with the Ar= my Corps. of Engineers had not been received.= Mr. Eriksen stated based on the information in the letter, it was his belief that the application to the Board of Adjustment was premature. In addition, there was concern tha= t the proposed dwelling was significantly larger than those in the surrounding ar= ea and could possibly be sized for three to four bedrooms. Mr. Eriksen also stated that a two= -story dwelling would directly impact Mr. Perron and substantially obstruct his vi= ew of the pond which would impact the value of his home. Mr. Eriksen noted that Section 307= -88 of Pelham’s Zoning Ordinance indicates that certain conditions be met. It was their belief that the appli= cant could repair the existing structure, maintaining the same footprint, and st= ill repair the septic system without the need for a variance. Mr. Eriksen reviewed Section 307-8= ,B of Pelham’s Zoning Ordinance that defines non-conforming uses that had a discontinued use for one year. He stated that the property had been abandoned for over one year and as a resu= lt was not grandfathered; any construction must be in conformance with the cur= rent zoning regulations. He said i= t may be illegal for the Board to provide relief in the form of the requested variance.

Mr. Roland Perron, 80 Webster Avenue came forward and stated he would like to argue against the statements made = by the applicant with regard to the criteria.= He said the proposed structure would be built in a manner that would look down on the surrounding houses, beach and pond. The roof line would be more than t= wice the height of the existing structure. Mr. Perron believed the best improvements in regard to the public interest (the health, safety and welfare of the area) would be to raze the existing structure and not permit a new structure to be built on an undersi= zed, non-conforming lot. Mr. Perro= n said the variance should be null and void according to RSA 674-33 based on the applicant’s statement that it was not reasonably feasible (due to ext= reme financial hardship) for them to make the improvements to the drainage and septic system without improving the structure. He said the RSA said nothing about financial obstacles or issues. Mr. Perron stated that the proposed structure would inhibit his view of the pon= d as well as others and in doing so would degrade those properties. He questione= d if the applicant lost his rights to non-conformance due to the fact that the property had been abandoned (with no electrical power) for over a year. He said the applicant was requesti= ng to increase the non-conformity by increasing the house footprint by more than twice. He noted that a portio= n of another dwelling was on the applicant’s property increasing the non-conformity even more. He submitted photographs to the Board showing the view from his property.

Mr. Gowan understood the abutter’s concerns. He = noted that there was no ‘use’ aspect being sought for zoning relief.<= span style=3D'mso-spacerun:yes'> He said the applicant was seeking = relief about the non-conforming dimensional aspects of the lot. He said the language about the discontinuance of use was in regard to running a business, not what the applicant was seeking. He com= mented that if the application was submitted after January 1^st, the dif= ference between Boccia and Simplex (in the criteria) would be irrelevant because the Boccia analysis goes away. Mr. Gowan stated if there was encroachment of another dwelling, the owner of the property would have the right to have their own survey done. He said an encroachment was not a hardship on the applicant. He= said this was not a case of two structures on one property, but rather it was a = few square feet of a neighboring property encroaching.

Attorney DeCarolis told t= he Board that there were a number of permits required for the site, and they would a= sk the Board for a conditional approval. He said all state, local and federal agencies applied and they would have to receive them. Mr. May= nard said the permits had been applied for and were currently pending.

Mr. Perron wanted the pub= lic to understand the type of structure being proposed and its height. He commented that the foundation w= ould be backed filled and have a steep slope off of it.

Mr. Hennessey said propos= als near the waterfront were always a concern. He said the Board always asked for the height of structures and to h= ave it indicated when conducting a site walk.&= nbsp; Mr. Gowan felt it would be good to have the corners of the structure marked. Mr. Maynard said he w= ould stake the four corners of the proposed structure.

Mr. Frank Soars 83 Webste= r Avenue told the Board that approximately three years ago, the people that owned the (encroaching) property wanted to raze the building and put up another one.<= span style=3D'mso-spacerun:yes'> He said their petition was denied = by the Board because of the issue of having two dwellings on the same property. He wanted to know the difference b= etween the current proposal and the one that was denied. Mr. Gowan said he would review the= files with the abutter if they came into the Planning Department. The Board didn’t recall the = case. Mr. Soars said the applicant had b= een advised to withdraw the petition; it never came before the Board. Mr. Soars objected to anything bei= ng built on the property because it was a wetland that was underwater approximately seven months of the year.&nb= sp; He was concerned about the water quality.

Mr. Hennessey said earlie= r there was a question about the subsoil type and a statement made by the applicant regarding the wetlands. Mr. G= owan said there was hydric B soil located on the plan and the proposed structure looked like it was sitting in those soils.= He said his comment had been about the wetland conservation buffer.<= span style=3D'mso-spacerun:yes'> He felt it would be important for = the Board to review when walking the site.&nbs= p; Mr. Hennessey asked if the plan would go to the Conservation Commiss= ion for review. Attorney DeCaroli= s said they would meet with the Conservation Commission meeting on Wednesday. Mr. Maynard said he had the Conser= vation Commission, Shore Line Protection and the Wetlands Board on the property pr= ior to doing design work. He said concerns were raised by the abutters and they had been trying to work with = them to do the improvements that were asked of them.

Mr. Ken Galle, 13 Wood Road stated that his family= had owned his cottage for nearly one hundred years and were long-term family residents. He didn’t fe= el building a full-time residence would improve the neighborhood. He said many of the residents were campers who came in the summertime. He said they liked the neighborhood to be low key. Mr. Galle said Mrs. McAndrew had a two-car garage, but it didn’t interfere with those around her. He said it wouldn’t be an improvement to put an enormous structure on the property. He said conceivably, a new owner c= ould add additional living space and have a lot of people residing in the home, given its proposed size. He s= aid a small camp (two bedrooms, one bathroom) would not be out of place in the community. Mr. Galle said he objected to what he had heard, but hadn’t seen anything. He asked for a description of the = proposed improvements to the boat ramp.

Attorney DeCarolis said t= he improvements to the boat ramp were as shown on the plan. He said the neighbors used the wes= terly side of the property to gain access to the lake for a boat launch. There will be concrete blocks, per= vious material will be used to stabilize the area in order to launch boats. This was reviewed by Mr. Maynard w= ith the neighbors. There will be a drainage swale along the northerly side of the right-of-way; boulders will = be removed. The slope where the boulders were located will be taken down and will help in access to the boat ramp. Mr. Maynard said the ar= ea will be modified based on him working with the neighbors regarding drainage= . He said they were working to have = the drainage flow down the boat ramp so it wouldn’t erode the beach area.

Mr. Galle saw a proposed (6ft.x30ft) seasonal dock. He= said through all the issues that had come up with the property relative to the beach, and the neighbor’s use of the beach (through deeded access), he thought there had been discussi= on as to whether or not a dock would be allowed.=

Mr. Verhofstad said the j= udge explicitly stated in the court order that the owner of the property would h= ave the right to a dock. He said = he had a copy of that order. Mr. May= nard said the dock would be in the north westerly corner. Mr. Gowan said in the recent consultation with Town Counsel, was that the Town (all boards) were forbidd= en to issue permits on boat docks and ramps; it was entirely under the state’s authority. It w= as Mr. Hennessey’s understanding that the dock had to be temporary and remov= ed for a certain period of time during the year. Mr. Maynard said it was the Wetland Board that governed docks; in this case only a seasonal dock would be allowed. He said there was an active wetlands permit for the dock that was filed along with the boat ramp= and wetlands filling.

Mr. Galle was curious who= would have access to use the dock. = He understood that the property owner would build it, but noted everyone used = the beach. Mr. Verhofstad stated = that the court order addressed that question and he would be happy to share that information.

Ms. Mary Horne, 81 Webster Avenue discussed the dock and the associated court order. She said the plan showed the propo= sed dock in the swim area which could be a hazard with motor boats being in the area. She didn’t agree = with the dock and didn’t feel it should be on the plan. Mr. Molloy said the dock didn̵= 7;t fall within the Board’s jurisdiction.

Attorney DeCarolis stated= that the applicant purchased the property in the spring of 2009 and Mr. Maynard = had been working on the project since April.&n= bsp; He said abandonment required an intent to abandon, which was not the case in this instance. He sai= d he got information regarding the age of the home from the Town Tax Assessor; it clearly stated 1930 was the age of the building. He believed Mr. Maynard misspoke w= hen he stated the height of the building being 22ft.; the existing building was actually 12ft. in height.

The Board discussed walki= ng the site and date specifying the plan. <= /span>

MOTION:

(Hennessey/Kearney) To = conduct a site walk on January 23, 2010 beginning at 8:30am.

VOTE:

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

A site walk was scheduled= for January 23, 2010 at 8:30am.

The plan was date specifi= ed to February 8, 2010= .

Mr. Kearney left the meet= ing.

Mr. Hennessey 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 George LaBonte, representing Howard Augenstein, came forward to discuss the variance request.

Mr. Molloy informed Mr. L= aBonte that one of the Board members left the meeting early. He said there were now four voting members and there was a risk of a deadlock. Mr. LaBonte understood. Mr. Hennessey noted that a unanimo= us vote (3-1) would be needed to approve the variance. Mr. Molloy commented that a dead l= ock vote (2-2) would result in a denial of the variance. He said the applicant had the opti= on of rescheduling the hearing.

There was a brief discuss= ion how the applicant would like to proceed.

Mr. Hennessey noticed tha= t he had a close friend who was an abutter. He said he was in attendance at the present meeting, but it would be= a conflict if he should appear at the next hearing. He said he would have to step down= .

Attorney LaBonte decided = to continue the case to the February 8, 2010 meeting. =

The case was date specifi= ed to the February 8, 2= 010 meeting.

Mr. Molloy informed the p= ublic that there would be no additional meeting notices.

SITE WALK – January 23, 2010 8:30am<= /st1:time>

Case #2432 - VERHOFSTAD, Joost – 1 Wood Road - Map 11-333 – Seeking an “Area” Variance to Article II, Sections 307-7, 307-8, 307-12, T= able 1, 307-13 & 307-14 to permit the expansion of a pre-existing non-confor= ming use whereby the existing home shall be razed and a new two-bedroom dwelling with an attached 23ft.x24ft. garage to be constructed in its place on a lot having approximately 15,900 square feet and 88ft. of frontage on Wood Road

DATE SPECIFIED PLAN – February 8, 2010

Case #2431 – AUGENS= TEIN, Howard E. - 956 Bridge Street= -= Map 17 Lot 12-180 – Seeking a “Use” Variance to Article IV, Section 307-16 to permit a third living unit for the owner̵= 7;s personal use in the Residential Zone.

MINUTES

December= 14, 2009

MOTION:

(Hennessey/LaFrance) To= approve the December = 14, 2009 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

(Hennessey/Paliy) To ad= journ the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:41 pm.

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

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

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