10-14-10

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 14, 2010

The Chairman David Hennes= sey called the meeting to order at approximately 7:00 pm.

The acting Secretary Peter McNamara called roll:

PRESENT:

ABSENT:

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

Robert Molloy, Kevin O’Sullivan

Mr. Hennessey appointed M= r. LaFrance and Mr. Ouellette as voting members.

HEARINGS

Case #2449 BERGERO= N, Jean-Guy - 74-76 Dutton Road<= span style=3D'mso-spacerun:yes'> -= Map 30 & 36 Lots 10-364, 10-365 & 10-366 – Seeking an Appeal from the Decision of the Board of Selectmen rendered on August 24, 2= 010 to allow a prohibited use or an expansion of an existing pre-existing non-conforming use in accordance with RSA 674:33.

Mr. Hennessey explained t= he process the Board would take when reviewing the Case.

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. Mr. Hennessey stated he was includ= ed on the list of abutters, although not a direct abutter, he was within 200ft. of the owner of the property. He stated he was involved in the original case when the licensing took place, = with both parties, working on the Consent Decree that was at issue with the Selectmen. He also stated tha= t he had attended licensing hearings when it had come forward in the past, but d= id not attend the license hearing when it went in front of the Selectmen. He was interested in hearing from either/both parties if they would like him to recuse himself.

Attorney Tony Soltani of The Munilaw Group, representing Mr. Jean-Guy Bergeron, stat= ed based upon the disclosure, he trusted Mr. Hennessey’s judgment if he could remain impartial and exercise his duty impartially according to his o= ath, he saw no reason for his recusal.

Mr. John Mansur (who was seated in the public) saw no problem with Mr. Hennessey remaining seated.

Mr. Hennessey noted he was not on the deed (was not an owner) when the issue fi= rst came up, but since then he had seen the operations. His feeling was that he did not ha= ve to recuse himself, but would do so if somebody felt strongly that he should.

Mr. Hennessey stated that prior to getting into the case, the Board would review the issue of whether or not Jean-Guy Bergeron had standing to come before t= he Board on the appeal.

Attorney Soltani stated that the primary purpose for the appeal was that the right people, with the right authority, did the right thing. In this case he said the Selectmen usurped the authority of the Zoning Board of Adjustment and the Planning Bo= ard and unilaterally granted what he held to be a variance in the site plan rev= iew after secret discussions against the right-to-know law and the authority conferred exclusively on the Planning and Zoning Boards.

With regard to standing, Mr. Hennessey asked on what basis Mr. Bergeron was comi= ng before the Zoning Board; why is he aggrieved. Attorney Soltani said the aggrieved party standard was established in the Wakefield case. He noted that the Board= was to look at a four prong test delineated in that Wakefield case and subsequent cases. In doing so, Mr. Bergeron had been= in business and was one of three license holders in Pelham to have a full junk yard operation to which there are several facets (1-dismantle/crush cars, 2= -tailor to the public and sell parts, 3-do all of the above and recycle everything). Prior to the Boa= rd of Selectmen action, there were two license holders in Pelham; Mr. Bergeron had a permit= and was grandfathered since he had been in business. Even though Mr. Bergeron was grandfathered, he had to submit to the Town because there was an exception = to the grandfather rule that if a use could potentially constitute a nuisance = then the new rules could be applied; Pelham did apply many of its new rules.

Mr. Hennessey directed the conversation to the issue of standing. Attorney Soltani stated he believe= d in the free market system, but it had to be on equal footing. By allowing the use to come to bir= th at this stage and not requiring him (Mr. Mansur) to go through what Mr. Berger= on had gone through, was unequal footing.&nbs= p; Also, the distance was within five miles and there were only two act= ive advertising operations of selling used parts in the Town now (1-Jean-Guy, 2- Mansur). Attorney Soltani sai= d Mr. Mansur had been advertising and selling parts even before he went to the Selectmen. He showed the Boar= d a folder (provided by the Selectmen) that contained all the violations throug= hout the years. He said now (Mr. M= ansur) wanted to d it legally and if allowed to do so he had a ‘leg up’= ; on Mr. Bergeron.

Mr. Hennessey asked that the conversation be directed to the issue of ‘standing’. Attor= ney Soltani said he needed to address the four prongs. Mr. Hennessey said Attorney Soltan= i was skirting the case that had been brought to the Board’s attention, whi= ch was the Supreme Court case of Nautilus of Exeter, Inc. v. Exeter. He said there was a stateme= nt from the courts that if someone was in business competition with the owner = of the property, that by itself does not confer standing. Mr. Hennessey was hearing from Att= orney Soltani that the Selectmen were conferring an unfair business advantage to a competitor. He asked if there was any other argument. Attorney Soltani answered yes; the referenced case was insufficient for the completion of the four prongs. He said there was also an adverse = impact on the (forty-one year) reputation of Mr. Bergeron, which was well known in= the industry and sold throughout the country; Pelham was associated with Jean-Guy’s being the supplier. He said there had been confusion among other suppliers. In reference to the last prong, Je= an-Guy’s Used Cars and Parts had been involved in the whole case since day one; even before the 1997 Consent Decree. Mr. Bergeron had attended all the meetings, including the most recent meeting of the Board of Selectmen and presented his case of only the Zoning Board havi= ng the authority. Attorney Solta= ni said in reviewing the four prongs, anyone arguing standing would also have to ar= gue the nature of the change in use, which in this case was great. Mr. Hennessey asked Attorney Solta= ni if he could address the Goldstein v. Town of Bedford case and how it di= ffered from the Mr. Bergeron. Attorn= ey Soltani commented that Goldstein could not meet the four prong standards. Mr. Hennessey asked if Attorney So= ltani had anything else to add to the four prong test. Attorney Soltani said he would ans= wer any questions.

Mr. Hennessey asked if anyone wanted to argue that Mr. Bergeron did not have standing before the Board.

Mr. John Mansur, 76 Dutton Roa= d, owner of Jack Mansur’s Auto, LLC., came forward and stated that Mr. Bergeron did not have standing and did not meet the legal criteria for such. He said Mr. Bergeron wa= s not an abutter and was not aggrieved by the Selectmen’s decision. The only interest was as a competi= tor, which did not give him standing. Mr. Mansur said the Zoning Board could not allow a competitor from across Town appeal, not only was it not in the Zoning Ordinance, but allowi= ng it would severely compromise free enterprise and possibly violate anti-trust laws. He said it would set a precedence for other competing businesses to do the same. Mr. Mansur said Mr. Bergeron filed= an appeal on the same issue thirteen years ago and was found by the Zoning Boa= rd and Superior Court not to have standing.&n= bsp; He said it was not a zoning issue, but a decision by the Selectmen (5-0-0) with the advice of Town Counsel.&n= bsp; He said his junk yard had been recognized by the Town as a pre-exist= ing non-conforming junk yard; has not expanded, changed use or discontinued sin= ce 1948. He stated as such, he didn’t need any variance from the Zoning Board to conduct his junk ya= rd business. Mr. Mansur said the Consent Decree was nothing more than a decree entered into by both parties. Mr. Hennessey asked = that the conversation stay with the issue of standing to make an appeal. Mr. Mansur said Mr. Bergeron said = he had standing because of a change of use (by Mansur). He said he was not (changing use).= He said the Selectmen’s deci= sion for him to sell parts was not an expansion or allowance of a prohibitive use; t= he decision clarifies and recognizes his constitutional rights and his rights = as a pre-existing non-conforming junk yard.&nbs= p; He said he was conducting his business as he had since 1948.

Attorney Soltani clarified his position. He believed they had standing and met the four prong test. He stated that the cause of action= was more than a zoning appeal, it was also other violations of the state law. He said if he went straight to Sup= erior Court, the Town would have argued that they did not exhaust the administrat= ive gravities. Because it was his= first notice that standing would be an issue, he asked (in the event of a denial)= to be granted thirty days. Mr. Hennessey said the case was an appeal of the Board of Selectmen, which would either be accepted or not; if the Board doesn’t accept the appeal, it= was done.

Mr. Hennessey asked for Town Counsel’s opinion. Attorney Soltani, who had all due respect for Attorney John Ratigan, stated that Attorney Ratigan was the cou= nsel for the Board of Selectmen that guided them through the issue. He said Attorney Ratigan could not= , at the same time, be counsel to the appellant party, which was the Board of Adjustment. Mr. Hennessey sai= d the Board would take it upon themselves to make a decision.

Mr. Mansur had no further comment.

Mr. McNamara commended Attorney Soltani for his arguments. He disagreed with Soltani on a cou= ple of the items and believed he was conflating the standards to try and have an economic impact match all/most of them.&nb= sp; He noted that the Board tried to allow citizens to have as much participation as possible, but because a person participates from the groun= d up didn’t confer any particular standing if there was no standing to beg= in with. Mr. McNamara said Board= had information that Mr. Bergeron’s property was approximately 2.8 miles = away from the subject parcel. That argument would go with immediacy versus having a separation; something furt= her was needed for an argument, economic impact alone was not enough.

Ms. Paliy agreed with Mr. McNamara and commented that the information she recen= tly heard seemed to go along with the comments. Mr. Hennessey stated that he and M= s. Paliy had recently taken a course regarding administrative decisions. He believed this wasn’t a ca= se of distance, but a case of proximity (which could vary based on density) regar= ding the impact, which he felt was a judgment call. He said an immediate abutter would= have an argument regarding proximity, but questioned if 2.8 miles would. He said the standing had to be con= ferred by something more than business competition. He was having a hard time seeing w= hat the other impacts were.

Mr. Kearney stated that he took the attorney’s points and tried to put judgment to them. He said the= 2.8 miles was actually four miles by road and in a town with 13,000 people, four miles seemed to be a far distance. He didn’t see an impact of anything other than commercial. The nature of the business being c= hanged great or small; the ability to sell parts changed the business, but it rema= ined in automotive and was a small change. In regard to the immediate impact, he believed he heard that there h= ad been sales that were not done by the decree; he felt the impact of which was small. Mr. Kearney believed t= he argument was closer with the fourth prong, but felt the first three were mi= ssed completely.

Mr. McNamara felt a valid point was raised when the attorney spoke about the distinction between the powers of the Zoning Board and the powers of the Bo= ard of Selectmen. He said he took= very seriously the rights of the Town boards and had spoken out in the past when= he felt there had been controversy. He said he would protect the Board’s rights and the underlying facts were fascinating in the case. Howe= ver, the Board was discussing the standing in this case.

Mr. Hennessey stated that the Zoning Board was not giving deference to the Selectmen; the Zoning Board was an impartial appeals board.

The Board discussed how they would proceed.&nb= sp; Mr. Hennessey said the Board would hear a motion regarding the stand= ing issue. He said Attorney Solta= ni had a request for the Board. Mr. McNamara believed having the Board vote prior to hearing Attorney Soltani’s request would ‘muddy’ the issue.

Attorney Soltani urged the Board if they took a motion to deny on the basis of stand= ing that they allow the petitioner thirty days to join another person who may h= ave standing so the Board could reconsider its opinion. Mr. Hennessey ruled that it would = be in violation of the appeals period under the Board’s By-Laws and regulat= ion. Attorney Soltani appealed the ruli= ng of the Chair to the Board. He sa= id the By-Laws allow authority to the Board to hold a final action and to continue. He said he came to = the meeting and was ‘shot-gunned’ regarding standing. He stated that the Board had the authority either by continuance or amended motion for denial to have a join= er in thirty days. Mr. Hennessey allowed Mr. Mansur to make a response.&nbs= p; Mr. Mansur objected to Attorney Soltani’s request. He questioned how Attorney Soltani= could get any further privilege if there was no standing. He said there was an appeal period= and now Attorney Soltani was looking for extensions to such.

Mr. Hennessey entertained a motion to either address Attorney Soltani’s request or the main motion as to whether or nor Mr. Bergeron had standing.<= span style=3D'mso-spacerun:yes'> Ms. Paliy felt it would be unfair = to extend the case an additional thirty days.= She felt the Board should take a vote regarding standing.

Mr. McNamara made a motion to deny Attorney Tony Soltani’s request (for extension). He said anyone wh= o was able to come in and argue, and who had standing, had the opportunity to do so. Mr. Hennessey didn’t believe there needed to be a motion because he made a ruling from the Chair, but he agreed to accept the motion. Ms. Paliy seconded the motion.

MOTION:

(McNamara/Paliy) To deny Attorney Tony Soltani’s request (for extension) and take a straight vote on the standing issue. <= o:p>

VOTE:

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

Mr. Hennessey then asked if the Board for a motion to the main decision as to whether or not Mr. Bergeron had standing.&= nbsp; Mr. McNamara made a motion, based on the evidence heard and the evid= ence in the Board’s discussion, to rule that Mr. Bergeron did not have standing to appeal to the Zoning Board of Adjustment in this particular matter.

MOTION:

(McNamara/LaFrance) To = rule that Mr. Jean-Guy Bergeron did not have standing to appeal to the Zoning Board of Adjustment in this particular matter.

VOTE:

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

Attorney Soltani question= ed if the reconsideration (under the Board’s rules) period began as of the = date of the meeting, or upon notice. Mr. McNamara said he wouldn’t advise Attorney Soltani regarding the law, = but believed the state statute trumped it; there was a recent case.

CONTINUED

Case #2445 OUELLETTE, Lance & Laurie - 5 Andover Street - Map 30 Lot 11-154 – Seeking = an Appeal from an Administrative Decision of the Code Compliance Official as written in letter dated June 30, 2010 concerning Article V, Section 307-18 (Table 2) of the Zoning Ordinance

Mr. Ouellette and Ms. Pal= iy stepped down.

Mr. Hennessey informed Mr. Ouellette that the Board consisted of four members. In order to uphold the appeal there would need to be a majority vote. Mr. Hennessey told Mr. Ouellette he would grant a continuance if desired.

Attorney George LaBonte, representing Mr. Ouellette, told the Board that they would move forward with the case.

Mr. McNamara read the lis= t of abutters aloud. There were no persons present who did not have their name r= ead, or who had difficulty with notification.&n= bsp; He stated there were two returned notices, 9 Andover Street/John Baj= or (no mail receptacle, not deliverabl= e as addressed, unable to forward) and 8 Gaston Road/Cross Family Trust (no mail= receptacle, not deliverable as addressed, unable to forward).

Attorney LaBonte stated t= hey had come before the Board because Mr. Ouellette received a notice from the Town that he was in violation of the Ordinances. He believed that Mr. Ouellette was= not in violation with regard to a home business occupation, and if categorized, wo= uld fall under a minor home occupation. The business could be considered transient; no business was conducte= d on site. Workers go to the site = pick up a truck, leave the site and conduct business at other locations. No work is done in the neighborhood. There are no employees that work in the neighborhood or signs indicating that there is a= business in the neighborhood. Material= s are not stored on site. The= truck used by the employees is not lettered with a business name on it. Attorney LaBonte stated there was virtually no impact on the neighborhood, other than the employee picking up= a vehicle and leaving, then dropping it off at the end of the day. He said a lot of people in Town th= at are in the construction industry have vehicles that they bring home that are pa= rt of their work, and this is the same case.&= nbsp; He said the purpose and intent of the ordinance should be reviewed, which was to keep the residential character of the neighborhood. There were no deliveries made to t= he site. There is no heavy equip= ment on the property, there are only pick up trucks. In summary, there was very little = impact to the residential neighborhood.

Planning Director Jeff Go= wan began by commenting that he and his department had a cordial relationship w= ith Mr. Ouellette and worked together very well. He said the issue was the threshold (contained in the ordinance) for a business to be categorized as a minor ho= me occupation; #6 specifies a maximum of one registered vehicle related to the business may be kept in view and all business related equipment must be garaged. The issue the Town h= ad with the business operation was not the nature of the business, but the fact that there were numerous vehicles and equipment that was kept in view. Mr. Gowan said when it came down to documenting any vehicles kept on site it was a challenge to code enforcement because the number of vehicles changes from day to day, therefore they view= it as a trend over time ; a pattern of non-conformance with the regulation. He said because they were alleging= the business didn’t meet the criteria described as a minor home operation= , it was considered a full blown operation that could not occur in a residential neighborhood.

Code & Zoning Enforce= ment Officer Tom Wakefield referred the Board to the letter he sent and provided back up documentation. Mr. Hennessey understood that the argument was that for a home occupation a person was entitled to no more than one vehicle (registered to the business). In this case because Mr. Ouellette= was parking the vehicle, not on his (home) lot (but the one next door), he was = in violation (even with one vehicle) because it was across the street. Mr. Gowan said a home occupation w= as allowed to have one registered vehicle; Mr. Ouellette had a number of vehic= les registered to the business that were kept on various properties. He said he had spoken to Mr. Ouell= ette on several occasions regarding the zoning regulations. He realized during the winter seas= on that Mr. Ouellette did maintenance on the private section of road, but the problem extended beyond just the winter.&n= bsp; He said he had received a number of complaints from residents in the area.

Mr. Wakefield stated that= he had copied the assessing map to highlight the Ouellette residential lot, which = was across the street from 5 A= ndover Street where vehicles were parked. He provided photographs depicting = the lots in question along with photos of vehicles (on those lots). He said Mr. Ouellette didn’t reside on the property he was running his business under. Using the map, Mr. Wak= efield showed where vehicles were parked. <= /span>He believed it was clear that vehicles had been stored in several locations, o= ne that had a garage with an office, which didn’t conform to either a mi= nor home occupation and/or a landscape business in a residential zone.

Attorney LaBonte stated t= here was no office in the garage. He a= sked Mr. Gowan and Mr. Wakefield if they knew who the vehicles were registered to. He said statements were b= eing made that were untrue. He was unsure what their argument was. He told the Board that the photograph of the pick up in front of the garage was Mr. Ouellette’s personal vehicle that he drove everyday. He said the other photos depicting= a white pick up truck and a red van were on a separate piece of property that= had nothing to do with the notice sent to Mr. Ouellette concerning the property. Attorney LaBonte st= ated Mr. Ouellette was not conducting a landscape business at the location; no business activities were done in the neighborhood. There were no landscaping materials stored at the site and no deliveries were made to the site; everything was = done off site. Attorney LaBonte be= lieved the purpose and intent of the ordinance was so that businesses, such as tho= se located on Bridge Street (Route 38) would not allowed to be located in the residential zone.

Mr. Hennessey asked who o= wned the vehicles. Attorney LaBonte sa= id the vehicle parked in front of the garage was Mr. Ouellette’s personal vehicle. He said the truck, n= ot parked on the (residential) parcel was a company vehicle. Mr. Ouellette said all the vehicle= s were registered to him personally, they were not owned by the business. Mr. McNamara asked if the vehicles= were used in the business. Mr. Oue= llette answered yes. Mr. Hennessey s= aid Mr. Ouellette was acknowledging he had two company trucks parked on a site = that was not his home. Mr. Ouellet= te said he owned the property. M= r. Hennessey said it wasn’t the personal residence. Mr. Kearney asked how many differe= nt vehicles there were. Mr. Ouellette said there were five. Mr. Kearney = asked if any of the vehicles were kept in the garage. Mr. Ouellette answered no. Mr. Kearney asked if any of the ve= hicles had logos or markings advertising the business. Mr. Ouellette said there was an incapacitated truck that had some worn logos. Attorney LaBonte described the mar= kings and the size of which.

Mr. Gowan commented that = the vehicle license plates read AHANDY1, AHANDY2 etc. that would convey they weren’t vehicles that most people would have in their driveway. He said if the vehicles were store= d away (out of sight), there wouldn’t be an issue. He said the issue was not brought = up purely from code enforcement, it was in response to numerous complaints that they had. Attorney LaBonte sa= id they had not heard of the complaints; this was the first time hearing of such. Mr. Hennessey said all = that was before the Board was an Administrative Decision that had been appealed. He said the general justice of the whole thing was not before the Board. Attorney LaBonte believed the just= ice was before the Board. He said= it went back to the vehicles and what was proper for the neighborhood. He commented that there was not a = home occupation being conducted at the home or on the site.

PUBLIC INPUT

Mr. Don Ronning, 9 Gaston Street noted that he owned three of the parcels that were previously mentioned. He believed the harmonious residen= tial neighborhood was being egregiously violated. He had a question regarding A Handy Company, which had been registered with the state in 2006 and dissolved in 2008; he didn’t know who the entity was that operated the business. The website for A Handy Company was advertised as Gaston Stree= t. Mr. Ronning discussed the vehicle activity on the street and reviewed photographs that depicted the neighborh= ood and the vehicles/equipment that accessed the area. There were also photographs of the roadway (which was worn), oil that leaked from the property, salt pallets b= eing stored close to property lines. Mr. Ronning commented that equipment had been driven over the neighbor’s property lines. Equipment was washed on site, which then drained into the lake. Mr. Ronning stated there were nume= rous employees and had a photograph taken in May, 2007; on that day he counted n= ine people coming and going. He h= ad photographs showing vehicles jamming the property, plowing snow onto other people’s properties and doing damage to neighbor’s landscaping. He said the gran= ite bound that marked his property had been damaged/removed and would need to be reinstalled. The area behind = Mr. Ouellette’s garage area had been excavated (leaving an open ledge are= a of more than 6ft with no safety or guard rail); dirt was removed and stacked in other places around the neighborhood. There were multiple trailers spread throughout the neighborhood. Mr. Ronning said the drainage on t= he street had changed; it had been sheet drainage and now there was a massive = berm that redirected the drainage. He had a still photo from security camera videos showing equipment being loaded/unloaded as early as = 6:30am and as late as 9pm.

Mr. Ronning submitted the photographs to the Board. Att= orney LaBonte was given the opportunity to review the photographs.

Mr. Ronning discussed the= Zoning Ordinance and business permit. He noted if Mr. Ouellette’s residence was compared to the garage (using = the Town tax cards) the calculation was approximately 48% of the property, not = 25% as stipulated in the Ordinance. Mr. Ronning told the Board that the Selectmen had been notified (through Certif= ied Letter) in 2007 of the activities. He said that Mr. Ouellette had made statements that he was a Town official and was interfering with other people’s businesses in the neighborhood. Attorney LaBonte failed to see that the comments had anything to do with the hearing. Mr. Hennessey said the issue in fr= ont of the Board was if Mr. Ouellette was in violation of Zoning; the Appeal of the Administrative Decision. Mr. Ronning said the point was that there were clearly violations of the busine= ss activities at that point in time that was brought to the Town’s attention. He believed there had been a willful act to harass the neighbors= on behalf of the Town.

Attorney LaBonte stated h= e would object to a lot of the photographs. He said there was incorrect information written on the photos that he didn’t feel was fair to be submitted to the Board. He noted that he himself owned a B= obcat and had done repairs on the road because it was a private road and everyone helped to work on it. He ques= tioned the relevance of the comment regarding the drainage being changed and how it pertained to having vehicles in the neighborhood. He said trailers in the phot= ograph (from 2007) were not Mr. Ouellette’s, except for one which was sold t= hat same year. He said Mr. Ouelle= tte had the business for quite some years and it had never been a problem; the = Town was aware of it and that the activities didn’t occur on the property. He noted that the photographs showing damage to trees had no indication that it was done by M= r. Ouellette. Attorney LaBonte believed there was a personal vendetta against Mr. Ouellette, which had not= hing to do with the proceedings. M= r. Hennessey said the Board would focus on what was before them. Mr. Ronning stated he added dates = to the photographs so he would know exactly when he took them. In terms of the damage to the tree= s, he saw in happen. He referenced = the Ordinance and believed there was a burden being placed on all the abutters. He said the operati= on/activities didn’t conform to a major home occupation and went on to review the requirements for such.

Mr. Randy Favereau, 11 Gaston Road disagreed with the comment that there was no equipment being kept at the si= te and that there was no impact to the neighborhood. He said in past years Mr. Ouellett= e had used open sided trailers and saw him (and his employees) loading and unload= ing equipment on a daily basis. H= e also saw him cleaning equipment in the road. Recently there had been vandalism o= n the property and Mr. Ouellette had installed several video cameras on the premises. Mr. Favereau said s= ome of those video cameras were pointed directly to his property, which he felt wa= s an invasion of privacy. He said = Mr. Ouellette had changed to closed sided trailers so the equipment could not be seen. He had seen four differ= ent vehicles parked on Mr. Ouellette’s property and at different location= s in the neighborhood. He said to maintain the roads a fee was paid to Campbell Grove Association. He said they wanted to increase th= e fee by $400 and felt it was unfair knowing that Mr. Ouellette was running truck= s up and down the road on a daily basis. Mr. Hennessey questioned how the testimony related to the case before the Board. Mr. Favereau said = Mr. Ouellette’s vehicles were damaging the roads and he had to pay in ord= er to maintain the roads.

Ms. Mary Leponis (wife of= John Bajor), 9 Andover Street told the Board that they had not received notice a= nd understood that it had been misdirected.&n= bsp; She said she resided in a small residential neighborhood; small stre= et, small properties. She believe= d Mr. Ouellette had become a victim of his own success; he started out with the intent of having a small business with a couple of trucks, but it had now grown. There were several veh= icles around the neighborhood that was an eyesore. There are several parcels and some= times the equipment is on other people’s property. Ms. Leponis said having her proper= ty denigrated by having equipment around was a problem. She felt Mr. Ouellette would be be= tter served by finding a property where he could keep all of his equipment toget= her and running the business professionally.&n= bsp;

Mr. Hennessey questioned = the problem with notification. Ms= . Leponis said apparently the letter was returned; they had a different mailing address. Mr. Hennessey asked = if there was anyone else she knew of that had not received notification. Ms. Leponis was unsure about the C= ross Family Trust. She told the Bo= ard that there was an association and they maintained the roads themselves; she was currently the treasurer. She = said Mr. Ouellette had been the president as well as the treasurer of the association. She stated= this was not a personal issue, she liked Mr. Ouellette, but the vehicles seemed = to be everywhere.

Ms. Janet Hanner, 17 Campbell Road stated that she lived in the middle of where vehicles are parked. She had heard comments regarding o= dors and unnecessary noise and told the Board that never once had any vehicle be= en an intrusion in her personal life. She never had any fowl odors in her home. She didn’t understand why the hearing was occurring; the property was well maintained and there was no wo= rk related ‘stuff’ that went on in the neighborhood. Mr. Hennessey asked if there were = trucks parked as described by earlier testimony.&= nbsp; Ms. Hanner said adjacent to her home (going up the hill) there was usually one or two, but there was a garage. She said there was another garage = in back of her house. She had ne= ver been bothered by fowl odor, emissions or noise at any hour.

The photographs submitted= earlier were made available for the public to review.

Mr. McNamara read aloud t= he following:

1) an e-mail written by M= ary Leponis to Randy Favereau dated Sunday, September 12, 2010 that questioned how the business = complied with the Shore Line Protection Act. Mr. Hennessey stated the Board was not dealing with Shore Line Protection at the present meeting.

2) a letter, dated September 10, 2010, from John Bejor of 9 Andover St= reet informed that the deed to the properties in Campbell Grove indicates they cannot be used for businesses, which was (in their opinion) a restriction t= hat should be adhered to.

3) an e-mail from Mary Le= ponis to Randy Fevereau dated Friday, September 10. 2010 which included a copy of her deed for 9 Andover Street<= /st1:address> noting restrictions.

4) an e-mail from billmartin3@= comcast.net (William Martin, 12 Gaston= Street) sent to Jennifer Hovey (Planning Department). In summary they didn’t feel = any negative impact from Mr. Ouellette’s business; all work was performed off-site. Traffic is not an i= ssue in the neighborhood. The busi= ness was an off-site on the road service with a home office.

5) e-mail from Mary Lepon= is to Randy Fevereau, dated September 11, 2010 referencing the letter previously read aloud from John Bejor.

Ms. Judy Favereau, 11 Gaston Street told the Board that Janet Hanner rented from Ms. Ouellette and was a tenant= in the home. She then discussed parking. She said four years = ago Mr. Ouellette’s front yard was covered with his employee’s vehicles; there were two or three parked in front. She said Mr. Ouellette apologized = and moved the vehicles. She said = the employees now park on Camp= bell Road (off the street) at one of the neighbor’s property. Ms. Favereau stated that Mr. Ouellette’s business had outgrown his home a= nd it was time to move the vehicles elsewhere.

Attorney LaBonte said it = was there position that Mr. Ouellette wasn’t conducting his business at t= he site. He pointed out that the letter sent to Mr. Ouellette only referenced 5 Andover Street, no other lots or properties although other properties/lots were owned in that neighborhood.<= span style=3D'mso-spacerun:yes'> They believed they were within the= guise of the Ordinance and the purpose and intent was being maintained.

Mr. Gowan said the Board = had heard from a number of residents on items addressed in the code enforcement action. He questioned what bu= siness would be in violation of the Ordinance for complying with a minor home occupation, if the situation was not in violation. He stated that as Zoning Administr= ator and Zoning Code Enforcement Officer, he and Mr. Wakefield were obligated to uphold the zoning in the Town. A lot of neighbors were reluctant to file written complaints, most have been verbal but it was important for a person who serves on a board in judgment = of others to be in full compliance with zoning. Mr. Hennessey informed that servin= g on a board didn’t confer privileges but neither did it impose any further obligation. He hoped that eve= ryone felt that the hearing had been conducted fairly and without bias.

Mr. Ouellette commented t= hat Ms. Leponis didn’t reside in the neighborhood she rented out her house (a= t 9 Andover Street). He said the current renter worked = at a company and had company vehicles at her house. He said in regard to him parking h= is vehicles, he told the Board that he had multiple clients within the neighborhood. With regard to = the Administrative Decision before the Board, the address had always been 5 Andover Street. Mr. Ouellette stated that he fully complied with a minor home occupation at 5 Andover Street. He had his personal truck and one company vehicle. He said the = issue arose in 2007 and through discussions with Mr. Gowan he was told to purchas= e a cover structure to keep his equipment in, which he did. He explained that Mr. Gowan said it should solve the problem and since then had not received a complaint from M= r. Gowan or the Town, although Cindy Ronning would complain to Mr. Gowan from = time to time which was more of a neighborly dispute.

Mr. Hennessey wanted clarification regarding testimony that a business was being conducted in the vicinity of Mr. Ouellette’s home.&nb= sp; He wanted to know if the argument was that because the business was = not being conducted on the specific lot cited that Mr. Ouellette wasn’t in violation of a minor home occupation. Mr. Ouellette stated he conferred with Mr. Gowan and Town Counsel in= 2007. The taxes for 5 Andover were in conjunction with 13 Gaston Road (paid together by the same mortgage). He said Mr. Gowan told him he was in compliance because it was a separate parcel and it was only a parking issue and to just purchase the ca= nopy to hide the equipment and he would be fine. Since June, 2007 Mr. Ouellette had= not received a complaint. He said= there were no written complaints in his file and no verbal complaints until two w= eeks ago. Mr. Hennessey said the l= ack of complaints, except the detail presented to the Board, was irrelevant. He said he wrestled with the technicality of the decision as only applying to the home because it appear= ed that Mr. Ouellette had acknowledged he was running a business. Mr. Ouellette said he was only doi= ng what Mr. Gowan had directed him to do regarding how to operate the business= in compliance. He brought docume= ntation that showed bills/invoices come to 13 Gaston Road.&= nbsp; Mr. Gowan stated he and Mr. Ouellette had a history of a cordial relationship; the department always works with applicants to try and get th= em in compliance. At that time, = with the information before him, Mr. Gowan’s opinion (based on what he believed to be going on at that time) that simply screening one of the vehi= cles would keep Mr. Ouellette in compliance.&nb= sp; Unfortunately, with the continuing verbal complaints and the observations of Mr. Wakefield (in the field) it had gone beyond the discuss= ions a few years ago. He said the = issue was the number of vehicles associated with the business not complying with = the threshold outlined in Zoning for a minor home occupation.

Attorney LaBonte stood on= their arguments.

Mr. Kearney said he was w= restling with the number of trucks being owned by Mr. Ouellette and the company and where they were positioned. He believed he heard that none of the trucks were in the garage, all of them w= ere visible. He said if the truck= s were kept in a garage out of sight they wouldn’t be a nuisance to the neighbors.

Mr. McNamara said the Boa= rd was reviewing an Appeal of an Administrative Decision, which was that Mr. Ouell= ette was in violation of the Zoning Ordinance; operation of a landscape commerci= al construction operation was not listed as an allowed use in a residential zo= ne. He said there were multiple testim= onies that a business was going on and Mr. Ouellette didn’t deny he was operating a business. He felt= the Board had photographs provided by Mr. Wakefield showing vehicles as well as pictures from Mr. Ronning that were submitted. Mr. McNamara understood that 5 Andover Street was listed on the letter (from the Town) but there almost seemed to be a neighborhood business. He said another avenue/remedy would be to possibly file for a variance. Based on the evidence received, Mr. McNamara didn’t feel the Board could overturn the (Town’s) decision.

Mr. LaFrance questioned i= f Mr. Ouellette sat differently because he owned multiple properties. Mr. Hennessey asked that the Board= deal with the testimony before them. He said the argument put forth by Attorney LaBonte was that the vehicles were parked on other areas. Testim= ony was given that the vehicles were owned by Mr. Ouellette.

Mr. Hennessey believed it= was clear that a business was being run; the question was whether it came under minor home business. He felt = the testimony received indicated it did not.&n= bsp; He noted that under Zoning, this commercial use was not allowed on a residential property unless it was a minor home business. He said the home business could on= ly take place at Mr. Ouellette’s home; having business conducted on other lots was a violation of Zoning.

Mr. McNamara agreed with = the testimony that Mr. Ouellette’s business had probably expanded too much. He said it was difficul= t to rule on someone that the Board knew and respected, but they had to apply the rules fairly as they did with everyone coming before the Board.

MOTION:

(Kearney/McNamara) To u= phold the Administrative Decision dated June 30, 2010.

VOTE:

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

Mr. Ouellette and Ms. Pal= iy returned to the Board.

HEARINGS CON’T….

Case #2450 DEROSA, Michael - 7 Main Street - Map 22 Lot 8-119 – Seeking a Variance to Article V, Section 307-18 to permit a hair salon in the Residen= ce District (R District)

Mr. Ouellette and Mr. Kea= rney to vote.

Mr. McNamara read the lis= t of abutters aloud. There were no persons present who did not have their name r= ead, or who had difficulty with notification.&n= bsp;

Mr. Hennessey noted for t= he record that he was a member and Trustee for the John H. Hargreaves VFW Post across the street. There was = no objection to Mr. Hennessey remaining seated on the Board.

Attorney Brad Westgate of= Weiner & Bennett, representing Michael DeRosa Trustee of the Asored Realty Tru= st, was seeking a Variance to allow a hair salon on the property at 7 Main Street. Also present was Ms. Donna Prudhom= me, the operator of the hair salon at 70 Bridge Street. It was her desire to relocate her = hair salon from 70 Bridge Stree= t to 7 Main Street.

Attorney Westgate provide= d the Board with photographs of the property and GPS aerials. He discussed the history of the bu= ilding and noted that it was currently served by on-site well and septic. April 12, 2010 (Case #2436), a second and third residential unit was granted to the property, subject to certain terms and conditions. He discussed the variance granted on July 14, 2003 (case #2258) along with its conditions. He explained that Mr. DeRosa had renovated the property to operate Innovative Realty at the property and obtained a Site Plan approval for the building and lot configuration. After Innovative Realty was no lon= ger operating, a Variance for a physician’s office was granted, but the l= ease never came together. It had b= ecome apparent, over the last several years, that professional use of the property was not working; those tenants were not coming forward. Concerns about the building’s insurability were coming forward. Mr. DeRosa and Ms. Prudhomme began speaking about the concept of the hair salon; Ms. Prudhomme has indicated her interest in acquiring the property, but a variance is necessary to accomplish such.&= nbsp; Attorney Westgate said they understood the sensitivity of the Town Center and in April couldn’t point to a specific business use; they were com= ing forward on a use basis and being mindful of the properties in the area.

Attorney Westgate discuss= ed the business intent. The hair sal= on would be operated in the front (main) portion of the building on the first floor. The upper floor and re= ar section would remain as residential units.= There would be five cutting stations (with two to four being in use at any given = time) and two sinks contemplated as well as a reception desk, office supply area and = back rooms. There were no exterior changes contemplated for the building.&nbs= p; Signage would have to change to reflect the hair salon. The hours of operation would be Mo= nday, Wednesday and Thursday from 9= am-8pm, Tuesday and Friday 9am-5pm and Saturday 9am-3pm. Typically there are between one an= d four customers on site at any one time. An estimated 70% of customers were from Pelham. The business is a traditional hair salon; there was no contemplation of massage, manicures, pedicures etc. They were aware that minor change-= of-use at the Planning Board may be necessary.&nb= sp; There are seventeen parking spaces that would likely be grassed over leaving fifteen spaces. Attor= ney Westgate discussed the septic system that had an analysis done of usage, the findings were forwarded to the Town Deputy Health Officer Paul Zarnowski, w= ho provided recommendations. In summary prior to a Building Permit being issued, the replacement septic sys= tem would be approved and prior to a Certificate of Occupancy, the well would be converted over to Town water.

Attorney Westgate then re= viewed the variance criteria reviewing the information submitted in the application package (see Attached). He fe= lt it was worth noting that when a property was viewed in a town center it should= be understood that there was a natural growth/uses that occurred. When zoning hasn’t changed, = it imposed upon a property (that pre-exists zoning) certain constraints on its flexibility. He provided a ha= ndout containing a suggested motion, in the event the Board decided to move forwa= rd.

There was no public input= .

Mr. Hennessey discussed t= he proposed business and was unsure if he could come up with an argument as to= why a hair dresser would be worse than a realtor, lawyer or residential unit. He noted that the variances that h= ad been granted in the area directly tied to maintaining the character of the district via form controls (what the place looked like). He said if the Board could get assurances (as was given in the past) that the building would remain the sa= me in the way it looked, it was in many ways more important that what went on within the building. He said = the exterior of the building should remain the way it was. He asked that the two parking spac= es in front revert back to grass. <= /p>

Mr. Kearney made a motion= to revert the two parking spaces currently in front of building back to grass. Mr. Ouellette seconded= the motion. Ms. Paliy was against reverting the area to grass based on the surrounding properties having park= ing areas near the street. Mr. Ke= arney stated the applicant offered to revert the parking spaces to grass, which s= poke to what they wanted to do to the property.= Ms. Paliy didn’t feel the Board needed to put it in writing. Mr. Kearney believed the Board sho= uld accept the offer and make it a stipulation.

MOTION:

(Kearney/Ouellette) To = revert the two parking spaces currently in front of the building revert back to grass covering.

VOTE:

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

Mr. McNamara commented th= at the Board was voting on the fifth variance in seven years, which would make a nightmare in the future. Mr. Hennessey said with the number of variances in the immediate proximity to t= he property should tell someone that the Town needed to look at the Town Center zoning. He said it might be appropriate for the Planning Board to review the possibility of having new zoning in the area.

Mr. McNamara made a motio= n to include, as conditions for approval, the following: 1) prior to the issuanc= e of a building permit for renovations to create the hair salon the Town of Pelh= am Health Officer and the New Hampshire Department of Environmental Services i= ssue approvals for a replacement septic system for the property; 2) prior to issuance of a Certificate of Occupancy for the hair salon operation the existing well at the property is decommissioned and the property is tied in= to the municipal water system (Pennichuck Water Works) for the provision of domestic water service to the hair salon and the residential units; 3) after commencement of operations at the hair salon, a water meter is placed at the property to monitor water usage for the hair salon with the data from such monitoring being provided to the Health Officer; 4) in the event the current septic system on the property fails after commencement of operations of the hair salon the approved replacement septic system will be installed within = 30 to 60 days after failure; and 5) the façade of the building will rem= ain unchanged except for signage changes.

Mr. Ouellette asked if the signage would change. Attorney Westgate said they would work with the Historical Society regarding signage= and its location.

MOTION:

(McNamara/Paliy) To inc= lude, as conditions of variance approval, the following: 1) prior to the issuance of a bu= ilding permit for renovations to create the hair salon the Town of Pelham Health Officer and the New Hampshire Department of Environmental Services issue approvals for a replacement septic system for the property; 2) prior to issuance of a Certificate of Occupancy for the hair salon operation the existing well at the property is decommissioned and the property is tied = into the municipal water system (Pennichuck Water Works) for the provision of domestic water service to the hair salon and the residential units; 3) af= ter commencement of operations at the hair salon, a water meter is placed at = the property to monitor water usage for the hair salon with the data from such monitoring being provided to the Health Officer; 4) in the event the curr= ent septic system on the property fails after commencement of operations of t= he hair salon the approved replacement septic system will be installed withi= n 30 to 60 days after failure; 5) the façade of the building will remain unchanged except for signage changes and 6) remove two parking spaces in front of the building and revert such to grass.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria, with conditions as contained in motions

Mr. Kearney – Yes= to all criteria

Mr. Ouellette – Y= es to all criteria

VOTE:

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

VARIANCE APPROVED

Case #2447 BOUTWEL= L, Nathan - 33 Windham Road - Map 22 Lot 8-138 – Seeking a Variance to Article III, Sections 307-7, 307-16 & 307-18 to permit development of a parcel of land (currently zoned Residential) under the Tow= n of Pelham Business Zone to allow the construction of a 15,000SF professional office building

Mr. McNamara read the lis= t of abutters aloud. There were no persons present who did not have their name r= ead, or who had difficulty with notification.&n= bsp;

Attorney Paul DeCarolis, representing (property owner/applicant) Nate Boutwell came forward to discu= ss the variance request. Also pr= esent was Joseph Maynard of Benchmark Engineering. Attorney DeCarolis discussed the property and told the Board that they proposed to demolish the existing sin= gle family home (that was currently uninhabitable) and construct an office building. In early discussion= s with the applicant and the engineer, Attorney DeCarolis stated they had every in= tent to protect the historical character (of the area) and would construct a sim= ilar type structure that would be compatible to Pelham Center as if a historic overlay district was in place. He discussed the property and note= d if the variance was denied the property would remain residential; a new reside= nce would need to be constructed because of the condition of the existing structure. He noted that the American Legion was located across the street and was very successful, which would be expanded upon when discussing hardship. They are proposing a buffer betwee= n the proposed business and the residential neighbors. Attorney DeCarolis then discussed = the other uses in the Town Center and noted th= at office space would have less use based on business hours.

Mr. Maynard discussed the physical aspects of the property. He said they began by reviewing the types of uses that would work on= the site. He said they used the Town’s guidelines that had business zoning and the state’s regulations to apply them to the applicant’s property to make sure th= ey would be in conformance with such. He reviewed the parking. Mr. Maynard noted that that land itself was very level with a gentle slope. There would be a retention pond for drainage. They tried to take = the abutters into consideration by keeping away from the natural vegetation on = the side of the lot. The existing structure on the lot was constructed in approximately 1850 and was used as = the local cobbler. The structure evolved over time and became a residence which was now in a dilapidated sta= te; the garage on the lot was also in a state of disarray. Both structures would be razed. Mr. Maynard reiterated that they t= ook the Town’s guidelines for business zoning and the state’s regulations and applied them to the property to make sure they would be in conformance.

Mr. McNamara circulated photographs of the property that had been submitted. He confirmed that the proposed str= ucture would be 15,000SF and asked how big the site was. Mr. Maynard said they were proposi= ng 15,000SFand stated that the lot was a little over an acre and a half. Mr. McNamara asked if any further variance relief would be requested. Mr. Maynard said at this point in time they didn’t see any additional variances being required. Mr. McNamara asked if there would be any waivers from the Site Plan Regulations. Mr. Maynard said= at this point the only thing he saw was parking. He said they always tried to meet = the regulations when developing a plan. Mr. McNamara asked how many units were anticipated. Mr. Maynard said the number of uni= ts would be market driven; the footprint was approximately 9000SF and would be= a two-story structure in a colonial style.&n= bsp; Mr. McNamara asked if the parking would be in front, or behind the building. Mr. Maynard replied= that the parking was proposed for the front of the building and would consist of approximately forty-four spaces. There was enough room left toward the front and side of the lot to p= ut a substantial amount of landscaping between the parking and the street.

Mr. Hennessey asked what percentage of the lot was covered with parking and the footprint of the building. Mr. Maynard said he didn’t do the calculation, but would scale it off.

Attorney DeCarolis said they had submitted a letter signed by several of the abutters. Mr. McNamara read the letter (date= d September 1, 2010) aloud, which stated they did not object the proposed change from residential to co= mmercial/professional. The letter was signed by Eric Bela= nger of 4 Mossey Lane, Don and Donna Clark of Pelham Saddlery Windham Road, Thom= as McCoy of 8 Greenwood Terrace, Dominic Berassa of 31 Windham Road, Henry Zan= noni of 5 Mossey Lane, Francis Kirkpatrick III of 7 Mossey Lane and Ken Frechett= e of 52 Windham Road.

Mr. Hennessey was concern= ed with the coverage of the lot. Mr. = Gowan believed the coverage was approximately 60%; he believed the state looked a= t an 80% threshold. Mr. Maynard sa= id there was approximately 36,000SF of surface area that was covered by buildi= ng, parking, sidewalks; the site is approximately 65,340SF.

Ms. Paliy wanted to revie= w the architectural sketch of the building. Attorney DeCarolis said the condition he proposed was that the exter= ior of the structure be constructed in a manner design consistent with historic= al and colonial characters of the existing structures, homes, churches and the former Town Hall as reasonably determined by the Pelham Planning Board with input from the Pelham Historical Society.&= nbsp; He suspected if the variance was granted, there would be a lot of pa= rties interested in the design f the building.&n= bsp; The applicant (Nate Boutwell) acknowledges this and also wants to protect the historical character of Pelham Center. The intent was to try and mirror <= st1:place w:st=3D"on">Pelham Center as much as possible.

PUBLIC INPUT

Mr. Tim Zelonis, 2 Vassar Drive spoke in favor of the proposal. It was the location that brought it to his attention. He felt it would be a great locati= on for offices, which could be professional in use. Mr. Zelonis said he came upon the Strategic Plan for Economic Development dated February, 2009 which mentioned this type of development. He = felt the proposed would be a positive project.&= nbsp;

Mr. McNamara said he had = heard nothing out of line and felt the proposed was an exciting use of the property. He would feel more comfortable, given the large nature of the proposal, if the Board walked the site. Mr. Hennessey would als= o like to walk the site. He suggeste= d that the Board not get too into design as long as there are some assurances that someone would be involved. He= was concerned with the parking out front, which was for the Planning Board. He was concerned with the appearan= ce of the building, though he understood that was a planning function. He would like the site to be flagg= ed and cited in relationship to the road. <= /span>

The Board discussed condu= cting a site walk and scheduled it for October 23, 2010 at 9am; the Planning Board and public were invited to attend. .

The case was date specifi= ed to the November 8, = 2010 meeting.

SITE WALK – October 23, 2010 at 9am

Case #2447 BOUTWELL, Nathan - 33 Windham Road - Map 22 Lot 8-138 – Seeking a Variance to Article III, Sections 307-7, 307-16 & 307-18 to permit development of a parcel of land (currently zoned Residential) under the Tow= n of Pelham Business Zone to allow the construction of a 15,000SF professional office building

DATE SPECIFIED HEARINGS – November 8, 2010

MINUTES

September 13, 2010 – deferred to t= he next meeting.

<= /u>	<= /u>
<= /u>

ADJOURNMENT

MOTION:

(McNamara/Kearney)To ad= journ the meeting.

VOTE:

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

The meeting was adjourned= at approximately 10:41 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