7-12-10

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 12, 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, Peter McNamara, Alternate Bill Kearney, Altern= ate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan

Robert Molloy, Kevin O’Sullivan

CONTINUED

Case # 2437 HARRIN= GTON, Scott & Lori – 19 Brandy Lane&nb= sp; - Map 36 Lot 10-368-10 – Seeking a Variance to Article VII, Section 307-41-B to permit a portion of a proposed addition to extend in to= the W.C.D. along with a temporary disturbance of the W.C.D. for grading around = the proposed addition

Mr. Kearney and Mr. LaFra= nce were appointed to vote regarding the case because they were present for the site walk.

Mr. Kearney provided a br= ief summary of what occurred during the site walk. Two members of the Conservation Commission were also present; however the Commission has not provided comme= nt regarding the case.

Mr. Shane Gendron of Herb= ert Associates, representing the applicants, came forward to discuss the propos= ed variance. He said they had be= en asked to address the pool situation with the 410SF Wetland Conservation Imp= act (‘WCD’); they added it to the application so it could be addressed. He said two things that came up du= ring the site walk was slowing/redirecting water to be able to put it back into = the ground and minimize the effect of the building. He proposed tying all the roof dra= ins into a mini dry well and located such on the plan. They had also been asked to mark t= he WCD; a note was added to the plan to install WCD signs every 50ft.

There was no public input= .

Mr. McNamara asked if the= re had been any discussion during the site walk regarding mitigation of the swimmi= ng pool encroachment (other than the downspout). Mr. Hennessey answered no. Ms. Paliy said she found it intere= sting that the house was built up, and the pool area was raised up (approximately 5ft.-6ft.) above the WCD.

Mr. Hennessey said he had struggled under the variance criteria (#5) to determine what distinguished = the property from every other property on that side of the road and the original conditions imposed by Planning. Mr. Gendron believed the hardship that was inherent to the property was the placement of the existing house. He said the addition was currently slated to be a one story addition. They felt coming off the existing building 20ft. would be a minimum width for the addition to make sense for = the applicant’s family. Mr. Gendron reiterated that the house placement was the inherent hardship; no o= ne would have chosen that placement if they knew they would never be allowed to add on to the home.

Ms. Paliy commented that = there didn’t seem to be another location to have placed the home. She wanted to know if it would be possible to add onto the second floor.&nbs= p; She also asked about the water situation and if the house was being flooded. Ms. Paliy questioned= if there was something more than the wetlands making the parcel unique. Mr. Gendron said the Town had heig= ht regulations and they wouldn’t be able to raise the height any more th= an it was. The existing home had vaulted ceilings with sky lights; the entire roof would need to be removed = in order to construct using the proper trusses. Mr. Gendron provided a brief expla= nation of the lot’s limitations. He showed where the house could have been placed on the lot to provide plenty = of room for an addition; however the house was placed at a ninety degree angle= at the WCD. He showed the areas = on the lot that remained in its natural state and were not proposed to be altered.

Mr. Hennessey asked if it= was being suggested that informally the owners had created a mitigation area. Mr. Gendron stated they wouldnR= 17;t have a problem adding the area to the WCD making it a mitigation/conservati= on area with no future development. Mr. Peter Zohdi of Herbert Associates came forward to show the area being discussed. He suggested= moving the no-cut area from 50ft. to 100ft. away from the wetland. Mr. McNamara said he would be more comfortable if there was that type of mitigation.

Mr. McNamara asked for th= e size of the addition. Mr. Gendron = said it was roughly 20ft.x53ft. Mr. McNamara questioned if it could be compacted to minimize the impact. Mr. Gendron explained that the WCD impacts were occurring due to the width, not= the length of the addition. He sa= id the 20ft. width was being requested to make the space livable for the owners. Mr. LaFrance concurred that reduci= ng the length wouldn’t make a difference in regard to the impact. Mr. Hennessey agreed.

Mr. Ouellette asked if th= ere were stairs or decks proposed to come off the addition because it would create further impacts to the WCD. M= r. McNamara pointed out the area would still require maintenance. Mr. Gendron said the owners were n= ot requesting anything more than the 20ft. shown. He said there were no decks etc. b= eing proposed; the front would be a full walk-out (matched grade).   There may possibly be steps = off the back portion of the addition. Mr. Hennessey noted that the pool was existing so there wouldn’= ;t be additional impacts in the back (of the addition). There was further discussion regar= ding the proposed building and its access.

Mr. Gowan commented that = if the Board decided to grant the requested variance, that they consider the area shown with the silt fence (5ft. off foundation) to be a reasonable area for disturbance/encroachment for maintenance.&= nbsp; Mr. Kearney pointed out that the applicant had already requested 5ft. around the building for grading. The plan was marked temporary, when it should have been marked permanent.

Mr. Hennessey said the Bo= ard would accept a friendly amendment to the application. On the plan where it’s marke= d as a temporary impact to WCD will in fact be the impact to the WCD. There was a consensus of the Board= to allow the friendly amendment to the plan.&= nbsp; There were no objections. Mr. Gowan requested that the recordable plan show the correct impact. Mr. Gendron didn̵= 7;t object.

Mr. McNamara made a motio= n to have the additional mitigation memorialized on the recordable plan. Mr. LaFrance seconded the motion.<= span style=3D'mso-spacerun:yes'> Mr. Gendron said they were offerin= g to extend an additional 50ft. (undisturbed area) behind the pool area. Mr. Hennessey said that would be p= art of the motion.

MOTION:

(McNamara/LaFrance) To have additional mitigation memorialized on the plan to be recorded (as described).

VOTE:

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

Mr. Hennessey asked for a= motion to have the structure’s (including the addition) gutters and down spo= uts tie into a mini dry well. Mr. Gendron showed the Board the detail for the mini dry well, which would be concrete pre-cast lined with stone. The dry well would dissipate the water into the ground as a septic system would.

MOTION:

(McNamara/Kearney) To have a mini dry well tied in = with down spouts and gutters around the structure (including the addition), as described on the plan submitted to the Board.

VOTE:

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

There was a discussion re= garding the installation of WCD signage along the delineation of the WCD. Mr. Gowan said the additional miti= gation area should include signage. = He suggested not requiring signage along the edge of the pool deck; where there are structures there would be no need for signage.

MOTION:

(McNamara/Kearney) To install WCD signs every 25ft.= along the delineation of the WCD; where there are structures (i.e. pool deck) t= here is no need for signs.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria; with conditions as approved.

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. LaFrance – Ye= s to all criteria

VOTE:

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

VARIANCE APPROVED

HEARINGS

Case #2442 PINCINC= E, Mark & Sheila – 67 Lannan Drive   - Map 31 Lot 12-42-6 – Seeking= a Special Exception to Article XII, Sections 307-73 & 307-74 to permit an accessory dwelling unit within their existing house in the Residential Dist= rict

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. Wes Aspinwall of Herb= ert Associates, representing the applicant, came forward to discuss the request= ed Special Exception. The applic= ants would like to construct an accessory dwelling unit within their house. The applicants purchased their hou= se new in 2006. Photographs of the h= ome were posted for review. The applicants would like to do the unit without constructing an addition. The floor plan (contained in the Board’s packages) showed the proposed layout of the (750SF) unit. Mr. Aspinwall reviewed the informa= tion submitted to the Board. He sa= id a new septic design had been done and recently approved by the state and the Pelham Health Officer. A copy= was posted for review. Mr. Aspinw= all said there would be no significant change to the outside of the building. He believed that the proposal conf= ormed to all the requirements of a Special Exception.

Mr. Hennessey explained t= o the public that for Special Exception cases to be granted, it was simply a matt= er of meeting the criteria.

Mr. McNamara confirmed th= at the living area was 750SF. Mr. Aspinwall said 750SF was correct; there had been an error in the first plan’s calculation. Mr. McNamara asked if there would be any change to the outside of the structure. Mr. Aspinwall wasn’t sure if there would be cosmetic work/enhancement done to the sliding door, or adding walkways. Mr. McNamara asked who the unit was intended for. Mr. Aspinwall believed the unit was intended for one of the sons to live in the unit. Mr. McNamara asked Mr. Gowan if he= had any additional information. M= r. Gowan said he conferred with the Building Inspector (who confirmed the numb= ers) and noted that the plan stamped July 8, 2010 should be referenced with the application; it conformed= to the regulations. He told the = Board and the public that the units were never to be rental units or have separate utilities. He pointed out tha= t the Special Exception would run with the property.

There was a discussion re= garding the living space calculation. Mr. Gowan noted that the dimensions were scrutinized carefully by the Building Inspector.

PUBLIC INPUT

Mr. Abdul Berub, 57 Lannan Drive requested clarification as to whether there would be any external changes to the building. He also wanted confirmation that the unit would not be able to be rented if the Special Exception was granted. Mr. Hennessey said it would not be a rental unit; it would be for a family member. Mr. Berub wanted to k= now if the proposed unit could be used for a business operation. Mr. Hennessey said it couldn’= ;t be used any more than any other structure in Town per Zoning.

Mr. Aspinwall showed a ph= oto of the walk-out from the accessory unit, which wasn’t clearly visible fr= om the street. He didn’t b= elieve that there were any further changes anticipated as part of the unit; there = may be a cement pad. He said in t= he future if the owner wanted to extend the building they had the right to go = to the building department with a proposal.&n= bsp;

Mr. Gowan informed that i= n both minor and general home occupations neither were allowed in any type of multi-family dwelling. Mr. Hennessey said in putting the unit in, the owner was closing the door on th= eir right to put in a home business.

Mr. Berub said there was = a permit issued in 2007 to finish the basement and make other alterations. He asked why the current request w= as being made if the permit was issued in 2007. Mr. Gowan said the 2007 permit con= tained a strong comment indicating that the space could not be used for any kind of dwelling purpose. Mr. Berub d= iscussed the parking at the applicant’s home and asked if the space would be sufficient for the number of people residing in the home. Mr. Gowan said there have been som= e code enforcement issues, but believed the case was closed. He said it had been made clear at = the present meeting that no home occupation may exist; no vehicle registered to= the business may be kept in view. He said there would be no business vehicles or equipment on the property.

Mr. Bill Irwin, 64 Lannan Drive, asked if the stairs going from the first floor to the basement would remain= for a second egress. Mr. Aspinwall showed the stairway location and the floor plan for the proposed unit. Mr. Irwin confirmed that the unit = would have access to upstairs. Mr. Aspinwall answered yes.

BALLOT VOTE:

Mr. Hennessey – Y= es

Ms. Paliy – Yes <= /p>
Mr. McNamara – Ye= s

Mr. Kearney – Yes=

Mr. LaFrance – Ye= s

VOTE:

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

SPECIAL EXCEPTION APPROVED

Case #2443 WUNDERL= ICH, Richard - 503 Bridge Street -= Map 22 Lot 8-109-1 – Seeking a Variance to Article V, Section 307-19 (D) to permit a used (retail) car dealership in the Business Distric= t #1 at a location northerly of the intersection of Atwood Road and Old Bridge Street

Mr. Hennessey appointed M= r. Ouellette to vote in place of Mr. LaFrance to give him the opportunity to be involved.

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. Peter Zohdi of Herbert Associates and Attorney Peter Bronstein, both representing the applicant, came forward to discuss the requested variance.= Mr. Zohdi reviewed the proposed pl= an with the Board.

Attorney Bronstein reviewed the variance criteria as follows (as submitted):

The variance will = not be contrary to the public interest because: It is a commercial use in an area which has many commercial us= es but not many used car dealers.

The spirit of the ordinance is observed because: The only variance request is to a= llow the use of sale of used cars in conjunction with the allowed uses of c= ar repair and body work.

Substantial justice is done because: The variance requested is for a use ancillary to the main use = of the property, which main use is allowed by zoning.

The values of surrounding properties are not diminished because:= The applicant will be improving the appearance of the property which should enhance the value of the surrounding properties.

Owing to special conditions of the property that distinguish it = from other properties in the area, denial of the variance would result in unnecessary hardship because:

&n= bsp;

(A)   For purposes of this subparagraph, “unnecessary hardship” means tha= t, owing to special conditions of the property that distinguish it from other properties in the area:

&n= bsp;

i.      =            no fair and substantial relationship exists between= the general public purpose of the ordinance provision and the specific applicat= ion of that provision to the property because: The purpose of 307-19D is to limit the number of used car dealers in a given area. In fact, there is only = one limited used car dealer on this part of Route 38 and the applicant would me= rely be relocating his used car lot from 151 Bridge St. to 503 Bridge Street.

ii.      =           the proposed use is a reasonable one because: The property is located in a commer= cial area with a limited number of used car dealers. The sale of used cars will be anci= llary to the main use of the property which is allowed in this zone.

(B)   If the criteria in subparagraph (A) above are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditio= ns of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it. No answer was given to this.

Mr. Hennessey asked if th= ere was someone with a license to sell used cars within 2000ft. of the proposed site. Mr. Gowan believed the reference was to Edmunds Auto Body, which was adjacent to the property. He said they were a license auto b= ody dealer. He will research any previous zoning opinions and see if it pre-dated the section of the Ordinan= ce put into place in 1998. Mr. Hennessey commented that the code referred to 2000ft. Mr. Gowan stated that there had be= en a misinterpretation in the past regarding the district containing the restric= tion of 2000ft. (separation). He s= aid the property being discussed was outside of the specified district outlined= in Zoning. Mr. Hennessey said the Board would accept Mr. Gowan’s (Zoning Administrator’s) opinion= as fact; the Board would not discuss that issue further. He said if there was an appeal, the Board could discuss it as an Administrative Appeal.

Mr. McNamara asked if the business would be expanded when it relocates. Mr. Zohdi said if the owner wanted= to expand the business they would have to come back in front of the Board. Mr. McNamara asked what would happ= en to the cars presently behind the (Salem 66) business by the brook. Mr. Zohdi said there was a garage door on the side of the building; there was an area behind a fence for storage.

Mr. Kearney asked what si= gnage was proposed. Mr. Zohdi said = the only sign proposed would be to change those currently on the building to re= ad Salem 66. He said if they were to propose an= ything else, they would need to go back to Planning. Mr. Kearney asked if there would b= e any lit signs near the road. Mr. = Zohdi said they weren’t proposing anything like that at this time. Mr. Gowan said the applicant was entitled to signage that complied with zoning; those applications would com= e to him.

There was a brief discuss= ion regarding what aspects of the plan the Board was to review. Mr. Gowan said if approved, the applicant would still need to go to the Planning Board for a change-of-use.

PUBLIC INPUT

Mr. Mike Dexter, 51 Jericho Road, stated he was in favor of the proposed.&nb= sp; He told the Board he hoped what was good on one side of the street w= ould be good on the other side. Mr. Hennessey said the Board could only deal with what was in front of them.

The Board discussed how t= hey would proceed. Mr. Hennessey didn’t feel a site walk was necessary given the location of the propo= sed business. Mr. McNamara commen= ted that the site seemed to be appropriate for the business being proposed. In terms of the criteria, he didn’t feel there was controversy.&n= bsp; He said it seemed to be an improvement to the site. Mr. Hennessey said regardless to w= hether there would be an improvement to the site, he was unsure if there was a lot= of choice in granting an approval based on previous court decisions. He felt there would be a problem in turning the application down. Ms. Paliy felt the move from the current site to the proposed site would be a h= uge improvement.

Mr. Ouellette wanted to k= now if all the cars would be moved to the new site if the variance was approved. Mr. Gowan said the applicant had a= lready closed on the current Salem 66 property with Arista, which would now become a Walgreen’s.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Kearney – Yes= to all criteria

Mr. Ouellette – Y= es to all criteria

VOTE:

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

VARIANCE APPROVED

MINUTES

June = 14, 2010

MOTION:

(McNamara/Kearney) To a= pprove the June 14, 2= 010 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

(Kearney/McNamara) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:35 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