February 13, 2012


The Chairman David Hennessey called the meeting to order at approximately 7:00 pm.


The Secretary Robert Molloy called roll:







David Hennessey, Svetlana Paliy, Robert Molloy, Peter McNamara, Kevin O’Sullivan, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan






Mr. Hennessey stated that the Board would be reconvening two applications that had been before the Board during their last hearing.  Site walks had been conducted for both cases since the last hearing.


Case #ZO2011-00029   GAGNE, Ryan  /  197 Marsh Road -  Map 39 Lot 6-185-1 – Seeking a Special Exception to Article III, Section 307-76 III to permit a general home occupation of a landscaping business


Mr. LaFrance stepped down.


Mr. Ouellette read aloud the draft minutes of the site walk dated January 21, 2012.  Mr. Hennessey stated that the Board wouldn’t accept the minutes until they had been distributed to the members as an official record.  He said in the course of the testimony, the applicant would be allowed to expand on what had been read aloud. 


Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the requested Special Exception.  He recalled, from the conversation at the site walk about the wood cutting operation, that currently sat 10ft. (or less) to the edge of wetlands that the Conservation Commission would like to see it moved away as much as possible, but they weren’t looking for it to be moved completely outside of it.  They had agreed to try and center that location; it would probably still fall within the Wetland Conservation District (‘WCD’), but wouldn’t be as close to the edge of wetlands.  Mr. Hennessey recalled the same.  Mr. Maynard felt for the most part that the site walk minutes were correct.  He said after speaking to Mr. Gowan they had a better understanding of what was considered a ‘vehicle’.  He said Mr. Gagne had roughly sixteen pieces of equipment that were relatively on site that include anything from a truck to a plow truck to trailers (both enclosed or open), bobcats, mini-excavator. Of the sixteen vehicles, three were personal vehicles; two of the personal vehicles had lettering.  There were another four-five pieces of equipment that didn’t stay on site.  In summary the applicant’s company owned approximately twenty-one pieces of equipment, of which sixteen were on site. 


Mr. Hennessey commented about the site walk minutes and indicated that the Conservation Commission was invited to the site walk, but the Board didn’t request their presence as they had in other cases.  The reason the Board hadn’t received a letter from the commission because the Board had not asked the Conservation Commission for an opinion regarding the application.  Mr. Maynard understood.  He also understood if the application was granted they would need to proceed to the Planning Board at which time the Conservation Commission could offer comment.  He stated they were more than willing to speak with the commission. 


Mr. Maynard reviewed the requirements listed under the General Home Occupation Ordinance; these items were initially reviewed/discussed at the first hearing on January 9, 2012.


Mr. McNamara questioned the 49% limit and wanted to know if the garage was included in that number for purposes of the calculation for the allowable business space.  He commented that the garage had no bathroom or living area and was detached from the house.  He was concerned that the term ‘gross living area’ was inclusive of that kind of a structure.  Mr. Gowan replied that a lot of the time it was just a house (a portion of a house) dedicated to a business.  When there are multiple structures in play on a piece of property, he believed the intention of the zoning was if there were multiple structures the square footage for all of them (the structures) and still be sure that the 49% threshold was not being exceeded.  Mr. Maynard noted in adding up the existing house and the existing garage they were at 4,180gross square feet; if they add a 2000SF garaged, it would put the calculation at approx. 6200SF from which 49% would be 3000SF.  The applicant was only looking to accommodate 2000SF. 


Mr. McNamara commented on the limit of the number of vehicles that were registered to the business on site.  This topic has been a concern with other (landscaping) businesses in Town.  There was a brief discussion regarding the business vehicles and how they would be screened from neighboring view.  Mr. Maynard explained how the vehicles would be screened from view being that they would be behind a 6ft. high fence.  Mr. Hennessey interpreted the ordinance to mean vehicles had to be garaged and screened.  He didn’t see how the proposal could meet the 49% limit.  Mr. Molloy had the same concerns given the amount of vehicles.  Mr. O’Sullivan said with other applications there had been discussion about having alternative locations for vehicles.  Mr. Hennessey said the Board had no discretion given that the request was for a special exception.  Mr. Maynard said they were allowed roughly 3000SF of garage space.  They could fit approximately ten vehicles in the (proposed) 40ft.x50ft. garage and could fit approximately four vehicles in the existing garage.  Mr. Hennessey said all equipment must be garaged/screened, not just vehicles.  Mr. Maynard understood.  He said the applicant had approximately twenty-one pieces of equipment but only sixteen of which was on site at any given time.  He believed a lot of the equipment could fit in the proposed garage space.  Mr. McNamara noted the lot had screening in back, the next door building and the house also provided screening.  He believed the only exposure was to the road on the side.  He was trying to give the applicant flexibility, while still meeting the requirements of special exception because he felt the applicant was making a good faith effort to do so. 


Mr. Maynard felt that where the property was located in Town, and from the site walk looking at the neighboring property, there were all kinds of equipment parked directly adjacent to the applicant’s property.  He said a lot of the things directly abutting the land are similar mechanical devices that the applicant had.  He said the applicant had done a considerable amount of work to clean the property. 


Ms. Paliy asked if the applicant wanted to conduct more research and review similar cases to see how they had come before the Board.  Mr. Maynard said he pulled the file for another landscaping business up the street.  He said there was no garage proposed for that application and were screened from the road.  He noted that the applicant had gone to great lengths to speak to all of his abutters; there weren’t any abutter concerns with what was being proposed.  In reading the criteria, they believed the vehicles would have to be garaged and screened from view; and the applicant’s property did a good job screening things from the street and direct abutter. 



Ms. Julie Giniewicz, 14 Patriot Drive knew the Board’s concerns regarding the trees and screening on the backside.  She stated there was probably three months out of the year she could see the applicant’s yard; other than that, the trees were so thick nothing could be seen or heard.  She said the applicant was very quiet and the equipment going in and out wasn’t noticeable.  She said as the back yard neighbor, she had no problems with what the applicant was doing.  She said he was doing a great job cleaning things up. 


Mr. Maynard said in reviewing files and seeing what had previously come before the Board they took #8 as an and/or situation (regarding vehicles in a garage/screened).  He reiterated that the applicant had gone to great lengths to speak to his neighbors about the proposal and had done a good job keeping things to a minimum. 


Mr. Molloy felt there were too many ‘what if’ questions.  He understood there were sixteen trucks, but it was unclear how many of those would fit into the proposed garage.   



(McNamara/O’Sullivan) As a stipulation to a Special Exception, if granted, that all equipment other than the two personal vehicles be housed within the (to be built and existing) garages on the site.   




(5-0-0) The motion carried. 


Mr. Maynard understood if the Special Exception was granted the applicant would have to proceed with Planning Board approval, build a garage and store the vehicles and equipment within the garage space except for the two vehicles that were allowed to remain in the open. 


Mr. Hennessey said he really questioned the 49% and if sixteen vehicles changed the residential nature of the property.  Mr. McNamara said testimony was given about what could actually be seen from the applicant’s property and the neighboring property.  This satisfied some of his concerns regarding abutter’s concerns about the operation of a business. 


Ms. Paliy felt the request should be a variance and not a special exception. 


Mr. Hennessey explained for the public, unlike a variance a special exception isn’t open for personal opinion except in terms of whether it met the criteria for a general home occupation.  Mr. Molloy said the applicant currently didn’t have a garage.  He still had questions about all the equipment being parked in the garage and if it would meet the 49% criteria.  He didn’t feel it presently met the criteria for general home occupation. 


Mr. Paliy said she researched the property and believed that because the criteria for special exception was so strict that it should not have come in under that, but instead should have come in as a variance. 


Mr. O’Sullivan asked if the 40ft.x50ft. structure brought up any additional conservation issues.  Mr. Hennessey said it didn’t, based on what they saw on the site walk.  It may bring up concerns whether they were, according to the criteria, getting beyond residential use.  He said the ordinance said the nature of a property couldn’t be changed. 


Mr. Ouellette said after the first meeting he sent Mr. Gowan an e-mail regarding the rules of a special exception and needed them defined.  He said Mr. Gowan responded to say if the 49% wasn’t met the special exception didn’t apply.  He said in fairness to the applicant, if the Board had questions if the special exception met the requirement, they had a right to that.  Mr. Hennessey said it either would or would not meet the criteria based on the way the Board read it.  He said the Board of Adjustment was the board that decided what the ordinance meant. 




Mr. Hennessey – No; suggest a variance.

Ms. Paliy – No

Mr. McNamara – Yes; with conditions contained in the motion.

Mr. Molloy – No

Mr. O’Sullivan – Yes; with stipulations as voted.




(2-3-0) The motion failed.





Mr. LaFrance returned to the Board.


Case #ZO2011-00030  BOUTWELL, Nathan G.  /  144 Windham Road  -  Map 15 Lot 8-201  -  Seeking a Variance to Article III, Sections 307-9, 307-12 and 307-13 of the Zoning Ordinance to permit up to 12 buildings for dwelling purposes (each single family dwellings) on one lot where such lot has an overall size of approximately 9.63 acres.  A Variance is also requested to Article VII, Sections 307-39 and 307-40 to permit a street, well(s), utility right-of-way easements, power lines and pipe lines (and related appurtenances) in the buffer portion of land within the Wetland Conservation District


Mr. Hennessey stated that the case was before the Board at their last meeting.  A site walk had been conducted.  Draft (unapproved) minutes from the site walk were read into the record by Mr. McNamara.  Mr. Hennessey reiterated that the minutes were not official.  He said in the course of testimony being provided to the Board those minutes could be expanded and commented upon.  He acknowledged that the variance criteria had already been read into the record, and told the applicant that they were free to add to, expand, or comment on any of the criteria, site walk minutes and/or comment on any other part of the application.


Attorney Brad Westgate of Weiner and Bennet and Joseph Maynard of Benchmark Engineering came forward, representing the applicant, to discuss the requested variances.  The applicant, Nathan Boutwell also came forward.  Attorney Westgate noted that they had posted (for the Board’s review) a conceptual site plan, an amalgamation showing components of the tax map showing (in color) the different types of uses in the area both residential and business zone sections as well as a copy of the Hillsborough County Registry of Deeds plan #35604.  He refreshed the Board regarding the details of the plan.  The applicant has applied for two variances; one being a variance from Section 307-9 requiring that only one principal residential structure be built on a lot and the request was to build twelve structures (single-family homes) under the condominium form of ownership this variance request also pertains to the one-acre lot minimum requirements and the 35KSF dry land requirements; the second request was to permit a private road to access the property through the Wetland Conservation District (‘WCD’) upland buffer area. 


Attorney Westgate stated that the property was shown on plan #35604 with the Hillsborough Registry County of Deeds.  He provided a copy of this plan for the Board so there was no further doubt that the property contained 9.629acres.  He noted that the survey provided to the Registry was done a number of years ago for the School District when it contemplated purchasing the property (along with the Atwood heir’s property to the rear).  This survey was used when the applicant prepared their conceptual site plan.  The property contains approximately 2.42acres of wetlands, inclusive of the pond as well as the smaller wetland area shown on the conceptual plan and the School District plan.  With the wetland subtracted, it left 7.21acres of upland (dry land) remaining; approximately one acre of the 7.21acres is the WCD land adjacent to the pond in which (in part) the access road would be constructed.  The parcel is ‘L’ shaped with approximately 260ft. of frontage on Windham Road, with virtually all the frontage being in the WCD either because of the pond or the 50ft. buffer adjacent to the pond.  Any access to the property must go through WCD land.  At the last meeting there was a question raised about a potential easement, or access to the Atwood heir’s land that lies to the east (map 15 lot 8-206).  Attorney Westgate stated that easement matters were classically private property matters between abutting property owners.  As best he could tell from researching the question, in 1958 George and Shirley Sutton granted a 50ft. right-of-way (a private easement) over the property.  He said it was over the applicant’s property site, not over the property presently owned by Daniel Frost which had already been excluded from the potential easement location.  The right-of-way does not affect the Hobbs’ property to the rear because it didn’t involve that property, or go over it as was clear from the record.  He noted if a private right-of-way was ever established to benefit the Atwood heir’s parcel, it couldn’t be done without the necessary approvals at the Town level.  In summary it is a potential right-of-way that would need approvals/permits to be implemented; it was not a Town road that the Atwood heirs have a right to establish and it wasn’t located over the Hobbs’ property. 


Attorney Westgate stated that Mr. Frost (owner of 134 Windham Road) raised a question during the site walk (Atty. Westgate was not present) about his dug well (near the property line).  He was told by the applicant (Mr. Boutwell) that the dug well was not the primary drinking source for Mr. Frost’s house.  There is no protective well radius or well easement that burdens the Sutton property for the benefit of the (Frost) well.  


At the previous meeting a question was raised regarding the applicant’s hardship argument and what was the rational behind such. Attorney Westgate re-summarized what he explained to the Board at the last meeting.  The application was an outgrowth of Mr. Gowan’s Administrative Decision on December 16, 2011.  First Mr. Gowan determined that single-family dwellings were permitted in the R (residential) district, so a variance wasn’t needed for the ‘use’, but he noted that only one building for residential purposes was permitted on a lot; the applicant was proposing twelve under the condominium ownership, therefore a variance would be needed from that provision.  In effect, Mr. Gowan had also determined that the one-acre minimums and the 35KSF non-wetland requirements were de facto density provisions and thus a variance was needed.  With respect to the road, Mr. Gowan determined that the applicant either needed a variance from the WCD requirements or a special permit from the Planning Board.  Attorney Westgate discussed the manner in which variances are determined by using the criteria.  He summarized what was discussed at the previous meeting relating to the criteria.  A letter submitted by Keach-Nordstrom (engineering review firm) dated February 10, 2012 that provided opinion to the applicant’s proposal with regard to 1) was it realistic that the five-lot grid subdivision was an appropriate analysis by Mr. Maynard and 2) are the soil conditions such that they could handle up to 74 bedrooms and what was being proposed could easily be handled within that parameter.  Mr. Keach found that the five-lot grid subdivision was a realistic type of an approach in terms of Mr. Maynard’s plan (yield analyzed was logical given the land mass and configuration).  Secondly, the soil conditions are capable of handling 74 bedrooms.  In that regard, Mr. Keach concluded that “As such from strictly a sewage loading perspective, we believe the development concept proposed by the applicant would in fact be eligible for NHDES Subdivision Approval provided the applicant was also able to successfully demonstrate all other applicable provisions of the New Hampshire Code of Administrative Rules, each within the purview of the NHDES, were to be fulfilled under this proposal.”  Attorney Westgate believed what Mr. Keach’s letter did was indicate their analysis of the property found the grid yield appropriate and the septic loading analysis made sense.  The letter also noted that if somehow it was a conservation subdivision it could generate a sixth lot maybe by some density bonus. 


Mr. Hennessey saw that Keach spoke about the basic concept by the applicant as being similar in format to a residential conservation subdivision, which Keach understood was not an option to the applicant because it would require ten acres of land.  But he also saw where Mr. Keach went back to the residential conservation subdivision topic and spoke about yield based on soils. Mr. Hennessey asked if there was anything in zoning, aside from the one sentence about residential conservation subdivision, that said anything about septic yields.  Attorney Westgate didn’t know of anything in the Town’s zoning.  He commented that there were design requirements in the Town Regulations.  Mr. Hennessey found nothing regarding septic yields anywhere else in the zoning ordinance.  Attorney Westgate said the point they had tried to make at the previous meeting was that the property, from an environmental perspective (essentially septic yield), could easily accommodate what they were proposing.  The notion was they wouldn’t be overburdening the property from a density perspective when it’s analyzed from the most critical issue that is typically involved in development, which is handling septic on site.  Mr. Hennessey asked that the point be repeated.  Attorney Westgate said what they were trying to say from the ‘soils analysis’ was that the proposed could be readily accommodated from a septic perspective by the nature of the property; by it’s soils as proven out by the analysis made by Joe Maynard and confirmed by Keach (visa vie the number of bedrooms).  He believed, from an environmental perspective, handling septic load was probably the most typical and most critical issue in normal residential development.  He noted that some of the other unique characteristics of the property were the ‘L’ shape and the developable land being in back.  He commented that he referred to the property as a classic case of a narrow throated property where there was a narrow way in and an expanded into a capable/developable back area.  In those cases there was always the issue of how the back area would be accessed and when they get into the property, they don’t get the yield that a typical subdivision needs to handle a public road development on a grid subdivision basis.  The applicant’s parcel is fairly isolated that could be developed with a modest home neighborhood that wasn’t right out on a main road. In this case a compact area could be developed in a different manner than the five-lot grid subdivision. 


Attorney Westgate noted that the Town’s Master Plan speaks about future land use and recommendations.  One aspect of that (in chapter 8- future land use notes) says density should be increased in the residential district in areas with fewer development constraints.  Given the property’s soils and relatively flat topography, it was the kind of property that could handle more density, which was not inconsistent with some of the future land use goals of the Town’s Master Plan.  To conclude the two-prong hardship test, with the set of criteria and the special conditions, it was clear to the applicant that there was no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of those provisions to the property.  The point was that the prohibitions that the ordinance provisions provide was an attempt to not permit excessively dense development on land, and to prohibit roads and utility service in the WCD, unless the WCD criteria could be honored.  Attorney Westgate stated that the provisions in the ordinance were not furthered/promoted by denying the variance because as the applicant demonstrated the property could handle a modest development with greater density but not with overburdening bedrooms and septic imposition.  Also, they couldn’t get into the property without receiving some relief from the WCD provisions.   


The second Simplex criteria was that the use proposed be a reasonable one.  Given that single-family dwellings were permitted in the R District, and given that most of the properties nearby were single-family dwellings or duplexes, Attorney Westgate indicated what the applicant was proposing is compatible with the area and a reasonable, defined permitted use under the zone.  The use itself was therefore not unreasonable.    


At the previous hearing a comment was made that granting the variance would create precedence and other property owners would seek to increase their density.  Attorney Westgate didn’t believe that would be the case.  They didn’t feel that a bad precedent would be established by granting the variances.  He felt that the present case established a strict and good standard; if other properties could meet it then perhaps they would have rational basis to ask for a variance.  He believed they established a very strict standard because of the significantly unique characteristics of the property and its clear ability to handle septic yield and greater density.  He referred to the Assessor’s map and pointed out that there wasn’t a similar parcel.  He didn’t believe the ‘precedent’ notion to be problematic.


Mr. Hennessey commented that the Board would split the two variances and discuss separately.  He asked if the applicant had a preference to which they would like to review first.  Attorney Westgate said they could be reviewed in the order the application was drafted; the density building lot ad then the WCD, but was fine proceeding however the Board felt more comfortable. 


Mr. Hennessey read aloud a letter, dated February 1, 2012, that had been submitted to the Board by Brenda Hobbs.  The letter indicated that the pond located to the left side of Richard Sutton’s driveway had always been a natural pond.  This pond was always referred to as ‘Jimmy’s Pond’ and has been a natural eco-system for many animals and birds. 




Ms. Cheryl Hobbs, 120 Windham Road, said when she first received the notification of the proposal she was opposed to such are a large project that would be directly behind her home.  She was also curious how the Assessor showed the acreage, which has now been answered.  She took into consideration that the 9.63 acres as being correct and in doing a quick calculation, with 2.6 acres of wetland the WCD buffer (approximately 2/3 – 3/4 of an acre) there was approximately 6.25 acres to sustain twelve single-family homes.  This left approximately .52 acres per home.  She didn’t view 1600SF-1800SF homes as modest being that she believed her home to be modest at 1000SF.  She understood that the soil testing could sustain the septic and well, but in her opinion the proposal didn’t constitute the bedroom community that Pelham was described to be in the Economic Development Plan.  She was curious what type of vegetation would remain after development.  Ms. Hobbs said when the site walk began she was surprised to see that the existing driveway was completely in the WCD buffer and that the property line for the abutter (134 Windham Road) was so close.  She understood that the developers would use the existing driveway as a private driveway/private road system, but was concerned if the proposal was approved it wouldn’t be long before someone else came forward to do additional development on the land behind the parcel (Atwood heir’s land).  To her, that type of development would require an actual road.  She said the development would have an impact on Fire, Police and the schools depending on who purchased the homes.  From a conservation standpoint, Ms. Hobbs realized that the one development would not greatly impact the wildlife that was in the area, but if variances were allowed it would lead to future variance requests which might also be approved.  She wasn’t opposed to homes being built on the land, it was just the number of homes she was opposed to.  She said the one-acre minimum in the ordinance was put there for a reason.  She didn’t see the benefit of building so many homes given the number of homes currently for sale in the area. 


Mr. Paul Gagnon, speaking as a resident and as one member of the Conservation Commission came forward.  He noted that the Conservation Commission had not reviewed the proposal and did not have a vote regarding such.  He stated he had nothing against the applicant or Mr. Maynard.  His fear was that they were about to re-write zoning to soils based zoning, which was not the type of zoning the Town had or voted for.  He said Pelham was a residential community.  Mr. Gagnon noted that the soil allowed for 75 bedrooms, the applicant was requesting 24 bedrooms, however the next applicant may request 50 or more making the area very densely developed on a small area of land.  He didn’t feel the proposal was a unique situation; lots with 50ft. easements accessing a parcel were common and required roads to be put in per Town specs.  He said if an applicant is going to meet zoning they had the choice to meet traditional zoning, request a conservation subdivision, or have a 55+ development.  Mr. Gagnon discussed the process/time spent to pass conservation subdivisions in Town.  He said the proposed was cluster zoning, which was what kept the conservation subdivision from passing at first; people didn’t want it.  He didn’t feel it was the position of the Zoning Board to re-write zoning through the ‘back door’.  Mr. Gagnon said there were three things the applicant was supposed to speak to: 1) variance not being contrary to the public interest, 2) spirit of the ordinance being observed, and 3) hardship.  He felt the development was contrary to the interest of the public.  Regarding the spirit, he said zoning was 200ft. of frontage with one acre; having twelve houses on six acres was not the spirit of the ordinance.  As for hardship, he said if the applicant’s parcel had hardship, then every lot with 50ft. of frontage with 40 acres of backland also had a hardship.  He believed the Board would see a lot of cases before them if the proposed lot was accepted as a hardship.  He requested that the Board not approve the proposal.


Mr. Don Paquin, 128 Windham Road, spoke against the proposal.  He said the previous speakers touched on the points he was going to speak on.  He said basically there was a parcel of land that could possibly support four, maybe five homes with the current ordinance and the applicant was looking to put twelve.  He had nothing against someone who wanted to develop their land, but wanted them to follow the rules of the Town.  He hoped the Board would vote against the request. 


Ms. Brenda Hobbs, 108 Windham Road told the Board that much of what she was going to speak to had already been addressed (width of the driveway, safety vehicle issue, Frost well, incorrect acreage).  She said there were so many concerns/issues and had a problem with any applicant ignoring concerns/issues that the Town’s people had and saying it would just be a civil issue.  She said the Town’s rules and regulations were made by the forefathers years ago to keep Pelham the community everyone bought homes in and wanted children to grow up in.  She questioned what it showed the children and other towns around Pelham if any board continued to override the regulations.  She answered by saying it showed rules were made and broken and didn’t have the commitment that the forefathers had. 


Ms. Glennie Edwards, Tenney Road, who was not an abutter but stated she looked at the bigger picture.  She questioned if the land behind the log cabin (Sutton family property) would become land locked if the land with the log cabin was denied development. 


There was no further public comment offered. 


Attorney Westgate said there were two matters that were typically dealt with as civil issues, one being the dug well matter, which was not a typical zoning board issue.  He noted that he was advised that the well in question wasn’t the primary drinking water and there was no protective well radius.  He said the other issue was the acreage, which was established by the plan done for the School District.  And the last item was the easement, which would be private if it were ever established and located in accordance with the property owner’s determination.  Attorney Westgate said comments were made regarding the importance of zoning and its impact.  He stated this was a unique situation and the applicant was not trying to ‘max out’ the area in terms of bedrooms and number of units.  They were trying to contrast what a grid subdivision would permit (5-6 large houses generating 20-24 bedrooms) versus twelve modest properties (with a total of 25 bedrooms).  He said the comparison was not what another person may request or the supposition theoretical cases that may never come to pass, but rather the actual unique cases before the Board.  He said they were trying to indicate they were not trying to convert the Town to a soils based analysis for zoning, but to merely show that one of the criteria that the property carried with it was an easy capability to handle what was being proposed.  And also that it was not out of line from what a grid subdivision would generate for a septic impact.  He said the other principle criteria should be kept in mind as well, the thin throat in, the developable land that blossoms out in the rear with an isolated nature and its compatibility with the adjoining properties. 


Attorney Westgate understood that the property being discussed along with the property behind it were contemplated for development by the school; the proposed would be nothing like that development in terms of intensity.  Some questions were raised about the wetlands.  Attorney Westgate said they had 2.4 acres of wetlands and 7.21 acres of upland for development with approximately one acre being the WCD portion (considered upland).  The question of vegetation remaining after development would be discussed (along with all typical elements of development) at the Planning Board level during site plan review.  He said the Planning Board wouldn’t approve a private road system that didn’t properly address road safety vehicle access.  He didn’t feel granting the requested variance would open the Town to a substantially different zoning in terms of density.  He said the proposed property could handle modest development, not overburdening with the number of bedrooms, and could be done with on-site septic and well systems.  He commented that they had addressed public interest and spirit of the ordinance provisions last month (previous meeting).  They believed if the concept of what they were doing was appropriate from a density and use perspective, then it wouldn’t be contrary to public interest to provide compatible housing in the area on land that could support it.  In terms of the spirit of the ordinance, the ordinance contemplates a reasonable use and highest and best use of property.  They were proposing something that didn’t burden the Town and didn’t feel the spirit was being breeched. 


Mr. McNamara asked where the closest abutter’s home was located to the property/development.  Mr. Maynard replied that the nearest two homes were the two frontage lots (map 15-8-202 and map 8-203).  He showed the location of the lots and their driveway locations; an approximate location of the neighboring house was 90ft. to the lot line; they were trying to uphold a 50ft. buffer.  Mr. McNamara referred to the ‘Atwood Village’ conceptual sketch and questioned how close the properties were to one another.  Mr. Maynard said there was thirty feet between buildings, which was in tune with zoning (15ft. sideline setback). 


Mr. Molloy asked if the homes would have garages.  Mr. Maynard answered yes; they would have two-car front load (attached) garages. 


Mr. McNamara commented if the variance was approved, and the plan went to the Planning Board for site plan review, that board would typically defer to either the Highway Safety Committee or the Fire Department to determine the minimum width (road) that could safety be used by emergency vehicles.  He said the aesthetics of the development was brought up by the public, which he felt would be taken into account at the Planning Board level.  He said there would hopefully be a provision that neighboring properties were adequately buffered.  He commented that the Zoning Board was tasked with determining whether a variance meets the five criteria; if it passes the criteria an applicant is entitled to a variance.  In terms of setting a precedent, Mr. McNamara said what may or may not happen on another parcel was not properly before the Board. 


Mr. Hennessey said the case before the Board was whether to permit a private way versus a public road.  That fact concerned him looking ahead.  He said numerous times Planning had allowed temporary cul-de-sac in anticipation of further development; the road leading into the cul-de-sac was to Town standards.  Mr. McNamara believed that item would be a planning perspective.  Mr. Hennessey said the proposal before the Board was a variance for a private road. 


Mr. Hennessey said one of his concerns, based on what was before the Board, he felt the applicant was putting way too much weight on the ability of the land to support the septic systems as one of the reasons for increase in density.  He said he had worked for increased density in Town and supported the idea of it, but that wasn’t what was before the Board.  He reviewed the purpose of the Zoning Ordinance.  He said of all the reasons for having zoning, only one clause in one of the purposes referred to sewerage.  He had to believe while it may be an issue and maybe a reason to go ahead and increase density, it was far from the most important.  In granting a variance for the proposed number of homes on one lot, all the other purposes in the zoning ordinance have been violated. 


Mr. O’Sullivan said he was more concerned with the density above ground, than below ground. 


Attorney Westgate noted that the request was for up to twelve units, not definitively twelve units.  The purposefully did so understanding that density would be the fundamental issue discussed. 


The Board reviewed the variance criteria individually in relation to the variance request for density.


Mr. Hennessey said after reading the purpose of zoning, he had to believe that the variance was contrary to the public interest as declared in the purpose clause.  Mr. McNamara asked if Mr. Hennessey felt that the variance would threaten public safety, health and welfare; and did it unduly and in a marked degree conflict with basic zoning objectives.  Mr. Hennessey said the objectives were expressed in the purpose clause.  Mr. McNamara asked if the variance would alter the essential character of the locality.  Mr. Molloy said there were no other lots with twelve houses on them.  Ms. Paliy said having a house on a half acre in a residential area was altering and got into more of an urban feel rather than suburban.  Mr. McNamara disagreed. 


Mr. Hennessey referred back to the purpose clause in reference to the spirit of the ordinance being observed.  Mr. McNamara said it was closely related to the first criteria; and had a different opinion than Mr. Hennessey. 


In reference to the third criteria, substantial justice is done.  Mr. McNamara said the test was if the loss to the individual (the applicant), that was not outweighed by a gain to the general public, was an injustice.  Mr. Hennessey said in the past the Board had lots/properties in front of them where they turned down the variance; there was real question what they could use the land for.  He said in this case there was a conceptual subdivision of five lots.  Mr. McNamara said the issue was what was presented to the Board; they couldn’t compare what could/could not occur.  Mr. Hennessey said the applicant presented the alternative.  Mr. McNamara said it was presented in the context of the soil and what the septic loading could be.  Mr. Hennessey said the conceptual was in front of the Board, it had been posted for review.  The land could be utilized under zoning.  Mr. McNamara said there was a property on the land now.  Ms. Paliy asked if the applicant had presented a realistic reason why it didn’t make sense to do five (lots) and why there was a necessity to go higher.  Mr. Hennessey agreed that the applicant hadn’t addressed why the conventional subdivision plan was so onerous that they had to present the proposed.  Mr. LaFrance believed the applicant may not go the conventional route would be because of financial hardship.  Mr. Hennessey said that hadn’t come before the Board.  He said to put a road in for five lots wouldn’t be worth it.  Mr. McNamara said there was an argument in the Harborside Associates v. Parade Residence Hotel case that the applicant could have achieved the same results by installing slightly smaller signs; the court threw it out saying it was based on the now defunct hardship test.  Mr. Hennessey said he was willing to concede the substantial justice.


There were no comment regarding value of surrounding properties other than a letter previously submitted to the Board at the last meeting by Ed Rosamilio of Remax. 


There was discussion regarding criteria five, the literal enforcement of the ordinance (hardship).  Mr. Hennessey said he worked hard on the conservation subdivision ordinance that was crafted to meet some of the objections of the public and yet before the Board was a property was in essence what they were looking or without the careful wording brought before the deliberative session vetted by the people of the Town.  He believed that the proposal did not conform to the public purpose of the ordinance.  Mr. McNamara said that was the reason for a variance request.  Mr. Hennessey said there was an alternative in place and felt there was a reasonable reason there was a limitation for the number of properties on given lots.  Mr. McNamara felt Attorney Westgate made strong arguments regarding special conditions of the property.  He mentioned the different uses in nearby parcels, the proposed lot was larger than most of the parcels, the ‘L’ shape restricts activity, the excellent soil conditions, the comments in Steve Keach’s letter, location of the pond and wetland area and the fact that it was a fairly isolated parcel.  Mr. Ouellette said in past cases where there was an insufficient amount of land, the Board had always asked the applicant what they had done to try to purchase additional land.  In this case he hadn’t heard any testimony regarding such.  Mr. Hennessey said the Board didn’t ask the question making it unfair to use that argument.  Mr. McNamara stated that the Board was there to look at the variance request for the particular parcel before them.  In terms of setting a precedent, he said it wouldn’t because the Board’s decision should be specific to the individual facts of the parcel and how it differed from others in the area such that it deserved a variance. 


Mr. Hennessey read aloud the second part to criteria five.  It was agreed by the Board that the second prong was not applicable. 




Mr. Hennessey – 1) No, 2) No, 3) Yes, 4) Yes, 5) No

Ms. Paliy – No to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – 1) No, 2) No, 3) No, 4) Yes, 5) No

Mr. O’Sullivan – 1) No, 2) No, 3) No, 4) Yes, 5) No




(1-4-0) The motion failed.





The applicant discussed how they would proceed with their second variance request.  Attorney Westgate asked in the event the second variance was granted, and the road components in the WCD remained (as proposed), could they amended (in a material way) the development proposal.  He wanted to know if the (road) variance would be applicable to a modified internal variance.  In Mr. Hennessey’s opinion, if the variance for the road/WCD were granted, it ran with the land and would be independent of whatever the zoning board did in the future about the use of the land.  There was a brief discussion and Mr. Hennessey said he would re-open public hearing/discussion and review the variance criteria. 


Mr. Maynard believed everyone realized that the only entrance to the property was in the outlined location.  He said they would have to revisit what they would end up doing with the property, but in the end either a variance or special permit would be needed.  He said because they had already been turned down for twelve units it would be something less than twelve that would come back; or a different form of project. 


Mr. Hennessey questioned if the road should be a public way (meeting Town standards) in anticipation to be a connection to the back parcel or if it should be a private way.  Attorney Westgate said the deed to the Atwood heir’s piece in the back gave it the right to ask for an easement (right-of-way), but it didn’t give it the right to ask for a dedication of land to become a public road.  His interpretation was they had a right to place a public easement over the property; the location of which would be determined by the front property owner, not the Atwood heirs.  He discussed some of the details regarding the description for where an easement could be located. 


Mr. Gowan said if the applicant wanted to move forward, he would suggest if the Board reached a conclusion to grant a variance, that variance should be worded in such a way that didn’t tie the Board’s hands. 


Mr. Hennessey said the variance request before the Board was to Section 307-39 & 40.  He said how it played out with a subdivision would be through Planning.  Mr. McNamara asked if the applicant could also do as proposed by way of Special Permit.  Attorney Westgate answered yes.  The applicant discussed (amongst themselves) how to proceed.  Mr. Gowan stated, as Zoning Administrator, it was his opinion if the variance for access was denied they would not have the option to seek a Special Permit.  Mr. Maynard reiterated that from the arguments and the way everyone had envisioned the property, there was no other way in and out of the property and therefore some form of relief, whether it be from the Planning Board or from the Zoning Board would need to be granted. 


Attorney Westgate respectfully requested that the Board continue the hearing on the pending second variance for the access through the WCD property.  Mr. Hennessey said generally the Board wouldn’t, but in this case he felt it was fair. 


The case was date specified to the March 12, 2012 meeting. 



Case #ZO2011-00030  BOUTWELL, Nathan G.  /  144 Windham Road  -  Map 15 Lot 8-201 





(Molloy/O’Sullivan)To approve the January 9, 2012 meeting minutes as written. 




(5-0-0) The motion carried. 


The site walk minutes of January 21, 2012 were deferred to the next meeting.





(Molloy/McNamara) To adjourn the meeting.




(5-0-0) The motion carried. 


The meeting was adjourned at approximately 9:35 pm.

Respectfully submitted,

                                                                                          Charity A. Landry            

                                                                                          Recording Secretary