APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 13, 2000

 

The Chairman called the meeting to order at 7:30 pm.

 

The clerk called the roll:

 

PRESENT:

Walter Kosik, Edmond Gleason, George LaBonte, Peter McNamara, Alternate David Hennessey, Alternate Jim Bundock

 

ABSENT:

Peter LaPolice, Alternate Carolyn Carter

 

Mr. Kosik let it be known that Mr. Bundock would take Mr. LaPolice’s place in his absence.

 

CASE #2190 - ML 11-17 - Ms. Annmarie Indelicato/31 Woekel Circle - Seeking a Variance concerning Article III Section 307-12, Table 1 to waive the dimensional requirements for a lot for reason of installing a foundation and changing the house from seasonal to year-round on a non-conforming lot.

 

Mr. LaBonte read the list of abutters.  Mr. LaBonte then read aloud Article III Section 307-12, Table 1.

 

Ms. Indelicato appeared before the Board to seek a Variance.  She currently resides in Tewksbury, but would like to turn the house at 31 Woekel Circle into a year-round residence.  Previously, she appeared before the Board and was informed that the current owner of the property should sign the application.  She said the new application submitted has been filled out in her name, and signed by the owner.

 

Ms. Indelicato read the submitted criteria aloud as follows:

Item #1.

 

 

 

Item #2.

 

 

Item #3

 

 

Item #4.

 

 

Item #5.

There will be no decrease in the value of the surrounding properties: The existing dwelling will be of equal or greater value as the surrounding properties.  The proposed renovation will be esthetically pleasing and add to the property, thus having no adverse effect to the surrounding properties.

It is in the public interest: The proposed use will remove a run-down camp and bring the level of house values up in that neighborhood.  It would also add a year-round residence to the Town of Pelham.

There is significant hardship to the land: There is no additional land to be purchased in order to conform to zoning.  We would not be able to use our land to it’s fullest potential if the Variance is denied and non-conforming lines already exist.

There is substantial justice to be done: The use we are seeking is a permitted use for that district.  The use we are seeking is consistent with the uses of the surrounding lots.  The Variance being granted would allow us to use our property in the same manner.

This request is within the spirit of the zoning ordinance: If the Variance is granted we would meet all the other requirements the Town would place on us, such as, following the building code, obtaining all necessary permits, etc.

 

 

Ms. Indelicato informed that she is seeking a Variance for a non-conforming lot.  It is her intent to add a new block foundation in the existing footprint as well as weatherproof the home to change if from a seasonal to a year-round residence.  She would also like to raise the roof to add a second floor.  She explained that currently the sides are 14’ not the required 15’.

 

PUBLIC INPUT

 

Mr. Steve McKallagat, 33 Woekel Circle, spoke in favor of the requested Variance.   

 

Mr. Bob Berthium, 35 Woekel Circle, spoke in favor of the requested Variance.  He said the cottage had been vacant and rundown for several years.  He believed that the proposed would improve the area.

 

Mr. LaBonte noted that the septic system had been inspected.  He then asked if the septic design had been approved by the State.  Ms. Indelicato said the dwelling currently had two bedrooms and wouldn’t be changed.  Mr. LaBonte said his belief was that when being transferred from seasonal to year-round dwelling, they would have to abide by the requirements of the State.  Ms. Indelicato said the Planning Director informed that she only needed it to be certified.

 

Mr. Gleason pointed out that they have a cesspool.  He confirmed that the person who reviewed said it was satisfactory.  Ms. Indelicato answered yes.  Mr. Gleason then asked if they had performed a water analysis.  Ms. Indelicato said they would need to have an artesian well installed.  Mr. Gleason asked if it was her intent to comply with all of the rules of the Planning Department.  Ms. Indelicato answered yes.  To clarify, Mr. Gleason asked if Ms. Indelicato was seeking two Variances, one for the side setback of 14’ and the other for frontage 200’.  Ms. Indelicato wasn’t sure at first, but a brief discussion clarified the issue and she answered yes to needing two Variances.

 

Mr. Bundock brought up the fact that in the water test, the coliform result failed too numerous to count.  He said he was concerned with the cesspool and asked what the applicant would need to show.  Mr. Kosik said the applicant is aware of the contamination and the need for a new well.  His understanding was they had a working cesspool approved the way it is, unless it fails.  Ms. Indelicato asked who could inform her of the requirements. Mr. Kosik suggested she meet with the Planning Director if the Variance was granted.

 

Mr. Hennessey asked how close Ms. Indelicato was to Little Island Pond.  Ms. Indelicato said the road and another house were between them and the pond.  Mr. Hennessey spoke of his concern with the proximity due to the use of a cesspool and the coliform levels.  He felt the Board should add a condition to the Variance, which requests an upgrade to the subsurface disposal system.  Mr. Gleason asked for clarification of the location of the cesspool and the pond.  Ms. Indelicato stepped forward and pointed it out on the lot plan.

 

Mr. Berthium noted that all the houses are comparatively the same, and said from the septic system from the back of the house to the water is approximately 200’.

 

Mr. Bundock also noted his desire for possibly adding the requirement of upgrading septic system in the motion.  Mr. Kosik noted the Board could grant a conditional approval.  Mr. Hennessey noted that the coliform had to originate somewhere.  Mr. Bundock added that for the Variance to do justice, he suggested a stipulation of possibly requiring an upgrade to that of a typical three-bedroom house.  Mr. Hennessey then suggested they acquire approval by a certified Town sanitarian.  Mr. Gleason said he didn’t want to impose undue hardship on the applicant and would rather leave to the discretion of the Planning Department.  Mr. LaBonte also believed that the Health Inspector would be involved in connection with the occupancy permit.  He felt they were far enough away from the great pond for environmental requirements.

 

 

BALLOT VOTE:

Mr. Kosik-Yes; Mr. Gleason-Yes; Mr. LaBonte-Yes; Mr. McNamara-Yes; Mr. Bundock-Yes.

 

VARIANCE GRANTED

 

 

CASE #2191 - ML 1-117-1/Mr. John Clement - 127 Sherburne Road - Seeking a Variance concerning Article III Section 307-12 Table 1 and Section 307-14 to permit a house lot with less than 200 feet of frontage resulting in 40.62 feet.

 

Mr. LaBonte read the list of abutters.  The case was in accordance with Article III Section 307-12 & 14 as previously read. 

 

The submitted criteria were as follows:

Item #1.

 

Item #2.

 

Item #3.

 

 

 

Item #4.

 

Item #5.

There will be no decrease in the value of the surrounding properties:  The proposed structure will be of equal or greater value than the surrounding properties.

It is in the public interest: The properties use will add to the taxes being paid on the property.

There is significant hardship to the land: We will not be able to use our land to its fullest potential if the variance is denied because the parcel has excess land and is suitable in all respects other than frontage for two (2) house lots.  We are not able to purchase and additional land to conform with the frontage requirements.

There is substantial justice to be done: The variance will allow for reasonable usage of the land, and a usage that is permitted written the zone.

This request is within the spirit of the zoning ordinance: We are requesting a variance to waive one of the zoning requirements and will meet all other setbacks and applicable regulations.

 

 

Mr. Peter Zohdi, Herbert Associates, appeared before the Board to present the proposed.  He said the request is for one lot to have 200’ frontage and another to have 40.62’ frontage.  He presented the mylar (still to be recorded with the registry of deeds), a topography map and the soil classification.  He informed that previously both lots were non-conforming, but have since been reconfigured so only one lot remains non-conforming.

 

There was no public input.

 

Mr. Hennessey asked, in connection with criteria three, if they had any evidence of a cursory attempt to contact Gagney or Roche (and/or successors).  Mr. Zohdi answered no.  Mr. Hennessey asked if he would like to add anything to criteria three. 

 

Mr. Bill Mason, the attorney representing the applicant, appeared before the Board.  He said during the previous meeting lot sizing and density issues were discussed.  He said the two parcels of land, with the exception of the frontage requirement,  are more than sufficient to meet the Town’s density requirement and more than efficient to support the houses.  He said the New Hampshire Supreme Court, in order to grant a Variance, states to the effect, that lots failing to meet local frontage and length requirements should itself be deemed to be an unnecessary hardship and a Variance ought to be granted, so long as the other four standards from the Supreme Court Variance test are met.  He said that if the purpose of the frontage requirement was to create density, and considering if the other four standards of the Variance request would be granted, he felt the applicant meets the test and believed the Variance should be granted.

 

Mr. Hennessey believed that the Board needed to see evidence that the presented lots were two separate parcels prior to bringing it in.  He then sited State NH Planning FAQ sheet on their website: “...the uniqueness of a parcel size and dimension are not considered a special condition of the land, which constitute hardship.  When some reasonable permitted use can be made of the parcel without the Variance.”

He asked if the parcel was currently being used as residential.  Mr. Mason answered yes.  Mr. Hennessey then sited a section of the Moore vs. Rochester case from the Supreme Court of New Hampshire: “...unnecessary hardship cannot be based on the fact  that a Variance to allow the landowner to make a greater profit with the land, but that granting the Variance would be a convenience to that landowner or that the abutters have no objections, or that the use of the land by the landowner, after granting the Variance, will bring more taxes to the community.  It is irrelevant that the land cannot be used for a particular purpose.” 

 

Mr. Mason said the question the Board has to review are the other four standards, and if a Variance relief, with regard to the frontage on the parcel, as configured, constitutes a reasonable use.  Mr. Hennessey said the Board has to find hardship and per the Supreme Court, he asked Mr. Mason if there was anything about the parcel that distinguished it from others in the area.  Mr. Mason answered to say the difference is it doesn’t have 400’ of frontage.  Mr. Hennessey said per the FAQ sheet the Board wasn’t allowed to use that reason.  Mr. Mason believed  that size and dimension was the basis of virtually all the Variances.  He said the Board needed to make a decision if the use of the parcel was reasonable, given how the applicant was going to use it.

 

Mr. Bundock asked if the 3.2 acres constituted a hardship.  Mr. Mason said his contention was, with the exception of the frontage, given the configuration of the parcel (and made up of two parcels), that the request isn’t unreasonable and the other four criteria have been met.

 

Mr. Zohdi provided the Board with a certified copy of the deed.

 

There was a brief discussion regarding what threshold of acreage is considered excessive.

 

Mr. Mason reiterated that during the last meeting the two parcel’s frontages were discussed and it was discussed and suggested to reconfigure to make at least one of the lots conforming, which is the purpose for the request.

 

Mr. Gleason asked if they would need a curb cut.  Mr. Zohdi said that was a requirement of the Planning Board.  

 

Mr. McNamara asked when the land was purchased.  Mr. John Clement, 127 Sherburne Road, said his parents bought the property in 1962.  Mr. McNamara asked if he had made any attempts to buy adjourning land or made any inquiries regarding an easement.  Mr. Mason answered by saying an easement wouldn’t satisfy the frontage requirement.  He said the Roche family had been approached, but were not interested at the time, which was several years ago. 

 

Mr. Hennessey said the Town voted down the ordinance (in 1998) to allow parcels such as this to be built on.  He said it was not the purview of the Board to create zoning.  Mr. Kosik said that the Board doesn’t create zoning.  He said in order to have zoning, there must be a board of appeals (of adjustment) to make decisions where the members vote individually.  Mr. Hennessey said the Board must show unnecessary hardship and find special conditions.  He said the Board must also show the applicant has shown an effort obtain other land.

 

Mr. Bundock reiterated his position that criteria three and five haven’t been fulfilled.

 

BALLOT VOTE:

Mr. Kosik-Yes; Mr. Gleason-Yes; Mr. LaBonte-Yes; Mr. McNamara-No (has not demonstrated hardship); Mr. Bundock-No (fails to meet criteria three and five)

 

VARIANCE GRANTED

 

 

CASE #2192 - ML 5-2/Pearl & Ray Bergeron - 1 Glenside Drive - Seeking a Variance to Article III Section 307-12, Table 1 to permit the construction of an addition to existing garage with a non-conforming front setback of 26’ 10”.

 

Mr. LaBonte read the list of abutters.  The case was in accordance with Article III Section 307-12 & 14 as previously read. 

 

The submitted criteria were as follows:

 

Item #1.  There will be no decrease in the value of the surrounding properties: The new addition will give me space to keep my old cars and tractors inside (which will equal a neater yard).  The addition is designed to flow with existing garage, it will be a good looking building to compliment the neighborhood.

 

Item #2.  It is in the public interest: It will add tax money to Town and add to property value.

 

Item #3.  There is significant hardship to the land: The addition on the side of old garage will use space we never use.  The rest of the property is grass, we use for pool, swings and cookouts.

 

Item #4.  There is substantial justice to be done: I want to add more space to existing garage as to have a neat and organized garage.

 

Item #5.  This request is within the spirit of the zoning ordinance: The addition meets all set back requirements (except front side corner) at a sharp angle.  The corner measures 26’ 10” to edge of road.  The straight out measure is 15’ 37”.

 

Mr. Ray Bergeron appeared before the Board to present his case.  He said the addition on his garage didn’t have the 30’ required when the measuring tape is swept from the corner of garage.

 

Mr. Gleason had Mr. Bergeron explain how the measurement was conducted.  Mr. Bergeron informed that he is 3’ 2” short on a diagonal,  only from the corner of the structure.

 

Mr. Bundock asked the height of the building.  Mr. Bergeron said currently it was a two-stall garage.  He was planning to add an addition and new roof  (approximately 8’) for storage.  Mr. Gleason asked what the structure would house and asked if it was possible to add closer to the house.  Mr. Bergeron said he was planning to house classic cars and informed that it wasn’t possible to build closer to the house because of a deck and trees.

 

Mr. Hennessey asked if construction has already begun.  Mr. Bergeron said no.

 

PUBLIC INPUT

 

Mr. Richard Kosh, 4 Glenside Drive, spoke in favor of the Variance and said the building would improve the property.

 

There was a brief discussion regarding the height of the structure and the fact that it showed hardship.

 

BALLOT VOTE:

Mr. Kosik-Yes; Mr. Gleason-Yes; Mr. LaBonte-Yes; Mr. McNamara-Yes; Mr. Bundock-Yes

VARIANCE GRANTED

 

 

MINUTES REVIEW

 

October 12, 2000

 

MOTION:

 

 

(Gleason/McNamara) To accept the minutes as presented.

 

VOTE:

(4 - 0 - 1) The motion carries.  Mr. LaBonte abstained.

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting adjourned at 8:45 pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A. L. Willis

                                                                                                Recording Secretary