TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT

August 14, 2000

 

Mr. Edmund Gleason, the Vice Chairman, called the meeting to order at 7:30 PM.

 

Mr. George LaBonte called the roll:

 

PRESENT:

Edmund Gleason, George LaBonte Jr., Peter McNamara, Alternate Jim Bundock, Alternate David Hennessey

 

ABSENT:

Walter Kosik, Peter LaPolice, Alternate Carolyn Carter

 

CASE #2180†† - ML 9-40/Rita St.Onge/Hobbs Road - Seeking a Variance to Article III, Section 307-14 to permit a single family house lot with less than 200 foot frontage.

 

Mr. LaBonte read the ordinance 307-14 aloud.He then read aloud the list of abutters.

 

Mr. Henry St.Onge, 28 Hobbs Road, appeared before the board to represent his wife, the owner of the property.He said they are trying to receive a variance on property with less than 200-foot frontage to give to his daughters.It is his belief this has never been a town road, it is a private road that has been in existence over 100 years.He advised that the people who access this road have an assessment of $800,000 they pay taxes on.He then said, this is the only access the residences have to their property.Mr. St.Onge then read the five criteria for the record:

 

1)      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.

2)      It is in the public interest the proposed use will add to the taxes being paid on the properties.

3)      There is significant hardship to the land.If it is not granted, it probably will be rendered useless and cause it to have little or no value.

4)      There is substantial justice to be done.The use we are seeking is a committed use for that district.

5)      This request is within the spirit of the zoning ordinance.We are only requesting a variance to waiver one of the zoning requirements.We will meet all the other setbacks and codes.

 

 

 

Alternate Carolyn Carter arrived.

 

Mr. McNamara asked Mr. St.Onge if he made any representations to the future use of the property when the previous variance was granted in January 1998.

Mr. St.Onge said he was asked if he would request any future lots, but at that time, he didnít know.It was his intention, at the time of purchase of the 180 acres, to give to his three daughters to build their homes.He went on to say, since that time, there have been changes in the rules and regulations which make it difficult to give land away to your children.

 

Mr. McNamara asked if Mr. St.Onge and his wife currently live on lot 9-40-3.Mr. St.Onge said no, he lives on 9-40 which encompasses 9-40-3.Mr. McNamara asked if he had any plans at present for the 14 acres of 9-40-3.Mr. St.Onge informed he plans on giving the whole parcel to his daughter.He further informed, that the lot contains prime wetlands, and there are only 4-5 acres of livable land.He then explained that the property line is set so there wouldnít be any jagged edges.

 

Mr. Hennessey inquired about the easements coming out to Cutters Passage rather than to Hobbs Road directly.Mr. St.Onge let it be known that the owner of 9-40-2 previously had a 16í right of way.When the St.Ongeís asked the owner of 9-40-2 for a 50í easeway, they agreed, provided they change the name to Kenís Way, instead of Cutters Passage.

 

Mr. LaBonte confirmed with Mr. St.Onge that 9-40-3 would have a 50í easement, which would be used for the egress and ingress.

 

Mr. Hennessey asked if Mr. St.Onge researched placing the easement down through 9-40 directly to Hobbs Road.Mr. St.Onge said itís all prime wetland and the cost for dredge and fill is not affordable.He also said this is the only access for 5 lots in the back.He reiterates that it is a private road, not a town road.

 

Mr. Hennessey asked if the easement would entail a conservation (wetland) crossing.Mr. St.Onge answered no.

 

Mr. Gleason asked if Mr. St.Onge owned more property, other than 9-40-3.†† Mr. St.Onge said he only owns the area 9-40.

 

Mr. Gleason then asked if Mr. St.Ongeís daughters had any plans to subdivide and appear before the Planning Board.Mr. St.Onge answered no.Mr. Gleason asked how many acres of buildable land there are.Mr. St.Onge said that originally they owned approximately 35 acres.He went on to say now there are only the 14 acres left, of which there are approximately 4-5 buildable acres due to prime wetlands.Mr. Gleason then asked if the easement goes into 9-40-3.Mr. St.Onge said it goes across 9-40-1, 9-40-2 and goes as far as 9-40-3.He then referenced lot 9-40, specifically 9-38, 9-32 the whole bottom runs through prime wetland. Mr. Gleason asked if the Board would see Mr. St.Onge again if this variance were granted.Mr. St.Onge answered no.He then brought up the fact that the Fire Chief, David Fisher, reviewed the right of ways, and didnít have a problem for emergency vehicles.Mr. St.Onge stated he has signed papers informing that the Town would never be responsible for the property, including the maintenance of the road.†† He said they recorded on the deed and plot plan there would be a 20í wide road for emergency vehicles, and if there were any school children, they would have transportation to the nearest bus stop on Hobbs Road.

 

Mr. LaBonte asked if this has been recorded in the chain-of-title at the registry of deeds.

 

Mr. Bundock asked if Kenís Way was a dirt road.Mr. St.Onge said yes, gravel.He went on to say his son-in-law has the equipment and has been maintaining it.

 

Mr. Hennessey said the application stated single-family home, but the size of the lot would allow a duplex and assumes Mr. St.Onge is giving up his right to do so.He said he didnít have a problem adding a stipulation to the deed and plot plan.

 

Mr. LaBonte has concern with the restricting Mr. St.Onge to a single-family home.Mr. Hennessey disagrees.

 

Mr. Gleason then reminded the Board that Mr. St.Onge would have to appear before the Planning Board, therefor he agrees with Mr. LaBonte.

 

Mr. Bundock said he is concerned with the arrangement that constitutes stacking, and advised that the prudent thing would be to build a road.

 

Mr. Gleason said his only concern is to put a succession on the variance request, and his preference is to act favorably.Mr. St.Onge reiterated that the Town wouldnít have any responsibility of the maintenance.

 

Mr. Hennessey pointed out that this is a change in the zoning, despite the previous precedent.He said he doesnít see anything wrong with restricting Mr. St.Onge to exactly what was petitioned, which was a single-family home.Mr. Hennessey is inclined to go along with the variance for the protection of the Town.

 

Mr. Gleason said the Town has adequate agencies to address this.He then asked Mr. Vince Messina, Planning Board Director (who was in attendance to the meeting) if this would fall under the purview of the Planning Department as to what goes on the premises.

 

Mr. Messina answered by saying they can put a Planning Board restriction on the subdivision of the parcels as well as a restriction for the type of structure.He then let it be known that if they Zoning Board approves, Mr. St.Onge would still have to subdivide the parcel and that would be in the jurisdiction of the Planning Board.

 

Mr. Bundock believes it is within the judgement of the Board to put stipulations on the variance, particularly due to the fact there have been two prior.He again spoke of avoiding stacking.

 

BALLOT VOTE

Mr. McNamara-Yes; Mr. Bundock-No (He feels criteria 5 has not been met); Mr. Hennessey-Yes (contingent upon a recommendation from the Planning Board for a single-family only); Mr. LaBonte-Yes; Mr. Gleason-Yes

 

VARIANCE GRANTED

Mr. Gleason informed there is a 20-day waiting period for the appeal

 

CASE #2181 - ML 6-185-51/Ms. Colleen Talty/Robin Road - Seeking an Appeal to Administrative Decision of Planning Directorís denial of building permit for a single family dwelling in accordance with NFPA 1-5.6 7-2 & 7-2.1.

Mr. LaBonte read the list of abutters.

 

Ms. Colleen Talty appeared before the Board and read the following statement: ďMy Building permit, actually on Honey Lane, was unjustly denied by the Planning Director because of the fire ordinance thatís referred there.However this subdivision is a fully approved and bonded subdivision, itís actually over bonded.This fact alone should have assured that I received a building permit.The ordinance that the Planning Director is referring to, have been in affect for many years and this situation is the first time itís been applied.Iím the only person, the only woman that this Town has applied the ordinance to.Because Iím a woman, Iím being taken advantage of and my building permit has been denied.There are many male builders in town, in this very subdivision, in other Pelham subdivisions, private homes in the immediate area that have clearly not been subject to this very ordinance.The Planning Director, in denying my building permit has deprived me of my property rights, my equal protection rights as a woman and due process under the State Law and Constitutional Law.Because I have been treated unfairly by the Planning Director and because other officials in this Town have made questionable remarks regarding this very property, I am now forced to seek damages.This situation has forced me to move out of the area, to store all my personal belongings at great expense, because I donít live in Pelham now, I donít have access to my daughterís schooling, I no longer have close access to my health care which is of great distress as an expecting mother and am not going to be in a home of my own in time for the birth of my twins.I will be contacting the State Attorney General to inform them that my civil rights have been violated.Ē

 

Mr. Gleason informed that he isnít aware of the whole situation because there arenít a lot of particulars in the supporting documentation.He asked if Ms. Talty is attempting to build a house in this Town.Ms. Talty answered yes.Mr. Gleason confirmed that Ms. Talty applied for a building permit.Ms. Talty answered yes.Mr. Gleason then asked if she was denied the building permit.Ms. Talty answered yes.Mr. Gleason asked if the house was under construction at that time.Ms. Talty answered to say the house had a standing foundation right now.Mr. Gleason asked if the standing foundation was put in prior to the application for the building permit.Ms. Talty said not prior to.She went on to say that she isnít being allowed to build her home because of this ordinance, which hasnít been applied to anyone else in town.Mr. Gleason asked if itís a question of water being provided to the site.

 

Ms. Talty doesnít believe it has been adequately explained to her and the owner of the subdivision hasnít been notified.She said she is the only woman (as far as she knows) who has put in a permit and been denied by the Planning Director.She then said she received a letter of denial that referenced the ordinance.

 

Mr. Hennessey asked if she is the owner of the parcel.Ms. Talty said she is under contract to be the owner of the parcel.Mr. Hennessey asked again if Ms. Talty owned the parcel.Ms. Talty said she is under contract and would own it shortly.

 

Mr. Gleason reiterated that the Board is at a loss as to the particulars.Ms. Talty said she understood, but is following the advice of the Attorney General to take it to this point.

Mr. Gleason said they are interested in administering justice for the taxpayers of the Town, but the Board has to fully understand the circumstances.He said it is very serious to appear before the Board and accuse the Town of discrimination of being a woman.He added that the Board takes this very seriously.Mr. Gleason then said that before they can make an informed decision, they would need to fully understand all the particulars.He went on to ask if Ms. Talty owned the land.Ms. Talty said yes.Mr. Gleason then asked what she is contracting for.Ms. Talty said she is having a home built by a builder.Mr. Gleason asked if Ms. Talty or the builder requested the building permit.Ms. Talty said she did.Mr. Gleason asked if the building permit was immediately denied.Ms. Talty said it took quite a long time for response.Mr. Gleason asked if during that time, the foundation was put in.Ms. Talty said the foundation was in.Mr. Gleason went on to ask if itís fair to say the foundation was started in advance to the granting of the building permit.Ms. Talty replied to say there was a separate application to the Town for the foundation, which was approved.

 

Mr. Bundock referenced Ms. Taltyís statement wherein she said Town officials have made ďquestionable remarksĒ.

 

Mr. Gleason interjected to say he would defer that to the Attorney Generalís office.He went on to say that is out of the Boardís jurisdiction and wonít accept third party information.†† He said he would like to get to the basis of the appeal.Mr. Gleason summarized by saying, Ms. Talty went to the Planning Director and applied for a building permit (she already had a permit in place for the foundation) and had to wait, in Ms. Taltyís judgement, an inordinate amount of time, and after which it was denied on the basis of an existing regulation.He then asked if the regulation was violated.Ms. Talty said as far as she knew it hasnít.Mr. Gleason said the Board has been provided with excerpts from the regulations in affect.

 

Mr. LaBonte read the regulation excerpts NFP 1-5.6, 7-2 and 7-2.1 for the record.

 

Mr. Gleason asked if anyone had read these regulations for Ms. Talty.Ms. Talty believes her denial letter contained similar information.Mr. Gleason asked if she understood what they say.Ms. Talty said yes.Mr. Gleason asked Mr. Messina to address the Board on the basis for his denial on their request.

 

Mr. Messina noted that in NFP 1, new construction must have an adequate fire protection system available to it at the beginning of construction.He said since heís been Planning Director (1 year this month), this rule has been applied to every subdivision thatís come before the Town.Mr. Messina said one variance (with the Fire Chiefís approval) is new construction within a subdivision must have water available 1000í from a construction site.He said there are at least four subdivisions in the Town that they have done exactly the same thing.He said there are two recent developments (Beacon Hill and Shannon Circle) where this rule has been applied.

 

Mr. Gleason asked if these are rules of safety and then asked if the Fire Chief is in accordance with this.Mr. Messina said when he started his position, he discussed certain issues with the Fire Chief of how to better protect the subdivisions.He said one of the key elements was a more astringent enforcement of this particular regulation.He said there are numerous subdivisions in various states of completion.He noted that they have had significant delays in acquiring particular protection after the fact in certain cases that required cisterns or added fire protection, which were not enforced.Mr. Messina made it be known that all subdivisions that have come before the Planning Board and his department the regulation has been in force unilaterally.Mr. Messina said there are some exceptions, such as subdivisions on existing Town roads.He then noted Mr. St.Ongeís subdivision, which required intermediary fire protection.He ended by saying this has not been applied discriminatory, there is certainly enough background in the Town.

 

Ms. Talty interrupted to ask for an example.Mr. Messina then provided the example of Beacon Hill where 6 permits were denied until adequate fire protection was in place.He said once they were in place, building permits were granted.

 

Mr. Gleason asked if the issue was a source of water.Mr. Messina answered yes, it is adequate fire protection which could be either a certified fire pond, dry hydrant or cistern.

 

Mr. Bundock asked if Mr. Messinaís department responded in a timely manner to the application.Mr. Messina said they try to respond within five working days.He also said that some of the subdivisions and requests require significant research.Mr. Bundock asked if in Mr. Messinaís estimation, best efforts were made.Mr. Messina answered yes.

 

Mr. Hennessey asked when the Planning Board approved the subdivision.Mr. Mahoney said January or February.He went on to say that it was the second phase of the subdivision that was approved three years ago.Mr. Hennessey asked if any other lots in the subdivision were under the same requirement.

 

Mr. Messina said yes, the first six lots of the subdivision have access to the cistern at the corner of Robin and Irene Drive, so they are covered and the building permits have been granted.He went on to say that toward the end of the subdivision adequate fire protection was not available because is out of range from the 1000í street pipe distance.

Mr. Hennessey asked if this was part of the Planning Boardís approval of subdivision or is this done at building permit level.

 

Mr. Messina said the cistern location is a joint effort between the Planning Board and Fire Chief and the engineering firm who would come up with preferable location.He said as for discretion for building permits, that primarily falls in his jurisdiction with the advocacy of the Fire Chief.

 

Mr. Hennessey clarified that there should have been no surprise, since February, that this lot would need additional fire protection.Mr. Messina answered yes.

 

Mr. LaBonte asked how many lots are within the second phase.Mr. Thomas Mahoney, subdivision developer, spoke up to say this is a 40-lot subdivision and permits have been issued for at least 28 of the homes.He also said he wasnít informed of the ruling.

 

Mr. Messina said that phase one was done at least 2 1/2 years ago and the phase two portion of the subdivision was approved approximately in January/February.Mr. Messina said that prior to his involvement with the Planning Department, the enforcement of the cistern being in place prior to granting building permits was not done, they were to be in place prior to completion of construction of phase one.He went on to say that this is a new subdivision and right now there are six permits on the first part of the road that meet the requirements of NFAP 1.

 

Mr. Gleason asked if there are any existing properties or subplots right now that do not meet the requirements other than Ms. Taltyís.Mr. Messina said no.

 

Mr. LaBonte asked if there were any lots beyond Ms. Taltyís.Ms. Talty said as recently as last week, Peterson Built Homes was granted a building permit in this subdivision further away from the fire protection than hers.She assumes the home adjacent to her on Noella Avenue needs a permit for the addition recently going up.It is her understanding that the occupancy permit can be denied if there isnít adequate fire protection and the bond for the road was to cover any problems up until then.Mr. LaBonte asked if the Board could view a map.

 

Mr. Gleason believes reviewing a copy of the map would be appropriate.Mr. Messina said he could provide one.

 

There was a short recess.

 

Mr. Hennessey asked Mr. Messina if a building permit was issued for the foundation to go in, prior to enforcing the regulation.Mr. Messina said he has no record a building permit being pulled for a foundation.Mr. Hennessey said that if a building permit for the foundation were issued prior to the enforcement of the ordinance, Ms. Talty would have a case.Mr. Messina said it is a very rare circumstance for a foundation permit to be issued without a building permit.Mr. Hennessey asked if Ms. Talty would still be bound to the regulation if she had received a permit on the foundation prior to the enforcement of the regulation.Mr. Messina said no, she would still be bound by the regulation.He said he could cite specific cases for this specific ordinance where stop orders were issued until cisterns were put in place.He said one specific case for five building permits, this past April.Mr. Hennessey wanted to clarify theyíve been discussing a denial for a building permit, when in fact, the letter sent to Ms. Talty stated the building permit would be held until the developer got his cisterns up and running at which case it would be issued.Mr. Messina agreed.

 

Mr. LaBonte asked Ms. Talty for a copy of the permit issued.Ms. Talty said she doesnít have a copy and assumes it is with her building application the Town clerk provided for the Board.Mr. LaBonte asked if she has received the actual permit.Ms. Talty apologized and said she doesnít understand the correct process.Mr. LaBonte explained that the question was whether or not she had a permit at the time the foundation was put in, to which she said earlier that she did.Ms. Talty said it was the application.

 

Mr. Gleason reiterated his original question, which was Ms. Talty, applied for a permit, and proceeded with building a foundation without a granting of approval.†† He then asked Ms. Talty if that was a fair statement.Ms. Talty answered yes.

 

Mr. Bundock asked Ms. Talty to identify the subdivision that was granted a building permit, which she believes to be further away from her property.Ms. Talty pointed out on the map lot 6-185-55.Mr. Bundock asked Mr. Messina if he could identify that lot as being in compliance with the code.

 

Mr. Messina approached the map and confirmed that lot 6-185-55 is within the range and complies with the regulation.

 

Mr. LaBonte asked Ms. Talty if she has spoken with the developer putting in the road.Ms. Talty said she has and then said he hasnít been formally notified of this.†† Mr. LaBonte questioned her statement.To which Ms. Talty answered it is not her responsibility.

 

Mr. Mahoney said the problem came when they proceeded building and it was their understanding at that time was the no occupancy permit.He said that even now it just says you shouldnít have any combustible materials come into your frame.Mr. Mahoney doesnít believe that this part of the building permit shouldnít have been denied, since the well, septic and foundation wouldnít burn.He feels with other problems going it seems very selective that Ms. Talty was the only one turned down.Mr. Gleason asked if Mr. Mahoney agrees that Ms. Taltyís case is unique due to her location to the cistern.Mr. Mahoney doesnít believe so.He said that within the 40-lot subdivision, 28 homes are allowed to be built, then the rule is changed within the last two weeks.

 

Mr. Gleason doesnít agree with that statement and hasnít heard evidence to that fact this evening.Mr. Mahoney feels it is strange and suspicious but fortunately will be heard by someone else.Mr. Gleason said in looking at the map and hearing testimony of the two groups, there is a unique situation and there is a cistern in process.†† He reiterated the facts as follows:Ms. Talty applied for a building permit and was not granted the permit, but did build a foundation.He then said that even if she wanted to put combustible materials on, she would still have to seek a separate permit, which Mr. Messina would be absolutely right in denying.

 

Mr. Mahoney appreciated the Board for listening to both sides and hopes the Board now has more information.He said as this progresses, the Board would become aware of other situations.Mr. Gleason asked Mr. Mahoney if he is the contractor of record and when the cistern would be up and operational.Mr. Mahoney said as soon as possible.He said he didnít know they had to be in at the time, only for occupancy, the road is under construction.He then said if the Board gave them two weeks, the three cisterns would be ordered and put in.Mr. Gleason asked if it was Mr. Mahoneyís intention to do so and the ordinance would be a moot issue at that point.Mr. Mahoney agreed.

 

Mr. Gleasonís observation is there are adequate ordinances in affect (since 1996).Ms. Talty agrees.Mr. Gleason said the Board recognized her concern.

 

MOTION:

(Hennessey/LaBonte) To reject Ms. Taltyís claim of selective enforcement and uphold the administrative decision by the Planning Director, on the basis that selective enforcement was not proved.Mr. Messina showed the basis of his decision in denying the permit and the Board upholds his decision.

 

VOTE:

(3-0)

 

MINUTES REVIEW

 

June 12, 2000

 

MOTION:††† (Hennessey/McNamara) To accept the minutes.

 

††††††††††† ††††††††† The motion carries.

 

July 10, 2000

 

MOTION:††† (LaBonte/McNamara) To accept the minutes.

 

††††††††††† †††††††† The motion carries.

 

ADJOURNMENT

 

MOTION:

(LaBonte/McNamara) To adjourn the meeting. The motion carries.

 

 

The meeting was adjourned at 8:47 PM.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Respectfully submitted,

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Charity A. L. Willis

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Recording Secretary