TOWN OF PELHAM
ZONING BOARD OF ADJUSTMENT MEETING
September 11, 2000
The Chairman called the meeting to order at 7:30 pm.
The clerk called roll:
Walter Kosik, Edmond Gleason, Peter LaPolice, George LaBonte, Peter McNamara, Alternate David Hennessey, Alternate Carolyn Carter, Alternate Jim Bundock (who arrived shortly after the meeting was called to order)
CASE #2182 - ML 3-138 - Mr. Paul DeCarolis/Bush Hill Road - Appeal to Administrative Decision of Health Agent in accordance with Waste Disposal Systems Regulation 295-16.
Mr. Hennessey stepped down due to a conflict of interest.
Mr. Bundock arrived.
Mr. LaBonte read the list of abutters.
Mr. Paul DeCarolis, 148 Bush Hill Road, appeared before the Board to present Case #2182. He began by saying his position is that the Health Officer was mistaken in his interpretation of the Town ordinance for waste system disposal (regulation 295). Mr. DeCarolis said the ordinance clearly states that ponds, year-round streams and brooks must be placed 100’ from a septic tank and 125’ from a leach bed. He then cited the rules and guidelines provided by the courts for interpreting an ordinance or statute. He said the rule he feels best fits this case is if the zoning language is plain and unambiguous there is no reason to look beyond the statute for further indication of legislative intent. He said the only basis he’s aware of for the Health Officer’s decision is an interpretation that the Town has used for the past 20 years. He feels this is a longstanding error, which should be cleared up. Mr. DeCarolis said he would like clarification given to the Health Officer that leach fields have to be 125’ from ponds, year-round streams and brooks. He said the Health Officer believes that leach fields only have to be 125’ only from the great ponds in Town.
Mr. DeCarolis passed a photo around which showed Bush Hill Road and the property of Nationwide Construction. Mr. Kosik asked if only one leach field was being questioned. Mr. DeCarolis said no, he believes all four leach fields are within 125’ from a pond, stream or a brook. He went on to say that based upon the Board’s decision, this plan might go back to the Planning Board.
Mr. LaBonte asked what Mr. DeCarolis believes is the definition for a pond, year-round stream or brook and if there is any definition or indication under the statutes in New Hampshire. Mr. DeCarolis referenced the definition in Webster’s Dictionary and gave his personal experience. Mr. LaBonte clarified that they are dealing with all three, a pond, year-round stream and a brook. Mr. DeCarolis said that’s not the issue, because the ordinance states 125’ from a pond, stream or brook, and it is clearly one or the other.
Mr. Gleason asked about the body of water on Bush Hill Road and if a 125’ boundary can be established. Mr. DeCarolis said the water level has remained at a fairly constant level while he’s lived there due to the beaver damn creating the elevation.
Mr. LaPolice clarified they are discussing the leach field, not the septic. Mr. LaBonte added for the four separate properties.
Mr. Dick Anderson, 110 Bush Hill Road, said that in the time he’s lived there the pond does vary at height, in the Summer it drops about a foot below normal and in the Spring it overflows, but there is always standing water.
Mr. Paul Stack, 146 Jeremy Hill Road, said that he can remember walking around toward the swamp and it was there over twenty years ago.
Mr. Vince Messina, Planning Director said historically the interpretation has been great ponds or pond area. He said one of the problems is this happens to be a naturally created beaver flood plain, whose delineation has been in question. He explained if the damns were to be removed by manual means, or by nature, due to a storm, then the pond area would revert to what was in the pictures they have, which were a swamp and a stream. He said that in some of the earlier pictures there once was a roadway crossing in that area. Mr. Messina said a natural storm, or the property owner could remove it, should they so desire.
Mr. Kosik asked how many acres there are. Mr. Messina referred to Mr. Wes Aspinwall who said several acres, but less than ten. Mr. LaBonte noted an asterisk under 295.16 which states the footage may be reduced to 50’ with SDR 26 pipe. He asked if this type of pipe is being used or if it has been contemplated in this decision. Mr. Messina wasn’t able to answer that question, but was able to say the wetland boundary was dually delineated by a soil scientist and identified by again by a certified soil scientist. Mr. Zarnowski read the topography maps which identified that the setbacks were appropriate for the soil types in the area.
Mr. Gleason believes the issue is if 125’ is the proper requirement, and wanted to know if the boundaries are under 125’. Mr. Messina believes that two of the four fields are at 100’. Mr. Gleason said the question is if the statute is unambiguous. Mr. Messina said he believes that relating to great ponds, streams and non-seasonal brooks it is unambiguous. He said the problem is whether that area is a pond or a flood plain, and if it is a flood plain, 100’ is appropriate. Mr. Kosik asked if Mr. Messina had any expert witnesses or if Mr. Zarnowski was present. Mr. Messina answered no.
Mr. LaPolice has reviewed different definitions for ponds and lakes and asked Mr. Messina what he calls the area. Mr. Messina said he couldn’t answer that question, but said there are guidelines in the Core of Engineering handbook but he isn’t able to quote the surface acreage, which would constitute it as a year-round pond.
Mr. Kosik asked what Mr. Zarnowski’s involvement has been. Mr. Messina answered by saying it’s the Health Officer’s responsibility is to approve/disapproved site specific septic designs. Mr. Kosik asked if the Planning Board went along with the approval. Mr. Messina answered yes. Mr. Kosik asked if there have been any permits issued. Mr. Messina answered no. Mr. Gleason asked if the Planning Board was aware of the appeal. Mr. Messina said this appeal was subsequent to the Planning Board’s decision.
Mr. Kosik asked if these questions were asked at their hearing. Mr. DeCarolis said he raised the issue at the Planning Board meeting and Mr. Zarnowski stated in his opinion, the 125’ rule applied only to the great ponds.
Mr. Bill Mason, representing Nationwide Construction appeared before the Board regarding Case #2182. He let it be known that when the final subdivision approval request was brought to the Planning Board, Mr. Zarnowski (the Health Officer), Mr. Jim Gove (certified soil scientist) and representatives from Herbert Associates were all present. Mr. Mason wanted it known that Mr. Zarnowski is not only the Health Officer, but also a registered land surveyor, certified wetland soil scientist and a registered subsurface septic systems designer. He then informed that Mr. Zarnowski walked the land and was present when site specific test pits were done. He said each of the lots has a 4K area and the leach beds are 400 square feet with at least 100’ from the edge of the wetland delineation and at least 125’ from any water. He said there were discussions at the Planning Board meeting regarding the distance of the leaching area from the water, and also about a former delineated path that lead from Bush Hill Road to Jeremy Hill Road. He ended by encouraging the Board to rely on the Town officials and asked the decision not overturned.
Mr. Gleason clarified that there is a registered Town document on file that indicates 100’ from edge of wetlands. Mr. Mason said it’s on file. Mr. Gleason asked if it’s within the 125’. Mr. Mason said not from a body of water, because the edge of wetlands extend more than another 25’ further, so they are more than 125’ from an edge of water. Mr. Gleason asked about the 100’ earlier mentioned. Mr. Mason reiterated it is 100’ from the beginning of the wetlands. Mr. Gleason asked if it was a piece of the wetlands. Mr. Mason said yes, wetlands are found in this piece of land.
Mr. LaBonte pointed out that if the plan is 125’ from a pond, stream or brook, then the Health Officer’s decision should be ok. He said the question is if a determination was made from 100’ distance from the leach field rather than 125’. Mr. Kosik said the question for the Board is whether Mr. Zarnowski’s determination was correct. Mr. LaBonte said Mr. Zarnowski should have been in attendance to explain his reason for determination.
Mr. Brian McLarney, 7 Windham Lane, said he isn’t an abutter to the property, but was asked by Mr. Thomas to give a brief history. He said he sold the property a year ago and had already gotten an approval for a septic system on one parcel two years ago. Mr. Kosik stepped in and said the concern is with the location of the leach field, not the history.
Mr. DeCarolis reiterated the issue for the Board, which is, in Pelham do leach beds need to be 125’ from ponds, streams or brooks and not limited to ponds identified in 295.15. He said, in other words, all ponds, streams and brooks or just great ponds. Mr. Kosik asked how many acres in Mr. DeCarolis’ option are there. Mr. DeCarolis said approximately four acres of standing water. Mr. Kosik asked if all the points were brought up at the Planning Board meeting. Mr. DeCarolis said yes, but it was cut relatively short because the Planning Board had to rely on the Health Officer at that time. Mr. DeCarolis wanted to clarify that Mr. Jim Gove did not certify that there are no ponds, streams or brooks on the property. He said his understanding is that during the site walk, they went to the edge of the wetland, made the distance there, and they did not delineate beyond that. Mr. DeCarolis said he appealed the Planning Board decision and one of his complaints was the plan didn’t identify the water bodies, the applicant never identified where they are.
Mr. Kosik summarized the complaint to; Mr. DeCarolis doesn’t feel the leach field is 125’ away. Mr. DeCarolis said he thinks the leach is located from a pond, stream or brook, but said that isn’t the issue. He said the Planning Board would have the opportunity to review once the ZBA makes a ruling. He then answered the question regarding the pipe and said on the copy he printed from the Internet, the asterisk referred to 50’ from a septic tank, but the leach field remains 125’ regardless of pipe.
Ms. Martha Anderson, 110 Bush Hill Road said she spent her childhood on the property and there was always a running brook adjacent to the property line (within two feet). She said the road that is under water which connects Jeremy Hill and Bush Hill had a bridge that crossed over a running brook. Ms. Anderson said she believes that the Planning Board’s vote was not unanimous.
Mr. Messina said he understands the confusion of the definitions and spoke of a body of water on his own property. He said he is only aware of the one standard criteria (the great pond criteria) and cautions the Board if accepted as all ponds and all non-seasonal brooks there may be infringement upon a lot of area within the community.
Mr. Jeff Thomas, Nationwide Construction said if there was a road that had bridge over a stream, the beavers have now built a damn that created a pond area. He said if the beavers were not there, if they took them out, the water would go back to becoming a stream and they would then be within 125’ of the septic system.
Mr. Mason concurred with Mr. Messina’s comments the historically the way Mr. Zarnowski has handled, is the correct way. He believes if a new policy is created there will be results not contemplated. He said the way the Town defines ponds should be the Planning Board and Board of Health’s point of view. Mr. LaBonte asked if there was any authority that gives the Planning Board or Health Officer the right to make those definitions. Mr. Mason said they could have articles presented at the Town meeting to further amend zoning ordinance or health code.
Mr. Kosik asked how Mr. Zarnowski determined he could be 100’ rather than 125’. Mr. Mason said he wasn’t there, but knows that Mr. Zarnowski physically walked the site and was present when the test pits were done.
Mr. McLarney informed when he owned the property, he was originally planning to put a house toward the wetland. He further informed that Mr. Zarnowski and Mr. Gove discussed on site, whether it was a standing body of water or wetland. He said they determined that it was wetland, so that’s where the 100’ came about. He then said that after he received the approvals, the property was sold.
Mr. Thomas said that only one out of the four systems is 100’ from the wetland, he said the other three are well within the 125’ setback.
Mr. Anderson said it’s a fact that one of the three, either a stream, brook or pond is on the property. He said the regulations for the State of New Hampshire state 125’ and the Health Officer determined 100’. He doesn’t feel that in the State one is allowed to make a decision that is more restrictive without a waiver.
There was a brief discussion regarding the way the regulation reads.
Mr. Gleason said the question is whether the Board will uphold the appeal, or the administrative decision that the septic system can be located 100’ from a pond rather than 125’.
(Gleason/LaBonte) To uphold the appeal of the administrative decision of the Health Officer when he determined that a septic system may be located 100’ from a pond, year-round stream or brook on the basis that 295.16 is unambiguous. Mr. LaPolice clarified by reading the regulation and agreed that it is unambiguous.
(5 - 0 - 0) The motion carries
CASE #2183 - ML 11-260 - Ms. Karen Aliano/65 South Shore Drive - Seeking a Variance to Article III Section 307-12, Table 1 to permit the installation of a new foundation and cellar, and expansion of kitchen and bathroom.
Mr. LaBonte read the list of abutters.
Ms. Karen Aliano, 65 South Shore Drive (Summer), 40 Main Street, Lawrence, MA (Winter) appeared before the Board to present Case #2183. She explained that she has been a resident for twenty years and would like to improve her property. She currently has two properties, which are too much to continue maintaining.
Ms. Aliano read aloud the following five criteria:
Item #1. There will be no decrease in the value of the surrounding properties: Her property would increase in value, therefore the neighbor’s also.
Item #2. It is in the public interest: More taxes for the Town.
Item #3. There is significant hardship to the land: There is no more land available for her.
Item #4. There is substantial justice to be done: House is in disrepair and would like to remodel.
Item #5. This request is within the spirit of the zoning ordinance: Would bring her house
in good repair.
Mr. Kosik asked if the 100’ shone on the plan was the frontage. Ms. Aliano said her frontage is 50’ x 126’. Mr. Kosik asked the location of the pond. Ms. Aliano said it is in front, 50’.
Mr. Kosik asked if there was a full cellar currently. Ms. Aliano said no. Mr. Kosik confirmed that 10’ will be added to the kitchen, and 4’ will be added to the bathroom.
Mr. Kosik asked if there would be a second floor. Ms. Aliano said it’s all on the first floor and the roof will not be touched.
Mr. Kosik asked if Ms. Aliano would like to add anything. Ms. Aliano reiterated that she can’t manage two properties, she loves Pelham and would appreciate a variance.
Mr. Graham Beatty, 77 South Shore Drive he said he has no problem with what Ms. Aliano is proposing to do.
Mr. Raymond Parson, 63 South Shore Drive he lives next door and said Ms. Aliano is a fine neighbor.
Mr. Hennessey asked if this would be a year-round property. Ms. Aliano answered yes. Mr. Hennessey asked if there is currently a septic system and leach field. Ms. Aliano answered yes. Mr. Hennessey asked if the septic and leach would have to be re-certified. Mr. Messina answered yes.
Mr. Kosik asked if there would be any bedrooms added. Ms. Aliano answered no.
Mr. Gleason asked if there would be any added capacity to the septic or if she was simply enlarging the room. Ms. Aliano said she is only enlarging the room there is an existing bathtub.
Mr. LaPolice-Yes (subject to septic confirmation); Mr. McNamara-Yes (subject to re-certification of septic); Mr. Gleason-Yes (subject to certification of septic system as part of the building permit); Mr. LaBonte-Yes; Mr. Kosik-Yes (on condition of re-certification of septic system)
CASE #2184 - ML 11-147, 11-155 - Ms. Sandra Jackson/Gaston Road - Seeking a Variance to Article III Section 307-12, Table 1 to permit the reconstruction of an existing two bedroom seasonal house on a lot containing 13,000 square feet and non-conforming frontage and side setback.
Mr. LaBonte read the list of abutters.
Mr. LaBonte stepped down due to a conflict of interest.
Mr. Bill Mason, Attorney representing Ms. Sandra Jackson, asked to withdraw the request, without prejudice.
CASE # 2185 - ML 1-117, 1-117-1 - Mr. John Clement/Sherburne Road - Seeking a Variance to Article III Section 307-12, Table 1 and Section 307-14 to permit a lot with 188.03 feet of frontage with an existing house and a lot with 52 feet of frontage for a new house to be built.
Mr. LaBonte read the list of abutters.
Mr. Wes Aspinwall, the land surveyor, appeared before the Board with the plan for Case #2185
Mr. Aspinwall read aloud the following five criteria:
Item #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.
Item #2. It is in the public interest: The properties will add to the taxes being paid on the property.
Item #3. There is significant hardship to the land: They will not be able to use the land in the fullest potential if the variance is denied because the parcel has an excess amount of land and is suitable in all respects for two house lots. They wouldn’t be able to purchase any additional land to be able to conform with the frontage requirements.
Item #4. There is substantial justice to be done: The variance will allow for reasonable usage of the land and the usage that is permitted within the zone.
Item #5. This request is within the spirit of the zoning ordinance: They are requesting a variance to waive one of the zoning requirements and will meet all other set backs and applicable regulations.
Mr. Aspinwall said the first plan is the subdivision. He informed that the lot with existing house is proposed at one and half acres and the new lot would be 1.7 acres. He described the proposed house locations and described the soil types. In his opinion the only area the parcel falls short is on frontage, but there is adequate land to develop the piece in compliance with all other regulations. Mr. Aspinwall said the lot with the existing house has 188.03’ frontage, so they would be falling 12’ short of the normal required frontage.
Mr. Kosik asked why they decided to not have that a conforming lot. Mr. Aspinwall said they didn’t want to totally minimize the frontage for the back lot and didn’t want to go any further to the East with the driveway location because it’s a good access point.
Mr. Gleason confirmed that the lot as it exists, is conforming and they are asking to make two non-conforming lots. Mr. Aspinwall said yes.
Mr. Hennessey wanted to know if ML 1-118-1 was part of the original parcel. His reason for the question was because they stated, under the five criteria hardship, from not being able to use the property to the fullest potential. Mr. Hennessey feels they have created their own hardship. Mr. Mason said the parcel was originally two parcels, a one-acre and a two-acre parcel. Mr. Gleason said lot 117 was all one parcel. Mr. Aspinwall is currently a conforming lot. Mr. Gleason asked to clarify that on the Town records, lot 117 is one conforming lot and asked if they were both conforming lots in the past. Mr. Mason said one had 150’ of frontage and one had 75’ of frontage. Mr. Gleason asked how long ago it was combined. Mr. Mason said he wasn’t sure if a merger document was signed. Mr. Gleason confirmed that the town records show lot 117 as one lot. Mr. Mason answered yes.
Mr. LaBonte asked if the last deed into the grantee one lot or two parcels.
Mr. John Clement, Sherburne Road said the deed reads two parcels. Mr. Aspinwall said over the yeas of assessing there are often times that various small pieces are put together for tax purposes. Mr. Hennessey said under the RSA because this creates a single conforming lot regardless of the deed and said under zoning it’s combined.
Mr. LaPolice asked what direction the parcels are cut. Mr. Clement said in the same direction as they are doing. Mr. LaPolice asked if they both had frontages on Sherburne Road. Mr. Mason said yes.
Mr. Hennessey asked if there was any intention to utilize the 50’ right-of-way for access into the back land. Mr. Aspinwall said no, only to the back of the piece they are subdividing.
Mr. Mason referenced a similar case (Metzger vs. Brentwood) where the court looked at a deficiency of frontage but also looked at how the proposed use complied with adequate spacing between the buildings and also adequate street access. Mr. Hennessey asked if it was an appeal of a ZBA decision. Mr. Mason said yes, the ZBA denied it and the Supreme Court overturned it on the basis of the frontage issue. He said it looked at the overall issues.
Mr. Bundock inquired about the well on the driveway line. Mr. LaBonte informed there is another well.
Mr. LaPolice asked what is on the South side of the property, so it wouldn't crowd anyone. Mr. Aspinwall explained lot 118 South of proposed leach area and lot 116 is East of the proposed leach area.
Mr. Kosik said he has a problem making two non-conforming lots out of one conforming lot. Mr. Clement said it was due to the right-of-way. Mr. Aspinwall said they could try to reconfigure and maintain the zoning frontage on lot 117 and not request a variance for that one. Mr. Mason said Mr. Clement has no objection.
Mr. Gleason said he also has a problem with making two non-conforming lots. Mr. Mason said they would like to amend their request to have two lots, one with 200’ of frontage and one with 40’ of frontage.
Mr. LaBonte said based of criteria #5, the significant hardship, he said parcel 001-116 seems like a good size parcel and has the owner been approached. Mr. Clement said the owner was reluctant in the past, but he hasn’t approached in awhile.
Mr. Bundock said when there are two houses and a road that loops around behind, it appears to be stacking houses, which he feels is not in the spirit of the zoning. The ordinance was intended to provide for 200’ per house. Mr. Kosik said there is no overcrowding. Mr. Bundock said this is just enough land for two houses. Mr. Kosik said the Board has granted several of these variances.
Mr. Hennessey believes this Board is in place to grant variances based on the five criteria and feels that there is no hardship with this case and in fact is self imposed problem. Mr. Bundock feels that item five is intentionally ambiguous, and in his opinion this case does not meet the criteria of item five.
Mr. McNamara believes that criteria three has not been met due to a house being on an existing conforming lot.
Mr. LaPolice said he doesn’t have a problem with this because the applicant had two parcels that had frontage on Sherburne Road before zoning, however he prefer a resubmission with one conforming lot, unless it creates any situation entering the street.
Mr. Gleason said if they are going to resubmit they should withdraw this one.
Mr. Mason asked if the Board would consider with a stipulation that 200’ frontage on lot 117.
There was a discussion amongst the voting members of the Board whether to grant a continuance, or to add a condition if granted.
Mr. Hennessey then asked if the site lines would still be good if the lots were cut down. Mr. Aspinwall said the driveway could remain in the same position, even if the line is moved up 12’. Mr. Gleason said they still need State approval.
The members of the Board contemplated a vote, which lead to a discussion of legalities, in which the suggestion was made that the plan is withdrawn to be resubmitted with a request for a variance for one lot.
Mr. Mason withdrew the plan without prejudice.
(Gleason/LaBonte) To adjourn the meeting.
(5 - 0 - 0) The motion carries.
The meeting was adjourned at 9:24 pm.
Charity A. L. Willis