APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 17, 2002

 

The Chairman, Peter LaPolice, called the meeting to order at approximately 7:30 pm.

 

The Clerk, Mr. George LaBonte, Jr., called the roll:

 

PRESENT:

 

 

ABSENT:

Peter LaPolice, Walter Kosik, Edmund Gleason, George LaBonte, Jr., Peter McNamara, Alternate David Hennessey

 

None.

 

Mr. LaPolice informed that Mr. Hennessey would be a voting member. 

 

Mr. LaPolice said that a request for continuation had been received for Case #2235 - Peter & Linda Berry, 2 Washington Street (ML 4-102).  There was a consensus of the Board to allow Case #2235 to be continued.

 

REQUEST FOR REHEARING

 

Case #2231 - ML 2-40 - BARTON, Thomas/116 Mammoth Road by Harriet St. Onge

 

Mr. LaPolice asked if the Board had the opportunity to review the rehearing request submitted by Attorney David M. Groff.  He asked if the Board felt any new evidence had been presented. 

 

Mr. McNamara reviewed Attorney Groff’s recitation of facts in which Mr. & Mrs. Spaulding applied for a frontage variance in 1993 (Case #2014) and represented that only one house would be constructed on the lot if the variance were granted.  He suggested that the information within Attorney Groff’s application was a factual difference that might lend itself to the Board reconsidering the case.  Mr. Kosik asked if the current owner had made the statement that there would be no further building.  Mr. McNamara said the information would go with the lot.  Mr. Kosik did not feel that no additional building could be stipulated.  At the previous meeting Mr. Kosik recalled having the referenced minutes at the last hearing.  Mr. McNamara said that Attorney Groff did not provide the meeting minutes for the Board’s review. 

 

The Board discussed the possibility of a rehearing and if the minutes from Case #2014 should be reviewed before continuing.  Mr. Kosik pointed out that the Board had 20-days to act upon the application.  He made a motion to hold off making a decision until the Board had the opportunity to review the minutes from Case #2014.  Mr. McNamara seconded the motion.

 

Mr. Hennessey reviewed Attorney Groff's fact within the application for rehearing, specifically item 10 (possible awareness of applicant regarding the restrictions with the lot).  He felt that the Board should rehear the case.  Mr. Kosik asked if when a house was being sold if a real estate agent would review property for any variances connected with it.  Mr. Hennessey said that when a mortgage company did the survey for the lot it would be found out if it were not in compliance.  Mr. LaPolice asked if a variance would be filed with the deed for the property.  Mr. Hennessey answered no.  He said the only other way a variance would not be found is if the property were bought with cash. 

 

Mr. Kosik reiterated that he felt the minutes should be reviewed before continuing.  Mr. Hennessey felt the Board should vote to rehear the case. 

 

MOTION:

 

(Kosik/McNamara) To postpone a decision until the Board had the opportunity to review the minutes from Case #2014.

 

VOTE:

 

(2 - 2 - 1) The motion did not carry.  Mr. LaPolice and Mr. Hennessey voted no.  Mr. LaBonte abstained.

 

 

Mr. LaPolice questioned the timeframe in which a rehearing could be scheduled.  He did not want the application to ‘slip through the cracks’.  The Board discussed what date a rehearing could be scheduled.  It was decided that once the minutes were reviewed by the Board, there would be a meeting to take a vote and if the rehearing were approved, the case could be reheard November 14, 2002. 

 

MOTION:

 

(Kosik/McNamara) To review the minutes from Case #2014 (1993) and make a decision on a rehearing in enough time so that if approved, could be heard November 14, 2002.

 

VOTE:

(5 - 0 - 1) The motion carries.  Mr. LaBonte abstained.

 

 

Case #2233 - ML 2-110  - COOKE, William/25 Hinds Lane by John Goulet

 

Mr. LaPolice asked if the Board had the opportunity to review the information provided by Attorney David M. Groff.  He asked if the Board felt any new evidence had been presented, if anything had been overlooked, or if the Board had made a mistake. 

 

Mr. Kosik asked if the Board decided that the lot was a lot of record.  Mr. LaPolice believed the lot to be a lot of record.  Mr. Kosik informed that the lot was established in 1909, per information from the Town Assessor.  Mr. Hennessey noted that per the information provided by the Assessor and Attorney Groff, the residence was built in 1969, which he felt was germane to the issue, since it was new information.  Mr. LaPolice believed if the lot were not conforming, someone would have taken action against the lot.  He said the information indicated to him that there was a structure and a septic system on the lot.  He said it was difficult to decipher if the structure had a kitchen, but felt it had plumbing since it was noted that water was drawn from the lake. 

 

Mr. Hennessey said that assertions had been made regarding illegal actions (cuttings) were happening on the lot.  He believed the information being presented was new. 

 

Mr. Kosik asked what would happen to the lot if the Board denied the variance.  Mr. Hennessey said the issues brought up during the hearing would be turned over to the Code Enforcement Officer.  Mr. LaPolice did not feel that the Town’s Code Enforcement would have jurisdiction over trees being cut.  Mr. Hennessey said that the DES would have jurisdiction under the Shoreline Protection Act, which the local officials should help enforce. 

 

Mr. LaPolice said that the minutes from the previous meeting stipulated that the applicant meet code enforcement, such as state approvals (septic, well and site plan).  Mr. Hennessey said that the Board also stipulated that the plan needed to be sent to DES/Shoreline Protection Act.  Mr. Kosik noted that there was an approved plan from the NHDES for the septic plan in the file.  He said there was also an approval from the Town’s Health Department contained in the file. 

 

MOTION:

 

(Hennessey/McNamara) To rehear Case #2233 on the basis that new information was provided (the property was built in 1967).

 

VOTE:

(2 - 2 - 1) The motion did not carry.  Mr. LaPolice and Mr. Kosik voted no.  Mr. LaBonte abstained.

 

 

The request for a rehearing of Case #2233 was denied. 

 

HEARINGS

 

Case #2234 - ML 12-245 - DUQUETTE, Denis/124 Old Gage Hill Road North - Seeking a Variance to Article III, Section 307-12 to permit a 5.78 acre parcel to be subdivided into two lots.  One lot with 155ft. of frontage and the other with 71ft. of frontage.

 

Mr. LaBonte read the list of abutters aloud.  There were no persons who did not have their name read, or who had a problem with notification.  Mr. LaBonte read the corresponding Article aloud. 

 

Attorney William Mason, representing the applicant, discussed the case with the Board.  He submitted a copy of the recorded subdivision plan so that the parcel could easily be reviewed.  He said the parcel had been created as part of an approved subdivision done in 1973 by the previous owners.  He said the plan described the parcel as 6.04 acres, but when reviewing the Town’s records, the property is listed as 5.78 acres, so that is how the plan was being presented.  Attorney Mason noted that the parcel with the existing single family dwelling had 155 linear feet of frontage onto Gage Hill Road.  He said there was an additional section of frontage for the parcel containing 71 feet.  He went on to provide a brief history of the parcel to the Board.  He said there was a space on the South East corner of the property used to store the applicant’s construction equipment. 

 

Attorney Mason said the applicant was seeking to divide the property in half, with each lot containing approximately 2.8 to 3 acres.  He said one of the lots would contain an existing home, and in place of the storage area (along the 71ft. strip of land) an additional single family home for the applicant’s mother would be built.  Mr. LaBonte asked if there was a proposed plan for dividing the property.  Attorney Mason said the plan had not been engineered.  He said historically there had been a driveway along the 71ft. strip which would be utilized (as paved) to access the proposed home.  He noted that the applicant was aware of the Town’s requirements for a 50ft. right-of-way for a roadway, but had elected instead to do a two-lot subdivision. 

 

Mr. Hennessey asked if there was any hazardous waste on the property.  The applicant, Mr. Denis Duquette said a condition for purchase of the property was that inspections were to be done.  He said that he was informed that soil samples would probably need to be done before the land was subdivided.  Mr. Hennessey asked if Mr. Duquette would be averse to having soil samples done as a condition for subdivision approval.  Attorney Mason said the applicant was not averse to having soil samples taken from the property. 

 

Mr. McNamara asked when the application purchased the property.  Mr. Duquette said he purchased the property in 1999. 

 

Mr. LaBonte disagreed that the Board could require soil samples.  Mr. Hennessey believed that the Board could request soil samples.  Attorney Mason believed that the Planning Board would request soil samples.  Mr. Hennessey was fine with making a recommendation to the Planning Board for a requirement for soil samples.  Attorney Mason noted that Mr. Duquette had improved the property since it was purchased. 

 

Attorney Mason read the following criteria aloud:

 

Item #1.  The proposed use would not diminish surrounding property values because: A single family home already exists on one of the proposed lots and a new home will be built on the second lot.

 

Item #2.  Granting the variance would not be contrary to the public interest because:  It represents an appropriate and reasonable use of the property which will be a benefit to the Town.

 

Item #3.  Denial of the Variance would result in unnecessary hardship to the owner because:

               a)The zoning restriction as applied to the property interferes with the reasonable use of the                property, considering the unique setting of the property in its environment such that: The frontage                is already separated by an existing dwelling but the lot is large enough to satisfy the density                requirement.

 

               b) no fair and substantial relationship exists between the general purposes of the zoning ordinance                and the specific restriction on the property because:  The 200 feet of road frontage is not necessary                to insure adequate spacing between the dwellings.

 

               c) The Variance would not injure the public or private rights of others since:  All other subdivision                requirements can be met.

 

Item #4.  Granting the variance would do substantial justice because: The proposed use is consistent with other uses permitted in the area.

 

Item #5.  The use is not contrary to the spirit of the ordinance because:  All other health, building, zoning and safety issues will be met.

 

Mr. Hennessey asked what the distance was to the Greenwood property.  Mr. Duquette said it was difficult to tell because he rarely saw the home.  He described the area and noted that there was a ledge hill which separated the two lots. 

 

Mr. Kosik asked what type of house was being proposed.  Mr. Duquette said he proposed to build a single family ranch home (approximately 1500SF) with a single-car garage.  He said he would consider selling the lot with the existing home and build a home for himself (which would be slightly larger with a two-car garage) on the other lot if the sale of his mother’s real estate did not go through. 

 

PUBLIC INPUT

 

Mr. & Mrs. Wyer, 114A Old Gage Hill Road said that they purchased their property based on the fact that they had been informed that the applicant’s parcel could not be built on due to frontage.  Mr. LaPolice said that he had a similar situation abutting the parcel that he owned.  Mr. Hennessey noted that a 50ft. roadway was sufficient for access into a subdivision.  He said the applicant would accept a no-further-subdivision on the property.  He noted that by accepting the variance, it may keep three, or four other homes from being built.  Mr. LaPolice discussed the situation in his neighborhood and how subdivisions could be placed on lots similar to the one being presented.  Attorney Mason noted that the applicant was agreeable to a no further subdivision stipulation if the variance was granted.  He was willing to either include a note on the subdivision plan, or have an independent document stating that the applicant agreed to the no further subdivision stipulation. 

 

Mr. McNamara informed that when the plan was being reviewed by the Planning Board the abutters would be notified, so they could further discuss their concerns.  Mr. Duquette said that with the vegetation buffer, the Wyers would not have visibility of the home for approximately eight months out of the year. 

 

Mr. Kosik discussed the frontage and was unsure if the Planning Board could accept the subdivision.  Mr. Hennessey discussed the frontage issue and read the definition as written in the zoning laws.  He believed that the lot was currently non-conforming due to the frontage and therefore the Board would not be creating non-conforming lots by approving the variance.  There was a brief discussion regarding the lot and the fact that technically the lot was presently non-conforming. 

 

Ms. Wyer confirmed that the Board had a written objection to the variance contained in their file.  Mr. LaBonte said a copy of the objection was in the file.  Ms. Wyer said they were unclear how the applicant could prove a hardship since the land was being used as zoned and subdivided for.  Mr. LaPolice said that the Board considered the possibility of a subdivision.  He said there were a lot of similar areas in Town. 

 

Mr. McNamara asked if the land was usable.  Mr. Duquette said that there was a slight grade and informed that the land was previously used as an orchard.   

 

Mr. Hennessey asked if the abutters were asserting that there were significant wetlands on the site.  Mrs. Wyer said that their front lawn was very wet and there was a river which fed to multiple ponds.  Mr. Kosik said that he lived and was therefore familiar with the property.  Mr. Hennessey suggested if the Board approved the variance that the abutters ask the Planning Board to have Conservation Commission review the plan.  He explained how the Board had to view plans due to the Simplex case. 

 

The Board discussed their views with regard to the request being presented.  It was understood that the frontage and spacing to the abutters on either side was not being reduced by a variance.  It was also understood that a variance would not create two non-conforming lots. 

 

Mr. Hennessey asked if there was any possibility for the applicant to purchase land to make 200ft. of frontage.  Attorney Mason answered no.   There was further discussion by the Board and a consensus that the Simplex case applied to the application being reviewed. 

 

It was noted that there were no ballots available which outlined the criteria.  Mr. Kosik informed that the Board was not obligated to use the expanded ballot sheet with the criteria.  He said the Board was only obligated to have a written ballot vote.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes

Mr. Kosik - Yes

Mr. LaBonte - Yes

Mr. McNamara - Yes - with a stipulation that there is no further subdivision on the parcel

Mr. Hennessey - Yes - no further subdivision - all criteria was met.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

VARIANCE GRANTED

 

MINUTES REVIEW

 

June 10, 2002

 

MOTION:

(Kosik/LaBonte) To approve the June 10, 2002 minutes as written.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

August 12, 2002

 

MOTION:

(Kosik/Hennessey) To approve the August 12, 2002 minutes as written.

 

VOTE:

 

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

 

September 9, 2002

 

MOTION:

(Kosik/McNamara) To approve the September 9, 2002 minutes as amended.

 

VOTE:

 

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

 

DISCUSSION

 

Mr. Hennessey asked that correspondence be sent to Town Counsel requesting information on the pending appeals in court.  Mr. Kosik said he had previously asked for notification and would follow up with a request for notification.  Mr. Hennessey asked that a procedure be set up.  There was a brief discussion regarding how applications were being reviewed by the Planning Department.  Mr. Kosik informed that the Building Inspector is now reviewing all Special Exception applications for in-law apartments. 

 

The Board discussed the need for Alternates and asked if any members of the public were interested, they should contact the Selectmen’s Office. 

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 9:00 pm.

 

                                                                                          Respectfully submitted,

 

                                                                                          Charity A.L. Willis            

                                                                                          Recording Secretary