APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 9, 2002

 

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

 

The acting Clerk, Mr. David Hennessey, called the roll:

 

PRESENT:

 

ABSENT:

Walter Kosik, Peter McNamara, Alternate David Hennessey

 

Peter LaPolice, Edmund Gleason, George LaBonte, Jr.

 

Mr. McNamara encouraged anyone looking to volunteer in the Town to apply through the Town Hall as an alternate member of the Board of Adjustment. 

 

Mr. McNamara informed the applicants that there were only three Board members present.  He said that if any applicant would rather continue their case until there was a full Board they could.  He informed further that if an applicant chose to have their case heard, they would need a unanimous vote, or their case would be denied. 

 

Mr. McNamara appointed Mr. David Hennessey to vote in place of Mr. LaPolice, who was absent.

 

CONTINUANCE

 

Case #2235 - ML 4-102 - BERRY, Peter & Linda/2 Washington Street - Seeking a Special Exception concerning Article XII, Section 307-74 to permit the construction of an accessory dwelling

 

It was confirmed between the Board and Mr. Roland Soucy, Building Inspector that the applicant had completed their paperwork, but were unable to attend the meeting.  There was a consensus of the Board to continue the case until the next scheduled meeting to be held January 13, 2003. 

 

Case #2236 - ML 1-46 - DRISCOLL, Cheri & MELANSON, Carl/57 Mammoth Road - Seeking an Appeal to an Administrative Decision of the Building Inspector for denying a building permit to reopen a variety store in the residential zone that has been out of use for over one year. 

 

There were no persons present to represent the case.  The Board decided to revisit the case at the end of the meeting to see if the petitioner and/or their representative would arrive. 

 

* see below for further action.

 

Case #2238 - ML 12-209-4 - LECLERC, Joel & Celine/16 Shephard Road - Seeking a Special Exception concerning Article XII, Section 307-74 to permit the conversion of existing garage to accessory dwelling in the residential zone.

 

Mr. Hennessey read the list of abutters aloud. There were no persons who did not have their name read, or who had a problem with notification.  The file did not contain any written correspondence from abutters.

 

Mr. Loic Tussaume, 95 Sherburne Road, brother-in-law to the applicant presented the case to the Board.  He said there had been a question of the dimension being 552SF (23’x24’), which he said included the foyer that would be separate from the accessory dwelling.  He said that it had previously not been clearly defined.  He said that the applicant was seeking to convert the two-stall garage into an in-law garage for his mother. 

 

Mr. McNamara read aloud the four criteria that the applicant would need to meet before a special exception could be granted.  He asked for a description of the neighborhood.  Mr. Tussaume said that there were mostly single-family homes.  He said the home contained 1.2 acres and had a swimming pool. 

 

Mr. Kosik said his only question was if the applicant met the criteria for a special exception per the zoning regulations, paragraph C, section 307:74.  He also wanted to know if the garage was attached to the primary dwelling.  Mr. Tussaume said garage was attached to the primary dwelling.  Mr. Kosik asked if the dimension exceeded 500SF.  Mr. Tussaume said that the dimension was 552SF, and explained that the foyer was 52SF, but would be cut off completely from the in-law apartment.  

 

Mr. Roland Soucy, Building Inspector said he had reviewed the building plan and noted that it met the 500ft. requirement.  He said that he reviewed the existing septic design and believed that the previous owner had anticipated an in-law apartment based on the fact that the system was equipped as a 5 1/2 bedroom design, which had been confirmed by Mr. Peter Zohdi, Herbert Associates. 

 

Mr. Hennessey noted that the accessory dwelling was 498SF.

 

There was no public input. 

 

BALLOT VOTE:

 

Mr. McNamara - Yes - meets all specifications and criteria

Mr. Kosik - Yes - meets requirements for a Special Exception

Mr. Hennessey - Yes - meets all criteria

 

VOTE:

 

(3 - 0 - 0) The motion carries.

 

 

SPECIAL EXCEPTION GRANTED

 

Case #2241 - ML 6-180 - REESER, Carol/18 Mammoth Road - Seeking a Variance concerning Article III, Section 307-13-2 to permit the subdivision of existing lot into two (2) lots allowing use of land areas within 100 year flood to be considered in meeting minimum lot size.

 

The applicant’s attorney was not yet present.  The Board decided to revisit the case later in the meeting.

 

* see below for further action.

 

HEARINGS

 

Case #2242 - ML 7-14-15 - PUGSLEY, Charles & Jeanette Schier/31 Clark Circle - Seeking a Variance concerning Article VII Section 307-41(B) to permit the expansion of the existing dwelling within the 50ft. wetland buffer.

 

Mr. Hennessey read the list of abutters aloud. There were no persons who did not have their name read, or who had a problem with notification.  The file did not contain any written correspondence from abutters.

 

Mr. Charles Pugsley, applicant met with the Board to discuss his case.  He said they were seeking to expand their home on both the North and South side and noticed that they were close to the wetlands and wanted to fill out the appropriate paperwork before meeting with the Planning Board.  He then read the criteria aloud as follows:

 

Item #1.  The proposed use would not diminish surrounding property values because: we are adding a family room to the house, which is a typical design feature of a center-entry colonial.  The expansion of the kitchen, as well as the family room addition will be designed to match the style of the existing house, and will be designed by an architect. 

 

Item #2.  Granting the variance would not be contrary to the public interest because: No wetlands will be filled in.  The project will merely be built on an existing paved driveway and lawn area.  Furthermore, only the family room addition will be able to be seen by the public from the road.  In addition, it is not anticipated that any trees on the property would need to be removed.

 

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

                a) the zoning restriction as applied to their property interferes with the reasonable use of the                 property, considering the unique setting of the property in its environment such that: we have no                 other option to expand the house other than out to the front in order to avoid the zoning                 restriction.  This option would not be feasible from an architectural or engineering perspective. 

 

                b) that no fair and substantial relationship exists between the general purposes of the zoning                 ordinance and the specific restriction on the property because: we would not do damage to the                 wetlands as the expansion is proposed into existing lawn area and into the paved driveway.  We          would continue to support the wetlands’ existence, and take the necessary steps as required by law          to protect the wetlands during the construction. 

 

                c) the variance would not injure the public or private rights of others since: The proposed project                 would have no effect on the flow of water to the wetlands, as the proposed expansions are onto an existing paved driveway and existing lawn.  Further, the larger planned expansion (kitchen) is                 elevated, thereby further continuation of the present flow of water into the wetland area.

 

Item #4.  Granting the variance would do substantial justice because: we believe that the proposed project would not be impacting the wetlands.  The expansion is proposed into existing lawn area and existing paved driveway.  The flow of water would not be adversely affected.  We would continue to protect the wetland area during and after the construction.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: The flow of water would not be adversely affected by the expansion project, nor would silt or additional run off be provided with the additions.  In fact, the existing slope that leads to the wetlands would be enhanced, thereby preventing any of the above mentioned damage to the wetland area.

 

Mr. Hennessey asked Mr. Pugsley to review the fifth criteria.  Mr. Pugsley paraphrased by saying the flow of the water and wetlands would not be affected and believed that the steep slope on the north side would be firmed up and enhanced during the construction process to ensure there would not be any additional run off into the wetland area. 

 

Mr. McNamara asked how close the addition would be to the wetland.  Mr. Pugsley said that the kitchen would be approximately 45ft. and the family room would be approximately 45ft - 50ft. 

 

PUBLIC INPUT

 

Mr. Bob Yarmo, Chairman of the Conservation Commission and citizen noted that Conservation had not reviewed the plan, but believed that they would have a concern in breaching the wetland buffer, which would decrease the function of the wetland.  He felt the Conservation Commission should have the opportunity to review the plan and possibly do a site walk.  Mr. Yarmo asked if the wetland delineation had been done by a wetland scientist.  Mr. Pugsley said at the time the property was purchased (ten years ago) the wetland delineation was done, but he did not know if it was done by a wetland scientist.  Mr. Yarmo discussed the importance of the wetland buffers and believed it would be a bad precedent for the Board to set if a variance were granted.   

 

Mr. Kosik asked if it were possible to dredge and fill the area.  Mr. Pugsley was unsure.  Mr. Yarmo did not feel the state would issue a dredge and fill permit.  He said the Conservation Commission provided the Wetlands Board with comments for all dredge and fill permits. 

 

Mr. McNamara asked if the area behind the house was grassed.  Mr. Pugsley said the area behind the house was grass and natural foliage. 

 

There was a brief discussion regarding who in the Town offices should have been notified regarding the case.  It was agreed that the plan should have been reviewed by the Planning Director and then forwarded to the Conservation Commission for review. 

 

Mr. Hennessey said he was familiar with the subdivision Mr. Pugsley lived in and believed the Planning Board had placed specific requirements on the lots.  He asked Mr. Pugsley if he had been notified by the builder that he would have to come before a Town board before constructing any additions.  Mr. Pugsley did not recall being informed of such restrictions.  He said that the developer had some issues with the Town on more than one occasion.  Mr. Hennessey felt the Planning Board should have placed a site specific deed restriction so that the applicant would know that any expansion would need to come before a Town board.  He recommended that the case be continued for comments from the Conservation Commission. 

 

MOTION:

(Hennessey/Kosik) To continue the case pending comments from the Conservation Commission.

 

VOTE:

 

(3 - 0 - 0) The motion carries. 

 

The case was continued until the Conservation Commission was able to review the plan and provide comment.  Mr. McNamara asked that a status report be provided at the next meeting if the case was not going to be heard at that time. 

 

Case #2243 - ML 7-41 - BIBEAU, David/36 Atwood Road - Seeking a Variance concerning Article VII Section 307-41(B) to permit the construction of a 30’x40’ garage within the 50ft. wetland buffer.

 

Mr. Hennessey read the list of abutters aloud. There were no persons who did not have their name read, or who had a problem with notification.  The file did not contain any written correspondence from abutters.

 

Mr. Jeff Orchard, wetland scientist from Windham discussed the case with the Board on behalf of the applicant.  He read the following criteria aloud:

 

Item #1.  The proposed use would not diminish surrounding property values because: the existing zoning is business commercial.  Proposed new garage is 70ft + from property line.  Proposed garage to be wood framed and sided.

 

Item #2.  Granting the variance would not be contrary to the public interest because: The proposed use will add to the taxes being paid on the property.  Also, garage is to be built as typical residential garage.

 

Item #3.  Denial of the variance would result in unnecessary hardship to the owner because: of no storage for trucks and equipment in the business zone.

 

                a) the zoning restriction as applied to their property interferes with the reasonable use of the                 property, considering the unique setting of the property in its environment such that: owner wants                 to set proposed garage in rear of property for appearance reasons.  Garage could meet setbacks in                 front of property.

 

                b) that no fair and substantial relationship exists between the general purposes of the zoning                 ordinance and the specific restriction on the property because: the only other garage location                 brings the proposed garage 12ft from flagged wetland area.

 

                c) the variance would not injure the public or private rights of others since: garage will only be   located in such area to maintain better appearances to other neighbors.

 

Item #4.  Granting the variance would do substantial justice because: The proposed garage would only have two locations on this property.  One being in front of the existing house, due to septic location, and two being in rear of existing house.  The property’s appearance would be much better with garage in rear.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: If the variance is granted, we will meet all other requirements that the Town will place on us, such as following the building code, obtaining all necessary permits, etc.

 

Mr. Orchard noted that the applicant ran Oscar’s Removal Company from his home and needed space to store and work on his equipment.  He said initially they tried contacting the former Planning Director, Mr. Dave Brouillet, but were connected to the current Planning Director, Ms. Amy Alexander.  Apparently, Ms. Alexander had just begun the position and was under the assumption that she had the authority to review the application and issue a building permit.  Mr. Orchard said that he had delineated the wetlands using flags, which could be reviewed.  He said that the applicant was severely limited with the area he could use.  He said that the wetlands would not be filled, but that the proposed structure would be placed within the buffer zone. 

 

Mr. Hennessey asked if the property had been designated by the Town as a prime wetland and wanted to know if there had previously been a cranberry bog on site.  Mr. Orchard was not aware that the site was a prime wetland.  Mr. Bob Yarmo, Chairman, Conservation Commission informed that the area was listed as prime wetland through a study performed and accepted by the Town by Town vote.  He said that prime wetlands were given additional protection through the state.  He reiterated that the Conservation had not reviewed the plan and believed that they would have a serious concern jeopardizing the wetland buffer.  Mr. Hennessey agreed that the plan needed Conservation Commission review since the wetland was prime.

 

Mr. Kosik asked what the garage would be used for and if equipment repair would be done inside.  Mr. Orchard said that the garage would be used for storage and some equipment repairs. 

 

PUBLIC INPUT

 

Mr. Roland Soucy, Building Inspector noted that the Planning Director had forwarded the application for review and the building permit was turned down pending Planning Board site plan review and also due to the water conservation district issue.   

 

Mr. Hennessey reviewed the application process in connection with prime wetlands as outlined in documentation from the New Hampshire Code of Administrative Rules (part WT703-01 criteria for approval under chapter WT700 - prime wetlands). 

 

Ms. Colleen Demers, 34 Atwood Road asked what side of the house the garage would be placed.  Mr. Orchard said the garage would be placed on the rear of the building.

 

MOTION:

(Hennessey/Kosik) To continue the case and seek guidance from the Conservation Commission and the state due to the prime wetlands.

 

VOTE:

 

(3 - 0 - 0) The motion carries. 

 

Mr. McNamara asked that the Conservation Commission and the state review the case before it was brought back to the Board.  If the applicant was not ready to present the case at the next meeting, a letter should be sent to the Planning Department providing status. 

 

Ms. Demers asked how far away from the 50ft. buffer zone the proposed building would be.  Mr. Orchard said that the building’s corner would be within 12ft. of the wetland.  Ms. Demers wanted to know how the current water flow would be impacted and if any fill would be used.  Mr. Orchard said the building would sit up from the wetland, therefore not affecting it.  He said that no fill was required.  Ms. Demers asked if the drainage coming off the building would affect the wetland.  Mr. Orchard said that there would be no additional water onto the property due to the proposed building.  Ms. Demers wanted to know if there would be any seepage due to equipment being worked on.  Mr. McNamara believed that the state would provide recommendations. 

 

CONTINUANCES CONT....

 

Case #2241 - ML 6-180 - REESER, Carol/18 Mammoth Road - Seeking a Variance concerning Article III, Section 307-13-2 to permit the subdivision of existing lot into two (2) lots allowing use of land areas within 100 year flood to be considered in meeting minimum lot size.

 

Attorney Bernard Campbell, representing the applicant preferred to have the case by a minimum of four Board members.  He requested that the case be continued to the next scheduled meeting.  The Board granted a continuance for Case #2241 to the next meeting, currently scheduled for January 13, 2003. 

 

Mr. Hennessey noted that the Town’s 100-year flood plane ordinance referred to federal flood insurance, but as of January 1, 2003 there would be no Federal Flood Insurance.  Mr. Kosik asked if a home was located within the 100-year flood plane they would not have to get flood insurance.  Mr. Hennessey said that as of January 1, 2003 a person would not be able to get flood insurance, and would probably not be able to get a mortgage until congress readdressed the issue. 

 

Case #2236 - ML 1-46 - DRISCOLL, Cheri & MELANSON, Carl/57 Mammoth Road - Seeking an Appeal to an Administrative Decision of the Building Inspector for denying a building permit to reopen a variety store in the residential zone that has been out of use for over one year

 

There were no persons present to represent the case.  Mr. Kosik said that historically if no one was present, the case was forfeited. 

 

MOTION:

(Kosik/Hennessey) The case shall be forfeited, due to the fact that there were no persons at the meeting to present the case to the Board.

 

VOTE:

 

(3 - 0 - 0) The motion carries. 

 

It was unclear why the applicant did not appear at the meeting.  Mr. Hennessey noted that the applicant would still have the opportunity to request a variance from the Board.  The abutters will be notified if the applicant requests a variance.

 

MINUTES REVIEW

 

November 14, 2002 - deferred to the next scheduled meeting.

 

DISCUSSION

 

Mr. Hennessey requested that the Board invite the Planning Director to a work session to discuss the procedures applicants should take before attending a meeting.  He also suggested that the Board hold a joint meeting with the Planning Board.  After a brief discussion it was decided to address Mr. Hennessey’s request when a full Board was present.  

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 8:45 pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis            

                                                                                                Recording Secretary