APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 8, 2002

 

The Chairman, Walter Kosik, called the meeting to order at approximately 7:30 pm.

 

The Vice Chairman, Mr. Edmund Gleason, called the roll:

 

PRESENT:

 

 

ABSENT:              

Walter Kosik, Edmund Gleason, Peter McNamara, Peter LaPolice, Alternate David Hennessey

 

George LaBonte, Jr.

 

Mr. Kosik informed that Mr. Hennessey would vote in Mr. LaBonte’s absence. 

 

ELECTION OF OFFICERS

 

MOTION:

 

(Gleason/McNamara) to defer the election of officers until a full Board is present.

VOTE:

(5 - 0 - 0) The motion carries.

 

 

 

APPEAL

 

Case #2216 - ML 7-14-2 - SARGENT, Ross/Dutton Road - Appeal of a denied Variance to Article VII, Section 307-37 to permit a three bedroom residence be built within the 50’ wetland setback.

 

Mr. Kosik said a letter had been received by an attorney and there appeared to be a dispute regarding who owned the lot, either Mr. Sargent or Mr. McManus.  He said that the Board would need to decide if the case if the case is to be reheard. 

 

Mr. Hennessey said the attorney was present and wanted to know whom he represented.  He believed if the attorney did not represent Mr. Sargent, than there was no standing or appeal. 

 

Attorney Bill Mason said that he represented both Mr. Sargent and Mr. McManus, but that Mr. McManus was the ultimate party of interest due to him wanting to develop the lot. 

 

Mr. Hennessey discussed the letter submitted by Attorney Mason.  He believed if the point being made was that the lot was grandfathered as a legal lot of record, the case should have been heard as an appeal to an administrative decision, not a variance.  He noted that the period to appeal was over. 

 

Mr. Kosik said that the Board needed to base its decision on the information submitted. 

 

Mr. Peter Zohdi, Herbert Associates believed there had been a misunderstanding.  He said the Planning Director was surprised that the case was being heard and had no problem with the plan.  He said that the Health Agent would not send the septic out, and the applicant had no way to appeal his decision. 

 

Mr. Gleason said that the Town enacted the WCD ordinance, which the Board needed to adhere to.  He found no evidence in the letter submitted that would change his decision. 

 

Mr. McNamara believed the applicant had a full and fair opportunity to present their evidence, and did not feel a rehearing was warranted. 

 

Mr. LaPolice understood that the criteria for a rehearing would be if new information were presented.  He felt that section ‘b’ of the attorney’s letter brought forward new information.  He was in favor of a rehearing. 

 

Mr. Kosik was also in favor of a rehearing.  Mr. Hennessey did not vote during the initial hearing, and therefore would not vote regarding the appeal.  The Board discussed if they would take vote with four members.

 

Attorney Mason believed he had the right to a full voting Board.  He asked that the vote wait until the next hearing with a full Board. 

 

Mr. Kosik was unsure if a full Board was needed, however, he granted a continuance until the next meeting.   

 

CONTINUANCE

 

Case #2221 - ML 13-14 - PETERS, Bryan & Nancy/3 Maple Drive - Seeking a Special Exception concerning Article XII Section 307-74 to permit an accessory dwelling in the residential zone.

 

Bryan and Nancy Peters appeared before the Board.  Ms. Peters said the only outstanding issue was the receipt of the state approved backup septic design, which she had now received.  She provided a copy to the Board.  She said the Board had also asked for input from the Health Officer.  She informed that the Health Officer told her he didn’t usually provide letters and suggested that she have input provided from Herbert Associates.  Ms. Peters then provided the Board with a copy of a letter she received from Herbert Associates. 

 

The Board discussed the proposed.  They were informed that the existing home was built in 1973.  The drawing showed 498 square feet of living space, which would be located above a garage with independent access.  There was a brief discussion regarding the usage of a common wall.  The Board discussed and reviewed the drawing.  The Board agreed that because the storage area was part of the original house, it satisfied the requirement for the common wall. 

 

BALLOT VOTE:

 

Mr. Kosik - Yes - meets criteria for special exception

Mr. Gleason - Yes

Mr. McNamara - Yes

Mr. LaPolice - Yes

Mr. Hennessey - Yes

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

SPECIAL EXCEPTION GRANTED

 

HEARINGS

 

Case #2223 - ML 6-206 - MENDES, David/Thomas Avenue - Seeking a Variance to Article III, Section 307-12 to permit a single family dwelling to be built with less than 200’ frontage on a Town road (50’ right-of-way to Irene Drive)

 

Mr. Gleason read aloud the list of abutters.  There were no persons present who did not have their name read.

 

Item #1.  There will be no decrease in the value of the surrounding properties: We are proposing to put one house on a 29-acre lot and the house will be of equal or greater size and value to the surrounding houses.

 

Item #2.  It is in the public interest: The proposed use will add to the taxes currently being paid on the property.

 

Item #3. There is significant hardship to the land: Although there is suitable driveway access to Irene Drive and a right-of -way to Thomas Avenue, we do not have 200 feet of frontage available on a Town road.

 

Item #4.  There is substantial justice to be done: The use being requested is consistent with uses of the surrounding lots and a variance being granted will allow us to use our property in the same manner.

 

Item #5.  This request is within the spirit of the zoning ordinance: We are only requesting a variance to waive one of the zoning requirements and we will meet all other setbacks and codes.

 

Mr. Peter Zohdi, Herbert Associates presented the plan to the Board.  He noted the site was approximately 29 acres, located at the end of Irene drive.  He said his client was proposing to build a 340’ driveway from the end of the Irene Drive cul-de-sac and build a house.  He said the septic design had been done and the Health Agent had reviewed the test pit.  He noted that his client had 50’ frontage onto Irene Drive, and 100’ frontage onto Thomas Avenue.  Mr. Zohdi said that his client was proposing to build a single family home on the 29 acres. 

 

PUBLIC INPUT

 

Mr. Edward Frasca, 1 Misty Lane was in favor of the proposed. 

 

Mr. Michael Mote, Irene Drive wanted to know if the area would be subdivided in the future.  Mr. Kosik said the Board would review the information submitted.  He said the applicant was not requesting a subdivision. 

 

Mr. Vern Atwood, 14 Nancy Avenue said there were drainage problems through the presented parcel, which lead out to Beaver Brook.  He asked that it be corrected before proceeding. 

 

Mr. Zohdi said that they could not disturb the wetlands.  He said the abutters could go to Conservation Commission, Wetland Bureau or Fish and Game to capture the beavers and help the drainage flow.  Mr. Zohdi pointed out the wet areas of the parcel and noted that they were proposing to build near Irene Drive, not Thomas Avenue. 

 

Mr. Atwood presented minutes from the Planning Board meeting of March, 2000 and read a portion aloud.  He said that the Planning Board recognized at that time the beaver dam and made attempts to contact the owner to remove the dam, with no reply.  He said there had been a culvert in place several years ago, which had been crushed by ATVs.  He said if a culvert was added and the beaver situation corrected, he would not have a problem with the proposed.  Mr. Kosik said the situation was not for the Board to discuss, but rather the Conservation Commission.  He said the Planning Board would still have the final say. 

 

Mr. Gleason asked if any attempt had been made to acquire additional land.  Mr. Zohdi discussed the abutting parcel, which was part of the Bergeron subdivision and was wetlands.  Mr. Gleason confirmed that the proposed parcel contained a buildable area.  Mr. Zohdi answered yes. 

 

Mr. Zohdi said his client did not have an objection to the abutters adding a culvert, on behalf of his client, as long as all the required permits were obtained.  

 

Mr. Gleason asked how long Mr. Mendes had owned the property.  Mr. Zohdi said that Mr. Mendes was the owner of record for at least six months.  Mr. Gleason asked if Mr. Mendes bought the parcel with knowledge of the 200’ frontage requirement.  Mr. Mendes answered yes.

 

Mr. Hennessey said that in connection with criteria #2, an addition to taxes being paid on the property could not be the sole public interest.  He wanted to know if there was an additional point.  Mr. Zohdi believed that if the home were built and occupied, ATV traffic would not be such high incidents.  He said that if Mr. Mendes were living on the property the culvert might get cleaned out for drainage to flow. 

 

Mr. Hennessey asked the length of the driveway.  Mr. Zohdi said it would be 340’ from the end of the cul-de-sac.  Mr. Hennessey said that the Planning Director recommended that the applicant submit a waiver of liability to the Town, because the length of the driveway may impede safety response time.  Mr. Zohdi said they had no objection to Mr. Mendes’ Counsel discussing language with Town Counsel and including a waiver with the application.  Mr. Hennessey said the Planning Director wanted to also ensure that the Board was not permitting a connection from Irene Drive to Thomas Avenue.  Mr. Zohdi said that the right-of-way on Thomas would not be used as a connection to Irene Drive.  Mr. Hennessey said the final suggestion of the Planning Director was to consider a no further subdivision condition until a new roadway was constructed.  Mr. Zohdi did not have a problem with the condition suggested in Mr. Mitchell’s letter.  Mr. Kosik said the applicant would not be able to do anything else without coming back before the Board of Adjustment or the Planning Board.   Mr. Hennessey wanted to know how wide the driveway would be.  Mr. Zohdi said they were proposing a 10’ wide driveway. 

 

Mr. Hennessey wanted to include in a motion: 1) waiver of liability to the Town; 2) applicant specifically agrees not to connect to Thomas Avenue; 3) deed restriction for no further subdivision.  There was a discussion regarding criteria, the benefits to the Town, and the possibility of adding a condition to the Variance that there would be no further subdivision allowed.  Mr. Zohdi said that the exact language Mr. Mitchell suggested would be acceptable.  Mr. Mitchell’s language was as follows: “...the Board may wish to consider a no further subdivision condition, until a new roadway is constructed.”  There was further discussion amongst the Board members. 

 

Mr. Gleason wanted to know since there was potential for a road to be built later in time why the applicant wasn’t going to build it at this time and create frontage.  Mr. Zohdi said that his client was planning to build a house for himself on 29 acres.  He said that if later, Mr. Mendes wanted to subdivide, he would have to comply with all the laws of the Town.  He ended by saying they would not come back before the Board for an additional Variance. 

 

There was a brief discussion regarding possible conditions and if hardship criteria had been met, which lead to the following motion:

 

MOTION:

 

 

 

VOTE:

(Hennessey/McNamara) To grant the Variance with the following conditions: 1) no connection of Irene Drive to Thomas Avenue; 2) waiver of liability to Town; 3) no further subdivision. 

 

(1 - 4 - 0) The motion did not carry.  Mr. Kosik, Mr. Gleason, Mr. McNamara and Mr. LaPolice voted no. 

 

BALLOT VOTE:

 

Mr. Kosik – Yes

Mr. Gleason – No

Mr. McNamara – No

Mr. LaPolice – Yes

Mr. Hennessey – No

 

VOTE:

 

(2 - 3 - 0) The motion was defeated.

 

 

VARIANCE DENIED

 

Case #2224 - ML 1-160-1 - FRASCA, Edward & Susan/1 Misty Lane - Seeking a Variance to Article III, Section 307-12 to permit the construction of a 24’x24’ garage within the side setback (garage will be 10’ from property line)

 

Mr. Gleason read aloud the list of abutters.  Mr. Bruce and Nina LePore, 3 Misty Lane did not have their name read.  The abutter’s list was reviewed and it was confirmed that their name was included on the list, but was not read aloud. 

 

Edward and Susan Frasca, 1 Misty Lane met with the Board and informed that for the size garage they wanted to build, they would be 5’ too close to the setback.  Mr. Frasca read the criteria aloud as follows:

 

Item #1.  There will be no decrease in the value of the surrounding properties: The proposed addition will be aesthetically pleasing and add to the property value, also the land is not being used for anything.

 

Item #2.  It is in the public interest: There is a need for what is being requested.  This variance would no affect any abutter.

 

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 their reasonable use of the                 property, considering the unique setting of the property in its environment such that: We will not                 be able to use our land to its fullest potential if the variance is denied and nonconforming lines        already exist.

 

b) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property: left blank on form.

 

                c) The Variance would not injure the public or private rights of others: left blank on form.

 

Item #4.  There is substantial justice to be done: The use we are seeking is a permitted use for that district.

 

Item #5.  This request is within the spirit of the zoning ordinance: We are only requesting a variance to waive one of the zoning requirements and we will meet all the other setbacks and codes. 

 

PUBLIC INPUT

 

Mr. Bruce LePore, 3 Misty Lane reviewed the plan and did not oppose the proposed request for a variance. 

 

Mr. Gleason asked if there was any way to shift the position of the garage.  Mr. Frasca answered no. 

 

Mr. Kosik asked if the applicant had considered shortening the garage.  Mr. Frasca said he would like to build a two-car garage.   

 

There was a brief discussion regarding the shape of the lot and the position of the garage in regard to the lot line. 

 

BALLOT VOTE:

 

Mr. Kosik - Yes

Mr. Gleason - Yes

Mr. McNamara - Yes

Mr. LaPolice -Yes

Mr. Hennessey - Yes

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

VARIANCE GRANTED

 

Case #2225 - ML 13-36 - HANSON, Lisa/13-15 Youngs Crossing - Seeking a Variance to Article III, Section 307-12 to permit the resubdivision of two lots of record to create a single family building lot containing 43,560 square feet and 200’ frontage with a remaining lot of 43, 404 square feet and 210’ of frontage supporting an existing two-family home

 

Mr. Gleason read aloud the list of abutters.  There were no persons present who did not have their name read.

 

Attorney Bill Mason, representing Ms. Lisa Hanson discussed the requested variance.  He showed the subdivision plan obtained from the registry.  He said the applicant owned lot 9 (45,000sf - 200’ frontage) and lot 10 (46,964sf - 212’ frontage).  He said that there was an existing duplex home (36’x28’) located on lot 9 and the applicant would like to give land from lot 10 to lot 9, thereby increasing the acreage of lot 9 to 48,400sf  (frontage to 212’), and therefore reducing lot 10 to 43,560sf. 

 

Mr. Kosik asked if they were proposing a lot-line change.  Attorney Mason said that adding the land would not bring the acreage up to the current zoning requirements for a duplex.  He informed that the applicant bought the property in 1997, and the duplex was built in the 1970’s.  Mr. Kosik asked if the Planning Board merged the lots to build the duplex.  Attorney Mason said there was no record in the Planning Department or at the registry of deed of a merger.  Mr. Gleason informed that the regulations state that the minimum lot size for a two-family dwelling was 87,120sf with 200’ frontage.  The lot sizes were reiterated.

 

PUBLIC INPUT

 

Mr. Scott Raymond, 11 Youngs Crossing Road informed that in the back of the property there had been recent construction, and felt that the water flow of the natural springs (which run down through the applicant’s property and end up in Harris Pond) would be affected.  He discussed the traffic problems and a plan that was denied by the Planning Board. 

 

Attorney Mason was not familiar with the drainage and said that a home could not be built without taking drainage into account. 

 

Mr. Kosik was concerned that the additional lot was used to gain the acreage for a duplex.  Attorney Mason found no record of a merger.  He said that the applicant held a deed that described both lots separately.  He discussed the lots with the Town Assessor, who had no records or independent recollection of the lots being merged.  Mr. Kosik said the Planning Board had the authority to merge lots.  Attorney Mason found no record of the merger process.  He said his prospective was that a duplex home was situated on a 45,000sf lot, and he was requesting that land be taken from the abutting lot and add to the parcel, leaving a conforming lot.   

 

Mr. Hennessey said that the Planning Director has asked that the applicant show that they have treated the two lots independently of each other.  Attorney Mason said when his client purchased the property, she believed she was purchasing two lots, based on the language in the deed.  

 

The Board briefly discussed the requested variance and if the applicant was requesting to create a non-conforming lot.    Attorney Mason reiterated his belief that he was coming before the Board with two lots, and requesting that the lot with the duplex be increased.  Mr. LaPolice asked if there was anything to prevent the applicant from selling lot 10 to another owner.  Attorney Mason answered no. 

 

Attorney read the criteria aloud:

 

Item #1.  There will be no decrease in the value of the surrounding properties: The new proposed dwelling would be of equal or greater value and would be compatible with homes in the area. 

 

Item #2.  It is in the public interest: It will increase the revenue generated from the property.

 

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 their reasonable use of the                 property, considering the unique setting of the property in its environment such that: The two lots                 are existing lots of record.  The request is an attempt to bring the two-family lot more into                 compliance.

 

b) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property: The two-family home has been supported by the lot on which it is situated since its institution.

 

c) The Variance would not injure the public or private rights of others: The resubdivided parcels are able to support the existing or contemplated use.

 

Item #4.  There is substantial justice to be done: The use is consistent with uses of neighboring properties.

 

Item #5.  This request is within the spirit of the zoning ordinance: The proposed use will meet all state and local codes for building, health and safety. 

 

Mr. McNamara asked Attorney Mason why the applicant was requesting a variance.  Attorney Mason said the intention was to meet with the Planning Board for a lot line change.  He said his client was informed that a variance would be needed. 

 

There was a brief discussion regarding the status of the lots and if they were separate or joined.  Mr. Kosik summarized that there were two lots.  He said that the applicant was seeking to take land from a vacant lot and add it to the lot with an existing duplex, keeping the vacant lot in conformance.  Attorney Mason said that his client was informed that a variance was needed to resubdivide the lot to add the footage.  It was suggested that the applicant apply for a building permit for the lot and if it were turned down they could come before the Board for an Administrative Appeal. 

 

Attorney Mason asked to withdraw the variance request without prejudice. 

 

DISCUSSION

 

Ms. Jennifer Correa, 13 Wilshire Lane who had previously requested a Special Exception concerning Article XII Section 307-74 to permit an accessory dwelling in the residential zone (Case #2222) said she was informed by the Planning Department that her case would be heard.  Mr. Kosik said that her case was scheduled for the prior month and because she didn’t show up, the case defaulted.  Ms. Correa said she wasn’t notified of the prior meeting until after the scheduled date.  Mr. Kosik said that Ms. Correa needed to speak with the Planning Director.  He noted that to hear the case, it would need to be reposted, and the abutters would need to be renotified.  Mr. Gleason said he would follow up with the Planning Department and ensure that Ms. Correa’s case would be heard at the next meeting. 

 

MINUTES REVIEW

 

February 11, 2002

MOTION:

 

 

VOTE:  

(Gleason/McNamara) To accept the minutes of the February 11, 2002 Board meeting as read.

 

(5 - 0 - 0) The motion carries.

 

March 11, 2002

MOTION:

 

 

VOTE:  

(Gleason/McNamara) To accept the minutes of the March 11, 2002 Board meeting as read.

 

(5 - 0 - 0) The motion carries. 

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 9:25 pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis            

                                                                                                Recording Secretary