APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 13, 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, Peter McNamara, George LaBonte, Jr., Edmund Gleason, Alternate David Hennessey

 

Walter Kosik

 

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

 

MINUTES REVIEW

 

April 8, 2002

 

MOTION:

 

 

VOTE:  

(Gleason/Hennessey) To accept the minutes of the April 8, 2002 Board meeting as amended.

 

(5 - 0 - 0) The motion carries.

 

May 6, 2002

 

MOTION:

 

 

VOTE:  

(Gleason/Hennessey) To accept the minutes of the May 6, 2002 Board meeting as amended.

 

(5 - 0 - 0) The motion carries. 

 

REQUEST FOR REHEARING

 

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. LaPolice informed that Attorney Groff, the applicant’s representative submitted a letter to the Board.  He confirmed with the Board that they had reviewed Attorney Groff’s letter and asked if there were any comments. 

 

Mr. LaBonte said he was not present during the original hearing, but believed that he would have voted in favor of the Variance based on the facts of the case, the size of the parcel and what was being requested. 

 

Mr. McNamara said in order to receive a Variance, criteria must be met, in part, based on the Newington case.  He then cited the New Hampshire Supreme Court Case - Hill vs. Chester (of April 13, 2001), that had been decided after the Simplex case, which he felt was on point with the present application.  He said the focus of the case was basically the creation of a self-imposed hardship.  The court agreed that purchase with knowledge (of zoning), was a non-dispositive factor to be considered under the first prong of the hardship test.  Mr. McNamara felt Mr. Mendes had knowledge of the zoning requirements and the lack of sufficient frontage of the parcel at the time of purchase, which was approximately six months prior to applying for the Variance.  He said that the denial did not preclude Mr. Mendes from development of the parcel.  He could still submit a subdivision with the Planning Board.  Mr. McNamara noted that Attorney Groff wrote in his letter that in the past the Board granted similar Variances, which Mr. McNamara did not feel, of itself, was reason to grant a Variance.  He said he would not vote yes because of past practice. 

 

Mr. Hennessey said that the Board had discussed in what way the proposed would be a benefit to the Town, which Attorney Groff did not address further in his letter.  He said the other question was the 300’ driveway, which the Planning Board and Fire Chief consistently advocated against driveway lengths of that size.  He noted that the driveway went into sensitive land.  Mr. Hennessey said the driveway length and the sensitivity of the land made the application different from the cases sited in Attorney Groff’s letter. 

 

Mr. LaPolice said that there were certain past approvals that he felt would not meet the criteria quite as easy as the current application did.  Mr. Gleason said that other applications did not have the acreage of the current application.  He said that when Mr. Peter Zohdi (Herbert Associates) was asked why the applicant didn’t put a road in and preclude the Variance, Mr. Zohdi said it might be put in at a later point in time.  He said that he had voted no for a similar Variance (on Bush Hill Road).  Mr. LaBonte felt that one home on twenty-nine acres was a benefit to the Town.  He felt that having a Town road for one home would be excessive.  Mr. McNamara said that per the testimony, the parcel would be subdivided at a later time. 

 

Mr. LaPolice was confused by the criteria the Board voted on, and felt that if the discussion was followed through by the language Mr. Clay Mitchell (Interim Planning Director) provided, the applicant could possibly have met the criteria.  He felt the case should be reheard, since the applicant was willing to accept the specific language in Mr. Mitchell’s letter.  Mr. Hennessey discussed the language contained in Mr. Mitchell’s letter regarding no further subdivision until a roadway was constructed. 

 

There was a brief discussion regarding the conditions in the original motion that was defeated, and the fact that the ballot vote did not contain any conditions. 

 

Mr. Gleason concerns had not changed from the original hearing.  Mr. McNamara did not believe that there was a new factual basis for the application.  He felt that Attorney Groff raised a number of legal issues, but did not feel that there was any new evidence provided. 

 

Mr. LaPolice reviewed the Board’s previous decision to vote without stipulations.  Mr. Hennessey said before the vote was taken he questioned if any stipulations should be added and the response from the previous Chair (Mr. Kosik) was to vote upon the straight Variance.  Mr. LaPolice questioned if the Board had the obligation to provide the applicant with the opportunity to withdraw the application and add stipulations.  Mr. McNamara said that Mr. Zohdi was knowledgeable and skilled with regard to the rules of zoning and planning and believed if he wanted to withdraw the application, he would have.  Mr. LaPolice wanted to know if the Board might have made a mistake.  Mr. Hennessey said that there was no new evidence provided.  He noted that the applicant did not offer stipulations, but that they were recommendations contained in a letter from the Planning Director. 

 

MOTION:

 

VOTE:  

(Hennessey/McNamara) To deny the request for rehearing Case #2223.

 

(3 - 2 - 0) The motion carries.  Mr. LaPolice and Mr. LaBonte voted no (they were in favor of rehearing the case). 

 

REHEARING DENIED

 

HEARINGS

 

Case#2226 - ML 1-10-12 - CORREA, Jennifer/13 Wilshire Lane - Seeking a Special Exception to Article XII, Section 307-74 to permit an accessory dwelling of 479 square feet of living area using existing unfinished space over garage.  The footprint of the existing building would not be altered.

 

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 then read the corresponding Article aloud.

 

Ms. Jennifer Correa said there was an existing space above her garage since the occupancy permit was pulled in January, 2001.  She said the space would be used as a home office for her husband.  She then said that the secondary dwelling unit would consist of a bedroom, bathroom and kitchen as laid out on the plan. 

 

Ms. Correa said her existing home had four bedrooms.  She showed the Board an approved septic design plan for 6-bedrooms.  She also showed the Board the house design for the existing structure, and the proposed accessory dwelling, which was 479SF.  She said a live-in nanny would use the accessory dwelling unit until her mother retired and moved into the unit. 

 

There was no public input.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes

Mr. McNamara - Yes

Mr. Gleason - Yes

Mr. LaBonte - Yes

Mr. Hennessey - Yes

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

SPECIAL EXCEPTION GRANTED

 

Case #2227 - ML 3-67-1 - JONCAS, Steven & Mary Ellen/4 Tenney Road - Seeking a Special Exception to Article XII, Section 307-74 to permit an accessory dwelling over existing garage not to exceed the allowed 500 square feet of living area.  The footprint of the existing building would not be altered.

 

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 during the previous case.

 

Steven and Mary Ellen Joncas met with the Board and provided the proposed plan to the Board.  It was noted that the applicant had submitted a plan in the past, but withdrew without prejudice.  Mr. Joncas reviewed the plan with the Board.  He said the area was located over his (24’x24’) garage and the common wall would be behind the bathroom.  He said they would construct a deck, which would be the entrance to the unit. 

 

Mr. Gleason asked if the storage area was part of the existing dwelling.  Mr. Joncas said yes.  Mr. Gleason confirmed with Mr. Joncas that the accessory dwelling unit would comprise of a bedroom, bathroom, kitchen and living room.  Mr. Joncas answered yes. 

 

Mr. Joncas said one bedroom would be removed and after completion of the accessory unit the house would have four bedrooms.  Ms. Joncas provided the Board with an approved septic design that was rated for five and a half bedrooms.  Mr. LaPolice gave the original septic design plan back to the applicant. 

 

Mr. Joncas said there would be no additional curb cuts.  He said they had adequate parking.  He ended by saying, when completed, the unit would look as if it were incorporated as one to the house.  He noted that he had previously received a Variance for building the accessory dwelling within the 30’ setback. 

 

There was no public input. 

 

BALLOT VOTE:

 

Mr. LaPolice - Yes

Mr. McNamara - Yes

Mr. Gleason - Yes

Mr. LaBonte - Yes

Mr. Hennessey - Yes

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

SPECIAL EXCEPTION GRANTED

 

Case #2228 - ML 6-162 - GAGNON, Lorraine/off Hildreth Street - Seeking a Variance to Article V, Section 307-18 to permit residential use of land associated with single family homes situated primarily in Dracut, MA, but located partially in Pelham, together with residential accessory uses of such land, being a non-permitted use in the Industrial District

 

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 noted the corresponding Article was Table II. 

 

Attorney Bernard Campbell of Beaumont - Campbell Professional Associates came before the Board representing the applicant.  He said they were seeking a Variance for residential use in an industrial area.  Attorney Campbell showed the Board the zoning map and the location of the parcel, which was behind the quarry in Dracut, MA.  He also showed the Board a wetland flood map which highlighted the parcel.  Attorney Campbell showed the Board the conceptual design that separated the parcel into three separate lots.  He said the lots would be serviced by a road in Dracut, MA that would be extended to give the lots frontage.  He said lot 1 would be approximately five acres, lot 2 would be approximately 27 acres and lot 3 would be approximately 14.5 acres which contained an existing home in Dracut, but out buildings (pool and pool house) in Pelham. 

 

Item #1.  There will be no decrease in the value of the surrounding properties: there are no surrounding properties to be diminished.  There are no other houses in the area that would be impacted by the potential use. 

 

Item #2.  It is in the public interest: denial would be signaling that the Town wished to have industrial uses in the area which would require multiple wetland crossings and an extension of a road through what might be considered conservation area. 

 

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. - The current zoning is industrial and there was no feasible access for industrial use or for the vehicles associated with industrial use.  To create industrial use would mandate access and public response from the Pelham side.  He said that the application stipulated that the structures shown on the proposed plan would be sufficiently situated to have Dracut, MA addresses.  He said the structures would require response from Dracut and any children would attend Dracut schools.

 

b) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property:  There are no other adjoining industrial uses that the residential use would conflict with.

 

                c) The Variance would not injure the public or private rights of others: no property values would                 be diminished. 

 

Item #4.  There is substantial justice to be done: the use would allow the use of the property (with Dracut frontage) as residential, which Pelham would not have to service. 

 

Item #5.  This request is within the spirit of the zoning ordinance: he believed the Simplex test mirrored the criteria previously answered. 

 

Attorney Campbell said that if the Variance were approved, they would meet with the Planning Board.  He discussed the issue with Mr. Clay Mitchell, Interim Planning Director who said that he could apply a statute dealing with land owned in other jurisdictions.  He said they were applying for a use Variance only. 

 

Mr. Gleason asked if the applicant would have problems with the parcel bordering the state line and if they would need relief for setbacks.  Attorney Campbell said that Mr. Mitchell believed he could apply the same principal in the statute and treat the parcel as unique.  Mr. Gleason confirmed that the Board was being asked to grant a usage Variance and wanted to know if they were being asked to grant usage Variances for all three lots.  Attorney Campbell said that the buildings on lot three had been in existence for twenty-five years.  He informed that the parcel was one lot that had one map and lot number. 

 

It was confirmed with Attorney Campbell that the lots would not have frontage in Pelham.  Mr. Hennessey, after reviewing the length of the driveway, said he was concerned with the response time of emergency vehicles.  He questioned if the servicing town should sign off that there were no public safety issues. 

 

Mr. McNamara wanted to know if Dracut needed to accept the parcel.  Attorney Campbell Pelham would not have to issue a permit if Dracut didn’t accept the lots.  Mr. McNamara confirmed with Attorney Campbell said that if a stipulation was added to the Variance that Dracut would service, and Dracut said no, they would have to come back before the Board. 

 

Mr. Gleason asked if there would be further subdivision.  Mr. Gagnon said that the land would be subdivided for his children, who would be building houses.  Attorney Campbell said that the stipulation was that the proposed dwellings would need to be sufficiently in Dracut so that the residents would be considered voters in Dracut and attend Dracut schools.  Mr. McNamara was concerned if the use Variance were granted that a situation might be created later on.  Attorney Campbell said that the stipulation was that the structures built would be predominately in Dracut. 

 

Mr. McNamara asked that the topography be explained.  Mr. Gagnon pointed out what areas were wet and where the dry areas were located. 

 

Mr. Gleason confirmed with Attorney Campbell that the parcel was currently one lot that had been grandfathered because the existing house was in place prior to the incorporation of the industrial zoning.  He wanted to know if the applicant would need to come back before the Board if the houses were built completely in Dracut.  Attorney Campbell said that they would need relief if they wanted to add a swimming pool, or a shed, or such.  He said given the topography, some portion of the structures might need to be in Pelham.  Mr. Gleason was concerned with further development if the Variance was granted.  Mr. Gagnon questioned if a condition could be added that there would be no further development.  Mr. Hennessey asked if the stipulation could be that there would be no further subdivision, other than what was presented on the plan.  Attorney Campbell wanted to add to the stipulation, no further subdivision, other than what was presented on the plan, without returning to the Board.  Mr. Hennessey also wanted it stipulated that Dracut would accept full public safety concerns.  Attorney Campbell did not have a problem with the added stipulation.

 

Mr. LaPolice felt that the case described Simplex exactly.  There was a discussion regarding how a lot becomes grandfathered. 

 

Mr. McNamara asked why the proposed lot lines were drawn the way they were.  Attorney Campbell said Mr. Gagnon’s daughter did not want a large lot to maintain.  It was noted that the Dracut Planning Board would need to review the driveway placement. 

 

PUBLIC INPUT

 

An inheritor of the Fox land (ML 40-006-159) had submitted a letter.  The letter noted concern with obtaining access to the Fox land via the historic right-of-way (Hildreth Street).  The inheritor submitted a survey map of the area.  Attorney Campbell said the application did not effect the right-of-way.  Mr. Gagnon said the inheritor had not used the parcel in at least twenty years.  He placed a locked gate there years ago to stop vagrant children.  He said if the inheritor would like to gain access, he would provide a key to the gate. 

 

Mr. Hennessey asked if the land was currently being assessed as industrial.  Mr. Gagnon answered yes.  He said he had to put it in current use to have it reduced.  Mr. Hennessey asked if a penalty tax would be paid because the land would come out of current use.  Attorney Campbell said some would and noted the five-acre piece would need to come out.  Mr. Hennessey said that the tax revenue would be essentially neutral. 

 

Mr. Hennessey made a motion with stipulations of a deed restriction for no further subdivision and that Dracut, MA is to accept the public safety responsibility for structures on the plan.  Mr. Gleason seconded.  Attorney Campbell wanted to add that to the deed restriction that further subdivision would not be allowed without permission from the Board.  Mr. Hennessey amended his motion.  Mr. Gleason amended his second. 

 

MOTION:

 

VOTE:  

(Hennessey/Gleason) To grant the use Variance with the following stipulations: 1) deed restriction for no further subdivision of the properties beyond the three proposed lots, without permission from the Zoning Board of Adjustment of Pelham; 2) Dracut, MA accepts public safety responsibility for the structures to be built as per the plan.

 

(5 - 0 - 0) The motion carries.

 

A Ballot Vote was taken to grant the use Variance with the above noted stipulations.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes - with stipulations

Mr. McNamara - Yes - as amended

Mr. Gleason - Yes - subject to conditions

Mr. LaBonte - Yes

Mr. Hennessey - Yes - subject to two stipulations

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

VARIANCE GRANTED

 

DISCUSSION

 

There was a discussion regarding a possible non-public session regarding personnel issues.  It was suggested that the Chair of the Planning Board address the Chair of the Board of Adjustment. 

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 9:22 pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis            

                                                                                                Recording Secretary