APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 9, 2002

 

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

 

The acting Clerk, Mr. Edmund Gleason, called the roll:

 

PRESENT:

 

 

ABSENT:

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

 

George LaBonte, Jr.

 

Mr. LaPolice informed that Mr. Hennessey would vote in Mr. LaBonteís absence.

 

HEARINGS

 

Case #2232 - ML 11-3 - BERTHEL, Marlon & Virginia/4 Spring Street Extension - Seeking a Variance to Article III, Section 307-12 to permit a previously granted variance to be renewed to allow a single family dwelling on a lot having 67.55 feet of frontage in the residential zone.

 

Mr. Gleason 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 contained one letter submitted by an abutter, which was read into record during public input.Mr. Gleason read the corresponding Article aloud.

 

Attorney William Mason, representing the applicant, discussed the case with the Board.He gave a brief history of the original variance, which was to subdivide the parcel into two lots.He said the variance had been granted to the Berthels March 9, 1987 which allowed 217ft of frontage for the lot with the existing home, and 50ft. of frontage for the back lot, which contained 2.8 acres.He said once the original variance was granted they met with the Planning Board, who at that time had an issue with the condition of Spring Street Extension and rejected the subdivision request.It was his understanding that the condition had been remedied and Spring Street Extension was on a list of construction projects to be upgraded to a Town accepted street.

 

Attorney Mason said that the application submitted to the Board requested that the existing lot retain the required 200ft. frontage so that the back portionís frontage could be maximized.He said once the application had been submitted, he had further discussion with the applicant who advised him that the reason they did not previously maximize the back lot frontage was due to the fact that their driveway and a portion of their septic system was in the area.He said the applicant wanted to ensure that both their driveway and septic system remained on their own property.He asked that the request be modified to have the back lot have 50ft. of frontage and the lot with their home have 217ft. of frontage as previously approved by the Board.He provided the Board with a copy of the variance approved in 1987.

 

Attorney Mason read the following criteria aloud:

 

Item #1.The proposed use would not diminish surrounding property values because: The proposed dwelling will be of equal or greater value than the surrounding properties.

 

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 property †††† is large enough to meet the density requirements intended by the ordinance but not the frontage ††† 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 property as developed can provide sufficient spacing between homes without the 200ft. of road frontage.

 

††††††††††††††† c) The Variance would not injure the public or private rights of others since:The proposed use can †††††††††††††† meet all other subdivision requirements.

 

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. Gleason asked Attorney Mason to clarify the requirement to renew a variance, he believed that a variance went with the land.Mr. McNamara believed the requirement was contained within the Town regulations.Attorney Mason believed the issue may be a statutory requirement.He pointed out that the Planning Boardís rejection had nothing to do with the frontage requirements, the Planning Board rejected the application due to the condition of Spring Street Extension.Mr. Gleason asked if there was any adjacent land available to bring the lot into compliance.Attorney Mason said there was no adjacent land available.Mr. Gleason also asked if the applicant would consider a no further subdividing restriction.Attorney Mason said they would consider a no further subdividing restriction.

 

Mr. LaPolice believed there may still be Planning Board issues.Attorney Mason said his clients informed that the street was on a schedule to be upgraded.He said his clients understood that the Planning Board would need to review the plan.Mr. LaPolice asked if the setback requirements would be met for the driveway from the lot line.Mrs. Berthel pointed out on the plan the location of her house and the approximate placement of the septic system.Mr. LaPolice asked if an additional variance would be needed for ML ll-3 for the setback of the driveway.Attorney Mason believed that the amended request for 217ft. frontage would correct the setback requirements and allow his client to have their driveway and septic contained entirely on their own property.Mr. Kosik noted that if the variance were granted all the other regulations would need to be abided by.Mr. LaPolice wanted to make sure if the variance were granted the Board was not creating a non-conformance.

 

Mr. McNamara wanted to clarify that if the 50ft. frontage was granted the driveway and septic would be entirely on the original property (ML 11-3).Attorney Mason confirmed that the driveway and septic would be contained entirely on the original property (ML 11-3).Mr. McNamara asked if there were any problems with wetland or WCD crossings.Attorney Mason answered no.

 

Mr. Kosik asked, if the variance were granted, which way the house would face.Mrs. Berthel said that her daughter and son-in-law would be building a home on the subdivided parcel.Mr. Kosik said he would like there to be a buffer between the two lots.Mrs. Berthel said that the area was wooded.

 

PUBLIC INPUT

 

Mr. Gleason read aloud correspondence from abutter Maurene Pepin, 10 Spring Street, who was not in favor of the applications.In Ms. Pepinís letter, she stated her reasons for not wanting the variance to be granted as follows: 1) abutter agreed to pay for the Town to accept the street and wanted new lot to split the cost of the road; 2) Berthelís currently had items on the land that may be contaminating soil and was concerned it would be moved near her lot; 3) concerned with damage to dirt road and drainage/runoff onto her property; 4) will lot have lake rights and, if so, would the lot pay more taxes , she wanted to know how she could also have lake access; 5) requested site walk be performed; 7) would property have Planning Board review; 8) she asked that plan show extent of clearing and how utilities would be brought to the home to be built.

 

Mr. Alan Pepin, 10 Spring Street Extension said the main concern was the abutting parcel ran approximately 290ft. along the edge of his property (ML 11-2).He said there was an elevation that ran to the street and felt the proposed would undermine anything the Town was planning.Mr. LaPolice said that the Planning Board would address the site specific issues and the Code Enforcement Officer would be the person to address the suspected code issues.Mr. Pepin asked if there was any buffer between their proposed driveway and his lot.Mr. Kosik believed that the driveway could run along the property line.

 

Mr. Hennessey asked about the status of the road.Mr. Pepin said that the Selectmen had voted for the road to be accepted, but not much had happened since then.Mr. Hennessey asked if the road would be on the Warrant this year to be accepted as a Town road.Attorney Mason understood that the residents along the road were paying to bring the road up to Town standards and in conjunction with the improvements, the Selectmen have agreed to present the road at the Town meeting.Mr. Hennessey felt perhaps the application was premature based upon the Planning Boardís actions in the past.He suggested that the application may be withdrawn until the road was accepted.Mr. LaPolice felt the condition of the road was an issue for the Planning Board.

 

Mrs. Berthel noted that her family had owned the property for over one hundred years and the parcel being proposed was the final portion.

 

There was a brief discussion and it was agreed by the Board that the Planning Board would be reviewing the site for compliance with the Townís regulations.There was further discussion regarding the parcel and the sensitivity of the area due to the proximately of the lake.Mr. Hennessey requested that the Planning Board perform a site walk.He also asked that any code issues be cleared up.Mr. Gleason asked that a condition be placed on the variance, if approved, that there would not be any further subdividing the parcel.Mr. Hennessey asked that Mrs. Pepinís letter be turned over to the Code Enforcement Officer.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes - no further subdivision and ML 11-3 shall meet all setback requirements

Mr. Kosik - Yes

Mr. McNamara - Yes - no further subdivision of the new lot

Mr. Gleason - Yes - subject to no further subdivision

Mr. Hennessey - Yes - subject to no further subdivision

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

 

MOTION:

 

 

VOTE:††

 

(Hennessey/Kosik) To turn Mrs. Pepinís letter over to the Code Enforcement Officer.

 

(5 - 0 - 0) The motion carries.

 

 

VARIANCE GRANTED - applicant shall meet any requirement of the Planning Board and Code Enforcement Officer

 

Case #2233 - ML 2-110 - COOKE, William/25 Hinds Lane - Seeking a Variance to Article III, Section 307-12 to permit the reconstruction of an existing two-bedroom seasonal home on a lot containing 9238 square feet and non-conforming frontage and side setback into a year-round home to be centered on the lot in the residential zone.

 

Mr. Gleason read the list of abutters aloud.There were no persons who did not have their name read, or who had a problem with notification.Attorney William Mason submitted two letters from abutters which were read into record during public input.Mr. Gleason read the corresponding Article aloud.

 

Attorney William Mason, representing the applicant, presented the plan to the Board.He said that the septic system design plan had been approved by the state.He said that the applicant had three seasonal trailers that had been used for many years.He said his client would like to raise the existing two-bedroom cottage and construct a two-bedroom year-round home on the property, and after which would remove the seasonal trailers.He informed that a new well would also be installed onto the lot.Attorney Mason summarized by saying his client was proposing to eliminate failed systems and an antiquated structure and put in a new two-bedroom home with up-to-date water and septic facilities constructed to the current codes.He said if the square footage of the existing structures were taken into consideration, the footprint of the building would be approximately 870SF.He said the proposed home was fairly modest and consistent with the square footage currently being utilized for habitability on the parcel.

 

Attorney Mason read the following criteria aloud:

 

Item #1.The proposed use would not diminish surrounding property values because: The proposed structure will be new and will be of equal or greater value than the surrounding properties.

 

Item #2.Granting the variance would not be contrary to the public interest because:It will represent an upgrade of the property and the elimination of antiquated water and sewer system.

 

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 proposed †† property use is consistent with the neighboring property as comparable size and use.

 

††††††††††††††† b) no fair and substantial relationship exists between the general purposes of the zoning ordinance ††††††††††††††† and the specific restriction on the property because:The applicant has no additional land to bring †††††††† the parcel into conformance.

 

††††††††††††††† c) The Variance would not injure the public or private rights of others since:All other building, †††††† safety and health codes will be met.

 

Item #4.Granting the variance would do substantial justice because: The existing structure is in poor condition and granting the variance would allow the applicant to build a new more conforming structure.

 

Item #5.The use is not contrary to the spirit of the ordinance because:It permits the applicant to use his property in an appropriate manner with upgraded construction, electrical, plumbing, water and sewage disposal systems.

 

The setbacks were discussed.Attorney Mason said that the side and front setbacks could be met, but the frontage and lot size could not be met.

 

Mr. Hennessey believed that the plan needed to be submitted to DES for the Shoreline Protection Act due to itís proximately to the pond (per RSA 485-A:29).Attorney Mason said that there was already an existing sewage disposal system on the site, which would be upgraded by adding a new system.He believed the protection act was for new construction.Mr. McNamara felt if the act was effected it would be out of the jurisdiction of the Board.Attorney Mason said he was not asking the Board for relief from the Shoreline Protection Act.He said he was requesting relief with regard to lot size, frontage and to expand usage of the property.He said he was not requesting relief from going to the state for any additional requirements.

 

Mr. McNamara asked for clarification of the two well sites.Attorney Mason noted that the applicant would be replacing the abutterís well since the abutterís current well would be abandoned due to itís proximately to his clientís septic system.

 

Mr. Hennessey read a portion of the Shoreline Protection Act and asked if the proposed should be considered new as opposed to a replacement.Attorney Mason said the state only provided one design standard.He said that the state required the local boards to approve the year-round status and then the state would change their designation.Mr. Hennessey felt that anything built within 250ft. of the pond should meet the Shoreline Protection Act, unless it was a bona-fide replacement on an emergency basis.He said he would place a condition on the variance, that the plan needed DES approval.

 

Mr. LaPolice asked if the house would be on a foundation or sono tubes.Mr. William Cooke said he would like the house to be on a foundation.Attorney Mason said the proposal was to build a two-bedroom year-round home.

 

Mr. Kosik asked if the three trailers on the property were in use and tied to a septic system.Mr. Cooke said the sewage from the three trailers was emptied into the septic system on the lot.Mr. Kosik asked if there were any sheds or garages on the lot.Mr. Cooke said there was an outhouse on the lot.Mr. Kosik confirmed that the trailers would be eliminated.Mr. Cooke said the trailers would be eliminated and the outhouse would be removed.He said that he had already started clearing some of the trees.Mr. Hennessey noted that if the home was within the Shoreline Protection Act, the applicant would have to go to the DES.He said that the natural woodland buffer shall be maintained within 150ft. of the reference line and not more than a maximum of 50% of the saplings could be removed within a twenty-year period.Attorney Mason said if the applicant needed to go to DES they would.

 

PUBLIC INPUT

 

It was noted that the abutting property that would have the replacement well was owned by Ms. Judy Hunt.

 

Mr. LaPolice informed that there were two letters from abutters, 41 and 51 Hinds Lane, both were in favor of the application.

 

Mr. John Goulet, 23 Hinds Lane said he was in opposition of the variance.He showed the Board pictures of the site and the existing building.He informed that the abutter, Ms. Judy Hunt was Mr. Cookeís wife.He addressed the criteria and didnít feel that the proposed was in the interest of the Town.He felt his property and the surrounding property values would depreciate.He didnít feel that there was a hardship, because the property had always been utilized as it was, a changing house to go swimming.He didnít feel that the spirit and intent of the ordinance was to place a two-bedroom house.He said if the variance was granted justice would not be served, the land was 9000SF.He said there was land available on the abutting property.

 

Mr. Hennessey asked if the petitioner owned the adjoining property.Attorney Mason said that Mr. Cooke did not own the parcel next door.

 

Mr. McNamara asked what the dimensions of the red house.Mr. Cooke said it was 28ft.x28ft.He said that it was a cottage that had been slept in before he purchased it, and was used currently for sleeping.He said originally it had a kitchen and bathroom, which he had removed.

 

Ms. Marjorie Butterfield, abutter, said that she was shocked that the trees had been removed.She believed that the red house was going to be added to, not that a new structure would be built.

 

Mr. McNamara asked Mr. Goulet if his home was a four-season home.Mr. Goulet said his home was a year-round residence.He asked if the Hunt home was also year-round.Mr. Goulet believed Ms. Huntís home was also year-round.Mr. Kosik asked who owned the red house.Mr. Cooke said his wife, Ms. Judy Hunt owned the home.He said his wife purchased the home with her retirement money and there was no intention to adjoin the lots.Mr. Kosik asked if Mr. Cookeís lot was a lot of record.Attorney Mason said the lot was a lot of record.Mr. Kosik asked the age of the lot.Mr. Cooke said the lot was one of the original lots dating from 1893.

 

There was a discussion regarding the proposed and the surrounding dwellings that were currently year-round residences.Mr. Kosik asked what Mr. Gouletís opposition was to the proposed.Mr. Goulet believed that the proposed would force cluster zoning and force his property to depreciate.He said people passing by, and his view would be blocked.Mr. Kosik said that the previous Planning Director had told him if the lot was a lot of record, a permit would have been issued if it could abide by sidelines and setbacks.He said he was also informed that homes building up on the existing footprint also did not have to come before the Board.Attorney Mason said he had the assessing card, and the lot was a lot of record.

 

The Board continued reviewing the proposed application and the wording of the legal notice.Attorney Mason reviewed his letter of intent, which outlined specifically what the applicant wanted.It was noted that the legal notice was drafted by the Planning Department, therefore any wording that was unclear should be directed back.There was further discussion regarding the lot.Mr. LaPolice believed the issue before the Board may be if the lot was a lot of record and why it became a lot of record.Mr. Hennessey said it would be difficult to have new construction due to the Shoreline Protection Act.Attorney Mason noted that Mr. Cooke was being taxed for 871.2SF of dwelling.He read through the tax card that broke down what Mr. Cooke was being taxed on (i.e. shed and three trailers).††

 

There was a brief discussion regarding the application, which was agreed by the Board, would need state approval.††††††††††††

 

MOTION:

 

 

 

VOTE:††

(Hennessey/McNamara) To grant the variance subject to construction and septic installation approval by New Hampshire Department of Environmental Services Water Division and Shoreline Protection.

 

(5 - 0 - 0) The motion carries.

 

It was noted by Mr. McNamara that variance being approved by the Board was to permit a new two-bedroom, all-season home, not the reconstruction of an existing building.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes - conditioned upon DES approval

Mr. Kosik - Yes - subject to stipulation of previous motion

Mr. McNamara - Yes

Mr. Gleason - Yes -conditioned upon DES approval

Mr. Hennessey - Yes - subject to DES approval of construction and septic design

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

Mr. Kosik made a motion that the trailers were to be removed.Attorney Mason noted that, the applicant, as a condition for approval, has agreed to remove the three trailers and also the outhouse structure that were on the lot.

 

MOTION:

 

 

VOTE:††

 

(Kosik/Gleason) Approval is conditioned upon the removal of the three trailers and the outhouse structure.

 

(5 - 0 - 0) The motion carries.

 

VARIANCE GRANTED

 

MINUTES REVIEW

 

The minutes of June 10, 2002 and August 12, 2002 were deferred to the meeting of October 17, 2002.

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 9:30 pm.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Respectfully submitted,

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Charity A.L. Willis††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Recording Secretary