APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 13, 2003

 

The Chairman, Mr. 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, Edmund Gleason, George LaBonte, Jr., Walter Kosik, Peter McNamara, Alternate David Hennessey

 

None.

 

Mr. LaPolice asked that people contact the Town Hall if they were interested in volunteering for the Board.

 

REQUEST FOR REHEARING

 

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.

 

Mr. Hennessey suggested that the Board vote upon a re-hearing before taking any action.Mr. LaPolice said that Town Counselís options was sought regarding how the application should proceed.Town Counsel advisedthat the applicant could re-apply and pay the associated fees.The applicant had the choice to apply for a variance, but chose instead to hold a re-hearing.Mr. LaBonte noted that the applicant was not aware of the date for the first hearing and therefore requested the rehearing.

 

Mr. Gleason asked if any prior discussion had occurred.Mr. LaPolice said the case had been continued in November, and was denied in December when the applicant did not appear.Mr. Kosik suggested re-hearing the case since Town Counsel had provided guidance.

 

MOTION:

(Gleason/McNamara) To re-hear the case.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

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.The file did not contain any written correspondence from abutters.

 

Ms. Cheri Driscoll and Mr. Carl Melanson met with the Board to review their application.Ms. Driscoll said that she and Mr. Melanson owned the property (for one and a half years) at 57 Mammoth Road, which in the past had been a convenient store.She said the property was purchased with the intent of re-opening the store.

 

Mr. McNamara asked when the property last operated as a store.Ms. Driscoll was unsure of the exact date, but believed it had been approximately two years.Mr. McNamara asked if anything had been done to the property since its purchase.Ms. Driscoll said the house was being redone, and they didnít want to put any money into the store if it could not be reopened.Mr. McNamara confirmed that the intention of the applicant was to use the store as a store.He asked if any fixtures had been sold.Ms. Driscoll answered no.She noted that the property was still being taxed as commercial property.She submitted pictures of the building which showed that all fixtures were still in place.She understood that the previous owners had shut down due to financial difficulty and was unsure if that qualified as abandonment.

 

Mr. Hennessey asked if beer, wine, dairy products and food sold.Ms. Driscoll answered yes.Mr. Hennessey asked if any of the licenses had been renewed.Ms. Driscoll did not know.Mr. Hennessey felt the business had been abandoned if the licenses were not renewed.Ms. Driscoll did not believe the intent of the previous owner was abandonment.Mr. Hennessey said it was difficult to obtain licenses and believed that letting them lapse constituted abandonment.Ms. Driscoll believed there had been several owners over the past few years.

 

Mr. Gleason asked if the Building Inspector had approved the building.Building Inspector, Roland Soucysaid the denial of the building permit was due to the business not existing for more than twelve months, not based upon abandonment.He said if the building were to reopen, it would need to meet all current building codes.Ms. Driscoll reiterated that the intention upon purchase was to reopen the store.

 

Mr. LaBonte read the appropriate article aloud.He then read aloud the Planning Directorís (Ms. Amy Alexander) comments.Ms. Alexander was not in favor of allowing the non-conforming use in a residential area.Mr. Kosik believed that Ms. Alexanderís comments were meant to be her opinion.He confirmed that the applicant was requesting a rehearing.Mr. LaPolice believed that the Building Inspector had no other choice, but to deny the building application based upon regulation 307-8.Mr. McNamara read aloud a portion of grandfathered text from Law of Non-conforming Uses and Vested Rights written by Bernie Wahl.The text reviews the one-year limit and a presumption of abandonment that could be rebutted by the applicant.Mr. Hennessey felt because the licenses were not renewed it was evidence of abandonment.Mr. Soucy believed that the store had not been run in approximately four or five years.Mr. Kosik believed the issue before the Board was to determine if the Building Inspector was correct in denying the building permit.†††

 

There was no public input.

 

Mr. Soucy noted that if the appeal were not upheld, the applicant could return seeking a Variance.

 

Ms. Driscoll felt Mr. Soucy acted in accordance with the regulations, but believed the hearing was to decide if his decision could be overturned.Mr. LaPolice discussed the process being taken.Mr. Gleason said he would have difficulty having the applicant come back requesting a variance based on the fact that the store had been vacant for over one year.He said the applicant purchased the property with the knowledge that the store had been vacant for over one year.There was a brief discussion regarding the actions the applicant could take once the Board made its decision.Ms. Driscoll noted that since the purchase of the property she and Mr. Melanson had been making improvements on the house.†††

 

MOTION:

(Gleason/LaBonte) To reject the appeal and uphold the decision of the Building Inspector.

 

VOTE:

 

(5 - 0 - 0) The motion to reject the appeal carried.

 

APPEAL WAS DENIED

 

Mr. LaPolice said the logical step for the applicant would be to request a variance for a non-conforming use in a residential area.

 

CONTINUANCES

 

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

 

Mr. Kosik asked the Building Inspector if the applicant met all the requirements for a Special Exception for an accessory dwelling.Building Inspector Roland Soucy was not familiar with the application.

 

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.The file did not contain any written correspondence from abutters.

 

Mr. LaBonte said there was a letter from a septic company that indicated the present septic system was in good working order.

 

Ms. Linda Berry met with the Board to discuss her application.Mr. Soucy said the only item missing was an approved septic design.He said that a design had been done, sent to Health Officer Paul Zarnowski and forwarded to the state.Ms. Berry reviewed her paperwork and showed Mr. Soucy the state approvalnotice.Mr. LaBonte asked that a copy be submitted for the file.

 

Mr. Soucy informed that the accessory dwelling was under 500SF.

 

There was no public input.

 

BALLOT VOTE:

 

Mr. LaPolice - Yes

Mr. Gleason - Yes

Mr. McNamara - Yes

Mr. Kosik - Yes -has met condition for Special Exception for in-law††††††

††††††† apartment

Mr. LaBonte - Yes

VOTE:

 

(5 - 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.

 

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.The file did not contain any written correspondence from abutters.

 

Attorney Bernard Campbell of Beaumont & Campbell Prof. Assín., representing the applicant met with the Board.He said the applicant was seeking to subdivide their lot into two lots.The lots would be 1.62acres and 2.41acres.He said they were seeking relief from the 100-year flood line.He said all other setbacks would be met.He said the general requirements of RSA 307:13 (lot sizing no less than 35,000SF) were being met, but that they were having a problem meeting 307:13 II (land areas affected by the 100-year flood plain).Attorney Campbell addressed the criteria as follows:††

 

Item #1.The proposed use would not diminish surrounding property values because: The ultimate construction of the single family home would be consistent with zoned use and surrounding uses.No actual work or terrain disturbance will be within 100-year flood plain.

 

Item #2.Granting the variance would not be contrary to the public interest because: Any work and construction will be outside flood 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 the reasonable use of the †††††††††††††† property, considering the unique setting of the property in its environment such that: Property is †††††††††††††† relatively large lot that, due to flat topography, has 100-year flood elevation existing nearly 300ft. †††††††††††††† from Gumpas Brook.

 

†††††††††††††† 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 stated intent is to provide †††††††††††††† adequate lot area.This lot has over 68,000SF of contiguous upland soil.All development will be †††††††††††††† outside the flood plain area.

 

†††††††††††††† c) the variance would not injure the public or private rights of others since: There will be no †††††††††††††† diminution in value of surrounding property; no work is being proposed that would affect the †††††††††††††† flood area.

 

Item #4.Granting the variance would do substantial justice because: It will allow use of substantial portion of land which is adjacent to Mammoth Road, allowing separation of excess land.

 

Item #5.This use is not contrary to the spirit of the ordinance because: The stated intent of 307-13 is to assure an adequate area to accommodate building and utilities; the plans for this site reflect compliance with that intent.

 

Attorney Campbell discussed the topography of the land and noted that there was significant dry upland area contained on the parcel.He said if relief was granted, the next step would be to meet with the Planning Board to pursue the subdivision of the two lots.

 

Mr. LaBonte read aloud the Planning Directorís (Ms. Amy Alexander) comments.Ms. Alexander was not in favor of permitting 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 Campbell discussed the lot and didnít feel there would be any issue with sitting a house if the variance were granted.He believed that there was adequate land area for the activities of the landowners.

 

Mr. Hennessey asked if both properties would require flood insurance.Attorney Campbell believed the answer was no, since both houses would be outside the 100-flood year hazard.Mr. Hennessey said that House Bill 12 was currently on the Presidentís desk.He said that flood insurance may be renewed and that the criteria may be changed to require the support of the flood waters in towns.Attorney Campbell believed the prevention of filling within the flood plain would be a measures of protection.He said that he could speak with the engineer and ask if there was any objection to placing a condition that there would be no substantial filling inside the area that would affect the flood elevation downstream.

 

Mr. Hennessey asked if Ms. Alexander was correct in her comment that the lot would contain less than 18,648SF of usable high and dry land.Attorney Campbell reviewed an overlay plan and said that Ms. Alexander was correct regarding the setbacks from the WCD line.Mr. Hennessey said that less than half the required high and dry land would remain.Attorney Campbell believed that the ordinance did not disqualify the land within the WCD when computing lot size.He didnít feel by ordinance (307:13) that the usable land would be decreased.He said the wetland would be disqualified, but not the 50ft. setback.

 

Mr. LaPolice asked the frontage of the lots.Attorney Campbell said that one lot contained 200ft. and the other contained in excess of 280ft.Mr. LaPolice asked if the structures would be contained within the 50ft. WCD buffer.Attorney Campbell said he could not answer regarding the existing house.He said the new house would meet all the setback requirements.Mr. LaPolice confirmed the purpose for the variance request.Attorney Campbell said the purpose of the variance was because the ordinance disqualified land within the flood plain counting as the 35,000SF.

 

Mr. Gleason asked if Conservation had any input.Mr. LaPolice didnít see any reference to a request for Conservation review.There was a brief discussion regarding the Planning Directorís comments, which some felt was only guidance for the Board, and should not be read aloud since she was not present to discuss further.Attorney Campbell believed that the plan was not submitted to Conservation at first, since there was no activity planned for within the wetland or flood plain.†††

 

PUBLIC INPUT

 

Conservation Commission Chairman Bob Yarmo said that Conservation had no knowledge of the plan.He said that the flood plain line served to protect the structure and the water.He said contamination was a strong issue.He felt the Planning Directorís concern with the WCD being affected during construction should be viewed.Mr. Yarmo felt that approval would be contrary to public interest.Mr. LaPolice confirmed that the plan met the WCD setback requirements.Attorney Campbell answered yes.The Board discussed a similar case from November 2002, which lead into a discussion regarding the usable land on the parcel, counting the non-contiguous portions.

 

There were no further public comments.

 

Mr. Hennessey discussed the application and noted that if approved two non-conforming lots would be created.He said there was an economic problem with the application and explained that builders within the Town were having to divide their lots in such a way to meet the requirements.He felt it was unfair competition and advantage if the applicant was allowed to divide their lot as presented.Mr. LaPolice reviewed the minutes from November 2002 to understand how the present case related to the one heard in November.Mr. McNamara did not see how hardship was being met in the presented case since there was current use to the land that fit the character of the neighborhood.

 

BALLOT VOTE:

 

Mr. LaPolice - No (criteria 1-5 no)

Mr. Gleason - No - (criteria 1-yes; 2-no; 3-yes; 4-yes; 5-no)

Mr. McNamara - No - (criteria 1-yes; 2-no; 3-no; 4-no; 5-no)

Mr. Kosik - Yes - (criteria 1-5 yes)

Mr. LaBonte - Yes - (criteria 1-5 yes)

VOTE:

 

(2 - 3 - 0) The motion did not carry.

 

 

VARIANCE DENIED

 

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. 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.The file did not contain any written correspondence from abutters.

 

Mr. Charles Pugsley, 31 Clark Circle met with the Board to review his application.He explained that he had met with the Board at the previous meeting and been informed that the Conservation Commission should review the application.The Board reviewed the plan, which had been prepared at the time Mr. Pugsley purchased the property.Mr. Pugsley said there were a couple of corners that they infringed the wetlands by a couple of feet at the back of the kitchen and the family room area.

 

Mr. LaBonte read aloud the Planning Directorís (Ms. Amy Alexander) comments.Ms. Alexander was partially in favor of granting the request.She was in favor of the extension of the porch and the garage/family room, but was not in favor of the expansion on the back (kitchen area).

 

PUBLIC INPUT

 

Mr. Paul McLaughlin, Birch Lane who had previously been on the Conservation Commission.He understood that the purpose of the WCD was to protect the Townís drinking water supplies and was concerned with the allowance of the proposed application.

 

Ms. Julia Steed-Mawson, South Shore Drive asked the Board to maintain the integrity of the WCD.She discussed the importance of the wetlands systems.

 

Conservation Chairman. Bob Yarmo said that there was a consensus from the Conservation Commission members that they did not want to have the WCD compromised.He went on to discuss the need for the wetlands and said that the proposed application would be contrary to the public interest in the Town. He believed there were options for the land owner if the additions were reconfigured.Mr. LaPolice confirmed the areas Mr. Yarmo felt were not within the current setback area.Mr. Yarmo reviewed the plan and pointed out the areas within the 50ft. of the wetlands areas.

 

Mr. Pugsley said when the house was purchased there were no restrictions regarding additions and wanted to know when the rules changed.Mr. LaPolice said over the past ten years regulations had been established to preserve wetlands, but the buffer had been 50ft. for at least ten years.

 

Mr. Hennessey said that each case should be individual, and not compared to previous cases heard by the Board.

 

Mr. Kosik asked if the Variance had to be voted upon as a whole.Mr. LaPolice said there were elements not within the WCD.He felt if the applicant reconfigured the plan, he wouldnít be within the WCD.The Board discussed the plan and the difficulties contained within regarding the wetlands.The applicant had the option to withdraw without prejudice so the plan could be modified.

 

Mr. Pugsley decided to withdraw his application without prejudice with the understanding that if he were to come back before the Board it would be submitted as a new case.†††††††††††

 

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 30íx40í garage within the 50ft. wetland buffer.

 

Mr. LaBonte said a letter had been received requesting that the Board grant the applicant additional time.The applicant anticipated meeting with the Board at their February meeting.

 

The Board granted a continuance.

 

HEARINGS

 

Case #2244 - ML 4-135-1 - INGLEE, Paula/Mammoth Road - Seeking a Variance concerning Article VII, Section 307-41 to permit the construction of a house with well and septic system within the 50ft. wetland buffer.

 

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.The file did not contain any written correspondence from abutters.

 

Attorney Richard Molan of Cook & Molan, representing the applicant, met with the Board.He described the parcel of land on Mammoth Road and explained that it had been subdivided in 1980.He said there had been some wetlands on the property at the time it was subdivided, but the parcel itself had been free of wetlands for the larger portion.He said that the applicant attempted to sell the parcel in 1990 and a site plan had been created which showed extensive wetlands.Attorney Molan said it was apparent that the addition of three drainage culverts on Mammoth Road had incurred substantial flowage of water onto the properties creating substantial wetlands.He reviewed the criteria as follows:

 

Item #1.The proposed use would not diminish surrounding property values because: The home to be †††††††††††††† constructed would be of comparable value, size and overall appearance as those of the surrounding †††††††††††††† neighborhood and would increase property values in relation to is abutters.

 

Item #2.Granting the variance would not be contrary to the public interest because: It would take vacant †††††††††††††† unused property in the Town and utilize it for much needed residential housing while also creating †††††††††††††† additional property tax revenue.

 

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: there is no †††††††††††††† economically viable use for the property in light of the existing Wetland Conservation District †††††††††††††† which includes the wetlands and a fifty-foot buffer around then.The property is zoned residential †††††††††††††† and could accommodate a single family home if the Zoning Board of Adjustment allows a variance †††††††††††††† within the fifty-foot wetland buffer area.This would allow the construction of a home within the †††††††††††††† Wetland Conservation District without interfering with the wetlands themselves and allow the †††††††††††††† installation of a septic system which would meet the fifty-foot set back requirement.

 

†††††††††††††† 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 purpose of the Wetlands †††††††††††††† Conservation District is to preserve and protect groundwater and surface water.The applicants †††††††††††††† proposed use would not in fact impact any wetlands.More significantly, the wetlands which are †††††††††††††† being protected are man made since they did not exist in 1980 when the subdivision was created but are a result of culverts installed later on, flowing water onto the applicantís property.

 

†††††††††††††† c) the variance would not injure the public or private rights of others since: The proposed use is †††††††††††††† consistent with the zoning for that area.The variance would not in any way infringe upon front, ††† side or rear set backs of the property.

 

Item #4.Granting the variance would do substantial justice because: the property was subdivided in 1980 and contained little or no wetlands on it.Since that time, the actions of others have caused wetlands to be created on the property and the Town has since imposed the Wetlands Conservation District †††††† with its fifty-foot buffer zone.Granting the variance would simply allow the applicant to make use †††††††††††† of her property as originally contemplated at the time it was subdivided in 1980.To the extend †††† which the existing zoning restriction is allowed to stand, the applicant has no economically viable †††††††††††† use of the property and the actions of installing roadway culverts creating the wetlands effectively †††††††††††††† constitute a taking.

 

Item #5.This use is not contrary to the spirit of the ordinance because: The wetland remain protected as †††††††††††††† their will be no diminution of them.Rather, the buffer zone is merely being infringed upon with a †††††††††††††† low level use consistent with the zoning for that lot to allow the applicant an economically viable †††††††††††††† use of the property.The Wetlands Conservation District was designed to promote the health and †††††††††††††† welfare of the Town and to deprive the applicant of all reasonable use of the property will run †††††††††††††† contrary to that spirit and intent.

 

Mr. Gleason recalled that the area had always contained wetlands.Ms. Inglee said that the wetlands were contained on the boundary, not on the property itself.Mr. Hennessey asked if the applicant had considered seeking equitable relief.Attorney Molan answered no and said that relief would be against the Town.Mr. Hennessey asked if the 1980 subdivision plan carried wetland detail.Ms. Inglee had a copy of the Planning Board minutes from 1980 in which wetlands were discussed, but were not an issue.She said that the Planning Board at that time approved the subdivision plan.

 

Mr. LaBonte read aloud the Planning Directorís (Ms. Amy Alexander) comments.Ms. Alexander was not in favor of granting a variance to permit the construction of a house with well and septic system within the 50ft. wetlands buffer.

 

Mr. Hennessey asked if the lot contained the required 35,000ft. of contiguous high and dry land.Attorney Molan was unsure.He said the engineer could answer the question.

 

Mr. LaPolice said that the Board had heard similar cases in the past.He said that past cases were reviewed to get an idea as to where the Boardís logic was.

 

Mr. McNamara asked if a wetlands scientist had reviewed the property to see the extend of the wetlands.Attorney Molan answered yes.Mr. McNamara asked if they had provided proof that the culverts were the cause of the extensive wetland.Attorney Molan didnít have the report with him, but said it had been concluded that the culverts were the cause of the wetlands.Mr. McNamara asked if the applicant had owned the property since 1980.Ms. Inglee said she had owned the property since 1977.She had not developed, or attempted development since that time.

 

There was a discussion regarding the location of the property, where the drainage flowed and the location of the WCD buffer.The Board continued to discuss the problems and the history with the parcel.††††††††

 

PUBLIC INPUT

 

Mr. Tim Morse, 305 Mammoth Road said he had resided in Town for four years and the water problem continued to get worse.He said that the water came up to the 100-year flood line at least once a year.He was concerned that further development would have the water continue to back the water up on his side of the street.†††

 

Conservation Chairman Bob Yarmo said that the Conservation Commission had not yet reviewed the plan.He said that a wetland had to meet certain criteria regarding the soil, plant life and water.It was his understanding that the plant life and soils had been on the premises.

 

Ms. Mary Acevedo, 92 Nashua Road (Smith Farm) was concerned with the access of the homes.She was concerned with proximately of the proposed access for the home and the location of the proposed septic system.

Attorney Molan said that during the 1980 subdivision hearing the engineer noted that there were not extensive wetlands on the property.

 

Mr. Hennessey didnít doubt that the applicant had hardship, but didnít feel that the lot was buildable.Mr. Kosik asked if the lot could be improved.There was a brief discussion which lead to Mr. Yarmo saying that the state would issue a dredge and fill permit for accessing high and dry land, but didnít feel a permit would be issued to create high and dry land.

 

Mr. LaPolice said he would like further explanation of the plan, specifically the house being placed on the lowest portion of the parcel.He asked if Conservation had any specific recommendation.Mr. Yarmo didnít have any further recommendation, except to possibly investigate the history of the lot.†††

 

MOTION:

(Gleason/McNamara) To vote regarding the requested variance.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

 

BALLOT VOTE:

 

Mr. LaPolice - No (criteria 1-yes; 2-no; 3-yes; 4-no; 5-no)

Mr. Gleason - No - (criteria 1-yes; 2-no; 3-no; 4-yes; 5-no)

Mr. McNamara - No - (criteria 1-no; 2-no; 3-no; 4-no; 5-no)

Mr. Kosik - No - (criteria 1-yes; 2-no; 3-yes; 4-no; 5-no)

Mr. LaBonte - No - (criteria 1-no; 2-no; 3-yes; 4-no; 5-no)

VOTE:

 

(0 - 5 - 0) The motion was denied.

 

 

VARIANCE DENIED

 

Case #2245 - ML 9-40 - St. Onge, Rita/28 Hobbs Road - Seeking a Variance concerning Article III, Section 307-14 to renew a previously granted variance to permit the construction of a single family dwelling on a lot with less than 200ft. of road 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.The file did not contain any written correspondence from abutters.

 

Mr. Henry St. Onge, 28 Hobbs Road, representing his wife, met with the Board to review his application for a variance.He said that in August, 2000 he had been granted a variance, which had since expired.He requested that the variance be renewed.

 

The following criteria were attached to the application:

 

Item #1.The proposed use would not diminish surrounding property values because: The proposed structure 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: The proposed use will add to the taxes being paid on 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 the reasonable use of the †††††††††††††† property, considering the unique setting of the property in its environment such that: Less than †††††††††††††† 200ft. frontage on a Town road.

 

†††††††††††††† b) that no fair and substantial relationship exists between the general purposes of the zoning †††††††††††††† ordinance and the specific restriction on the property because: There is no additional land to be †††††††††††††† purchased to conform to zoning.

 

†††††††††††††† c) the variance would not injure the public or private rights of others since: (form left blank)

 

Item #4.Granting the variance would do substantial justice because: The use being requested is consistent †††††††††††††† with uses of the surrounding lots and variance being granted will allow us to use our property in †† the same manner.

 

Item #5.This use is not contrary to the spirit of the ordinance because: We are only requesting a variance to †††††††††††††† waive one of zoning requirements and we will meet all the other setbacks and codes.

 

Mr. LaBonte read the vote from the August 14, 2000 meeting aloud: Mr. McNamara-Yes; Mr. Bundock-No (He feels criteria 5 has not been met); Mr. Hennessey-Yes (contingent upon a recommendation from the Planning Board for a single-family only); Mr. LaBonte-Yes; Mr. Gleason-Yes

Mr. Hennessey said that the one change that occurred within the past two years was the status of private roads.He discussed recent proposed legislation that would require all private roads to be plowed by towns for emergency access.He felt that an incremental subdivision was being brought forward.He asked if a cul-de-sac would be installed for emergency access.Mr. St. Onge said that two cul-de-sacs would be added.He said that the Fire Chief approved the roads with the following stipulations (that had to be met or a building permit would not be issued: 1) cul-de-sac be placed at the end of the easement for ML 9-40-3; 2) 10,000 gallon sistern be installed.He noted that there was a note on the deed that stated the Town would not be responsible for the road.Mr. Hennessey questioned if the road should be brought up to Town standard because of the number of houses.††

 

Mr. Gleason said that the Board had reviewed the parcel in the past and approved the variance and didnít feel that the private way had any bearing on the current proceeding.He didnít see that anything had changed since the variance had originally been granted.He confirmed with Mr. St. Onge that he would comply with all the rules and regulations relative to buildingif the variance were reinstated.

 

Mr. Kosik said he wasnít present for the meeting in August, 2000, but felt that since the Board had previously approved a variance, he would consider the application a renewal.

 

PUBLIC INPUT

 

Attorney Bernard Campbell asked if a Certificate of Occupancy for ML 9-40-2 had been issued.It was his understanding that Fire Department would not issue a Certificate of Occupancy until the sistern was in place.He wanted to know if there was a timetable for the sistern installation.Mr. St. Onge said there was no timetable for the sistern installation.Attorney Campbell said he represented an interested party for ML 9-40-2 and wanted to know if the Board should specify a date for the installation of the sistern per state fire code requirements.Mr. LaPolice said the sistern would have to be in place within a year.Mr. St. Onge said that before a building permit could be issued for ML 9-40-3, the 10,000 gallon sistern would have to be installed.Attorney Campbell wanted to know where the sistern would be located.Mr. St. Onge said the sistern would be located on Town property, per the Fire Chief.He understood that he would need an easement from the Town.There was a brief discussion regarding the application and the action the Board would take.

 

Mr. Gleason confirmed that there would be no further actions required by the Board.Mr. St. Onge said he would not be back before the Board.

BALLOT VOTE:

 

Mr. LaPolice - Yes

Mr. Gleason - Yes

Mr. McNamara - Yes - same conditions as previous variance approval

Mr. Kosik - Yes

Mr. LaBonte - Yes

VOTE:

 

(5 - 0 - 0) The motion carried.

 

 

The Board agreed that the variance should be conditioned upon the stipulations from the August 14, 2000 meeting - Ďcontingent upon a recommendation from the Planning Board for a single-family onlyí.

 

VARIANCE GRANTED

 

Case #2246 - ML 4-180-17 -TWO M CONSTRUCTION CO./off Benoit Avenue Extension - Seeking a Variance concerning Article III, Section 307-13, 14 to permit reduced frontage to meet Backland Standards for Lot Shape per Section 11.04 of Rules & Regulations Governing Subdivision of Land.

 

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.The file did not contain any written correspondence from abutters.

 

Mr. Matt Hamor, Meisner Brem, representing the applicants met with the Board to review the application.He reviewed the plan and informed that the lot had been created during a subdivision from a year and a half ago.He said under the subdivision regulations a lot could be created if it met all the requirements for backlot standards.He said the variance being requested was for computing minimum lot sizes.He asked if the Board had reviewed similar lots.The Board said they had reviewed similar lots, but not under the cited regulation.Mr. Hamor asked if the regulation was adopted within the rules and regulations from November 7, 2001.

 

Mr. Hamor said the proposed was for a lot with 75.08ft. of frontage, which, per the subdivision regulations could be allowed through the Board of Adjustment if certain criteria were met.He reviewed the five conditions and noted that the two conditions met were: 1) the lot had at least two acres, and 2) the lot had at least one acre of continuous upland.He said that in the subdivision stage, the no-further subdividing condition would be met.

 

The following criteria were attached to the application:

 

Item #1.The proposed use would not diminish surrounding property values because: Proposed lot size exceeds normally required standards.

 

Item #2.Granting the variance would not be contrary to the public interest because: The proposed residential use supports the reasonable use of the property and will add to the taxes currently being paid.

 

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: Available †††††††††††††† upland area exist, as well as land area, however a wetland prohibits itís use as available contiguous †††††††††††††† upland area.

 

†††††††††††††† b) that no fair and substantial relationship exists between the general purposes of the zoning †††††††††††††† ordinance and the specific restriction on the property because: Backlot standards are provided as †††††††††††††† an option for Lot Shape for reasonable development of the property.

 

†††††††††††††† c) the variance would not injure the public or private rights of others since: The proposed use is †††††††††††††† currently on an existing public right of way and is adjacent to existing residential uses.

 

Item #4.Granting the variance would do substantial justice because: It would allow reasonable use of the property.

 

Item #5.This use is not contrary to the spirit of the ordinance because: Backlot standards are provided as an option for Lot Shape for reasonable development of the property.

 

Mr. LaPolice asked what the current frontage calculation was.Mr. Hamor said currently there was 400ft. of frontage.

 

Mr. Hennessey asked if Benoit Avenue Extension had been approved by the Town.Mr. Hamor answered no.He said the subdivision had been approved July, 2000, but the road had not been completed so that the bond could be released.Mr. Hennessey felt the Board should receive recommendation from the Planning Board before approving a variance.

 

Mr. McNamara asked if the developer owned ML 4-180-17 at the time of the subdivision, and if so, why it was not originally developed.Mr. Hamor said the developer owned ML 4-180-17 at the time of the subdivision, but did not know the reason it was not included with the subdivision.

 

Mr. Kosik asked why the lots would not be adjusted to each have 200ft. of frontage.Mr. Hamor said when the regulation was adopted it gave an avenue for larger lots.He said the reason for the application was so that the lot lines would remain straight and the lot would be configured in a square or rectangle shape.He felt it was advantageous for his client come before the Board to show a conforming lot before going before the Planning Board.

 

Mr. Hennessey asked if the Planning Board approval was for a single family lot.He asked if the variance were granted, if it would allow duplexes.Mr. Hamor said they would not construct duplexes on the lots.He said that a further stipulation could be added for a no-further subdividing.

 

Mr. Gleason reviewed the new regulations in which non-rectangular, or pie shape lots may be allowed as long as they had a minimum of three acres and had 200ft. frontage.He asked if the road was class 5.Mr. Hamor said the road would be class 5 at the time of acceptance.

 

PUBLIC INPUT

 

Mr. Vurgaropulos said that the property was next to a vast wetland meadow, which would have restrictions.He was concerned with the septic system and wanted to know how far above the water line it would be located.Mr. Hamor said that the septic design requirements would be met.

 

Ms. Lori Collins, 19 Benoit purchased her property three months ago.She did not feel that the builder had a hardship.She also questioned if the lots would meet the spirit of the community regarding the surrounding homes.Mr. LaPolice said that there was enough acreage for two lots and the developer was attempting to make the lot lines straight, per the direction of the subdivision regulations.

 

Mr. McNamara asked if there was a reason the lot was not divided out during the time the subdivision was reviewed/approved by the Planning Board.Mr. Hamor said he reviewed the minutes from the Planning Board meeting when the subdivision was approved and found no mention regarding the reason for not further subdividing the 400ft. frontage lot.†††

 

Mr. Elijah Collins, 19 Benoit Avenue, asked what determined a road to have class five status.Mr. McNamara said that a description could be found in the subdivision regulations.He summarizedby saying that a class five road needed to be Town approved and brought up to a certain size and grading, and had to be specifically constructed.Mr. Collins asked if the road currently met class five status.Mr. McNamara said it had not been Town approved.Mr. Kosik said there was currently a bond for the road, so it would be completed.†††

 

Mr. Hennessey questioned why the lot was not based upon a site specific approval due to the possible wetland crossingand elevation.Mr. Hamor said that a clear-span bridge would be added.He discussed where the house would be located.Mr. Hennessey felt the WCD crossing may be one reason the lot was not further subdivided at the time of review by the Planning Board.Mr. Hamor said that a WCD crossing was not proposed at the time of Planning Board review.Mr. Hennessey suggested obtaining Planning Board input before the variance was granted based upon the house being site specific.Mr. Hamor understood that nothing would be done regarding the as-built until the plan was reviewed by the Town engineer.

 

Mr. Gleason felt that adequate land existed for two conforming lots and agreed that the plan should have Planning Board review.He suggested that the variance request be rejected.Mr. Hennessey was reluctant to turn the application down.He felt Mr. Hamor should meet with the Planning Board.There was a brief discussion regarding how the Board would move forward.

 

Mr. Vurgaropulos asked if the Board was going to consider wetlands issues.Mr. Hennessey informed that Conservation had already consulted with the Planning Board regarding the subdivision, which he felt was an additional reason to have the Planning Board review the plan.

 

Mr. Hamor requested a 60-day continuance so that the Planning Board would have an opportunity to review the plan.He noted that per the Planning Department he met with the Board of Adjustment before going to the Planning Board.There was a brief discussion regarding abutter notification.The Board decided to continue the case for 60-days and not require additional abutter notification.†††

 

MOTION:

(Gleason/Kosik) To grant a 60-day continuance, which would allow for Planning Board input regarding the plan.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

MINUTES REVIEW

 

November 14, 2002

 

MOTION:

(Kosik/McNamara) To approve the November 14, 2002 minutes as amended.

 

VOTE:

 

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

 

December 9, 2002

 

MOTION:

(Kosik/Hennessey) To approve the December 9, 2002 minutes as written.

 

VOTE:

 

(3 - 0 - 3) The motion carries.Mr. LaPolice, Mr. Gleason, Mr. LaBonte abstained.

 

DISCUSSION

 

Mr. Hennessey requested that the Board hold a joint meeting with Town Counsel, Planning Director and the Planning Board.†††

 

MOTION:

(McNamara/LaBonte) To hold a joint meeting with Town Counsel, Planning Director and the Planning Board.

 

VOTE:

 

(3 - 2 - 0) The motion carries.Mr. Gleason and Mr. Kosik voted no.

 

There was a discussion regarding the types of issues that could be discussed during a joint meeting.Mr. LaPolice suggested choosing one, or two items to discuss with the Planning Director and/or Planning Board.The role of the Conservation Commission was discussed, and it was decided that a discussion with them would be a priority.

 

Mr. Hennessey then brought up the fact that the Board had not received regular information regarding the outcome of appeals.He said in one instance, he found out the results from an appeal through an article in the newspaper.Mr. Kosik said that historically the Board always received information.Mr. Gleason said the Selectmen Representative was the liaison with Town Counsel, and should therefore be informed that information was not being provided to the Board.

 

Mr. Hennessey was also upset that the Board was no informed that the Planning Board passed a subdivision regulation that called upon the Board to review the subdivision regulations.He did not feel that the Board should find out about such items at the point when an applicant was making a presentation.

 

There was a discussion regarding policies and how they were being implemented, without an appointed boardís input.††

 

Mr. LaPolice reiterated that the Board choose one item at a time to focus on.Mr. Hennessey said that he would create a list of items to be reviewed in the future.†††

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 11:20 pm.

 

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

 

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

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