APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 16, 2003

 

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

 

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

 

PRESENT:

 

 

 

ABSENT:

Peter McNamara, Walter Kosik, David Hennessey, Alternate Svetlana Beloritsky, Alternate Cindy Ronning (arrived after the meeting commenced), Planning Director Will DíAndrea

 

Edmund Gleason, Jeff Gowan, Selectmenís Representative Victor Danevich

 

Mr. McNamara noted that Ms. Beloritsky would vote in Mr. Gleasonís absence.

 

CONTINUED

 

Case #2264 - TESSIER, Dennis, Jr./21 Saint Margaretís Drive - ML 12-87 - Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit a single family dwelling on a lot that does not meet the Table of Dimensional Requirements of the required 200 feet road frontage within the residential zone.

 

Mr. McNamara informed that the hearing had been continued from last month in order for the Board to obtain some information.He said the file contained an approved plan from the original subdivision that noted lot 1A would be added to lot 1, and lot 2A would be added to lot 2.

 

Mr. Dennis Tessier, Sr., (father of the applicant) said his understanding of the note on the plan was lot one was originally turned over from the church to his parents, and later, the same situation happened and a lot was added to his brotherís lot.Mr. McNamara said that the Planning Board had not yet heard the case and suggested a continuation to give the Planning Board an opportunity to review and comment.

 

Mr. Kosik asked if the property had been reviewed by the Board of Adjustment in the past.Mr. Tessier, Sr., said in the past he brought a proposal for review to which an abutter disagreed.He said the abutter was no longer there.

 

The case was continued to the November 10, 2003 meeting.

 

HEARINGS

 

Case #2267 - FIELDS, Frances & Craig/22 West Shore Drive - ML 11-138 - Seeking a Variance concerning Article III, Section 307-9 to permit an expansion of a non-conforming use and to allow an expansion of a non-conforming residential use on a lot having more than one dwelling within the residential zone.

 

Hearing delayed (per the request of the representing Attorney) until end of meeting - see below for details.

 

Case #2268 - STECCHI, Robert/11 Stevens Road - ML 7-89 - Seeking an Equitable Waiver in accordance with RSA 674:33 (a) for a pre-existing structure within required setbacks in the residential zone.

 

Mr. Hennessey read the list of abutters aloud. There were no persons present 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. Robert Stecchi, 11 Stevens Road explained the circumstances for the equitable waiver request.He said the corner of the existing garage (built in 1982) was located 5ft. within the 15ft. setback of the property.He was not aware of the situation until the property was surveyed for a prospective buyer.He read aloud the criteria for an equitable waiver.†††

 

Mr. Hennessey asked Mr. Stecchi if he was currently the owner of record.Mr. Stecchi answered yes.

 

PUBLIC INPUT

 

Mr. Joe Lessard, 15 Stevens Road said he did not have a problem with the request for equitable waiver.

 

There was no further discussion.The following motion was made:

 

MOTION:

(Kosik/Hennessey) To grant the Equitable Waiver.

 

VOTE:

 

(4 - 0 - 0) The motion carries.

 

EQUITABLE WAIVER GRANTED

 

Case #2269 - FISHER, James & Diane/Gumpas Hill Road - ML 2-60 - Seeking a Variance concerning Article III, Section 307-12 & 307-14 to permit less than 200ft. of frontage for a public right-of-way within the residential zone.

 

Mr. Hennessey read the list of abutters aloud.The file did not contain any written correspondence from abutters.Mr. Christopher Fisher informed that he was the Trustee of the Fisher Farm Family Trust, not Maria Plourde.Penelope (Fisher) Rodriguez of the Fisher Family Trust informed that her name was previously Dube.††

 

Ms. Ronning arrived.Mr. McNamara noted that Ms. Ronning would be a voting member for the remainder of the meeting.

 

Mr. Wes Aspinwall, Land Surveyor with Herbert Associates presented the case to the Board.He said there was an existing parcel of land (ML 27-2-60) with approximately thirty-one/two acres that contained an existing duplex.The owners would like to sell the land at a future time, therefore they were proposing to set up a lot (ML 2-60-3;†† 2.5 acres) that included the duplex.The lot would be slightly odd shaped, and contained a small wetland, but would conform to zoning.Mr. Aspinwall said the remaining piece (29.134 acres) would have less than 400ft. of frontage onto Gumpas Hill Road, but in his opinion would be conforming in every other aspect.He noted that Seavey Road was labeled Gumpas Hill Road and would be corrected on the plan.He showed the point at which Gumpas Hill Road became a discontinued road and explained that the twenty-nine acre piece had access from the discontinued portion of Gumpas Hill Road, and also frontage onto Seavey Road (class 6 Town road maintained by the Fishers and the Fisher Family Trust).Mr. Aspinwall reiterated that the proposed lot (ML 2-60-3) would have 200ft. frontage and the residue piece (ML 2-60) would have 153.7 road frontage.

 

Mr. Aspinwall reviewed the five criteria as follows:

 

Item #1.The proposed use would not diminish surrounding property values because: The proposed building lot will support a home of equal or greater value than the surrounding properties.

 

Item #2.Granting the variance would not be contrary to the public interest because: The new lot will result in an increase in revenue and represent an appropriate use of the land.

 

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: the owner †† will be denied reasonable usage of a large portion of his land (29 acres).

 

†††††††††††††† 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 proposed subdivision plan †††††††††††††† creating a 2.5 acre duplex lot and a 29 acre residue lot conforms with all of the general purposes of †††††††††††††† the zoning ordinance as states in Article 1, Section 307-2.

 

†††††††††††††† c) The variance would not injure the public or private rights of others since: The lot would be large †††††††††††††† enough to ensure proper spacing between dwellings and comply with all other requirements.

 

Item #4.Granting the variance would do substantial justice because: the use we are seeking is a permitted use for this district and will allow the owner to use their property in the same manner as the surrounding properties.

 

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

†††

Ms. Ronning asked why the driveway was not contained within the boundary of the lot.Mr. Aspinwall said the wet area came somewhat close to the driveway location.He said years ago, when the lot was constructed, the driveway was put on the high land, rather than across the wet area to minimize any wetland/WCD impacts.He said they were proposing to set up a non-exclusive easement for the driveway to cross, as well as access, the front portion of the residual lot.††††††† ††

 

Mr. Aspinwall provided the Board with an updated plan that showed the edge of wet, updated abutter list and the slight change for the driveway easement.He noted that the wetland had been flagged by Gove Environmental Service.He said there would be no direct impact on the wetlands, but a special permit would be needed when the Planning Board reviewed due to a slight change of whatís existing within 50ft. of the wet area.

 

Mr. Hennessey asked if the class 6 discontinued road (Seavey Road) was a public right-of-way.Mr. Aspinwall said they believed that the class 6 road had been abandoned, subject to gates and bars; therefore it was a public right-of-way that the Town did not maintain.He believed there was an existing agreement (set up in 1989) between the Town and Fisher Family Trust for the maintenance of the road.Mr. James Fisher provided the Board with a copy of the agreement.Mr. Hennessey reviewed the language of the agreement and questioned if Seavey Road should be considered a public right-of-way based upon what was written in the document.Mr. Aspinwall noted that the applicant was not looking for a permit to construct a new house; the applicant was seeking a variance to allow a duplex lot to be separated and sold differently, if approved there would be a 29-acre residue lot.Mr. Hennessey asked if the agreement would affect the new lot if a subdivision were allowed.Mr. Aspinwall was unsure.Mr. James Fisher informed that the original agreement was drawn up by his parents.He said that the right-of-way had been maintained by him and his wife for eighteen years without help from the Town.Mr. Aspinwall asked Mr. Fisher if he would be willing to have the new buyers join into the maintenance agreement as part of the sale agreement.Mr. Fisher said he would continue maintaining the road as he had for many years.

 

Mr. Hennessey said that there had been discussion regarding class 6 roads and if the Board, or any Town board would have the authority to overturn a decision made by Town Meeting.Mr. Aspinwall said his understanding was there were two types of road closures: 1) discontinuance in which the Town absolved itself of the land and the property reverted to the owners on both sides of the road, or whoever the road initially came from; 2) subject to gates and bars in which the Town retained whatever rights they had in the road.He said in this case if the road was subject to gates and bars it was clear there was still a Town ownership and a public right-of-way.Mr. Hennessey reiterated that he was reluctant to change a vote made by Town Meeting and was concerned that a public right-of-way burden would be created if the lot were allowed.

 

Ms. Beloritsky was concerned with the creation of a lot and the use of a road that carried a liability clause on the plan regarding emergency vehicle access.Mr. Aspinwall believed the language addressed the release of liability to the Town if, due to maintenance by the Fisher Family Trust, emergency vehicles didnít have rapid access.He didnít feel the language absolved the Townís responsibility to deal with an emergency; each of the properties would pay taxes to support municipal services.Ms. Beloritsky was unsure if the Town would have any responsibility to the road if it was subject to gates and bars.Mr. Aspinwall said all the normal services would apply to the road, with the exception of maintenance.

 

Ms. Ronning asked how many houses were located beyond the point where Gumpas Hill Road ended and Seavey Road began.Mr. Aspinwall said there were five houses accessed on Seavey Road.

 

Mr. McNamara confirmed with Mr. Aspinwall that the applicant was requesting the creation of a non-conforming lot with the only access being 150ft. frontage, over/through an existing driveway, retaining a 29 acre parcel.Mr. Aspinwall said the parcel had frontage (approximately 2000ft.) along the discontinued portion of Gumpas Hill Road.Mr. McNamara asked if any attempts had been made to purchase land from the Fisher Family Trust which could be used as frontage.Mr. Fisher explained that the abutting land was overseen by the Society for the Protection of the New Hampshire Forest and would remain as conservation land.

 

PUBLIC INPUT

 

Ms. Penelope (Fisher) Rodriguez, representative for the Fisher Family Trust, informed that the Trust owned parcels C and D.She said at the point in time when the road was said to have been maintained by the Fisher Family Trust, the gravel came from her parentís land, and vehicles used to construct the roadway were owned by her brother Paul Fisher III.She said currently James Fisher maintained the road and kept it passable, but wouldnít allow any members of the Trust (other than his immediate family) use of the road to access parcels A,B,C and D (owned by Fisher Family Trust).Ms. Rodriguez provided the Board with a copy of the conservation easement language.She showed the 50ft. right-of-way her father created to access the parcels and said that currently James Fisher was not allowing the members of the Trust to use the road.Ms. Rodriguez ended by saying she had not seen the agreement/release for the road until the meeting and pointed out that Fisher Family Trust was named, and did not include James Fisher.

 

Mr. James Fisher (applicant) explained when he and his wife built their home there was no right-of-way, or frontage when the building permit was granted.He said in order to obtain a fixed-rate mortgage from the bank, the house lot (ML 2-62-1) needed frontage and had to be subdivided from the main parcel (ML 2-62).He said at that point, his parents helped him and his wife with the right-of-way to gain frontage so they could obtain a fixed-rate mortgage.He said he had not told anyone that they could not access the road.Mr. Fisher ended by saying when he and his wife built their home, the gravel from his parents property was given to them as a gift.He said he paid to have the gravel removed so it could be used on his lot.††

 

Mr. Kosik was unsure if the case could be settled by the Board, rather than in court.Ms. Ronning agreed.Mr. Hennessey also agreed and suggested that consultation be obtained from the Planning Board and Town Counsel regarding the creation of a potential subdivision on a class 6 road.He said the Selectmen may also need to be involved since they signed the agreement regarding the maintenance of the road.He asked that the case be continued.Mr. Kosik asked Mr. Hennessey if he was satisfied that the agreement was legitimate.Mr. Hennessey answered yes, and said he wanted to know from counsel if the new potential purchases of the lots would be bound by the same agreement.He also wanted input from the Selectmen as to what the intent of the agreement was, and if future subdivision was considered.

 

The Board continued their discussion regarding the case and agreed that more information was needed from the Planning Board, Town Counsel and the Selectmen.Mr. McNamara asked that the maintenance agreement and the conservation easement document be added to the file.††

 

The case was continued until the November 10, 2003 meeting.

 

Case #2270 - PAPPADEAS, Nicholas/17 Campbell Road - ML 11-153 - Seeking a Variance concerning Article III, Section 307-12 & 307-14 - to permit the addition of a second story with a deck to be located within the required setbacks on a lot with insufficient road frontage within a residential zone.

 

Mr. Hennessey read the list of abutters aloud. There were no persons present 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. Ronning stepped down.

 

The applicant requested that their case be continued until the November 10, 2003 meeting so they could be heard by a full board.††

 

The case was continued to the November 10, 2003 meeting.

 

Ms. Ronning returned to the Board.

 

Case #2267 - FIELDS, Frances & Craig/22 West Shore Drive - ML 11-138 - Seeking a Variance concerning Article III, Section 307-9 to permit an expansion of a non-conforming use and to allow an expansion of a non-conforming residential use on a lot having more than one dwelling within the residential zone.

 

Mr. Hennessey read the list of abutters aloud. There were no persons present 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 discussed the applicantís purpose for the request of the variance.He explained that the lot (37,000SF) had been previously developed in a non-conforming fashion with two (2) existing residential structures.He said the proposed addition (24ft.x36ft.) was shown on the plan as meeting the setback requirements, away from the water.He said the property had been owned by the applicants since 1990 and had the non-conforming dwellings on it since before the Townís zoning.†††††

 

Item #1.The proposed use would not diminish surrounding property values because: The addition is a customary ancillary use to existing residential structure; addition will conform with setbacks; addition will increase value of property, raising surrounding property values.

 

Item #2.Granting the variance would not be contrary to the public intrest because: It will not adversely impact surrounding properties; addition will increase value of structure; increasing assessed value and 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: property has †††††††††††††† developed as a prior non-conforming use with two (2) separate residences; neither structure has †††††††††††††† garage at the moment.

 

†††††††††††††† 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 two (2) residences already exist †††††††††††††† on the lot; denial would only affect an ancillary use.

 

†††††††††††††† c) the variance would not injure the public or private rights of others since: no diminution in †††††††††††††† property value is expected; no private easements are impacted.

 

Item #4.Granting the variance would do substantial justice because: It will provide a customary ancillary structure (i.e. garage and breezeway) to an existing residence.

 

Item #5.This use is not contrary to the spirit of the ordinance because: Although the ordinance prohibits multiple residential structures, these houses are spaced and situated such that they could be divided into separate lots; the existence of multiple dwellings on recreational lots is not uncommon.

 

Attorney Campbell didnít feel that the there would be any deleterious effects on Island Pond either during, or post construction.He said if there were any issues during construction, the appropriate siltation measures could be taken and administered by the building department.

 

Mr. McNamara asked what the height of the proposed garage would be.The applicantís contractor said the proposed garage would be approximately twenty-four feet (24ft.) in height.Mr. McNamara asked where the vehicles were currently parked.Mr. Craig Fields (applicant) said the vehicles were currently being parked in front of the house.

 

Mr. Hennessey said the plot plan was unclear where the shore line was located.He said the entire lot, under the Shore Land Protection Act was within the 250ft.There was a brief discussion regarding the distance of the water edge to the existing structure.Mr. Hennessey said if approved,a stipulation would be added requesting verification that the proposed structure would not be within 50ft. of the shoreline.Attorney Campbell had no problem with the stipulation.

 

Ms. Ronning noted that the leaching fields may be taxing the land since there were two existing structures.She asked what the conditions of the leaching fields were.Mr. Fields informed that the addition would not have any additional plumbing.Ms. Frances Fields (applicant) said that they had not had any problems with their septic system (which was pumped annually).Ms. Ronning felt the condition of the existing septic was pertinent due to the lot size and the fact that there were two existing structures.Mr. Kosik didnít understand how the garage would contaminate the property, since the building was not located near the leaching beds.Attorney Campbell believed if vehicles were inside a structure the minimal risk would be safer, versus parking vehicles outside.

 

There was a brief discussion regarding the structure and the access.Mr. Hennessey said he would like to stipulate that 50% of the trees removed during construction would be replaced (Shore Land Protection Act).

 

PUBLIC INPUT

 

Ms. Eileen Buckle, West Shore Drive, wanted to know what the room above the garage would be used for.Ms. Fields said the room would be a family room.

 

Ms. Eileen Suprenault (Ms. Buckelís daughter), said there was an easement between the existing homes and wanted to know if it would be blocked by the proposed structure.She said that the easement wasnít in use.Attorney Campbell said he was not aware of an easement on the property.It was believed that the easement was used for utilities.

 

Mr. Ken Owens, an abutter was in favor of the request.He felt the addition would increase the value of the homes in the area.Attorney Campbell asked Mr. Owens how close his house was to the water.Mr. Owens said the water was approximately 90ft - 100ft. from his deck.

 

MOTION:

(Hennessey/Kosik) The proposed structure will be more than 50ft. from the waterís edge (per the Shore Land Protection act); 50% of the vegetation trees be replaced (trees could be saplings).

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

BALLOT VOTE:

 

Mr. McNamara - Yes to all criteria - subject to conditions of the motion

Mr. Kosik - Yes to all criteria

Mr. Hennessey - Yes to all criteria - subject to verification that the garage is 50ft. from shore (per Shore Land Protection Act); 50% of trees removed are to be replaced.

Ms. Beloritsky -Yes to all criteria

Ms. Ronning - 1) Yes; 2) No; 3) Yes; 4) Yes; 5) Yes

VOTE:

 

(4 - 1 - 0) The motion carried.

 

 

VARIANCE GRANTED

 

MINUTES

 

August 11, 2003 - deferred to the November 10, 2003 meeting.

September 8, 2003 - deferred to the November 10, 2003 meeting.

 

ADJOURNMENT

 

MOTION:

(Kosik/Hennessey) To adjourn the meeting.

 

VOTE:

 

(5- 0 - 0) The motion carries.

 

The meeting was adjourned at approximately9:25 pm.

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

 

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

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