APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 10, 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, Jeff Gowan, Alternate Svetlana Beloritsky

 

Edmund Gleason, Alternate Cindy Ronning, Selectmen’s Representative Victor Danevich

 

Mr. McNamara noted that Ms. Beloritsky would vote in Mr. Gleason’s absence.

 

CONTINUED

 

Case #2264 - TESSIER, Dennis, Jr./21 Saint Margaret’s 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 said this case had previously been continued to obtain information from the Planning Board.  He said it was the Planning Board’s opinion that the public right-of-way could not be used as a driveway.  The Planning Board provided the following suggestions: 1) applicant could submit a petition warrant article to have the right-of-way accepted as a road, which would then be brought up to Town standards; 2) go before the Board of Selectmen to explore the possibility of a sale.  Mr. McNamara said he asked for Town Counsel’s opinion, but had not yet received a response.

 

Mr. Dennis Tessier, Sr. asked if the land could be purchased at fair market value, or by paying back taxes.  Mr. McNamara said Mr. Tessier could meet with the Selectmen for determination.  Mr. Tessier asked if the Board of Adjustment would vote on the case.  Mr. McNamara informed that the applicant could withdraw their application, or the Board could vote on the case and in the event the variance was denied,  the application would not be allowed to come back until waiting a fair amount of time, or if the circumstances changed. 

 

Mr. Dennis Tessier, Jr. wanted to know his options if the Selectmen denied purchase of the land.  Mr. McNamara suggested approaching the Selectmen for further information.  Mr. Tessier wanted to know if he would need to come back before the Board of Adjustment if the Selectmen agreed to a land purchase.  Mr. Kosik believed the applicant would need to come back before the Board of Adjustment.  Mr. Tessier said he had heard something about land reverting to adjoining properties if it were not in use for over twenty years.  Mr. McNamara said in terms of public right-of-ways, Mr. Tessier may want to obtain an attorney’s opinion. 

 

Mr. Hennessey suggested that the applicant bring the case back to the Planning Board.  He wanted Town Counsel’s opinion because he felt the Planning Board was incorrect regarding not granting frontage onto a right-of-way.  Mr. Gowan said if he was on the Planning Board he would have been inclined to side with their recommendation.  Mr. Kosik recalled a similar instance, and asked if the Selectmen could grant permission to open the Town owned right-of-way and allow one house to be built on it.  Mr. Hennessey said the Board had recently voted to include frontage onto a right-of-way.  He said the difference with other cases was that the right-of-way was closed by Town Meeting.  After reviewing the regulations regarding public right-of-ways, he didn’t see anything regarding ‘Town owned’.  Mr. Hennessey reiterated his belief that the Planning Board was incorrect and asked that the Board of Adjustment request Town Counsel’s opinion. 

 

Mr. Kosik said that the Board of Adjustment was who interpreted zoning and didn’t understand why the Planning Board was involved.  Mr. McNamara said the Board requested feedback from the Planning Board.  Mr. Hennessey said he wanted to know what the Planning Board intended at the time the subdivision was laid out.  At this point, the Planning Board’s opinion was requested because the original subdivision was done over twenty years ago. 

 

Mr. Mark Schmidt, 19 St. Margaret’s Drive understood that the Town took the right-of-way for back taxes approximately five years ago.  He said the developer of Cote Drive owned the right-of-way and abandoned it when the development layout of Cote Drive changed.  Mr. Schmidt said he tried to purchase the right-of-way for future use, but was discouraged from doing so after a conversation with former Town Administrator Peter Flynn. 

 

The Board discussed the case further.  Mr. Hennessey said he wanted a formal opinion from Town Counsel.  It was the feeling of the Board that the applicant discuss the right-of-way with Planning Director Will D’Andrea and meet with the Selectmen. 

 

The case was continued until the December 8, 2003 meeting.   

 

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. McNamara said this case was previously continued for input from the Planning Board and Town Counsel.  He said the letter provided by Town Counsel contained several things, one of which was that a class VI road was not a public right-of-way for purposes of the Town’s Zoning Ordinance.  He said to continue the case, two variances would be needed: 1) insufficient frontage; 2) from the terms of the ordinance (frontage onto a public right-of-way).  Mr. Hennessey reviewed Town Counsel’s letter which reviewed how to get a lot built on a class VI highway (variance needed for Zoning 307:14; need to meet Subdivision Regulations Section 674.41).  He said the State Regulations allowed either the Selectmen, or Town Meeting vote could open a road that was closed subject to gates and bars.  It was Mr. Hennessey’s opinion that a road closed to gates and bars by a vote at Town Meeting should only be allowed to be open by a vote at Town Meeting.  Mr. McNamara informed that the Planning Board was unanimously not in favor of a subdivision on a class VI road.  He said the Planning Board provided the following suggestions: 1) applicant could build the road up to Town standards and petition to have it accepted as a Town road; 2) discuss with Open Space Committee regarding a possible sale of land.  Mr. McNamara said the Planning Board had major concerns with building a subdivision on a class VI road. 

 

Mr. Wes Aspinwall, Herbert Associates, said the applicant wasn’t necessarily seeking to build anything in the immediate future.  He said there was an existing building on the parcel and noted that there were a number of buildings and residences that existed under a previously established maintenance agreement which was set up by the Selectmen.  He said the duplex was located on approximately thirty-one acres.  He believed the same subdivision issues would arise if the Open Space committee wanted to purchase the land.  Mr. Aspinwall was unsure if the Selectmen had developed a procedure regarding development on a class VI road.  Mr. McNamara said there was a procedure by statute as to how to go about building (as reviewed by Town Counsel).  He said based upon the letter from Town Counsel, the applicant would not only need a variance for insufficient frontage, but also from the language of the ordinance.  Mr. Hennessey felt there was a distinction between a class VI road, and as in this case, a class VI road that was closed to gates and bars through Town Meeting.  He further reviewed Town Counsel’s letter which noted that the Board of Adjustment should review zoning variance issues, the Planning Board should review the subdivision requirements, and the Selectmen should review the street layout issues.  Mr. Hennessey felt a vote from Town Meeting would also be needed for a vote regarding gates and bars. 

 

There was further discussion regarding what further action was needed by the applicant.  The Board informed that the applicant could either withdraw their application, or have the Board take a vote.

 

The applicant asked the Board if they could withdraw their application.     

 

MOTION:

(Hennessey/Gowan) To allow the applicant to withdraw their application without prejudice.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

    

The applicant’s application was withdrawn without prejudice.

 

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 the residential zone.

 

Mr. Hennessey read the list of abutters aloud. There were no persons present who did not have their name read.  The file did not contain any written correspondence from abutters.  Mr. Lance Ouellette informed that he was the owner 13 Gaston Street as well as the owner of 5 Andover Street. 

 

Mr. Nicholas Pappadeas, 17 Campbell Road met with the Board and reviewed his application.  He said he was seeking to add a second floor to his home (current living space 1100SF with an addition of approximately 900SF of living space).  He noted that the current roof was in desperate need of repair.  He said the expansion would be upward on the existing footings.  Mr. Pappadeas read the following variance criteria aloud:

 

Item #1.  The proposed use would not diminish surrounding property values because: I am only raising and not changing the footing of my home.

 

Item #2.  Granting the variance would not be contrary to the public interest because: I will not interrupt anyone’s 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: no more land                to purchase in order to conform to zoning.

 

               b) that no fair and substantial relationship exists between the general purposes of the zoning                ordinance and the specific restriction on the property because: well will not change the footing of                the house therefore, it should not disrupt our neighbor’s boundaries.

 

               c) the variance would not injure the public or private rights of others since: only a garage directly                abuts my home and we’re in the middle of two roads.

 

Item #4.  Granting the variance would do substantial justice because: my living space would increase my house needs a new roof pitch, I get ice blockage and water comes in and water damage and wet basement.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: If the variance is granted we will meet all other requirements such as permits and building codes.

 

Mr. Pappadeas said he would like to build the addition so he could expand his family within the next year. 

 

Mr. Hennessey asked how close the exiting home was to Little Island Pond.  Mr. Lance Ouellette, direct abutter, said Mr. Pappadeas’ home was approximately 325ft. from Little Island Pond.  Mr. Pappadeas said he had beach rights, not direct frontage onto the pond.  Mr. Kosik believed permits were being issued building permits, as long as the footprint of the house was not being exceeded.  Mr. Hennessey said the Building Inspector was issuing permits, based upon his interpretation that building could occur as long as the footprint was not being exceeded.  Mr. McNamara asked the age of the home.  Mr. Pappadeas said his home was approximately forty to fifty years old. 

 

Mr. Gowan asked if the septic would be adequate for expansion.  Mr. Pappadeas said the septic (1500gallon), which pumped to a new leach field had been installed approximately three years ago. 

 

PUBLIC INPUT

 

Mr. Lance Ouellette, owner of 5 Andover Street and 13 Gaston Street was in favor of the variance.  He said since Mr. Pappadeas moved in they had done a good job with the upkeep of the building and surrounding area.  He discussed a variance that the Board had granted for the construction of a garage (approximately one year ago) that stipulated a height limit of twenty-four feet.  He felt if the applicant was granted a variance with a height limit he would have adequate space.  Mr. Ouellette discussed the vegetation and noted that the average height of the trees (on the Andover Street side) was twenty-two feet. 

 

Ms. Blanche Thibault, Andover Street submitted a letter granting her son, Mr. John Thibault, the authority to speak on her behalf.  Ms. Thibault was not in favor of the variance because her view would be obstructed/eliminated.  Mr. Thibault discussed the shrubbery that had been planted by the former owner.  He said if the variance were granted his mother’s view of the lake would be obstructed.  He said his mother was also concerned with how the Board came to their decision and invited the members to review the site.  Mr. Thibault said the house/lot size was small and not intended to be added on to.  He asked that the Board obtain a septic certification to ensure that the septic was adequate for the expansion.  He didn’t understand how the seasonal camps turned into year-round homes. 

 

Mr. McNamara asked what the distance was between the applicant’s home and Ms. Thibault’s home.  Mr. Thibault said approximately two - three hundred feet. 

 

Mr. Gowan asked if Ms. Thibault resided in her home year-round and if they had a deeded view easement.  Mr. Thibault said he and his mother were year-round residents and believed the state had view easement provisions.  Mr. Pappadeas provided the Board with photographs of the front of Ms. Thibault’s home in between the two homes.  Mr. McNamara asked if the homes were visible at this time.  Mr. Thibault said the houses were visible at this time, but not in the summer.   

 

Mr. Hennessey noted that the new septic system was built for three bedrooms. 

 

Mr. McNamara asked what was located between the properties of Mr. Pappadeas and Ms. Thibault.  Mr. Pappadeas said there was a road and shrubbery.  Mr. Ouellette informed that the height of the shrubs and trees were a minimum of twenty-two feet and located on his property.  There was further discussion regarding the height of the surrounding homes/garages.  Mr. Pappadeas explained the condition of his roof and the fact that he would like to raise and pitch his roof for safety. 

 

The Board further discussed the case; the following things were noted:  if the lot was conforming there would be no question, several permits had been issued for similar requests; the current roof posed safety concerns; the second floor addition will ensure the building would be up to code; a New Hampshire Supreme Court case determined that the footprint being exceeded didn’t eliminate the need for a variance.  A height restriction for the addition was discussed.  Mr. Ouellette noted that the Board, when approving the variance for his garage, conditioned the approved based upon a maximum of height of 24ft.   

 

MOTION:

(Hennessey/Beloritsky) As a condition of the variance, the height of the structure shall not exceed twenty-four feet from sill to peak roof line.   

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

 

BALLOT VOTE:

 

Mr. McNamara - Yes to all criteria - subject to 24ft height limitation.

Mr. Kosik - Yes to all criteria - with conditions 24ft. from the ridge to sill.

Mr. Hennessey - Yes to all criteria- subject to 24ft. roof line.

Mr. Gowan - Yes to all criteria

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

 

VOTE:

 

(4 - 1 - 0) The motion carried.

 

 

VARIANCE GRANTED

 

MINUTES

 

August 11, 2003

 

MOTION:

(Kosik/Hennessey) To approve the August 11, 2003 meeting minutes as written.

 

VOTE:

 

(3 - 0 - 2) The motion carried.  Mr. Gowan and Ms. Beloritsky abstained.

 

-------------------------------------------------------------------------------------------------------------------------------

September 8, 2003

 

MOTION:

(Hennessey/Gowan) To approve the September 8, 2003 meeting minutes as amended.

 

VOTE:

 

(4 - 0 - 1) The motion carried.  Mr. Kosik abstained.

 

--------------------------------------------------------------------------------------------------------------------------------

October 16, 2003

 

MOTION:

(Hennessey/Kosik) To approve the October 16, 2003 meeting minutes as written.

 

VOTE:

 

(4 - 0 - 1) The motion carried.  Mr. Gowan abstained.

 

 

ADJOURNMENT

 

MOTION:

(Hennessey/Gowan) To adjourn the meeting.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

The meeting was adjourned at approximately 8:55 pm.

                                                                                          Respectfully submitted,

 

                                                                                          Charity A.L. Willis            

                                                                                          Recording Secretary