APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

February 10, 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.

 

DISCUSSION (limited to 30 minutes)

 

Roland Soucy, Building Inspector/Zoning Enforcement Officer to discuss the following:

·         Building permit vs. ZBA criteria for non-conforming lot construction

·         Application procedures

·         Accessory dwellings

·         Any other issues time permits

 

Mr. LaPolice reviewed the items the Board wanted to discuss.  Mr. Hennessey started the discussion by asking if usage could be expanded with the property on a non-conforming lot that was grandfathered.  Mr. Soucy said that the square footage of the building could not be expanded, without coming before the Board.  He said that he required a certified as-built of the current structure, along with a drawing of what the person wanted to do.  He said that he inspected the building before anything was done.  There was a brief discussion regarding a recent building Mr. Soucy had reviewed. 

 

Mr. Hennessey asked if a person with less than one acre would need to come before the Board if they wanted to expand.  Mr. Soucy said anything prior to 1975, that was part of a subdivision with Planning Board approval, which met the current setback requirements, were not required to come before the Board of Adjustment.  Mr. Hennessey believed that per Zoning laws 307-8 (non-conforming uses) a person would need to come before the Board.  Mr. Soucy discussed the differences between a non-conforming use and a non-conforming lot.  He went on to discuss examples of lots that would pertain to the Shoreland Protection Act, and which cases the Board would need to be involved in.  He reviewed the criteria that would have to be met for conversion from seasonal, to year-round, per the New Hampshire Administrative Rules.

 

Mr. LaPolice said that there was a desire amongst the members of the Board to have targeted and specific dialogue with certain people within the ‘planning function’ regarding specific issues.  Mr. Soucy said that he had no problem with people calling him with questions. 

 

There was further discussion regarding the Shoreland Protection Act and which cases it would be relevant to.  Mr. Kosik read aloud a portion of a New Hampshire Supreme Court case (dated in 1995) in which a Variance from the waterline setback was upheld in connection with a lot of record. 

 

Mr. Kosik informed that there had been a procedure in effect which explained how an applicant was to apply to the Board of Adjustment.  He provided a copy for Mr. Soucy’s review.  Mr. Hennessey suggested having the Board review the procedure and vote on it.  Mr. LaPolice said he would take the action to work with the Planning Director and review the procedure and craft a formal draft.  Mr. Soucy said when he reviewed applications he would either approve, or meet with the applicant to discuss any problems.  He said this would ensure the application was clean at the point the Board reviewed.  Mr. Hennessey asked if Mr. Soucy reviewed all the applications.  Mr. Soucy said that sometimes he did not get the opportunity to review the applications, but it was a problem being worked out.  He discussed the items he reviews when looking over an application.

 

The Board discussed applications for an accessory dwellings and the fact that not all applications had state approved septic designs when they submitted their application, but due to the short turn-around time of the state, applicants normally had state approvals by the time they met with the Board.  Mr. Soucy believed if Health Inspector Mr. Paul Zarnowski approved a plan, that it would most likely be approved at the state level.  He was comfortable with applications being approved, subject to state approval.   Mr. Hennessey asked if a sign-off procedure could be implemented regarding the plans that were submitted, to ensure that they made sense.  Mr. Soucy said that he reviewed submitted plans.  Mr. LaPolice believed that it was an exception to the rule when plans were not reviewed.  He reiterated that he had no problem with the ‘planning function’ of the Town.  He felt that a majority of time, procedures were being followed.  Mr. Soucy said that he makes himself available on Tuesday evenings to alleviate issues before they arise. 

 

Mr. Hennessey asked if there was a way to ‘flag’ applicants that touched upon aquifers districts, prime wetlands, or lots that met with the Planning Board.  Mr. LaPolice said he would add that action to be discussed with the Planning Director.  Mr. Kosik reviewed a procedure created (in 1995) by former Planning Director John Tucker. 

 

Mr. Soucy was thanked for meeting with the Board. 

 

CONTINUANCES

 

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 30’x40’ garage within the 50ft. wetland buffer.

 

The applicant’s representative was not present.  The applicant asked that the Board review his application later in the evening. 

 

* see below for further action.

 

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.

 

A written request to continue the case was received and granted by the Board.  The case was continued to the March 10, 2003 meeting.

 

HEARINGS

 

Case #2247 - ML 9-2-6 - SHANNON DEVELOPMENT CORP./Carlisle Lane - Seeking a Special Exception concerning Article XII, Section 307-74 to permit the construction of a single family home with an accessory dwelling in the residential zone.

 

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. Tim Oriole, Shannon Development Corp. reviewed the application with the Board.  He noted that the state had approved the proposed septic design, which he provided a copy to the Board.  Mr. LaPolice confirmed that the application was for new construction.  Mr. Oriole said there were no existing buildings.  He said the proposed would be for a home and an accessory dwelling. 

 

Mr. Kosik wanted the criteria reviewed.  Mr. LaPolice noted that the applicant had 202ft. of frontage, and 67,000SF of acreage.

 

Mr. Oriole was provided a copy of the Planning Director’s comments.  He said the hallway that connected the garage to the primary living space, was 19ft. and part of the primary living space, which would constitute a 100% common wall, not 73.5% as noted by the Planning Director. 

 

Mr. LaBonte read aloud the requirements for an accessory dwelling.   

 

Mr. Hennessey asked for the inside width calculation of the accessory unit.  Mr. Oriole said the interior dimension was 18’6”.  Mr. Hennessey calculated the dimension and believed the 75% common wall was met.  Mr. Oriole said if there was an issue, he could change the width of the breezeway to increase the common wall if necessary.  He reviewed the drawing and explained what had been included in the common wall calculation.  Mr. LaPolice believed that the Planning Director had reviewed the outside dimensions of the building, which explained her calculations being different from the applicant.  He felt the plans could be revised by 1.5%. 

 

Mr. Gleason noted if the Board agreed that the breezeway wall constituted the common wall, there would not be a problem with the common wall percent, since it would then be at 100%.  Mr. LaPolice reviewed the ordinance, which stated there must be an area that was 75% common with both units.  There was further discussion regarding the issue of ‘common wall’.  Mr. Hennessey disagreed with the Planning Director’s calculations.  Mr. LaPolice agreed with the calculations submitted with the Planning Director.  Mr. Gleason disagreed with Mr. LaPolice.  He said if the accessory dwelling were not built, the hallway (and craft room) would remain. 

 

Mr. Kosik asked if all the other criteria had been met.  Mr. Oriole answered yes. 

 

There was no public input.   

 

MOTION:

(McNamara/Gleason) To vote regarding the requested special exception. 

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

 

BALLOT VOTE:

 

Mr. LaPolice - Yes - final design must meet 75% common wall requirement

Mr. Gleason - Yes - meets criteria

Mr. McNamara - Yes

Mr. Kosik - Yes - has met criteria for a special exception - motion to have Building Inspector check the common wall to make sure it meets criteria

Mr. LaBonte - Yes

 

VOTE:

 

(5 - 0 - 0)The motion carries.

 

 

 

MOTION:

(Kosik/Gleason) The Building Inspector is to check the common wall to ensure it meets the criteria.  

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

 

SPECIAL EXCEPTION GRANTED 

 

Case #2248 - ML 9-127 - BERTHOLD, Roger & Paula/36 Simpson Road - Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision of an existing lot into 2 lots, each with less than the required 200 feet of road frontage for residential use.

 

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.

 

It was brought to the Board’s attention that the file contained a letter (dated February 7, 2003) from the applicant explaining that they were unable to attend the meeting due to family circumstances.  The applicant’s submitted request for continuance was accepted by the Board.  The case was continued to the March 10, 2003 meeting per the following vote:

 

MOTION:

(LaBonte/Kosik) To continue Case #2248 to the March 10, 2003 meeting, per the written request of the applicant. 

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

Case #2249 - ML 1-48 - DRISCOLL, Cheri/57 Mammoth Road - Seeking a Variance concerning Article III & V, Section 307-8(B) & 307-18 to permit the operation of a pre-existing convenience store in a residential zone. 

 

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 read aloud the corresponding ordinance into the record (307-8(B) & 307-18.  The Board agreed that the applicant was seeking a Variance.  The previous case (Appeal of an Administrative Decision) was denied by the Board (Case #2236).  It was understood that the Building Inspector was correct with his decision to deny the building permit.   

 

Ms. Cheri Driscoll and Mr. Carl Melanson met with the Board to review the Variance application.  Ms. Driscoll  began by reading aloud the following criteria aloud:

 

Item #1.  The proposed use would not diminish surrounding property values because: the convenience store is already in existence, and has been in this location for many years.  No new construction is proposed to change the configuration of the existing neighborhood convenience store.

 

Item #2.  Granting the variance would not be contrary to the public interest because: the store is a nonconforming use in this residential area.  It was closed because the previous owner lost the property to foreclosure.  However, there was no intent to abandon the use of the building as a store; and it continued to be taxed as a commercial use by the Town even when it was closed.  The equipment for operation of the store is still located within the existing building.  There is a need in the neighborhood for this store; and the neighbors are in favor of the plans to reopen the store.  Letters from the neighbors supporting this variance are filed with the Application for Variance. 

 

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 store is a               neighborhood store for many years, until the prior owner lost the property to foreclosure.        Mammoth Road is a very busy State highway.  The property is not suitable for residential use,                 given its proximity to Mammoth Road, the paved parking lot for use of store patrons, and the            configuration of the existing store building. 

 

                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 store is already in existence and                 has been in existence for many years in this location.  It was operated as a neighborhood      convenience store at this location for many years.  No expansion of the existing building is                 proposed.  The property is not suitable for residential use.

 

                c) the variance would not injure the public or private rights of others since: the store was operating                 at this location for many years.  The neighbors are in favor of reopening this convenience store.        No expansion of the existing building is proposed.

 

Item #4.  Granting the variance would do substantial justice because: it would allow the reopening of the        existing neighborhood convenience store.  There is a need for this store at this location, and a   desire by the neighbors to have the store reopened. 

 

Item #5.  This use is not contrary to the spirit of the ordinance because: the ordinance permits non- conforming uses to continue indefinitely.  The store is a non-conforming use.  There will not be any increase in traffic or congestion along Mammoth Road if the store is reopened. 

 

Mr. Gleason asked if the store was on an independent lot.  Ms. Driscoll said the house and the store were on 3.09 acres.  Mr. Gleason asked what the calculation was for the combined frontage along Mammoth Road.  He questioned the plot plan (dated June 1, 2001), since it only included the acreage for the store and notched out the location of the existing home.  Ms. Driscoll did not know why the plot plan didn’t show the house location. 

 

Mr. Kosik said that the property owner in 1981 (Mr. & Mrs. Homer Webb case #631) attempted to subdivide the property, but had been refused.  Mr. Hennessey discussed the lot, and the reasons the plot plan may have been drawn up as it was.  Mr. Kosik had copies of minutes from a Board of Adjustment meeting dated November 19, 1975, in which the Webbs requested a variance to expand the size of the store. 

 

Mr. Hennessey asked if there were any other commercial structures visible from the property.  Ms. Driscoll answered no. 

 

PUBLIC INPUT

 

Mr. Chris Poole, Westfall Road said he was neither for, nor against the store.  He discussed the problems with the store when it had been previously open (i.e. litter).  He felt that it would need a lot of work prior to opening.  Mr. LaPolice said it was clear from the Building Inspector Roland Soucy, that the building would need to meet code before opening.  Ms. Driscoll said there would be a substantial amount of work done to the building.  Mr. Poole said one concern would be that if the Variance were granted, the store would become some other type of business.  Mr. Melanson said the intention was to open as a store.  Mr. LaPolice said if granted, the Variance would be for a specific purpose and intent.  He said the plans would then need to be submitted to the Planning Department for review by those involved in the planning function, such as the Planning Directors and the various inspectors.  Mr. Kosik said because the it was a commercial use, the Planning Board would need to review.  Mr. Poole reiterated the concern with the litter.

 

Mr. Poole clarified why the applicant was meeting with the Board of Adjustment.  Mr. LaPolice explained that the applicant was requesting the Variance as a new application, since the store had not been occupied for at least twelve months.  He said the non-conforming use could not be expanded.  Mr. Hennessey believed since the use of the lot was being changed, the structure was irrelevant.  Mr. LaPolice felt stipulations could be placed so that no building would occur other than that on the existing footprint.  Mr. Poole discussed the parking and his concern with cars not having adequate room to back out of parking spaces since the existing building was close to the road.  Mr. Hennessey felt that there may be a need for a usage variance, as well as a setback variance.  Mr. LaPolice said if the Variance were granted, the Planning Board would also need to review.  Mr. Kosik said that the Building Inspector would need to inform the applicants of the work needing to be done.  Mr. Gleason said that the article cited for the Board to determine is whether the applicant would re-establish after being discontinued for one year.  Ms. Driscoll understood that if the Variance were granted, the onus was on them to meet with the Building Inspector and the Planning Board.   

 

Ms. Elaine Mediros, Bowley Drive, was concerned because of the proximately of the two other convenience stores in the area. 

 

Mr. Wayne Mediros, Bowley Drive, noted that the litter had subsided since the closure of the store.  He was concerned that the litter would resume if alcohol were sold.  Mr. LaPolice felt the loitering and litter was a policing function.  Mr. Mediros asked if there was a way cut down the exit onto Bowley.  Mr. LaPolice said the Planning Board would need to make determinations regarding the site.  He said they may decide that certain elements of what the Board approved, or what is being proposed is not acceptable. 

 

Mr. Gleason reviewed the regulations which stipulated that the building could not be rebuilt after damage exceeded 50%.  He also noted that the building could not be extended.  He felt the issue to be determined was if the store should be re-established after discontinuance for over one year.  Mr. Kosik reviewed a memo written in 1997 from then Planning Director Heidi Griffin.  The memo quoted Town Counsel’s (Attorney Barbara Loughman) opinion that variances expired only if the property was abandoned; abandonment is determined by 1) cessation of use, and 2) indication or intension of abandonment should be present.  Mr. Hennessey believed that the discontinuance issue had been previously determined by the Board.  He felt the task before the Board was if the zoning of the lot would be changed from residential to commercial if the variance were granted.  Ms. Driscoll said the purpose for the variance was to open the store.  Mr. Gleason noted that the application stated that the variance request was in connection with 307-8(B).   

 

The Board discussed the action taken during the previous hearing (Case #2236) and what the Board was currently reviewing.  It was Mr. McNamara’s understanding that during hearing for Case #2236, the Board had decided to support Building Inspector Roland Soucy’s decision based upon the language contained within 307-8(B).  He felt abandonment was a separate and distinct legal issue.  He said there had to be an interpretation of abandonment, a presumption, to which the applicant would have the burden to disprove.  He felt the Board would have to make the determination, based upon the facts if there was an intent to abandon.  Mr. Hennessey believed that the ordinance prohibited re-establishment after discontinuance for one year, except to a conforming use, which was why he believed the lot was currently conforming.  Mr. McNamara said per the opinion of Attorney Bernie Waugh, any such prohibition would be ruled unconstitutional.  He said the clauses should be treated as creating presumptions, rather than creating prohibitions.  Mr. LaBonte said that variances were granted to allow property owners to go forward with projects with the elimination of one portion of the regulations.  He understood that the applicant was seeking to have the elimination of 307-8(B), which if allowed, the prior variance would be in effect. He said they would have to remain within the same footprint.  Mr. Hennessey believed there was a danger of expanded use.  He understood that if the Variance were granted, it would be with the intent that the structure and footprint remain the same.

 

Mr. LaPolice didn’t know what the practical difference was if the Board voted on a new variance, or if the Board was voting on the question of abandonment.  Mr. McNamara believed there was confusion and was unsure of the effects if the Board were to vote now. 

 

Mr. Gleason felt another issue was the ambiguity of the lot in the relationship of the house with the store.  His concern was that the house was not clearly delineated.  He felt the lot had reverted to residential and had serious concerns with the disrepair of the store.  He had a problem with granting the Variance. 

 

The Planning Director’s comments were made available to the applicants. 

 

Mr. LaBonte noted that the applicant was applying for a variance to the special exception under 307-18.  He believed the non-conforming use was the store, and did not see a problem placing a restriction on the store that would not let the applicant go beyond the non-conforming use, as from the past. 

 

The Board continued their discussion regarding how they should proceed.  There was a suggestion to seek legal guidance. 

 

Mr. Kosik made a motion to seek legal advice and delay the case for one month.  Mr. McNamara seconded the motion.

 

Ms. Driscoll did not understand the confusion.  She believed that she was applying for a Variance to re-open a store. 

 

The Board discussed what actions had taken place during the hearing for case #2236.  Mr. Gleason reread the request for the variance.   

 

MOTION:

(Kosik/McNamara) To seek Town Counsel’s opinion and postpone Case #2249 until the next scheduled meeting.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

The Board will seek advice regarding the following: 1) if the application can be voted upon as stated; 2) did prior vote (Case #2236 - January 13, 2003) foreclose the Board’s judging whether or not the use had been abandoned; 3) does the Board have the power to do as what is being presented - can the previous pre-existing non-conforming use be reinstated as it was, or is a new variance being created.  Mr. LaBonte noted that the applicant was requesting a second non-conforming use under 307-18.   

 

Continued from above - 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 30’x40’ garage within the 50ft. wetland buffer.

 

Mr. David Bibeau requested a continuance to the next meeting.  His representation did not arrive. 

 

MOTION:

(Gleason/McNamara) To grant the applicant a continuance to the March 10, 2003 meeting.  

 

VOTE:

 

(5 - 0 - 0) The motion carries.   

 

DISCUSSION

 

Mr. McNamara said while researching, he found two recent cases from the New Hampshire Supreme Court, one of which involved an interpretation of a variance after Simplex, and the other was a good procedural case.  He said the Board had no avenue for learning of such cases.  He requested that the Board ask Town Counsel to send a brief memo every few months informing of recent cases.  Mr. Hennessey agreed and suggested also that the Board request information regarding appeals.  Mr. Gleason felt the Board’s Selectmen Representative should be solicited to provide information regarding cases related to decisions made by the Board.  Mr. LaPolice said that he would also keep in contact with the Planning Director to coordinate actions by the other planning functions. 

 

After further discussion, the Board agreed to authorize Mr. LaPolice to contact Town Counsel regarding current case law and feedback from past appealed cases.   

 

MINUTES REVIEW

 

October 28, 2002

 

MOTION:

(Gleason/McNamara) To approve the October 28, 2002 minutes as written.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

January 13, 2003

 

MOTION:

(Gleason/McNamara) To approve the January 13, 2003 minutes as written.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

ADJOURNMENT

 

The motion was made and seconded to adjourn the meeting.

 

The meeting was adjourned at approximately 10:10pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis              

                                                                                                Recording Secretary