BOA Minutes 3-10-03

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 10, 2003

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

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

PRESENT:

ABSENT:

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

Mr. George LaBonte, Jr.

Mr. LaPolice informed that Mr. Hennessey would vote in Mr. LaBonte’s absence.

REQUEST FOR REHEARING

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 an existing lot into two (2) lots allowing use of land areas within the 100-year flood to be considered in meeting minimum lot size.

A petition was submitted on behalf of Ms. Carol Resser, by her attorney. The Board reviewed the document.

Mr. Hennessey noted that the Board was not required to follow the legal letter of the law. He said the primary requirement of the Board was to provide due process and to be fair.

Mr. McNamara didn’t find anything in the petition that qualified new evidence. He believed the Board needed to decide if the vote taken was wrong.

Mr. Kosik said he would vote to rehear the case in the event an error in judgment was made. He didn’t feel there was any new evidence.

After reviewing the case, Mr. LaPolice did not find anything that lead him to believe an error was made.

Mr. Gleason said that he didn’t see any new evidence to indicate that an approval was appropriate.

MOTION:

(Kosik/McNamara) To rehear Case #2241.

VOTE:

(1 - 4 - 0) The motion was denied.

The request to rehear Case #2241 was denied.

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.

The Board reviewed the motion for rehearing.

Mr. Hennessey said the argument presented in the request for rehearing was that the Town created the problem, which was not presented at the time the case was heard. He said the applicant had requested a variance under the requirement. He didn’t feel that the submitted evidence disputed the fact that the lot was wet. He said the Board took the vote based upon the encroachment of the wetland buffer, but also the configuration of the lot in combination with the house and well location. He felt the Board appropriately voted to deny the variance.

Mr. McNamara said if evidence was presented that the Town was at fault for causing a wetland, the Board may have had a debate. He said there was no evidence in the petition, just assertion.

In Mr. Gleason opinion, the land had always been a wetland, dating back to 1969. He felt the Board’s decision was correct

Mr. Kosik was satisfied with the Board’s decision, and didn’t feel new evidence had been presented.

MOTION:

(Kosik/Gleason) To deny the request to rehear Case #2244.

VOTE:

(5 - 0 - 0) The motion carried.

The request to rehear Case #2244 was denied.

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.

Mr. Jeffrey Orchard of Jeffrey Orchard Environmental Consultant reviewed the application with the Board. He provided information in support of the variance, which included aerial photographs. He said that Mr. David Bibeau owned fifteen (15) acres, most of which was prime wetland. He said the property was zoned for business. He said if the property was to be used for the business, the building would have to be within the buffer zone, since there was no other location suitable for building. Mr. Orchard said the prime reason was that the building of a building with a cement floor (impermeable surface) would help avoid any contamination of the wetland from the trucks being parked on dirt. He reviewed the aerial photographs with the Board, one of which contained evidence of nearby work being done close to the wetland, in the buffer zone over the past five (5) years. He said that relief of limitation was being requested for the building and went on to note that no part of the building would be contained in the wetlands.

It was noted that the following criteria were read into the record during the meeting held December 9, 2002:

Item #1. The proposed use would not diminish surrounding property values because: the existing zoning is business commercial. Proposed new garage is 70ft + from property line. Proposed garage to be wood framed and sided.

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. Also, garage is to be built as typical residential garage.

Item #3. Denial of the variance would result in unnecessary hardship to the owner because: of no storage for trucks and equipment in the business zone.

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 only other garage location brings the proposed garage 12ft from flagged wetland area.

c) the variance would not injure the public or private rights of others since: garage will only be located in such area to maintain better appearances to other neighbors.

Item #4. Granting the variance would do substantial justice because: The proposed garage would only have two locations on this property. One being in front of the existing house, due to septic location, and two being in rear of existing house. The property’s appearance would be much better with garage in rear.

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 that the Town will place on us, such as following the building code, obtaining all necessary permits, etc.

There was no public input.

Mr. Hennessey said the Board previously requested that the applicant seek the state’s input. He said that the Pelham Conservation Commission submitted a letter (signed by Chairman Bob Yarmo), dated which said ‘The State of New Hampshire Wetlands Bureau Code of Administrative Rule WT 303.02 designates any project adjacent to designated prime wetlands is a major project; therefore becomes the jurisdiction of the State of New Hampshire Wetland Bureau consistent with RSA 482(a)XV. The Wetland Bureau’s consideration of a major project requires complete plans and a public hearing in Concord.’ Mr. Hennessey asked if a public hearing had been held yet. Mr. Orchard answered no. Mr. Hennessey asked if the Board had the complete plans that would be submitted to Concord. Mr. Orchard said the plan showing the building location was included in the Board’s information pack. He said that he advised his client that an impermeable surface was the right thing to do. He noted that the trucks could continue to park on the dirt since his business had been grandfathered. Mr. Hennessey asked when the property had been purchased. Mr. Bibeau said he purchased the property six years ago. Mr. Hennessey noted the wetland was considered prime in 1987. He asked if the state had previously reviewed. Mr. Orchard said he could not answer the legal questions, since he was not an attorney; he could however answer the technical questions pertaining to the wetland issues.

Mr. Gleason wanted to know if the applicant would be amiable to conditions being placed on the variance that required state approval. Mr. Bibeau nodded his head yes.

Mr. McNamara confirmed that the wetlands would be more protected if the building were constructed, than what was presently contained on the lot. Mr. Orchard answered yes and noted that currently the vehicles were parked on dirt and if the building were constructed the vehicles would be parked on an impermeable surface and contained within the building. Mr. McNamara asked if there would be any faucets, or drainage contained within the building. Mr. Orchard answered no. Mr. Bibeau said the building would be heated by a wood stove. He said the only repairs he performed was welding and cutting with a torch. He said the building would be for storage.

Mr. Kosik reviewed the photographs submitted and asked if the portable buildings would be eliminated. Mr. Bibeau answered yes. Mr. Kosik felt, if approved, the variance should be contingent upon state requirements being complied with.

Mr. Hennessey also reviewed the photographs and asked how much of the parcel was covered with water three (3) year ago. Mr. Orchard reviewed the photographs and explained that the flooding area was close to Route 38.

Mr. Gleason requested that the applicant would apply for and secure state approval of any plans relative to building within the buffer. Mr. Orchard said because there was no work being done within the wetland, a dredge and fill permit may not be required. He asked if it was acceptable to ask the state to review and submit a letter. Mr. Hennessey believed that complete plans, and a public hearing in Concord would be needed, based upon Mr. Yarmo’s comments because the proposed was a major project. He felt the minutes from the public hearing were needed. Mr. Orchards said that there was no mechanism for working within a wetland buffer. Mr. Hennessey believed the applicant was in conflict with Conservation Commission. Mr. Gleason believed that a written state approval should be submitted. Mr. Hennessey said if Mr. Yarmo’s comments were correct, the next question should be how the applicant started his business six (6) years ago. Mr. Gleason felt that a contingency could be placed on an approval that required state review, which in turn would ensure that the wetlands were adequately protected. There was further discussion regarding the business to which Mr. Orchard said if the Board did not approve the variance, his client would not pursue further and the existing condition on the site would remain. It was understood that documented state approval would be needed if the variance were approved. Also, if a public hearing were required by the state, the applicant would have to adhere. Mr. Kosik wanted to add a condition that the existing buildings be removed.

MOTION:	(Gleason/McNamara) If the Board determines that the variance is appropriate, the approval shall be contingent upon documented state approval of plans coming forth, and removal of the two storage buildings (one temporary, on permanent).
VOTE:	(5 - 0 - 0) The motion carries.
BALLOT VOTE:		Mr. LaPolice - Yes - requires state approval. Mr. Gleason - Yes - subject to the approved motion. Mr. McNamara - Yes - per stated conditions. Mr. Kosik - Yes - Mr. Hennessey - Yes - subject to conditions set by Board.
VOTE:		(5 - 0 - 0)The motion carries.

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. Mike Farris informed that due to unresolved issues, the Planning Board had granted a continuation. He requested that the Board of Adjustment also grant a continuation. The Board discussed what the length of continuance should be. The decision was made to grant a 60-day continuation.

MOTION:

(Kosik/Hennessey) To grant a 60-day continuation for Case #2246.

VOTE:

(5 - 0 - 0) The motion carries.

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. Gleason read the applicable Article aloud.

Attorney John Sullivan (licensed in Massachusetts) representing the applicant presented the case to the Board. He began by reading aloud the criteria as follows:

Item #1. The proposed use would not diminish surrounding property values because: the proposed use is for a single-family residence. This is consistent with the houses on other lots in this neighborhood. The new home would be of greater or equivalent value, in comparison to other homes in the neighborhood.

Item #2. Granting the variance would not be contrary to the public interest because: the lot is large enough to support two (2) single-family residences. There is a need for moderately priced single-family homes in Pelham.

Item #3. Denial of the variance would result in unnecessary hardship to the owner because:

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 lot is large enough under current zoning to support two (2) single-family homes; and this is the best use of the property as it is consistent with current zoning.

c) the variance would not injure the public or private rights of others since: the proposed house would be set back from the road. The lot is large enough to support two (2) single family homes; and there would be no overcrowding if the proposed home were constructed on this lot.

Item #4. Granting the variance would do substantial justice because: it would allow for a residential use in this neighborhood; the proposed home is consistent with surrounding homes; and there is a need for this type of housing in Pelham.

Item #5. This use is not contrary to the spirit of the ordinance because: the ordinance permits residential uses in this neighborhood; the purpose use is residential; the lot can support this proposed home due to its size and configuration; and the proposed home will meet all current set back requirements.

Attorney Sullivan noted that lot 7 contained 87,360SF. He explained that the front portion of the diagram contained the existing home and met all zoning requirements. He said the lot was oversized, which he believed assisted the case. He said they were proposing a 15ft. right-of-way down the side of the existing lot, which would act as ingress/egress for the proposed single family home at the rear of the lot.

Mr. Hennessey asked if Attorney Sullivan’s position was that every lot with less that 400ft. of frontage should be allowed to be subdivided with a right-of-way to the back acreage. Attorney Sullivan believed that the type of request before the Board had been accommodated in the past. Mr. Hennessey asked again if the argument being made, was that every parcel in Town with less than 400ft. of frontage should be opened up to at least one lot behind the front lot. Attorney Sullivan answered no, he did not feel it was an automatic right. Mr. Hennessey wanted to know what made this parcel unique. Attorney Sullivan believed that the uniqueness lay with the family situation. He said the proposed home would be of equal or greater value than the surrounding.

Mr. McNamara was sympathetic with the family, but didn’t feel that legally the Board should take family matters into account, if the hardship didn’t run with the land. He asked if there was something peculiar to the lot. A concern was later on, when other people resided in the homes, the Town would be left with a right-of-way. Attorney Sullivan believed there was a similar situation in the general neighborhood. Mr. Hennessey said he was trying to find out if there was something different about this lot that would cause the Board to grant the exception. Attorney Sullivan believed the emphasis was on the square footage. He reiterated that it would be a once in a lifetime opportunity for the applicants.

Mr. Gleason asked how long the Berthold’s had owned the property. Ms. Paula Berthold said they owned the property seven and one half years. Mr. Gleason confirmed that the Berthold’s purchased the property subsequent to the zoning. Ms. Berthold answered yes. Attorney Sullivan noted that the applicants were the in-laws to the Bertholds.

Mr. LaPolice reviewed the lot’s dimensions. He wanted to know if the lot contained any straight lines that were 200ft. Attorney Sullivan said it could be accomplished if the Board desired. He noted that the back lot was land locked, which he felt could be considered unique. Mr. LaPolice asked if there was any setback between the proposed 15ft. right-of-way and the Plaisteck property. He asked what the proposed footage was from the structure on the Plaiseck’s property. Ms. Berthold said the right-of-way would be approximately 50ft. off the Plaisteck’s lot line. Mr. LaPolice asked if there were any other buildings on abutting lots that were in close proximately. Mr. Roger Berthold said the only other building in close proximately was approximately 100ft. from the lot line.

Mr. Kosik confirmed that the right-of-way would be 15ft., to which he noted 185ft. would remain. He said that the Board usually kept one conforming lot, and usually wanted a 50ft. road. He noted that the Board seldom granted two (2) non-conforming lots. Attorney Sullivan understood by the Berthold’s granting a right-of-way, the Berthold’s would technically own 200ft. frontage. Mr. Kosik questioned if a deeded right-of-way would take away from the frontage of the remaining parcel. Attorney Sullivan didn’t feel that the right-of-way would take away from the frontage on the Berthold’s parcel. Mr. Kosik noted that the Board had dealings with existing right-of-way, and pointed out that the Board had not created any right-of-ways.

PUBLIC INPUT

Mr. Joe Prue, father of person interested in building on the proposed lot supported the case.

Mr. John Plaistek, Simpson Road, abutter to the Berthold property was opposed to the proposed right-of-way being next door to his home. He noted that the hardship had to be with the land. He pointed out that there was not adequate frontage to appropriate a second home behind the existing home.

Mr. Edward Lynch, Simpson Road, spoke against the application. He noted that there were several lots within the Town that had a similar scenario and felt if the case were approved ‘Pandora’s box’ would be opened. He did not feel that the hardship criteria were met.

Mr. McNamara said he would be voting no. He said that applying the law as written, he would not be able to vote yes.

BALLOT VOTE:

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

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

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

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

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

VOTE:

(0 - 5 - 0)The motion was denied

VARIANCE DENIED

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. LaPolice said he confirmed that the specific criteria in which the applicant was applying for was correct as written on the agenda. Mr. Gleason read the applicable Articles aloud.

Ms. Cheri Driscoll and Mr. Carl Melanson met with the Board to review the Variance application. Ms. Driscoll noted that the current case was separate from Case #2236, which had been appealed. She requested that the Board grant a variance to permit the operation of a pre-existing convenience store within a residential zone. She said of the 3.09acres, 2.09 were being taxed at a commercial rate. The wetland conservation district constrained and reduced the usable commercial portion of the land to approximately 1.75 acres. Ms. Driscoll proposed a standard entry/exit onto Bowley Drive due to abutter concerns regarding traffic issues onto Mammoth Road. She said that the parking could be reconfigured to accommodate the single access off Bowley Drive. Five on site trash receptacles were being proposed to address the abutters concern with increased litter. Ms. Driscoll said that an attractive low-growth landscaping buffer was being proposed along Mammoth Road. She went on to discuss the fact that the property had been purchased in June, 2001 with the intention to continue the operation of the neighborhood store. She said prior to purchasing, research had been done with the Town Assessor to ensure that the property was commercial. The tax cards before purchase and at present show the property as being taxed commercially. Ms. Driscoll submitted a petition signed by abutters in favor of re-opening the store and requested that the Board approve the variance application.

Mr. Gleason believed consideration should be given to the frontage requirements (which he felt would not be met) as well as the fact that a state curb cut approval may be needed. Mr. Hennessey said the structure was pre-existing, and therefore the Board would not need to address the frontage. He felt the question for the Board was a use change. Mr. Melanson asked for further explanation of the curb cut. Mr. Hennessey didn’t feel that a curb cut was needed, and suggested if the variance were approved that the applicants provide verification of the state curb cut. He also noted that if the variance were approved, the applicant would need to meet with the Planning Board for the new parking lot.

There was no public input.

Ms. Driscoll said that the she would rather not eliminate the access from Mammoth Road and understood she would need to get permission from the state, since the road was a state road. She went on to inform the Board that she obtained signatures from all the abutters, except for two people. She said the two people told her they didn’t have a problem with the store reopening, but didn’t want to sign the petition.

Mr. Kosik questioned if a property should continue being taxed commercially, once a business was abandoned. Mr. Hennessey believed the enforcement was done by the people.

Ms. Driscoll read aloud the following criteria:

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. Hennessey asked if there was a bathroom in the store, and if so, he wanted to know if it used the house’s septic system. Mr. Melanson said there was a bathroom in the store and informed that it did not use the house septic system. Ms. Driscoll said that the septic system would be addressed by the Planning Board. Mr. Hennessey asked if the septic system would be considered undersized if it were residential use. Ms. Driscoll believed the statement was true, but was unsure. Mr. Kosik said that the Health Officer Paul Zarnowski would need to review. Ms. Driscoll said that she addressed the issue with Mr. Zarnowski who informed her septic would need to be inspected and a report would have to be submitted to him. Mr. Hennessey was compelled by the uniqueness of the property and the fact that it was now zoned for residential, but the building was not suited for residential use. He said there wasn’t enough room for a subdivision and if a variance were granted to make a separate residential use, the structure was not far enough off the major state highway.

Mr. Gleason noted his concern with the abandonment and setback issues. He felt that granting a Variance would create a safety hazard with the proximity of the store to the street. Ms. Driscoll addressed the abandonment issue and cited the New Hampshire Law of Zoning and Planning (Section 51-08) in which the presumption of abandonment could be rebutted by the owner showing strong evidence that there was no intent of abandonment. She felt that the photos submitted proved that abandonment did not occur. Mr. Hennessey believed that Ms. Driscoll’s argument was appropriate in the appeal, and explained that the Board was reviewing a variance for residential lot containing two buildings, with a request for the use to be commercial. Mr. Gleason questioned why Section 307-8(B). Mr. LaPolice said that the Planning Director (Amy Alexander) clarified that the Board should focus on Section 307-18. Mr. McNamara asked if Town Counsel provided the Planning Director with the opinion that the Board should focus on Section 307-18. Mr. LaPolice was unsure if the Planning Director sought Town Counsel’s opinion. He said he did not have authority to seek Town Counsel’s advice directly. Mr. McNamara and Mr. Gleason were under the impression that the Board had previously requested legal opinion. Mr. Kosik believed that the Board had previously decided that the building was abandoned when it was voted to uphold the Building Inspector’s decision. He felt the Board needed to determine if a variance should be granted.

Mr. Hennessey noted that the criteria should be reviewed and pointed out that the abutters were in favor of the reopening. He did not feel that the store would cause the diminution of surrounding property values. Mr. McNamara was unsure how he would vote. He said the argument could be made that allowing the store would increase traffic in the area. Mr. LaPolice believed if granted, the surrounding properties would not be diminished, it was not contrary to public interest, unnecessary hardship would be created, substantial justice would be done and it was in the spirit of the ordinance. He said that he would eliminate the curb cut onto Mammoth Road and stipulate a single entrance. He felt the set of plans addressed the abutters concerns. Mr. McNamara asked Mr. LaPolice if he considered the hardship as the existing building was in poor condition, abandoned and not suitable for residential use. Mr. LaPolice answered yes; he felt the applicant purchased the property with the understanding that the building could be used commercially. He felt the land would benefit from the proposed. The Board discussed the application further.

BALLOT VOTE:		Mr. LaPolice - Yes - (criteria 1-5 yes) stipulation that there would be an entryway on Bowley Drive only. Mr. Gleason - No Mr. McNamara - No Mr. Kosik - Yes - (criteria 1-5 yes; with conditions) Mr. Hennessey - Yes - (criteria 1-5 yes)
VOTE:		(3 - 2 - 0)The motion carried.
MOTION:	(Kosik/Hennessey) The building is not to exceed the footprint, no storage trailers, all building codes must be met (the building is to be brought up to code).
VOTE:	(3 - 2 - 0) The motion carried.

VARIANCE GRANTED

HEARINGS

Case #2250 - ML 1-110 - PACHECO, Anne & ST. PIERRE, Charles/89 Sherburne Road - Seeking a Variance concerning Article III, Section 307-14 to permit the subdivision of an existing lot into 2-lots, each with less than the required 200 feet road frontage for residential use.

Mr. Gleason read the applicable Article aloud. He then 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 William Mason, representing the applicant, presented the case to the Board. Also present was Mr. Wes Aspinwall, Herbert Associates to present the plan and explain the engineering detail.

Attorney Mason read the following criteria aloud:

Item #1. The proposed use would not diminish surrounding property values because: There are currently two (2) year-round dwellings on this parcel of land, the proposal will set up separate lots for each dwelling. Therefore there is not substantial change in use of the property and the value of the surrounding properties should not be affected. The aesthetics would not change.

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. Two separate tax bills would be created.

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 physical use of the land will remain the same as there are currently two (2) dwellings on the property. The owners would like to establish separate lots and separate wonderships of the two (2) existing dwellings. We believe this is a reasonable request because it would result in two (2) separate lots containing one (1) dwelling unit per lot and both lots exceed area and other requirements of the 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: Since there is no change in the physical use of the property proposed, there is no conflict with the general purpose of the zoning as stated in Article I, Section 307-2.

c) the variance would not injure the public or private rights of others since: There is no change in the physical usage of the proposed lots. Each structure prior to subdivision had their own water supply and septic system.

Item #4. Granting the variance would do substantial justice because: The physical usage will remain the same, the usage is consistent with surrounding properties and the request is simply to split ownership into two (2) parcels.

Item #5. This use is not contrary to the spirit of the ordinance because: A variance and subdivision would allow a present pre-existing non-conforming lot to come into closer conformance with the particular Article III, Section 307-9 which requires not more than one (1) dwelling unit per lot.

Attorney Mason discussed the history of the parcel and explained that the lot and the structures dated back to the 1940’s. He noted that the applicant’s family had owned the parcel since the 1950’s. He explained that the parcel only had 25ft. of frontage. He said that the houses were located approximately 1100ft. back from Sherburne Road. He said the proposed plan was an attempt to divided the parcel as equally as possible between the applicants. Mr. LaPolice asked if any new construction would occur. Attorney Mason answered no.

Mr. Aspinwall said that a survey had been done and it showed that there were 8.9 acres. He felt there was hardship with the shape of the lot (which was approximately 1500ft. long). Mr. Kosik asked if the access road to the homes was named. Ms. Anne Pacheco said that the sign for the private driveway read Allard Drive (which was her Aunt and Uncle’s name). Mr. Kosik asked if a trailer or manufactured home was contained on the lot. Ms. Pacheco said one of the structures was a trailer. Mr. Aspinwall said that the homes were year-round. He noted that topography had been done, and that the state line ran through the parcel. He said that the property also contained frontage onto Long Pond. He said the subdivision proposal was to have the East lot (ML 1-110-1 St. Pierre) contain 4.27 acres; and the West lot (ML 1-110 Pacheco) contain 4.66 acres. He informed that test pits had been done and were found suitable per state subdivision requirements. He felt the application fit with the intent of zoning even with the small frontage. Mr. Kosik asked how the parcels would have frontage. Mr. Aspinwall explained that each parcel would contain 12.5ft. of direct frontage onto Sherburne Road (state road). He said the existing driveway currently served both homes.

Mr. McNamara asked what the distance was between the homes. Mr. Aspinwall said the homes were approximately 300ft. apart. Mr. McNamara asked if there were photos of the homes. Mr. Aspinwall provided a copy of the tax card. Mr. McNamara asked what the square feet of the homes were and the number of out buildings. Mr. Aspinwall said that ML 1-110-1 contained two (2) out buildings, and ML 1-110 contained six (6) out buildings. He noted that the existing house square feet was 1188SF and 762SF. Mr. McNamara asked when the applicants inherited the property. Ms. Pacheco said the property was inherited four years ago. Mr. McNamara asked if the frontage was the only reason for the property’s non-conformance. Mr. Aspinwall said the frontage was the only non-conformance that he was aware of. There may be issue with the house on the West side and it’s proximately to the state line. Attorney Mason noted that the homes dated back to the 1940’s. Mr. Hennessey reviewed the property card, which stated one of the homes was a camp, which was built in the 1970’s. Ms. Pacheco could not provide exact dates. She said both houses were currently occupied year-round and had been in the past.

Mr. Gleason asked if the applicants were the current land owners (deed holders) to the property. Ms. Pacheco answered yes. She said the purpose for the subdivision was to split her lot from her brothers. Mr. Charles St. Pierre (co-applicant) said that with the current non-conformity they would not be able to obtain a building permit for things such as adding a room. Attorney Mason summarized that the applicants wanted to separate the lots and be individual owners. He said that each lot would be approximately four (4) acres.

Mr. Gleason confirmed that the parcel abutted Blackstone Circle. He reviewed the proposed plan. Mr. LaPolice asked if the applicant had attempted to swap, or secure land from abutters. Attorney Mason didn’t feel that adding frontage would do anything for the lots, since the houses were set so far back. He said adding frontage would create a bottleneck shape to the parcel.

Mr. Hennessey asked if there was a third set of structures in Tyngsboro, Massachusetts with mobile homes, and if so, was the only access to the property through the New Hampshire parcel. Attorney Mason said the additional structures were located in Massachusetts and believed the only access to the third parcel was through the private drive on New Hampshire parcel. Mr. Hennessey asked if ownership was being divided among three different parties with the single access point onto Sherburne Road. Ms. Pacheco said that she and her brother jointly owned the Massachusetts parcel (1.5 acres). Mr. St. Pierre said that in the past there had been an access road from McGrath Road, but it had not been used in several years. Mr. Hennessey asked if there was an increased safety risk by dividing the bundle of rights between three parcels. Attorney Mason said the conditions had not changed since the facilities and driveway currently existed. Mr. Hennessey wanted to know if the variance would create a new lot, which would be subject to Title 5 (in Massachusetts). Attorney Mason said the variance would not create a lot, the state line created the lot. It was reiterated that the applicants jointly retained the title to the property in Massachusetts. Attorney Mason said that the subdivision of the New Hampshire parcel did nothing to the property in Massachusetts. He said there would only be two (2) lots in New Hampshire.

Mr. Kosik noted that current zoning calls for one house, on one undivided lot, and if the variance were granted conformity would be brought up. Mr. Gleason confirmed that the intent was to segregate and improve the current housing on the property and meet all the applicable Town requirements. Mr. Kosik asked where the utilities were brought in from. Ms. Pacheco said the utilities were brought in from McGrath Road. Attorney Mason said if the variance were approved, the next step would be to go to the Planning Board. He said he wouldn’t be surprised if the Planning Board imposed moralized crossed easement so it would be understood that there was an obligation to share the maintenance of the road.

There was a brief discussion regarding the right-of-way and what was proposed.

There was no additional public input.

Mr. Hennessey suggested that the Planning Director’s comments/recommendation be read into the record. Mr. Kosik didn’t feel the comments should be read unless the Planning Director (Amy Alexander) was present to answer questions. He believed the comments were intended for Board members only. Mr. LaPolice said he spoke with the Planning Director and believed that the comments were supplied to assist the Board in clarifying what the Planning Director’s position was regarding the cases. Mr. Hennessey felt that all information the Board reviewed to evaluate a case should be made public, including the Planning Director’s opinion. He noted that the Board had voted against the Planning Director’s recommendation in the past. Mr. McNamara said if the Board were to rely on the Planning Director’s comments when voting, if they weren’t made public, the Board may get into trouble. Mr. Gleason felt that the Planning Director’s comments were provided for consideration and didn’t feel that they should be read into the record if the Planning Director was not present to discuss. Mr. McNamara noted that the Planning Directors comments may contain some factual or legal basis on which a Board member could base his/her vote. In this case the comments did not contain either. Mr. LaPolice suggested proceeding without reading the suggestions into the record since there was no legal basis contained.

BALLOT VOTE:		Mr. LaPolice - Yes - (criteria 1-5 yes) Mr. Gleason - Yes - (criteria 1-5 yes) Mr. McNamara - No (criteria 1-yes; 2-yes; 3-yes; 4-yes; 5-no) Mr. Kosik - Yes - (criteria 1-5 yes) Mr. Hennessey - Yes - (criteria 1-5 yes)
VOTE:		(4 - 1 - 0)The motion carries.
MOTION:	(Kosik/Hennessey) The variance is conditioned upon the owners being responsible for the maintenance of the road, and that the Town is not liable for persons being injured.
VOTE:	(5 - 0 - 0) The motion carries.

VARIANCE GRANTED

There was a brief discussion regarding vote count specifically that a yes vote required that all five criteria were voted in the affirmative. If one of the five criteria had a no vote, that the overall vote would be considered no. The Board briefly discussed, and decided to address the issue later.

Case #2251 - ML 13-83-7 - DOOLEY, Richard/15 Beacon Hill Road - Seeking a Variance concerning Article III, Section 307-14 to permit the creation of a separate buildable lot not having the required 200 feet road frontage on a Town road.

Mr. Richard Dooley, Beacon Hill Road presented the case to the Board. He began by reading the following criteria aloud:

Item #1. The proposed use would not diminish surrounding property values because: The proposed structure will be of equal value and of similar architecture as surrounding dwellings.

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:

b) that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: No other access is available. Without variance land can not be used to its fullest potential.

c) the variance would not injure the public or private rights of others since: The setback from the road and other existing homes made direct line of sight difficult.

Item #4. Granting the variance would do substantial justice because: The use would be consistent with uses of surrounding lots and a variance will allow use of property in the same manner.

Item #5. This use is not contrary to the spirit of the ordinance because: The largest possible tract of frontage is being proposed and lot will conform in all other requirements.

Mr. Dooley said that he was seeking access to his parcel through St. Margaret’s Drive. He said he was not able to purchase any additional land than what was already being purchased, because the seller wanted to reserve their land for possible future development. He said access from Beacon Hill Road would not be feasible due to a 50ft. WCD. He didn’t feel that everyone in the development would have similar requests since the first two lots by covenant of the subdivision would not be allowed, and the next four lots would have the same problem of the church not wishing to part with any land.

PUBLIC INPUT

Mr. Jason Carroll, 9 Beacon Hill Road, who was not for, or against the proposed, said that he would like to review the plan. Mr. Dooley noted that Mr. Carroll’s parcel was on the left of his parcel.

Mr. Gleason reviewed the tax map and asked where the frontage was for the lots surrounding Mr. Dooley. Mr. Dooley said that the homes were located on Beacon Hill Road. Mr. Gleason asked Mr. Dooley if he was attempting to subdivide his lot into two lots. Mr. Dooley answered yes and noted that the access would be from St. Margaret’s. He reiterated that the surrounding parcels would not be able to subdivide, because the church would not part with any additional land.

Mr. Kosik confirmed that the church was willing to sell Mr. Dooley a 50ft. strip of land for access purposes. Mr. Dooley answered yes. Mr. Kosik asked what Mr. Dooley’s frontage was onto Beacon Hill Road. Mr. Dooley said his current frontage, per the tax map was 190ft. Mr. Kosik recalled that the Conservation Commission had been before the Board (3 years ago) with a request for the end lots being discussed, and the Board turned them down at that time.

Mr. Hennessey asked how long Mr. Dooley had owned his parcel. Mr. Dooley said he purchased his parcel approximately three years ago. Mr. Hennessey didn’t understand what hardship Mr. Dooley had. Mr. Dooley said that he was unable to access the back portion of his lot. Mr. Hennessey asked if Mr. Dooley purchased his lot with the knowledge that his parcel was a single lot that was undividable. Mr. Dooley said he was aware that the parcel was a single lot, but had not been told it was undividable. Mr. Hennessey asked if anyone from the Town suggested that the lot could be subdivided. Mr. Dooley answered no. He reiterated that his hardship was having no access to half the property. Mr. Kosik pointed out that he had access to his lot from Beacon Hill Road. Mr. Dooley said that he could not cross the WCD. He said that if he wanted to, he wouldn’t be able to add a shed. Mr. Gleason asked how much acreage the front portion of the parcel contained. Mr. Dooley said there was just over an acre. Mr. Gleason noted that the front portion of Mr. Dooley’s parcel had adequate room to meet the setback and frontage requirements. He asked what the hardship to the land was. Mr. Dooley said he wanted to subdivide his parcel. Mr. Gleason believed that the other residents within the subdivision purchased their properties with the same understanding, that the parcels contained two acres. Mr. Kosik believed that the lots were large was because nothing could be done with the land.

Mr. Hennessey reminded the Board that the church would be expanding their classroom area. He said one of the concerns of the Board was the drainage from the roof, to the parking lot and into the rear. He said there was great concern during the previous meeting with the church and discussion with the Conservation Commission regarding swales and drainage down the hillside precisely in the area being proposed for the driveway.

Mr. LaPolice said the Board was trying to understand what the hardship was to the property, by not having the variance granted. Mr. Dooley said his idea of hardship was not being able to have access to the back portion of the parcel. Mr. LaPolice described what how land could have a hardship, such as, if a parcel didn’t have an existing home, alternate access may be preferred to preserve wetlands. He said the type of hardship being reviewed by the Board was if the parcel, or the surrounding parcels would be better served by coming into them from St. Margaret’s. Mr. McNamara noted that there was an existing piece of property that was purchased with the knowledge that it was one parcel, and the rest of the parcels within the subdivision were similarly situated. He did not see that there was hardship to the land. Mr. Hennessey said that the subdivision was created with a purpose to protect the land and the water washing off the hillside.

Mr. Steve Caruso, Beacon Hill Road, who was not for, or against the proposed. He said he had issue with access from St. Margaret’s because of the closeness to the church’s new leaching field.

There was no further discussion from the Board.

BALLOT VOTE:

Mr. LaPolice - No

Mr. Gleason - No

Mr. McNamara - No

Mr. Kosik - No

Mr. Hennessey – No

VOTE:

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

VARIANCE DENIED

Case #2252 - ML 1-112-9 - KAISER, Ken & Colleen/15 Autumn Street - Seeking a Special Exception concerning Article XII, Section 307-74 to permit the construction of an accessory dwelling in the residential zone.

Mr. McNamara said that he knew Mr. & Mrs. Gerald and Donna Field, who could be considered affected parties of this case. He did not feel that his acquaintance would affect his judgment. The Board did not feel that Mr. McNamara needed to step down.

Mr. Gleason read the list of abutters aloud. There were no persons who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters.

The Planning Director’s (Amy Alexander) comments were read into the record: “The Board needs to clarify the definition of ‘living area’. If the bathroom and/or the closets are included in the definition of ‘living area’ this request does not meet the less than 500SF requirement of 307-74 (B). I respectfully request that the Board calculate the square footage and made a determination. If the Board finds that the square footage meets the requirement/intent of the regulations, then I am in favor of granting the Special Exception.”

Mr. Soucy’s letter dated February 28, 2003 stated that he completed his review of the case and found that the applicant had met all the required criteria of Article XII, Section 307-74.

Mr. Ken and Colleen Kaiser met with the Board to review their case. He requested a special exception for an accessory dwelling for his new home. He said that he and his wife had resided in Town for approximately seven and one half years. He said their current home had an accessory dwelling where his mother-in-law lived and when he and his wife moved to the new home, she would be moving as well. He said that his existing home, and his new home met all the requirements of the special exception. Mr. Kaiser said that the septic system had been installed and approved for four bedrooms. He said that a five and one half bedroom septic design had been submitted to the Town Health Officer, but it had not been approved, pending the lot line adjustment. He noted that the lot line adjustment had been unanimously approved by the Planning Board March 3, 2003. He believed that the septic design would now be approved, and expected that it would be sent to the state within the next seven to ten days. He requested that the Board approve the special exception with the condition that the septic design be approved. Mr. Kaiser believed that the plan met the 500SF requirements because entrances and exits were not to be considered with the square footage.

The Board discussed the square footage of living space and its definition. There was a conflict in the calculations between the Planning Director and the Building Inspector. The Board had previously requested that the Building Inspector review plans and provide comment to the Board. Mr. Gleason re-read Mr. Soucy’s comments aloud and believed that the living space issue and been addressed. Mr. McNamara said that the Board had the final authority. Mr. Kosik agreed. The Board went on to discuss the living space calculations and the difficulty since the square footage of the proposed was so close to 500SF.

PUBLIC INPUT

Ms. Donna Field, Jeremy Hill Road, was in favor of granting the special exception.

Mr. Kaiser said that his mother-in-law had resided with him and his wife for seven years and that she had to move with them because she was part of the family.

Mr. McNamara asked for clarification with the Board that all requirements for the special exception would need to be met, because an approval could not have contingencies. Mr. Gleason recalled that the Building Inspector informed the Board that he did not have a problem granting approvals with contingencies. Mr. Hennessey clarified and said that the Building Inspector did not have a problem with a contingency if a plan had been submitted, awaiting certification.

Mr. Hennessey said that he did not have a problem with Mr. Soucy calculating square footage, but he felt that the Board should give direction regarding what was included in square footage calculations. He said because the square footage calculations were so close to the requirements, he believed that clarification should be made regarding what was included in Mr. Soucy’s measurements. There was further discussion regarding the recommendations received by the Board and it was agreed that the Board should set the terms regarding what is to be included in square footage calculations. Mr. LaPolice said he would ask Mr. Soucy to meet with the Board to discuss square footage calculations.

BALLOT VOTE:

Mr. LaPolice - Yes - based upon Building Inspector’s letter

Mr. Gleason - Yes

Mr. McNamara - Yes

Mr. Kosik - Yes - correspondence from the Building Inspector that all criteria have been met for the granting of the special exception for the accessory dwelling.

Mr. Hennessey - Yes

VOTE:

(5 - 0 - 0)The motion carries.

It was noted that the special exception approval was contingent upon receipt of state approval of the septic system.

SPECIAL EXCEPTION GRANTED

Case #2253 - ML 8-23 - SLATTERY, Scott & Emerie/54 Old Gage Hill Road South - Seeking an Equitable Waiver, pursuant to RSA 674:33-a of existing pool, deck, screen house & fence.

Mr. and Mrs. Scott and Emerie Slattery met with the Board to review their case.

1. Does the request involve a dimensional requirement, not a use restriction? (x) yes ( )no

2. Explain how the violation has existed for 10 years or more with no enforcement action, including written notice, being commenced by the Town: this was left blank.

- or-

Explain how the nonconformity was discovered after the structure was substantially completed or after a vacant lot in violation had been transferred to a bona fide purchaser: discovered during a survey of plot plan for re-financing.

- and how the violation was not an outcome of ignorance of the law or bad faith but resulted from a legitimate mistake: as stated in site appraisal report done at original purchase we were not advised of any setback problems.

3. Explain how the nonconformity does not constitute a nuisance nor diminish the value or interfere with future uses of other property in the area: the property to the north is located immediately under power lines. The pool is in-ground and would not constitute a nuisance to the south bound property.

4. Explain how the cost of correction far outweighs any public benefit to be gained: The pool is in-ground the public would not have any benefit in its being moved. The ‘deck’ is a 9ftx3ft landing to our back entrance and would serve no benefit to the public to have it moved neither would the screen house or fence.

Mr. Slattery informed that the violation had been discovered at the time a plot plan was being done for the purpose of refinancing.

Mr. Gleason reviewed the plan and noted that the fence was outside the property. Ms. Slattery explained that the fence would be moved as soon as the ground thawed.

There was no public input.

MOTION:

(Kosik/Gleason) To grant the equitable waiver.

VOTE:

(5 - 0 - 0) The motion carried.

Mr. and Ms. Slattery told the Board it was their intent to move the fence when the ground thawed.

EQUITABLE WAIVER GRANTED

MINUTES REVIEW

February 10, 2003

MOTION:

(Gleason/Hennessey) To approve the February 10, 2003 minutes as amended.

VOTE:

(5 - 0 - 0) The motion carries.

ADJOURNMENT

The motion was made and seconded to adjourn the meeting.

The meeting was adjourned at approximately 10:55pm.

Respectfully submitted,

Charity A.L. Willis

Recording Secretary