APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 9, 2003

 

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

 

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

 

PRESENT:

 

 

 

 

 

ABSENT:

Peter McNamara, Edmund Gleason, Walter Kosik, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky (arrived after the meeting had commenced, remained seated with the public and joined the Board during minutes review), Alternate Cindy Ronning, Selectmenís Representative Victor Danevich (arrived after the meeting had commenced)

 

None.

 

Mr. McNamara acknowledged Mr. Gowanís appointment to the Board and thanked him for his volunteerism.He also acknowledged Mr. Hennesseyís appointment to a full-Board member, after years of service as an alternate member.

 

ELECTION OF OFFICERS

 

MOTION:

(Kosik/Gleason) To nominate Mr. McNamara as Chairman.

 

VOTE:

 

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

 

 

MOTION:

(Kosik/Gowan) To nominate Mr. Gleason as Vice Chairman.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

 

MOTION:

(Kosik/Gleason) To nominate Mr. Hennessey as Secretary.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

HEARINGS

 

Case #2255 - PEDRO, Jody & Margaret/2 Holstein Drive - Seeking a Variance concerning Article III, Section 307-12 to permit a lot having 41,015 square feet where 43,560 square feet is required.

 

Mr. Gleason read the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification.The file contained one letter from an abutter, which was circulated during Public Input (see below).

 

Attorney William Mason, representing Jody and Margaret Pedro, met with the Board.He reviewed the submission and explained that the Pedros' would like to subdivide their 1.94 acre lot into two lots, retaining their home.He said the only variance being requested was for relief of the square footage requirement.He said the purpose of the request was so that the Pedroís daughter could purchase the lot.

 

Item #1.The proposed use would not diminish surrounding property values because: A home of equal or greater value will be constructed on the lot.

 

Item #2.Granting the variance would not be contrary to the public interest because: The development of the land would generate additional revenue, and would provide the applicant with the opportunity to create an affordable option for its intended purchaser.

 

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: applying the †††††††††††††† the same density and spacing requirements would be maintained and all other requirements of the subdivision regulations would be met.

 

††††††††††††††† 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 relief being requested is the ††††††††††††† square footage requirement.

 

††††††††††††††† c) the variance would not injure the public or private rights of others since: all requirements will be met, other than square footage.

 

Item #4.Granting the variance would do substantial justice because: it would permit the applicant to subdivide his property and create a lot whose proposed use was consistent with surrounding properties.

 

Item #5.This use is not contrary to the spirit of the ordinance because: as indicated, the variance request was only for the square footage requirement.All other requirements would be met.

 

Mr. McNamara asked if an updated plot plan was available for review.Attorney Mason said the engineering had not yet been done.He informed that the engineer had confirmed that the area would contain the necessary 35,000 SF of high and dry area, and would support a sub-surface disposal system and a well.He said it was anticipated that the lot would be compliant in all respects, except for the overall land area.

 

Mr. Gleason confirmed that the applicant was requesting a variance before meeting with the Planning Board.Attorney Mason answered yes.

 

Mr. Hennessey said he had a problem with the Planning Boardís definition of frontage and wanted to know if the frontage would be at least 200ft. for both lots onto Holstein, not on Mammoth.He read aloud the Zoning frontage requirement.He asked if there had been any attempt to contact an abutter for additional land.Attorney Mason said there was no abutting land available.

 

Mr. Kosik asked what year the subdivision was made.Ms. Ronning believed the subdivision occurred in the late eighties (approximately 1986/1987).Mr. Kosik asked if the intent was for the home to be set back.Attorney Mason believed that the Pedroís home already existed when the original subdivision was created.

 

Mr. McNamara said he had difficulty with the reasonable use hardship criteria being met.He was sympathetic to the family situation, but noted that the hardship had to run with the land.He wanted to know what was significant/unique to the property that would allow a variance to be granted.Attorney Mason said that the applicant had land that was slightly under the footage requirement and that other regulations would be complied with.He didnít feel that the square footage shortfall was an unreasonable barrier to the applicantís request to subdivide the property.

 

Mr. Hennessey confirmed that the existing home was in place before the road was constructed.After reviewing the shape of the lot, Mr. Hennessey believed that the odd configuration was partially created by the Townís action.Ms. Ronning believed the intent was that the original owner wanted privacy.

 

Mr. Gowan was concerned with the statement that the lot met all requirements except the square footage.Attorney Mason said he was representing that the lot would comply with all requirements except for the square footage requirements.He also did not feel there would be a problem with the frontage being on Holstein Drive.

 

PUBLIC INPUT

 

Mr. Tim Morse, 305 Mammoth Road owned the property to the north of the applicantís property was concerned that an addition of a home would change the consistency of the neighborhood, and possibly diminish his property value.

 

Mr. John Hancock, 6 Holstein Drive, did not want cluster housing in the neighborhood.He did not feel an additional house on the applicantís lot would be beneficial to the neighborhood.

 

Mr. Richard and Kathleen Resmini, 1 Holstein Drive submitted a letter to the Board opposing the variance.He said that they purchased their home based upon the fact that the neighborhood was already in an existing state.Also, the addition of another residence would negatively affect the quality of the environment for their family.The Resminis requested that the variance not be granted.

 

There was no further discussion from the Board.A ballot vote was taken, based upon the five criteria.

 

BALLOT VOTE:

 

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

Mr. Gleason - 1) no; 2) no; 3) no; 4) no; 5) no

Mr. Hennessey - 1) no; 2) no; 3) no; 4) yes; 5) yes

Mr. Kosik - Yes - 1) no; 2) no; 3) no; 4) no; 5) no

Mr. Gowan - 1) no; 2) no; 3) no; 4) no; 5) no

VOTE:

 

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

 

 

VARIANCE DENIED

 

Case #2256 - PULTAR, William/7 Berthel Street - Seeking an Appeal from an Administrative Decision of the Building Inspector for approving a building permit at 7 Spring Street Ext. to add a second floor to a ranch home (number of bedrooms to remain the same)

 

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

 

Attorney Bernard Campbell, Salem, NH met with the Board representing the applicant.He said the appeal focused on two issues.He said the property was previously the subject of a variance from the Board and

had suffered a casualty loss due to a fire in late 1986.He said the property was less than the required land and in Case #895 (May, 1987) the Board granted the variance to allow the expansion of a house on the property.He said the variance stipulated that the living space could not be larger than 1288SF.He reviewed the condition placed upon the previously granted variance, and believed the only way the condition could be modified, would be through the Board.He discussed the case being presented and noted that expansions of non-conforming uses were limited in nature.He submitted, for the Boardís review, a copy of the 1991 case of Granite State Minerals vs. City of Portsmouth.The case stood for the proposition that an expansion on an existing footprint could cause the unlawful expansion of a non-conforming use because it may evolve into the extension of non-conforming lines, or increase the volume of non-conforming use on site.Attorney Campbell believed that the administrative official made an error in failing to find the Zoning Boardís stipulation (in connection with the size of the structure), as well as made an error in allowing the substantial expansion of a non-conforming use without seeking some type of relief from the Zoning Board.

 

Ms. Beloritsky arrived.

 

Attorney Campbell said the other issue raised in the memo and original filing was the number of bedrooms.He noted that the waiver variance granted obtained (in 1987) included by state septic system approval for a three-bedroom design.However, the minimum distance from the septic system to the neighboring wells did not conform to the Townís Health Ordinance - Article K of the time.He said that Mr. William Pultar and some of his neighbors signed waivers (in March 1988) to the required 100ft. setback to a well, allowing a state minimum requirement of a 75ft. setback to a well.He said Mr. Pultar signed the waivers contingent upon the stipulation for the square footage of the structure, as well as the structure having not more than three bedrooms due to his concerns about the potential the impact to his well from the additional on-site disposal of water.Attorney Campbell noted that four-bedrooms were shown on the current plan, which he said violated the provisions of the state approved septic design and the 1988 waiver signed by Mr. William Pultar.

 

Attorney Campbell went on to discuss bedrooms and noted he was unable to find a definition.He cited the Hurley vs. Public Service case of 1983, which limited the number of bedrooms, which would further limit the number of residents and on-site waste.He believed that New Hampshire law was clear in its intent that the property owner/builder did not govern in the 1988 case of Strom vs. Town of Egan.He went on to review the contents of the case.He respectfully requested that the Board overturn the Administrative Decision to issue the permit and require the property owners to re-evaluate their design, or to return to the Board and seek relief.

 

Mr. Kosik asked if construction had already begun.Mr. Hal Carter, resident of 7 Spring Street Extension said that construction was almost complete, which included the roof.Mr. Kosik asked how long construction had been taking place.Mr. Carter said construction had been going on for approximately two and one half months.

 

Mr. Pultar said he provided the builder with minutes from the 1987 Board of Adjustmentís meeting which limited the expansion.He said when he found out from the state that he had a right to appeal the decision; it took some time to schedule.

 

Mr. Hennessey believed that Pelham was the only Town that did not use the word Ďexpandedí in the zoning law, but instead used the word Ďextendedí when referencing non-conforming use.He wanted to know if the wording made a difference, or was applicable in this case.He went on to read the ordinance aloud (307a).Attorney Campbell suggested in this case, the present use should be the focus.He went on to discuss the New London case in which the expansion of a non-conforming use had been reviewed.Mr. Hennessey believed that the case being cited was a case involving a seasonal to year-round residence.Attorney Campbell said he had seen the case applied in the expansion of structures on under-sized lots (volume increase), since the base use was year-round in nature and residential.He said he was focusing on the Ďpresent useí language.

 

Mr. Roland Soucy, Pelham Building Inspector testified that he believed there was confusion between non-conforming use, and non-conforming lots.He believed the property was a conforming use.He noted that copies of the variance previously granted were not contained in the file when it was reviewed.He said the only thing contained in the file was an approved septic design (maximum of three bedrooms).He said Health Agent, Paul Zarnowski provided copies of the variances to Planning Director Amy Alexander and himself when it was found that there were problems with the well at 7 Spring Street Ext.Mr. Pultar said that he brought his well setback concerns to former Planning Director John Tucker.Mr. Soucy said the Town learned about the previously granted variances well after the building permit had been issued.He said if he had seen the variances at the time the permit was being issued, he would have had the applicant meet with the Board to clarify the verbiage of the variances.He didnít feel that the 1988 Board was concerned with expanding upward; he believed the concern was expanding the building footprint.He reiterated that there was nothing contained in the file.

 

Ms. Ronning asked who had copies of the variances.Mr. Soucy said that Health Inspector Paul Zarnowski had copies of the variances, which he brought to the attention of the Planning Director and himself.He noted that the building lot had four files at the Planning Department.He said at the time the building permit was submitted, the building file that was pulled did not contain copies of the previously approved variances.It was his opinion that the fact the lot was non-conforming didnít prohibit upward expansion.Mr. Hennessey said at the time the structure burned, the owner had to come before the Board because the structure was going to be larger than what it was replacing.He said the Board allowed a larger home at the time because a modular home could not be found to fit 1100SF.He believed it should have been evident that a variance had been involved at some point based upon the current size of the structure.Mr. Soucy said he was not aware that there had been a fire, or that the current structure was new.He said historically if a room had a closet it was considered a bedroom, and if it did not have a closet, it was not considered a bedroom.

 

Mr. Kosik asked if the current case was similar to a previous case.Mr. Soucy was unsure.

 

PUBLIC INPUT

 

Mr. William Pultar, 7 Berthel Street said he was concerned when the well radius waiver was decreased from 80ft. to 70ft. He said he made a point of making sure his concern was placed on record with then Planning Director John Tucker.Mr. McNamara asked Mr. Pultar when he first learned there was additional building occurring.Mr. Pultar said he learned of the additional building in February, before construction began.He said he immediately set an appointment to meet with Planning Director Amy Alexander.He informed that Ms. Alexander said her hands were tied since the building permit had already been issued.

 

Mr. Hal Carter, 7 Spring Street Extension, said he notified Mr. Pultar of his intensions when he purchased the property three years ago.He said the house was small for his family and an expansion was necessary.He said he believed he had done everything he was supposed to do.He said that he was approached by Mr. Pultarís daughter (approximately May 8th) who said that his septic system put Ecoli in her fatherís well.He said since then he had received numerous letters from the Pultars.He reiterated his belief that he was following the proper procedures and was concerned that construction would be stopped, now that his home was nearing completion.

 

Mr. McNamara confirmed the changes being made, was the addition of a second floor to the existing home, and to replace the three bedrooms on the first floor up to the second floor and the area on the first floor would then be converted to living space.Mr. Carter said that the plan depicted three bedrooms upstairs, two bathrooms and a playroom for his children.

 

Mr. Danevich informed that Mr. Carter and his abutters had the right to appeal the building permit.Mr. Carter said when he purchased his home he did not sign anything saying that he was limited to three bedrooms with 1288SF.Mr. McNamara said the difficulty facing the Board was that two variances had been granted for the property.

 

Mr. Gleason asked Mr. Carter and Mr. Pultar the intent of the appeal and the outcome.Attorney Campbell said there was still a concern with the loading of the home and pollution of Mr. Pultarís well.Mr. Gleason wanted to know what was wanted, since the house was currently under construction.Attorney Campbell suggested modifying the design of the home.

 

Ms. Ronning asked if the situation would be helped if a larger septic system were installed.Mr. Soucy said that the home currently had a fully functional, state approved septic system and didnít see reason to replace it.He didnít feel that the septic system was the issue.

 

Mr. Gleason reiterated his question to Mr. Pultarís daughter, which was what they were seeking for an outcome of the appeal.Mr. Pultar said his concern was the risk factor of if a larger family moved in.Mr. Pultarís daughter wanted a guarantee that her fatherís well would not be polluted.Mr. Gleason asked if the Pultarís wanted the second floor torn down.Mr. Pultar said he wanted the safety factors considered that were stipulated in the original agreement.Mr. Gleason noted that Mr. Pultar had signed a waiver to lower the well radius requirement.He said if the appealed were upheld, the owners of 7 Spring Street Ext. would have to remove the construction that had taken place.He asked if there were some compromise that could be agreed upon.Mr. Pultar said he would want to consult with his attorney.

 

Mr. Gowan discussed Mr. Pultarís well and asked its depth.Mr. Pultar said his well was 128ft. deep.Mr. Gowan reviewed a document listing well tests done to Mr. Pultarís well.He asked if it was difficult to obtain good water quality in the neighborhood.Mr. Hennessey suggested continuing the case until the Board obtained Town Counselís opinion regarding the addition of a second floor.He suggested that the involved parties take time to perhaps come up with a solution among themselves.He noted that he had researched and found out that the Board did not have to render a decision at the time a case was brought before the Board.Mr. McNamara discussed timeliness of the appeal, and noted that the appeal was well beyond the twenty days that the zoning law allowed.He also noted that under zoningís rules, there was no requirement for initial notice.He said once a permit was granted, abutters had twenty days to appeal it.

 

Mr. Carter appreciated the Board trying to solve the problem.He said he could not incur any additional expense in the building.He also said he would not replace his septic system.He didnít feel that he should be held responsible for the Town not doing what it was supposed to do, since he did everything legally that he was supposed to do.

 

Mr. Gleason confirmed with Mr. Carter that the intent of the plan was to move three bedrooms upstairs and the additional room would be a playroom or study.Mr. Carter answered yes.Mr. Gleason asked how many children Mr. Carter had.Mr. Carter said that he had four children, who would double up in the bedrooms.He believed that it was up to the Town to deal with Mr. Pultarís concerns.

 

Mr. Soucy said he had spoken to the Townís attorney and several Planning Directors regarding undersized lots, who were all in agreement that any non-conforming lot of record (prior to 1975) in Town would not be deemed an undersized lot.He said the only time an applicant would have to come before the Board of Adjustment is if the applicant was making the non-conformity worse.He reiterated that Mr. Carter did everything he was asked to do and didnít feel Mr. Carter did anything wrong.

 

Mr. Kosik didnít know why the septic system, or water quality was being discussed, since both appeared to be fine.

 

Ms. Sheryl Mercier, 7 Spring Street Extension, said they, Mrs. Carter and herself, were not aware of the building limitation of 1288SF at the time they purchased the home.She said their intention was to expand the home, since the time of purchase.She said that one child would be going off to college, so her family size would decrease.She said she could not guarantee that the study would never change from its use and would not put it in writing.She said that she did the correct thing when filing the building permit.

 

Mr. Gowan said when a home is purchased; it is done as Ďbuyer bewareí.He said the Town had no obligation to provide documentation about a house being purchased.Ms. Mercier noted that the abutter knew of the intention to expand her home, and nobody told them of the variances.She said Mr. Pultar was one of the abutters that was aware of their intentions, and even he didnít tell them that there were variances until the building permit was pulled.Mr. Carter said the abutters were asking for the house to be designed a certain way.He said if the abutters wanted the house designed a certain way, they could also pay for it.He ended by saying if he chose to sell the house, that it was his right to sell it to whom ever he chose.

 

Mr. Kosik asked what Mr. Pultar was seeking for a resolution.Attorney Campbell said his clientís right was to file an appeal.He said ultimately, the ideal situation would be to have dialogue between the abutters regarding the design.He provided suggestions, such as moving Mr. Pultarís well to a safer location, or designing the upstairs portion of the home to clearly show that the intention is to have three bedrooms.He said the building was being built in violation, and believed that the permit should be revoked.He also believed that the property owners would have to come back before the Board for review of the design, possibly a reconfiguration of the second floor.

 

Mr. Soucy didnít know how the Town could dictate to an applicant the use for certain rooms.He said it would be impossible to scrutinize plans to determine possible futures uses for rooms.He said if someone were to file a complaint after a room was turned into a bedroom, then he would deal with the situation.

 

The Board briefly discussed the case and how to proceed.Mr. Danevich said now that the Board had been made aware of a zoning violation, it should now be addressed, and carried forward through the Planning Department.Mr. Gleason noted that it was the Code Enforcement Officer, not the Board that informed residents of zoning violations.Mr. Hennessey noted that the Town was incorrect and believed the appeal was appropriate and should be upheld.Mr. McNamara disagreed, and said that the appeal was not filed within an appropriate amount of time and could be denied on that basis.He also noted that testimony was given that Mr. Pultar was aware of the construction before it started.He said an appeal could be submitted within 20-days of an Administrative Decision.Mr. Hennessey agreed that the appeal was not submitted in a timely manner.Mr. Gleason believed the Town was remiss with its records keeping.He also noted that the applicant had several meetings with the Town and was never informed of the appeal process.Mr. McNamara read aloud a letter dated May 12, 2003 from Planning Director Amy Alexander to Mr. Pultar.

 

Ms. Ronning asked if a variance ever expired.Mr. McNamara answered no.Mr. Soucy reiterated his belief that the original intent of the variance did not intend to limit upward construction.Mr. Gleason believed since the variance limited the living space, construction was being limited.

 

Mr. Carter reviewed the original application to build the house and noted that the foundation size was 28ftx48ft, which exceeded the square footage stipulated.Mr. Hennessey said the interior living space was calculated differently.

 

MOTION:

(Hennessey/Kosik) To deny the appeal, based upon the fact that the appeal was not submitted within the statutory requirement.

 

VOTE:

 

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

 

APPEAL DENIED

 

MINUTES

Ms. Beloritsky joined the Board.

 

April 14, 2003

 

MOTION:

(Gleason/Hennessey) To approve the April 14, 2003 minutes as written.

 

VOTE:

 

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

 

May 12, 2003

 

MOTION:

(Gleason/Hennessey) To approve the May 12, 2003 minutes as written.

 

VOTE:

 

(3 - 0 - 2) The motion carries.Mr. Kosik and Mr. Gowan abstained.††

 

MISCELLANEOUS DISCUSSION

 

Mr. Danevich said with the resignation of the Planning Director the Selectmen were having discussions, but had not made any decisions.He said he would keep the Board informed.

 

Mr. Danevich asked that a non-public session be scheduled on the next agenda to discuss two cases.

 

Mr. McNamara said that he had spoken with Town Counsel, who would schedule time to meet with the Board to discuss procedures.†††

 

ADJOURNMENT

 

MOTION:

(Gleason/Kosik) To adjourn the meeting.

 

VOTE:

 

(5 - 0 - 0) The motion carries.

 

The meeting was adjourned at approximately 10:00 pm.

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

 

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

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