APPROVED
TOWN OF
ZONING BOARD OF ADJUSTMENT MEETING
The acting Chairman, Mr. Peter McNamara, called the meeting
to order at approximately
The acting Clerk, Mr. Edmund Gleason, called the roll:
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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, Selectmen’s Representative Victor Danevich (arrived after the meeting had commenced) None. |
Mr. McNamara acknowledged Mr. Gowan’s appointment to the Board and thanked him for his volunteerism. He also acknowledged Mr. Hennessey’s appointment to a full-Board member, after years of service as an alternate member.
ELECTION OF OFFICERS
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MOTION: |
(Kosik/Gleason) To nominate Mr. McNamara as Chairman. |
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VOTE: |
(4 - 0 - 1) The motion
carries. Mr. McNamara abstained. |
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MOTION: |
(Kosik/Gowan) To nominate Mr. Gleason as Vice Chairman. |
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VOTE: |
(5 - 0 - 0) The motion
carries. |
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MOTION: |
(Kosik/Gleason) To nominate Mr. Hennessey as Secretary. |
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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 Pedro’s 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
Board’s definition of frontage and wanted to know if the frontage would be at
least 200ft. for both lots onto
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 Pedro’s 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 didn’t feel that the square footage shortfall was an unreasonable barrier to the applicant’s 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 Town’s 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
PUBLIC INPUT
Mr. Tim Morse,
Mr. John Hancock,
Mr. Richard and Kathleen Resmini,
There was no further discussion from the Board. A ballot vote was taken, based upon the five criteria.
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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 |
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VOTE: |
(0 - 5 - 0) The motion was denied. |
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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,
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 Board’s
review, a copy of the 1991 case of Granite State Minerals vs. City of
Ms. Beloritsky arrived.
Attorney
Attorney
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 Adjustment’s 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 ‘expanded’ in the zoning law, but instead used the word
‘extended’ 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
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 didn’t 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 didn’t 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,
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. Pultar’s daughter (approximately May 8th) who said that his septic system put Ecoli in her father’s 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
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 didn’t see reason to replace it. He didn’t feel that the septic system was the issue.
Mr. Gleason reiterated his question to Mr. Pultar’s 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. Pultar’s daughter wanted a guarantee that her father’s well would not be polluted. Mr. Gleason asked if the Pultar’s 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. Pultar’s well and asked its depth. Mr. Pultar said his well was 128ft. deep. Mr. Gowan reviewed a document listing well tests done to Mr. Pultar’s 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 Counsel’s 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 zoning’s 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 didn’t 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. Pultar’s concerns.
Mr. Soucy said he had spoken to the Town’s 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 didn’t feel Mr. Carter did anything wrong.
Mr. Kosik didn’t 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 ‘buyer beware’. 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 didn’t 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
Mr. Soucy didn’t 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
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.
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MOTION: |
(Hennessey/Kosik) To deny the appeal, based upon the fact
that the appeal was not submitted within the statutory requirement. |
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VOTE: |
(5 - 0 - 0) The motion carried
to deny the appeal. |
APPEAL DENIED
MINUTES
Ms. Beloritsky joined the Board.
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MOTION: |
(Gleason/Hennessey) To approve the |
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VOTE: |
(4 - 0 - 1) The motion
carries. Mr. Gowan abstained. |
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MOTION: |
(Gleason/Hennessey) To approve the |
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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
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MOTION: |
(Gleason/Kosik) To adjourn the meeting. |
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VOTE: |
(5 - 0 - 0) The motion
carries. |
The meeting was adjourned at approximately
Respectfully submitted,
Charity A.L. Willis
Recording Secretary