NOT APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

August 11, 2003

 

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

 

The Clerk, Mr. David Hennessey, called the roll:

 

PRESENT:

 

 

ABSENT:

Peter McNamara, Edmund Gleason, Walter Kosik, David Hennessey, Alternate Svetlana Beloritsky, Selectmen’s Representative Victor Danevich

 

Jeff Gowan, Alternate Cindy Ronning

 

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

 

HEARINGS

 

Case #2262 - PETERSON/CLEMENT, Barbara & John/Sherburne Road - ML1-117-1 - Seeking a Special Exception concerning Article XII, Section 307-74 - to permit an accessory dwelling within the residential zone.

 

Mr. Hennessey 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 e-mail correspondence from one abutter, which Mr. Hennessey read aloud (see Public Input).

 

Ms. Barbara Peterson and Mr. John Clement met with the Board to discuss their request for a Special Exception.  It was explained that a house was in the process of being constructed and the applicant wanted to add a kitchen within the in-law apartment. 

 

Mr. Kosik asked if the lot size (frontage) had to be addressed.  Mr. McNamara said the applicants were previously granted a variance for frontage.  Mr. Kosik said that the frontage variance was in connection with building a home, which would have been separate from an accessory dwelling.  Mr. Clement said that the in-law apartment would have its own bathroom and was requesting that a kitchen also be allowed.  Mr. Kosik said a special exception had to meet the criteria.  Mr. Hennessey read Article XII, Section 307-74 and 307-75 aloud.  Mr. Kosik did not want to set a precedent.  Mr. Gleason felt that because a variance had previously been granted by the Board, that the lot was legal.  Mr. McNamara and Mr. Hennessey agreed with Mr. Gleason.  Mr. Kosik was satisfied that the Board had addressed his concern. 

 

Mr. McNamara asked what the square footage of the in-law apartment was.  Ms. Peterson didn’t have a plan with her, but believed the square footage was approximately 370SF.  Mr. McNamara asked if the septic design had been approved.  Ms. Peterson said the septic design had been approved for 4.5 bedrooms (the current home contained three bedrooms). 

 

Mr. Gleason asked for clarification of where the in-law apartment would be located within the home.  Mr. Clement reviewed the plan with the Board and showed the members where the apartment would be located.  Mr. Peterson noted that the apartment was designed as an open space, similar to a studio apartment.  Mr. Gleason confirmed where the common wall was located.  He then asked how many bedrooms the home currently had.  Ms. Peterson said the home currently had three bedrooms; the in-law apartment bedroom would be the forth bedroom. 

 

Mr. McNamara reviewed a note submitted by the Planning Director which indicated there was potential for a fourth bedroom, which would be a problem since the septic design was for 4.5 bedrooms.  Ms. Peterson asked if the den was in question.  She said the room would remain a den, with french doors leading outside.  There were no plans to convert the den into a bedroom.  There was further discussion regarding the number of bedrooms.  Mr. McNamara confirmed with the applicant that there were currently three bedrooms and the proposed in-law apartment would count as the forth bedroom.  Ms. Peterson answered yes.  Ms. Peterson said there were no intentions to convert the den adjacent to the family room into a bedroom.  Mr. Gleason asked if the applicants were adverse to placing a restriction on the special exception that would limit the number of bedrooms.  The applicants were not adverse to a restriction being placed on the special exception which would limit the number of bedrooms. 

 

PUBLIC INPUT

 

Mr. Hennessey read aloud an e-mail submitted to the Board by Mr. Kenneth Magerian, Sherburne Road who owned land adjacent to the applicant’s land.  Mr. Magerian fully supported the special exception.

 

There was no opposition to the application.

 

Ms. Beloritsky asked if new construction was occurring, or if the current structure was being changed.  Ms. Peterson said that the house was in the process of being constructed.  Mr. Clement said the house was rough framed. 

 

MOTION:

(Gleason/Kosik) The approval of the Special Exception is conditioned upon the limitation of the number of bedrooms to the three finished bedrooms depicted in the drawing, plus the in-law apartment. 

 

VOTE:

 

(5 - 0 - 0)  The motion carries.

 

A ballot vote was then taken:

 

BALLOT VOTE:

 

Mr. McNamara - Yes -

Mr. Gleason - Yes - subject to approved motion.

Mr. Kosik - Yes - restriction for the construction of a fourth bedroom. 

Mr. Hennessey -  Yes - as stipulated regarding the bedroom.

Ms. Beloritsky - Yes -

 

VOTE:

 

(5 - 0 - 0) The motion carried.

 

 

SPECIAL EXCEPTION GRANTED

 

Case #2263 - BORDELEAU, Chad & Wendy/80 Dutton Road - ML 10-367 - Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision of a parcel with 42 feet of frontage where 200 feet is required within the residential zone.

 

Mr. Hennessey 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.  Mr. Hennessey read aloud Article III, Section 307-12.

 

Attorney William Mason, representing the applicants, reviewed the variance request with the Board.  He informed that the applicants currently owned a 10.3 acre parcel of land that had 243 feet of frontage onto Dutton Road.  He said the initially the parcel was to be divided into two, five-acre parcels, but after further review of the topography, soils and wetland/WCD issues, in order to minimize the impacts to the areas, the plan was altered so that the Bordeleaus would retain a 7.35 acre parcel (with their existing house) and subdivide a 2.930 acre lot.  He said the 7.35 acre lot would remain undeveloped. 

 

Attorney Mason reviewed the five criteria for a variance:

 

Item #1.  The proposed use would not diminish surrounding property values because: The proposed building lot will support a home of equal or greater value

 

Item #2.  Granting the variance would not be contrary to the public interest because: The new lot will result in an increase in revenue and represents an appropriate use of the land.  Attorney Mason said sometimes doing less with a parcel of land may be a greater benefit to the public, rather than developing the land to its fullest potential.   

 

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 resulting                lot would be five (5) acres in size and would more than address the density issue which is the basis                for the 200ft frontage requirement.  

 

               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 proposed lot, given its size,                would satisfy the density requirement

 

               c) the variance would not injure the public or private rights of others since: The lot would be                sufficiently large enough to satisfy the density issue and comply with all other requirements.

 

Item #4.  Granting the variance would do substantial justice because: The intended use is consistent with the uses of surrounding property. 

 

Item #5.  This use is not contrary to the spirit of the ordinance because: With the exception of the frontage waiver requested, the resulting lot will meet all other State and local requirements.

 

Mr. McNamara noted that Town Counsel had advised the Board that tax impacts for the public interest criteria was not a sufficient argument.  He addressed the possibility of further expansion of the parcel, if the variance were not approved.  Attorney Mason said that the some of the wetlands had been delineated, but the plan had not been stamped by a soil scientist.  He said that he had asked the engineer about the amount of high and dry area.  The engineer indicated that toward the rear of the parcel there was a significant area of high and dry land.  Attorney Mason was not suggesting that if the variance for one lot was not granted that multiple lots would be created.  He said that the development potential was more than one additional lot. 

 

Mr. Gleason asked when the applicants had purchased the parcel.  Ms. Bordeleau said the parcel had been purchased in August, 2001.  Mr. Gleason asked what the intent of the subdivision was.  Attorney Mason informed that the applicants would continue to live in the front portion of the land in the existing home, and the other lot would be disposed of.  Mr. Gleason confirmed that access to the subdivided parcel would be on the left side of the lot through the 42.79ft. passageway, through wetlands, and close to some setbacks.  Attorney Mason reviewed the plan and showed where the driveway access would be, which he had been informed would be the least impact on the wetlands.  Mr. Gleason asked if there were bodies of water on the plan.  Mr. Bordeleau said that the wet area was seasonal.  He said that it completely dried up during certain times during the year.  Mr. Danevich reviewed the plan and believed that a major dredge and fill and/or wetland crossing would be hurdle for developing the parcel.  He said there was roughly 200ft. of WCD impact that would need DES approval.  He asked what the contiguous high and dry calculation was.  Attorney Mason said that the plan didn’t include the high and dry calculation because he believed it was a planning board function.  He said if the configured lot didn’t meet the planning board criteria, it would not be approved, with, or without a variance.  Attorney Mason said he had been informed that there was more than enough contiguous high and dry area to satisfy the regulations.  He said if the Board wanted additional information, they could provide it, but he was not currently prepared to provide the information.

 

Mr. Kosik asked why the road would be 42ft, and not 50ft.  Attorney Mason said the whole lot had 243ft of frontage, and it was decided, based upon prior cases, that the Board preferred at least one lot to remain conforming. 

 

Mr. Hennessey asked if there were structures depicted on the plan.  Ms. Bordeleau said that there was an existing house, a shed and a tin roof pavilion (similar to an awning for storage) shown on the plan.  Mr. Hennessey said that Dutton Road curved at the proposed driveway location.  He wanted to know what the site distance was for vehicles exiting the proposed lot onto Dutton Road.  Mr. & Ms. Bordeleau said it would be difficult to answer the question since they had not driven in that location. 

 

There was no public input.

 

Mr. Gleason confirmed that the plan would be subject to Planning Board approval, as well as state approvals in connection with the wetlands.  Mr. Danevich said that the septic, conservation, dredge and fill would be reviewed by the state and the Planning Board.  He said the Board of Adjustment was reviewing whether or not the lot would be become legal and conforming with 42.79 feet of frontage.  Mr. Gleason asked if the Board should find out the amount of contiguous high and dry, or if it was a function of the Planning Board.  Mr. Danevich said the Planning Board would request the information.  Mr. Gleason said he agreed with the Planning Director’s comment that there should be a limitation of no further development.  Attorney Mason indicated the applicant’s agreement to no further development. 

 

Mr. McNamara was sympathetic to Attorney Mason’s argument that the variance would be in the public interest because development would be limited to two lots.  He was concerned that the nature of the parcel was such that it was difficult to determine how much more could be put in due to the number of wetland crossings.  Attorney Mason said if a 50ft. road were constructed, it would be possible to have more than one lot. 

 

Mr. Kosik confirmed that when a variance was granted that the Board was not giving permission to build a house.  Mr. McNamara said that the approval would grant the creation of a lot.  Mr. Kosik said the variance would only waive the 200ft. frontage requirement and if the applicant couldn’t get past the Planning Board or Conservation Commission a house could not be constructed and the variance would expire in one year.  Mr. Danevich said that the state would also review the dredge and fill needs. 

 

Mr. Hennessey said in the past he had voted in favor of allowing a variance for parcels that could be subdivided.  He did not accept that increased taxes on a single family home was a legitimate reason for a benefit to the Town.  He said that Attorney Mason’s argument of ‘in lieu of further development’ was compelling, and done on some occasions, but not in this case.  He didn’t feel there was a way to get a road into the parcel without going through wetlands or WCD.  He noted that the traffic on the corner of Dutton Road was an unacceptable safety risk.  Mr. Hennessey wanted to know what the benefit to the Town would be to preclude further development be by allowing one house.  Attorney Mason said if the land were to be developed the right-of-way could be repositioned to another spot on the parcel, possibly closer to the existing driveway.  He pointed out that if a subdivision were to be developed, a new road would be created and the new lots would have frontage on that new road.  Mr. Hennessey didn’t see the public benefit for allowing the creation of a lot with the proposed configuration, and the WCD, onto one of the busiest roads in Town.  Attorney Mason said the Planning Board may require that a driveway easement be allowed on the Bordeleau’s property further down Dutton Road.  Mr. Hennessey asked what the public benefit was to allow the lot, other than increased taxes being paid to the Town.  Attorney Mason said his clients were willing to give up the potential for further development.  He said it would be further developable beyond one lot.  Mr. Hennessey asked if there had been any attempt to purchase additional land from ML10-3-68-1 to acquire more frontage onto Brandy Lane.  Ms. Bordeleau said the owner of the parcel was not interested in selling any land. 

 

Mr. Danevich asked what the minimum width was at the narrowest portion of the two parcels.  Mr. Bordeleau said he had been told the narrowest portion would be at least fifty feet.  Attorney Mason measured the area and said it was approximately 47ft.  He said three more feet could be added if needed.  It was noted that the plans were not engineering standard, but were more detailed than most.  Mr. Kosik noted that in the past, the Board had approved cases without reviewing plans. 

 

Ms. Beloritsky reviewed the plans and said that she didn’t know where the contiguous dry land was located.  She said it appeared that the WCD would be crossed.  She asked if the parcel was a swamp.  Attorney Mason said the parcel was not a swamp.  He invited the Board to perform a site walk. 

 

Mr. Kosik agreed that if the Board was concerned with the parcel a site walk may be done.  He asked if the Board was supposed to be reviewing the high and dry area, or if an engineer was supposed to be reviewing.  Mr. Danevich said typically an engineering firm reviewed.  Mr. Kosik asked what the size of the dry land area was.  Attorney Mason said that the lot would have at least 35,000 SF of contiguous high and dry land. 

 

Mr. McNamara was in favor of walking the parcel.  Mr. Gleason was assured by the fact that before any building and/or subdivision would occur; the plan would be reviewed by the Planning Board and the state, which would be adequate protection.  He noted that per the regulations, a soil scientist would review. 

 

Mr. Hennessey still wanted to know what the hardship and the public interest was.  Mr. Gleason felt it was difficult to assess a hardship.  Attorney Mason believed hardship could be described as a reasonable and appropriate use of the land without being injurious to the private rights of the owner, or public rights of the community. 

 

Mr. Gleason asked what the total acreage was.  Attorney Mason said there were currently 10.4 acres.  Mr. Gleason asked how much acreage was contiguously dry.  Attorney Mason said toward the back of the parcel the engineer had told him there was a significant portion of contiguous high and dry land, which was the appropriate amount to support the lot outlined on the plan.  Mr. Gleason asked if the power line easement was included in the calculation.  Mr. Danevich noted that the easement was not part of the high and dry calculation.  He noted that landowners could include the area under the power lines as part of the high and dry calculations. 

 

The Board went on to discuss the requested variance.  Mr. Hennessey said the Board should review the criteria and determine if there was a hardship and if there was a benefit to public interest.  Mr. Danevich pointed out that the Board of Adjustment was not creating a lot, but granting the right to apply for the creation of a lot.  Attorney Mason noted that the second criteria did not say the variance would be ‘in the public interest’, but in fact said the variance ‘would not be contrary to the public interest’.  Mr. McNamara said that the voting slips would be amended and brought in line with the application language.  Mr. Hennessey pointed out if the variance were granted that the applicant would be required to apply to waive the Town’s requirements for a lot.  Ms. Beloritsky shared Mr. Hennessey’s concern.  Mr. McNamara said it was the Board’s duty to determine if an applicant met the criteria for a variance.  Attorney Mason said that there would be some applications before the Planning Board that had adequate frontage, but required crossing sensitive areas. 

 

Mr. McNamara said he had mixed feelings regarding the application.  He didn’t feel that he had enough information to vote yes, or no, based upon high and dry calculations, extent of wetland.  He said he would not be comfortable voting, but would, if it were the wish of the Board.  Attorney Mason said his clients would accommodate the Board if additional information was needed, or if the Board wanted to walk the site.  There was a consensus of the Board to vote.

 

A ballot vote was taken, based upon the five criteria for a variance: (the wording on the voting slips for criteria 2 was amended to ‘not contrary to the public interest’)

 

BALLOT VOTE:

 

Mr. McNamara - 1) Yes; 2) No; 3) No; 4) No; 5) No

Mr. Gleason - 1) Yes; 2) Yes; 3) Yes; 4) Yes; 5) No

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

Mr. Hennessey - 1) Yes; 2) No; 3) No; 4) No; 5) No

Ms. Beloritsky - 1) Yes; 2) Yes; 3) Yes; 4) Yes; 5) Yes

 

VOTE:

 

(2 - 3 - 0) The motion failed to grant a variance.

 

 

VARIANCE DENIED

 

DISCUSSION

 

Mr. McNamara said he spoke with Town Counsel who was available to meet with Board members and provide an update of litigation and discuss the responsibilities of the Board of Adjustment.  It was decided to meet with Town Counsel on Tuesday, August 19, 2003 at 7pm.  The session would be entirely non-public. 

 

Mr. McNamara said the joint meeting with the Planning Board would need to wait until a new Town engineer was hired.  It was also decided to hold off on the joint meeting until a new Planning Director was hired.

 

Mr. McNamara informed that the Town was upheld in the Harriet St. Onge vs. Town of Pelham. 

 

MINUTES

 

July 14, 2003

 

MOTION:

(Gleason/Hennessey) To approve the July 14, 2003 minutes as amended.

 

VOTE:

 

(4 - 0 - 0) The motion carries.  Mr. Kosik abstained.

 

ADJOURNMENT

 

MOTION:

(Kosik/Gleason) To adjourn the meeting.

 

VOTE:

 

(5 - 0 - 0) The motion carries. 

 

The meeting was adjourned at approximately 9:00 pm.

                                                                                          Respectfully submitted,

 

                                                                                          Charity A.L. Willis            

                                                                                          Recording Secretary