APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 8, 2004

 

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, Walter Kosik, Edmund Gleason, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky, Alternate Cindy Ronning

 

Selectmen’s Representative Victor Danevich

 

HEARING(S)

 

Case #2272 – BETTENCOURT, Gildas/DBA Bettencourt II Corp/123 Bridge Street/ML 29/7-114 –Seeking a Variance concerning Article XI, Section 307-69 to permit one wall mounted sign of 96sqft. and one ground sign of 72sqft.

 

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. Rick Hammar, Hammar & Sons Sign Co., representing Bettencourt II Corp/Mr. Gildas Bettencourt, discussed the variance request with the Board.  He reviewed the new code that required a sign to fall under the new by-laws if the sign was changed.  He said if the Honey Dew building and street signs had been left alone, only the faces would need to be changed, because they would have been grandfathered.  He said the intent was for Dunkin’ Donuts and Baskin Robbins to occupy the building that was formerly Honey Dew Donuts and Martha’s Ice Cream. 

 

Mr. Hammar felt the applicant met the criteria for a variance and reviewed such for the Board:

 

Item #1.  The proposed use would not diminish surrounding property values because: This is a commercial area with signs of the same size or greater; the proposed signs will be aesthetically pleasing and adds to the property thus having no adverse affect on surrounding properties.

 

Item #2.  Granting the variance would not be contrary to the public interest because: Existing signs have always been at this location and the business needs identity; this business will add to the taxes being paid on the property and will provide jobs for the community.

 

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 proposed signs will be equal size or less than abutters; this building sets back needing a more visual identity a smaller sign would put the business at a disadvantage, same as the Simplex vs. Newington that went to the Superior Court.

 

b) that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: Existing signs larger than what we are proposing were previously approved and existing;

 

c) the variance would not injure the public or private rights of others since: This is a commercial site, the signs are properly located meeting all set back and height requirements;

 

Item #4.  Granting the variance would do substantial justice because: A small sign of 50sqft. would put this business to a disadvantage compared to others in the area; the use we are seeking is a permitted use for the district, the use being requested is consistent with uses  of the surrounding lots and variance being granted will allow us to use the property in the same manner. 

 

Item #5.  This use is not contrary to the spirit of the ordinance because: 1) The building sets back quite a distance so the sign will appear smaller, viewed from the street.   2) The ground sign has two names displayed each equaling only 36sqft. letter size 10-11 ˝ inches; we are only requesting a variance to waiver only one of the zoning requirements and we will meet all of the other regulations and codes.   

 

Mr. Hennessey asked when the new requirement for 50sqft. went into affect.  Mr. Hammar believed it came into affect in 2000.  He said the sign code was drafted without taking the setback of buildings into account.  It was noted that the new requirement was effective in 1999.  Mr. Hennessey said at the time when the sign ordinance was approved larger signs were present in Town; the Planning Board, Selectmen and voters lowered the square footage of signs despite the presence of the larger signs.  Mr. Hammar didn’t feel that the wording was thought out before enacted.  It was his understanding that the ordinance had been changed based on a large sign at the store formerly Mars Bargain Land.  Mr. Gowan said he was a planning board member during the time that the ordinance was drafted.  It was his recollection, that the basis for the ordinance was due to the visual along Route 38 as well as control, so Pelham didn’t end up looking like surrounding industrial communities.  He said all the required public meetings were held.  Mr. Hammar said he agreed that aesthetically pleasing signs should be constructed and had worked with many cities in different states to do just that.  He believed an ordinance should be drafted taking into account the square footage (both of the building, and its setback), and lineal feet toward a building.  He explained that due to the setback of the existing building, the sign would appear smaller.  He said the former sign by the street was 100sqft., and the applicant was proposing a 72sqft. sign, which would be smaller than that on the building across the street.  He said the square feet on a smaller sign wouldn’t work in relation to the visibility distance. 

 

Mr. Gleason said the voters approved the new ordinance based upon their concern with the business signs along Route 38.  His observations were: 1) the ordinance was enacted in 1999 and the purchase of the land occurred subsequent to that – current owner should have been aware of the ordinance at the time of purchase; 2) hardship difficult to accept based upon Dunkin’ Donuts being well recognized.  Mr. Gleason felt if the variance were granted it would set precedence.  He didn’t feel comfortable setting precedence on a newly enacted regulation.  He said it was difficult for him to consider the variance based upon his observations. 

 

Mr. Hammar said he had come before the Board in 2001 requesting a variance for a 150sqft. sign; the regulations were reviewed, and the variance was granted.  Mr. Hennessey said there were different circumstances involved with the sign and hardship was proven.  Mr. Hammar believed that the variance had been granted based upon Simplex vs. Newington.  He didn’t feel it was fair to take the sign size and reduce it by more than one half because it put businesses at a disadvantage.  Mr. Gleason believed the variance that was granted had proven hardship, but in this case he had difficulty establishing hardship based upon the reputation of Dunkin’ Donuts, and the fact that there would be a sign in compliance on the road.  He was still not convinced that there was a hardship.  Mr. Hammar noted that the setback of the building was a hardship.  Mr. Gleason said if the businesses with larger signs were sold and came in for a variance, he would have a hard time granting them a variance also.

 

Mr. Hammar said other communities had sign review committees that looked at items such as letter heights and visibility.  He asked if consideration was given to a location having more than one business being advertised on one sign.  Mr. Hammar showed the Board a depiction of the proposed sign.  Mr. Gleason felt the applicant had created the dilemma.  Mr. Hammar said they believed that they would be grandfathered, until review by the Planning Director.  He noted that a 50sqft. sign would have six inch letters, which would not work for readability and would not be good for advertising two businesses. 

 

Mr. Hennessey said there were two requests for variances; building sign and ground sign.  Mr. Hammar said the ground sign was proposed to be half the size of the previous ordinance, which in his opinion, was a good compromise.  Mr. McNamara said the Board was bound by the size called for in the current ordinance.  Mr. Hammar said the letters would be very small because two businesses would need  to be advertised.

 

Mr. Kosik asked if there was a public hearing before the votes took place regarding the ordinance.  Mr. Gowan answered yes.

 

PUBLIC INPUT

 

Mr. Kevin Jarvis, Pelham resident, spoke in favor of the application.  He discussed the current look of Route 38 and believed a reduced size for the sign was not much to ask. 

 

Mr. Gowan said the spirit and intent of the ordinance was to reduce the commercial look of all the signs going in.  He said one compromise was to allow the 100sqft. sign on the building, and not have the road sign. 

 

Mr. Hennessey was unsure how the variance request would be separated.  Mr. Gleason said he would be willing to compromise and grant a variance for the 92sqft. wall mounted sign, provided that the road sign stayed within the 50sqft. size per the ordinance.  He restated his concern regarding setting precedence if the road sign size was granted.  Mr. Kosik agreed with Mr. Hammar in the assumption that the sign size would have been grandfathered.  However, he said the Board’s hands were tied because of the language in the ordinance.

 

Mr. Hammar believed that the businesses belonged to the Chamber of Commerce, and before the ordinance was approved, had requested that the Director contact the business owners if any changes were to be made so they could be present for the public discussions.  He said no one was contacted, and the matter was placed on the ballot with Planning Board approval.  He asked if it was a conflict of interest to have the same person who helped draft the 50sqft. sign ordinance, vote regarding the variance.  Mr. Hammar asked if each business on the site would be allowed a 50sqft. sign.  Building Inspector Roland Soucy (who was seated with the public) was unsure, but answered no.  He believed the sign ordinance read that there was a restriction to 50sqft. total.  Mr. Hammar believed the Planning Director should answer his question.  It was his opinion that each business could have a 50sqft. sign.  He reiterated that the applicant believed he would be grandfathered.  Mr. Hammar said they reduced the size from the size listed in the old ordinance.  He said that a larger post size would make the sign appear smaller.  He also said the letter size and readability was important.    

 

Mr. Hennessey asked if the variance request could be split in two.  He felt the case had been made under Simplex for the building sign (unusual site, setback of the sign); he didn’t believe that a case had been made for the road sign.  Mr. McNamara asked for Town Counsel’s opinion.  Town Counsel Diane Gorrow (who was seated with the public) said she hadn’t reviewed the variance application, but believed that the Board could treat the request separately. 

 

Mr. Gleason asked if the applicant would be agreeable to the condition that the variance for the wall sign be granted, with the road sign remaining in compliance with the ordinance (50sqft.).  Mr. Hammar asked for clarification of the sign code, and if each business could have its own 50sqft. sign.  Mr. Soucy said the ordinance was clear that the total footage was 50sqft for three or more business groups on one lot.  Mr. Gleason asked if the applicant was amenable to splitting the variance, approving the 96sqft. wall sign, and not grant the variance for the ground sign; or if the applicant wanted the Board to vote on the total variance.  Mr. Hammar asked what size the ground sign (at the street) would be.  Mr. Gleason said it would have to be in accordance to the regulation (50sqft.).  Mr. Hammar said the store needed to open.  He said he was disappointed that the street sign had to be reduced because there were two businesses being advertised and the letter size would be reduced.  Mr. Hennessey said the Board could not take away the applicant’s right of appeal. 

 

Mr. Hennessey asked if the applicant was willing to amend the variance request to allow one wall mounted sign of 96sqft. and take up the ground sign as a separate matter.  Ms. Ronning said she had a problem with the sign posts already being installed and said the sign might look worse than the original intent.  Mr. Hammar asked if he could withdraw the request for variance regarding the ground sign.  The Board agreed that the applicant could withdraw the variance request for the ground sign.  Mr. Hammar withdrew the variance request for the ground sign.  The Board would only vote regarding the wall mounted sign.    

 

The Board reviewed the variance criteria and took the following ballot vote:

 

BALLOT VOTE:

 

Mr. McNamara – Yes to all criteria

Mr. Kosik – Yes to all criteria (wall mounted sign only)

Mr. Gleason – Yes to all criteria

Mr. Hennessey -  Yes to all criteria

Mr. Gowan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED (96sqft. wall mounted sign)

 

The applicant was informed their variance was granted and there was a 20-day appeal period.

 

Case #2273 – CROSSLEY, Donald; Little Island Pond Watershed Association,; and others/Dutton Road/ML 30/11-93 – Seeking and Appeal from an Administrative Decision of the Planning Board for Determination Interpreting Zoning Ordinance relative to a 15-unit housing for the elderly project.  Sections 307-40(B); 307-12; 307:13; 307-52(A)

 

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. McNamara provided a brief summary of the proceedings that had been heard by the Planning Board for approximately ten months.  He said during the course of consideration a number of issues had arose regarding several sections of the Town’s ordinances; arguments had been heard by counsel for the applicants, as well as from counsel for a group of abutters opposing the project; legal opinions were sought by the Planning Board and received from Town Counsel as well as a second attorney hired for the Planning Board at the applicant’s expense.  All the materials had been forwarded to the Zoning Board.  Mr. McNamara said several members of the Planning Board had expressed their opinions and explained how they arrived at them.  He said the Planning Board had not taken a vote on any issues surrounding the matter.  Counsel for the abutters had filed the appeal to the Zoning Board, in essence, preserving his client’s rights of appeal.  He ended by saying the Planning Board had suspended their proceedings pending the determination of the matter before the Zoning Board. 

 

Mr. McNamara recused himself; Vice Chairman Gleason conducted the hearing as acting Chairman.

 

Mr. Gleason asked if there were any other Board members who felt they had any concern regarding participation in the proceedings.  Mr. Hennessey reviewed RSA 673:14 (Disqualification of Member) and requested that the Board vote regarding disqualification.  He said his wife had attended a number of meetings and had been involved; he said he was not a member of the petitioning group, not a landowner and not directly or indirectly benefiting from either party winning the case.  Because of the perception from his wife’s involvement, Mr. Hennessey asked the Board to make an advisory opinion as to whether there would be a conflict by him sitting on the Board.  Mr. Gleason asked Mr. Hennessey if he felt he had any bias that would affect any decision.  Mr. Hennessey said he had not taken a stand in the case, or had any involvement with the group, except for contributing to the purchase of an adjacent parcel.  The Board did not have a problem with Mr. Hennessey remaining seated on the Board for the hearing.

 

Mr. Gleason appointed Ms. Beloritsky to vote in Mr. McNamara’s absence.

 

Mr. Gowan noted in the past, he had been a member of the Planning Board, but not during the time that the proposed elderly development was presented. 

 

Mr. Gleason asked if any members of the public had a problem to Mr. Hennessey or Mr. Gowan participating in the hearing and voting.  There was no opposition from the public.  Mr. Hennessey asked the Board to vote per RSA 673:14.  The Board felt a vote was not necessary. 

 

Attorney Michael Donovan, sole practitioner from Concord, representing all of the petitioning parties in the appeal discussed the appeal with the Board.  It was his belief that the Planning Board incorrectly interpreted four zoning ordinances: 1) wetland special permit provisions; 2) whether or not the setback requirements of Table I of the Zoning Ordinance (307-12) for multi-family buildings applied to the elderly housing project; 3) whether the density requirements (3 acres per multi-family building) applied to the elderly housing project; 4) whether the five-acre minimum lot size required of elderly housing projects should be contiguous upland soils.  Attorney Donovan handed out to the Board a prepared package of exhibits and a request for eight rulings (EXHIBITS ATTACHED).

 

Attorney Donovan reviewed Exhibit 5 which outlined the building location and the upland areas.  He said the calculations were being reviewed to determine if there were five acres of upland soil.  He then reviewed Exhibit I (RSA 307-40 special permit requirements).  He said the Planning Board ruled that subparagraph B did not apply to the special permit analysis for this project; (based upon comments of the Planning Board Vice Chair) the Planning Board appeared to have ruled that they don’t have to apply the requirement of favorable written comment from the Conservation Commission, because it was contrary to the RSAs.  Attorney Donovan believed 307-40 A contained the list of permitted uses of a special permit, and 307-40 B contained the criteria language.  He said without 307-40 B there would be nothing to measure the applications against.  He felt it was fair to say that the Planning Board based their opinions on how they interpreted the written letters of legal counsel (Town Counsel Diane Gorrow and Attorney John Ratigan).  He said some reference was made to the Planning Board changing practice on how special permit requirements were interpreted (Exhibit 2 – letter written by Ben Frost); he went on to review Exhibit 2 which contained excerpts from selected Planning Board minutes (1997-2003) that addressed Wetland Conservation District (‘WCD’) special permits.    

 

Mr. Hennessey asked if Attorney Donovan could point out any case in which the Conservation Commission issued an unfavorable statement that was upheld in the courts against a planning board, anywhere in the state.  Attorney Donovan answered no, he didn’t believe it had been challenged.  Mr. Hennessey asked if the statutes contained any language providing the Conservation Commission with independent power of action.  Attorney Donovan said there was nothing in the statutes that dealt with that, however the regulation, as voted by the Town required favorable written comment.  Mr. Hennessey asked if Attorney Donovan believed that the Town’s ordinances could authorized the Conservation Commission powers beyond state statute (36A).  Attorney Donovan said there was nothing in chapter 36A to limit the power, one way, or another.  He reviewed Exhibit 2 once again and commented that the excerpts of minutes were inconclusive at best, for proving the point that the Planning Board changed its policy; the minutes didn’t state one way, or another, except the minutes March 6, 2000 which indicated that the Planning Board received a favorable letter from the Conservation Commission.  It was his belief that the March 6, 2000 minutes showed that the Planning Board changed its policy.  Mr. Hennessey said he would be more comfortable if there was documentation that a conservation commission (anywhere in the state)  had disapproved, and someone paid attention.  Attorney Donovan said it was clear that the Town had the ability to elevate the authority of the conservation commission. 

 

Mr. Hennessey wanted to know if the Planning Board approved what Attorney Donovan was opposing.  Attorney Donovan said he first raised  his points on April 15, 2003; the Planning Board obtained other legal advice, but did not discuss the issues until February 2, 2004 when the Planning Board reached a consensus on the issues.  To protect his client’s rights to appeal, he requested a  Board of Adjustment hearing.  Mr. Hennessey asked legal counsel if the issues were in fact able to be appealed, before the Board continued discussion. 

 

Attorney Paul DeCarolis, Bush Hill Road, representing the applicants Cormier & Saurman, discussed the appeal with the Board.  He said Attorney Donovan argued that the Planning Board could not move forward with a vote on February 23, 2004 because and appeal had been submitted to the Board of Adjustment; therefore the opponents could not come to the Board of Adjustment and argue that there was no decision to vote upon, because the project would be left in limbo.  He said the appeal argued if there was a final appeal able decision of the Planning Board to be presented to the Zoning Board; RSA 676:5 does not require a final appeal able decision.  He said that the Planning Board was polled by the Planning Board Secretary (Bill Scanzani), and the members stated their final position regarding the zoning ordinance issues.

 

Town Counsel Diane Gorrow believed the appeal was properly before the Zoning Board per RSA 676:5 III, which specifically deals with appeals to the Zoning Board from Planning Board decisions that involve interpretation of zoning ordinances.  She said it was clear at the February 2, 2004 Planning Board meeting that the Planning Board was making a decision on the zoning issues, and narrowing down what would be finally determined at a later meeting. 

 

Attorney Donovan said there were cases that said that its only the Planning Board's final decision that are appeal able, but there were possibilities that certain aspects of the application that may denied.  Mr. Gleason confirmed that the Zoning Board was reviewing an appeal regarding the determination made by the Planning Board of four zoning issues. 

 

Attorney Donovan then discussed the issue of setbacks contained in Exhibits 3 & 4.  He said the Zoning Ordinance 307-12, Table 1 (dimensional requirements) front yard setback for a multi-family building should be applied to two of the proposed buildings; however the applicant used the setback for a single-family.  He said it appeared that the applicant’s attorney and the Planning Board were saying the proposed buildings defaulted to 307-12A (which states all buildings for uses not contained in Table I within the residential district shall conform to the minimum requirements of single-family dwellings) and 307-55 (Interpretation contained within the Elderly Housing ordinance).  He discussed how courts construed uncertain zoning provisions; an interpretation is made consistent with the overall purpose of the zoning ordinance.  He said basically all ordinances were set up so larger structures required greater setbacks and spacing between each other.  He reviewed the tables in the zoning ordinance and commented that 307-12, Table 1 (dimensional requirements) consisted of groups of uses, whereas 307-18 (permitted uses) consisted of all the other many uses permitted.  He said it was clear that an elderly housing complex was made up of buildings with apartments for the elderly and apartments were multi-family buildings.  He submitted that the proposed plan contained four multi-family buildings and the setbacks had to comply as such.  He said the elderly housing ordinance didn’t contain setback requirements and there would be no conflict between applying the setback to a multi-family building to an elderly housing proposal. 

 

Mr. Hennessey read the elderly housing ordinance and believed there was no intent to have setbacks.  He said during the setup of zoning the concerns are density, frontage, site, side and rear lot lines, which are all specified in the Town’s elderly housing ordinance.  He said in general terms the elderly ordinance stated that the project should be compatible with the surrounding single-family homes.  Attorney Donovan said there were already setbacks in the zoning ordinances and believed the conflicts clause (307-55) was not intended to exempt elderly housing from all the other requirements of the zoning ordinance.  He said it didn’t make sense to think that there wouldn’t be a setback requirement.  Mr. Hennessey said if a class of housing was being created, to allow for a flexible plan of increased density, it didn’t appear that setbacks would be forgotten about. 

 

Attorney Donovan reviewed the density requirements and noted that a multi-family dwelling required a minimum of three acres, therefore the proposed plan (with four dwellings) would need to contain twelve acres of non-wetland soils.  He reviewed zoning ordinance 307-52 (elderly housing site requirements) which require a lot to contain not less than five acres.  He said the two requirements (three acres for a multi-family / elderly housing on not less than five acres) were not inconsistent, one was the threshold size for the parcel and the other was the density of the buildings on the lot.  He said the fundamental purposes of the zoning ordinance to avoid overcrowding on land. 

 

Attorney Donovan believed the Planning Board misconstrued the intent of the zoning ordinance by allowing the five acres of good soil to be split up.  He reviewed Exhibit 5 a plan sheet that showed the building locations and the upland soils highlighted.  He said Exhibit 6 (letter from The Louis Berger Group of December 30, 2003) suggested that the project should be reduced (number of housing units) as one way to mitigate environmental impact.    

 

Attorney DeCarolis approached the Board and began by discussing zoning ordinance 307-40, A versus 307-40, B.  He believed the ordinance was clear regarding what could be permitted by recommendation versus what could be permitted by approval.  He outlined 307-40,A, which only asked for review and comment for the types of uses listed in 307-40, A, 1.  He said the proposed plan did not have buildings, just the right-of-ways within the WCD.  He said even if there was an interpretation that 307-40, B applied (mandatory Conservation Commission approval) it would exceed the enabling legislation.  He said town boards were created by enabling statues; under RSA 36-A, the enabling statute that creates the Conservation Commission states they are primarily an advisory board; they don’t have the authority to reject a particular proposal, or vote against it prohibiting development (if they did, legislation would require a process). 

 

Mr. Hennessey said he didn’t see anything in the enabling act that allowed the Conservation Commission to act independently.  Attorney DeCarolis concurred.  Mr. Hennessey said in New Hampshire, the Conservation Commission was allowed to forward complaints in connection with the Shore Land Protection Act.  Attorney DeCarolis believed it was allowed per statute.  He said there was a specific statute that authorized the Conservation Commission to make recommendations to the DES.  He said if there wasn’t an underlying statute that authorized the Conservation Commission, then they were exceeding their powers.  He reiterated that there was no statute which provided the power, or allowed the Conservation Commission to reject a plan, but they could make a recommendation against it.  Mr. Hennessey wanted to know how the Conservation Commission’s authority differed from the Shore Land Protection Act and this case being presented.  Attorney DeCarolis said if the Shore Land Protection Act called for favorable written comment from the Conservation Commission, that would be the enabling statute, but this case did not fall under the Shore Land Protection Act. 

 

Mr. Gleason stepped in and noted that the issue before the Board was whether the Planning Board was correct in their interpretation that only 307-40, A applied in this case.  Attorney DeCarolis said the point was made by Planning Board member Bill Scanzani that it was illegal to interpret 307-40, A.  He felt there was independent grounds that 307-40, A applied based upon the language in the ordinance. 

 

Attorney DeCarolis then addressed the Elderly Housing ordinance, which stood alone.  He said an elderly housing complex was not a multi-family dwelling.  He discussed the criteria and uses allowed by and the restrictions of elderly housing versus multi-family dwellings.  He believed zoning ordinance 307-12, A was clear in that elderly housing was not indicated in Table 1 (and was a separate use under 307-18, Table 2), it’s also allowed in the Residential District; therefore it shall conform to the minimum requirements of single-family dwellings.  He said his findings were consistent with both opinions provided by Town Counsel to the Planning Board. 

 

Attorney DeCarolis went on to discuss the acreage.  He said the ordinance called for five acres.  The proposed plan contained approximately six, to six and a half acres of dry land; based upon the dry land and the septic conditions, the site could accommodate up to twenty-seven units, the applicants scaled down the project to fifteen units in order to eliminate a final wetland crossing.  He said the only ordinance he found that addressed contiguous dry area was 307-13, which requires 35,000 sqft. when calculating lot size.  Mr. Hennessey said 307-52, C (site requirements) states no part of the five acres shall contain wetlands, slopes exceeding 15% or utility easements.  He asked Attorney DeCarolis his opinion regarding the intent of the ordinance.  Attorney DeCarolis referred back to 307-13, which required 35,000 contiguous square feet for every lot in Town.  He believed the intent of the ordinance was clear that the lot was at least five acres.  He said there was no reference in the ordinance that states the need for five acres of contiguous dry land.  He noted that the parcel contained 35,000 square feet of contiguous dry land (per 307-13); wetlands, steep slopes were not included in the calculations for the five acres.  Attorney DeCarolis pointed out that the purpose of the 35,000 square feet of contiguous dry land was to accommodate the septic systems etc. and one of the larger areas of the dry land on the proposed plan is where the septic system is located.  He said ordinance 307-55 said if there was any conflict, the provisions of the elderly housing ordinance would apply; if that’s the case, the elderly housing ordinance should have contained language requiring five acres of contiguous dry land.  He said it appeared that the opponents were not necessarily arguing that the zoning ordinance required five acres of contiguous dry land, but rather, the they were arguing if the decision by the Planning Board was incorrect.  He said the question was not if the Zoning Board would agree with the Planning Board, but rather the interpretation of the zoning ordinance. 

 

Attorney DeCarolis ended by saying he believed that the decision of the Planning Board, with respect to the zoning issues, were correct. 

 

Attorney Gorrow had nothing to add.  Mr. Gleason asked if there was any testimony heard that would alter her opinions in her letters.  Attorney Gorrow answered no. 

 

Attorney Donovan reviewed Exhibit 1 and reiterated his opinion that ordinance 307-40, A outlined what could be done if a special permit were granted, and that ordinance 307-40, B listed the criteria for a special permit.  He called the Board’s attention to RSA 674:21 (Innovative Land Use), and because of the innovative land use techniques were listed he didn’t think a court would strike down the assignment by the voters in Pelham that they want the Conservation Commission to have that type of standing for the wetland impact proposed. 

 

Mr. Hennessey asked if the proposed Warrant Article deleting the words ‘favorable’ from ordinance 307-40, B,2 failed at Town Meeting (March 9, 2004) would affect this application.  Attorney Gorrow said once a plan had a completed application and was accepted, it would be grandfathered from subsequent changes in the zoning. 

 

Attorney Donovan said the impacts on the wetlands were being protested.  He showed the area where the septic system was located. 

 

Mr. Gleason said he would not open the discussion up to the public because it was felt that the public already had adequate representation.  He opened discussion up to the Board.  He said there were four appeals and wanted to know if the Board members were ready to made a decision.

 

Mr. Gowan discussed the relationship between the Planning Board and the Conservation Commission based upon his experiences.  He said even though the general interpretation of the relationship between the Planning Board and the Conservation Commission, was that the Conservation Commission was advisory,  the Planning Board almost without exception, held with their recommendation.  He said great emphasis was placed upon the Conservation Commission’s recommendation. 

 

Mr. Gleason said he had reviewed the documentation and felt comfortable voting.  Mr. Kosik also believed that the information had been presented and reviewed and was ready to vote. 

 

The Board began with the first appeal; The Planning Board feels that Zoning Ordinance 307-40,B is not applicable.  Mr. Hennessey felt the Planning Board was incorrect.  He didn’t see how 307-40 A & B could be separated.  Mr. Gowan said in the past the Planning Board required ‘favorable’ written comment from the Conservation Commission.  He felt that 307-40, B belonged.  Mr. Gleason said after review of the information of the attorneys and felt the decision of the Planning Board was correct.  He believed that 307-40,A & B were separate. 

 

MOTION:

To uphold the decision of the Planning Board and reject the appeal regarding Zoning Ordinance 307-40.

 

VOTE:

 

(2-3-0) The motion was denied.  Mr. Hennessey, Mr. Gowan and Ms. Beloritsky voted no.

*see below for vote, which clarifies the Zoning Board’s position on appeal.

 

The appeal was upheld.

---------------------------------------------------------------------------------------------

The Board discussed the second appeal; Zoning Ordinance 307-12.  Mr. Hennessey felt that the Elderly Housing Ordinance stood alone and was clear in the way it was written. 

 

MOTION:

To uphold the appeal of the applicant in connection with the Planning Board’s decision regarding Zoning Ordinance 307-12.

 

VOTE:

 

(0-5-0) The motion was denied.  Mr. Gleason, Mr. Kosik, Mr. Hennessey, Mr. Gowan and Ms. Beloritsky voted no.    

 

The appeal was denied.

----------------------------------------------------------------------------------------------

The Board discussed the third appeal; Zoning Ordinance 307-13.  Mr. Gleason felt the Planning Board’s decision was correct. 

 

MOTION:

To uphold the appeal of the applicant in connection with the Planning Board’s decision regarding Zoning Ordinance 307-13.

 

VOTE:

 

(0-5-0) The motion was denied.  Mr. Gleason, Mr. Kosik, Mr. Hennessey, Mr. Gowan and Ms. Beloritsky voted no.   

 

The appeal was denied.

------------------------------------------------------------------------------------------------

The Board then discussed the forth appeal; Zoning Ordinance 307-52.  Mr. Gleason read the ordinance aloud.  There was discussion regarding the intent of 307-52,C.  Mr. Gleason said the Board had to determine if the Planning Board’s decision was correct, or if there was sufficient evidence that the Planning Board’s decision was incorrect.  Personally, Mr. Gleason felt that the Planning Board made their decision in good faith, and provided due process.  The Board discussed the ordinance language further and made the following decision. 

 

MOTION:

To uphold the appeal of the applicant in connection with the Planning Board’s decision regarding Zoning Ordinance 307-52.

 

VOTE:

 

(1-4-0) The motion was denied.  Mr. Gleason, Mr. Kosik, Mr. Hennessey, Ms. Beloritsky voted no. 

 

The appeal was denied.

-------------------------------------------------------------------------------------------------

Attorney DeCarolis asked for clarification of the vote in connection with the appeal regarding Zoning Ordinance 307-40. 

 

MOTION:

To uphold the appeal of the applicant in connection with the Planning Board’s decision regarding Zoning Ordinance 307-40.

 

VOTE:

 

(3-2-0) The motion carried.  Mr. Gleason and Mr. Kosik voted no.

 

The appeal was upheld.

 

A rehearing petition may be filed within thirty days. 

 

Mr. McNamara returned to the Board.

MINUTES

 

February 9, 2004

 

MOTION:

(Gleason/Kosik) To approve the February 9, 2004 meeting minutes as written.

 

VOTE:

 

(5 - 0 - 0) The motion carried. 

 

DISCUSSION

 

Mr. McNamara said there was information on the planner’s web site regarding the ability of the Zoning Board to have an applicant pay for experts.  He said the Board should discuss the issue at a future meeting. 

 

ADJOURNMENT

 

MOTION:

(Gleason/Kosik) To adjourn the meeting.

 

VOTE:

 

(5- 0 - 0) The motion carries. 

 

The meeting was adjourned at approximately 10:25 pm.

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis              

                                                                                                Recording Secretary