APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 12, 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, Edmund Gleason, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky, Alternate Cindy Ronning

 

None.

 

Mr. McNamara began the meeting by thanking Mr. Walter Kosik for his many years on the Board and said he would be missed.  He said the Board now had a full-time member position available; anyone interested in the full-time position, or alternate position should apply at the Selectmen’s office. 

 

ELECTION OF OFFICERS

 

MOTION:

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

 

VOTE:

 

(3-0-1) The motion carried.  Mr. McNamara abstained.

 

 

MOTION:

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

 

VOTE:

 

(3-0-1) The motion carried.  Mr. Gleason abstained.

 

 

MOTION:

(Gleason/Gowan) To nominate Mr. Hennessey as Secretary (Clerk).

 

VOTE:

 

(3-0-1) The motion carried.  Mr. Hennessey abstained.

 

REQUEST FOR REHEARING

 

Mr. McNamara recused himself from the Board for the following two discussions; Vice Chairman Gleason led the Board for the discussion.  Ms. Beloritsky will vote with regard to the following two requests.   

 

Case #2273 – CROSSLEY, Donald; Little Island Pond Watershed Association; and others/Dutton Road –ML 30/11/93 – By Crossley, Donald; Little Island Pond Watershed Association; and others

 

Mr. Gleason asked if the representative for the petitioners was present.  A member of the public informed the Board that Attorney Michael Donovan, who had submitted correspondence, was not present.  Mr. Gleason informed that there were four members of the Board that could hear the case and therefore, if the Board was to conduct a rehearing a 3-1 vote would be needed for the request to pass.  He reviewed the New Hampshire Board of Adjustment provisions which he felt brought up some interesting points that should be considered.  He wanted to know from the Board if they felt the information contained in the letter from Attorney Donovan was available, and could have been available during the original hearing.  Mr. Gleason did not view the information as new, and believed it should have been presented at the original hearing. 

 

Mr. Hennessey reviewed the points in the correspondence made by Attorney Donovan.  He did not see that the points were made specifically regarding setbacks.  He saw nothing new that would change what the Board originally voted on. 

 

Mr. Gowan said the information brought to light a similar situation that was reviewed in the past by the Planning Board when he was a member.  It refreshed his memory of how zoning had previously been applied and therefore, he felt a rehearing would be warranted. 

 

Ms. Beloritsky didn’t see any reason to rehear the case. 

 

The Board was polled, Mr. Gowan was in favor of a rehearing; Mr. Gleason, Mr. Hennessey and Ms. Beloritsky were not in favor of a rehearing. 

 

The request for a rehearing was denied based upon a (1-3-0) vote.     

 

Case #2273 – CROSSLEY, Donald; Little Island Pond Watershed Association; and others/Dutton Road –ML 30/11/93 – By Cormier & Saurman

 

Mr. Gleason said that Attorney Paul DeCarolis had submitted correspondence to the Board with the request for a rehearing.  He recalled there was a question posed to Town Counsel regarding zoning (BOA 3/8/04 meeting), and if the enactment of the law by the voters would have any bearing on the case (since Town Meeting was to be held the next day); Town Counsel advised once a plan had a completed application and was accepted, it would be grandfathered from subsequent changes in the zoning.  Mr. Gleason did not feel a rehearing was necessary. 

 

Mr. Gowan didn’t see any changes and voted against a rehearing. 

 

Mr. Hennessey also voted no for a rehearing.  He was upset regarding a case that was cited by the attorney and felt it was overstated.  It was his opinion, that the Conservation Commission had the authority to say yes, or a no, regarding a parcel. 

 

Ms. Beloritsky did not have Attorney DeCarolis’ correspondence.  Mr. Gleason gave Ms. Beloritsky a copy.  Ms. Beloritsky reviewed the information and said she was against rehearing the case.

 

The Board voted against a rehearing based upon a (0-4-0) vote. 

 

Mr. McNamara returned to the Board and resumed his position as Chairman.

 

HEARING(S)

 

Case #2261 – MACKINNIN, Cheryl, Trustee/30 Jericho Road – ML 41/10-261 – Seeking a Special Exception concerning Article XII, Section 307-74 and Seeking a Variance concerning Article XII, Section 307-74 to permit a 672SF handicap accessory dwelling in the residential zone.

 

Mr. McNamara appointed Ms. Ronning to vote with regard to the following case.

 

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. 

 

Ms. Cheryl MacKinnin went before the Board to discuss the requests.  She and her sisters are EJCC Realty Trust.  She informed that the family would like to keep their disabled brother in the home for as long as he is capable.  The current house (65 years old) is in major need of repair and the intent of the applicant was to tear down the existing dwelling and rebuild a home with an accessory dwelling that was handicap accessible. 

 

Mr. Gleason asked for clarification of the planning.  Ms. MacKinnin said that the existing home would be torn down, a new house constructed in its place that had a handicap accessible apartment so her brother could have his own independent space.  It was explained that the accessory apartment would be in the lower level of a split entry home.  The applicant further explained/reviewed the plan for the proposed home.  Mr. Gleason asked how many entries there were from the handicap area.  The applicant said there would be one to the outside, and one entry that lead to the family room.  Mr. Gleason asked what was ‘driving’ the size of the apartment (672SF) to be in excess of the regulations (500SF).  The applicant said it was difficult to build a handicap accessible apartment within 500SF.  The bathroom/shower, bedroom doors/closet areas had to be larger.  The applicant believed because the structure was handicap accessible, it drove the square footage to be larger. 

 

There was no public input. 

 

Mr. Gleason said he could empathize with the access for wheelchairs and understood how a wheelchair would be an extenuating circumstance for a variance.  Mr. McNamara asked if the hardship in this case was the person, rather than the property.  Mr. Hennessey felt federal and state laws required reasonable accommodations for handicap persons.  He felt it was reasonable for the Board to do so as well. 

 

The applicant provided the Board with a copy of the approved septic system.  The applicant informed that the state didn’t have a designation for 4.5 bedrooms; therefore, the state approved the septic with the house being three bedrooms, plus an apartment; the calculations on the DES approved septic design showed 4.5 bedrooms.  It was noted that the Planning Department already had a copy. 

 

In the absence of the submitted criteria, Mr. Hennessey reviewed the criteria with the applicant and asked them to answer the following questions.  (the applicant’s answers are in italics).

 

Item #1.  The proposed use would not diminish surrounding property values because: No

 

Item #2.  Granting the variance would not be contrary to the public interest because: No

 

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

                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:

 

                b) that no fair and substantial relationship exists between the general purposes of the zoning                            ordinance and the specific restriction on the property because:

 

                c) the variance would not injure the public or private rights of others since:

 

Item #4.  Granting the variance would do substantial justice because: Yes

 

Item #5.  This use is not contrary to the spirit of the ordinance because: Not contrary to the spirit.

 

Ms. MacKinnin discussed the situation with her brother, who at this point was not wheelchair bound, but due to medication, may be in the future. 

 

BALLOT VOTE:

 

Mr. McNamara – Yes to all criteria

Mr. Gleason –  Yes to all criteria

Mr. Hennessey -  Yes to all criteria

Mr. Gowan – Yes to all criteria

Ms. Ronning – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

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

 

BALLOT VOTE:

 

Mr. McNamara – Yes

Mr. Gleason –  Yes

Mr. Hennessey -  Yes

Mr. Gowan – Yes

Ms. Ronning – Yes

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCEPTION GRANTED

 

The applicant was informed that there was a 30-day appeal period.

 

Case #2274 – MICHAUD, Andre/17 Lincoln Street – ML 14-4-99 – Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory dwelling in 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. 

 

Darlene and Andre Michaud met with the Board and requested a variance for an in-law apartment for his mother.  Mr. Michaud said the dimensions of the entire living area were calculated to be exactly 500SF.  He further explained/reviewed the layout with the Board.  He said there would be a shared laundry room.  Mr. Gleason confirmed what areas were included in the calculations.  Mr. Michaud said an architect had drawn the plan so that they were within the 500 square feet requirement.  Mr. McNamara said the Board had received an indication that the calculations may not be exact, so the Board took a minute to re-calculate the proposed plan. 

 

Mr. Gleason asked what the septic system was rated.  Mr. Michaud believed the septic system was rated for 4, or 4.5 bedrooms; the septic design showed a separate tank for the addition, which would be piped into the present tank.  The leach field was checked and approved by the state.  Mr. Michaud discussed the egresses for the accessory dwelling; it was explained that there would be three areas of egress. 

 

After calculating the living area, Mr. Hennessey believed the dimensions were over 600 square feet (the dimensions calculated didn’t include the laundry, hallway, or closet).  He said the Planning Director also had difficulty with the calculations coming in at 500 square feet.  He asked that a stipulation be added that the architect render the living space as 500 square feet.  Mr. Michaud said he made it clear to the architect that the living space should not be over 500 square feet.  There was further discussion regarding what was included in the calculations.  Mr. Hennessey believed that the closets and the kitchen were too big.  It was noted that the calculations were to be done by measuring wall-to-wall.  Mr. Gleason said the calculations should include everything that was functional within the room (which included the closets). 

 

Mr. McNamara said there would be a problem making a stipulation, because Special Exceptions require that all criteria are met.  He suggested that the applicant go back to the architect and obtain a design that fit within the 500 square feet, and then come back to the Board.  He reiterated that legally, a Special Exception could not be granted unless all of the conditions were met. 

 

Mr. McNamara said the applicant could either have the Board vote on the Special Exception, or they could withdraw the application. 

 

The applicant withdrew their application.    

 

Case #2275 – MARALDO, Joseph & Carol/169 Old Gage Hill Road North – ML 17/13-37-1 – Seeking an Equitable Waiver, pursuant to RSA 674:33 an existing garage that is 3 feet from the property line where 15 feet is required in 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. 

 

There were no petitioners, or representatives in attendance to present the case to the Board.

 

The Board continued the case to the next scheduled meeting on May 10, 2004. 

 

Case #2276 – SWEREN, John & Paula/68 Marsh Road – ML 28-7-175 – Seeking a Variance concerning Article III, Section 307-14 to permit the creation of two building lots, each with less than 200 feet of frontage in the residential zone.

 

Ms. Ronning recused herself from the Board.  Mr. McNamara appointed Ms. Beloritsky to vote with regard to the following case.

 

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. 

 

Attorney Dave Groff and Mr. John Sweren addressed the Board with regard to the variance request.  Attorney Groff said his client would like to subdivide the back acreage of the existing lot, which is approximately five acres.  The proposal was to subdivide the lots so each would have 50 feet of frontage and its own driveway.  Attorney Groff said all the zoning requirements would be met, except for the 200 foot frontage requirement (current frontage is 346 feet).  He reviewed the variance criteria as follows:     

 

Attorney Groff explained that the applicant had adequate area for three separate building lots; the intention was to subdivide off the two plus acre lots, which was in the spirit and intent of the zoning ordinance because there would not be a problem with overcrowding or the setbacks. 

 

Item #1.  The proposed use would not diminish surrounding property values because: the lots would be bigger than most of the surrounding properties and the homes would be consistent with the surrounding.  

 

Item #2.  Granting the variance would not be contrary to the public interest because: the tax base would be added to; there is a need for this type of housing; the acreage would be larger than the zoning requirements.

 

Item #3.  Denial of the variance would result in unnecessary hardship to the owner because: there is sufficient land area to create the three lots; building a small roadway for the lots would not be in the Town’s best interest with regard to maintenance. 

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: Attorney Groff discussed cases from the past, in which over a ten year period two variances had been granted for lots off Mammoth Road to be accessed by a 50ft. road. 

 

b) that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: there would be no overcrowding, and adequate septic systems could be obtained. 

 

c) the variance would not injure the public or private rights of others since: surrounding properties have the same uses; there is quite a bit of setback distance between the proposed site locations and the abutting lots.

 

Item #4.  Granting the variance would do substantial justice because: without the variance the applicant could not make full use of the lot unless he built a small (private) road, which the Town would end up maintaining.  The lot is zoned residential and the applicant wanted to make residential use of the lot.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: Residential use, which is based upon the spirit and intent.

 

Mr. Gowan questioned the contiguous land area.  Attorney Groff said he did not do any of the calculations, the engineer who signed the plan prepared the calculations. 

 

Mr. Gleason asked when the current owner purchased the property.  Attorney Groff said the applicant had owned the property for seven years.  Mr. Gleason confirmed that the applicant had purchased the property after the enactment of the frontage regulations.  He said the applicant purchased the property knowing it was landlocked.  Attorney Groff said the lot was not landlocked; it was not consistent with the zoning ordinance.  Mr. Gleason asked if Economou and Michelle had a similar situation.  Attorney Groff discussed the lots on Economou and the consolidation of lots for frontage. 

 

Mr. McNamara noted that a previous owner had requested a variance in 1990, which was denied.  He asked what had changed with the property.  Attorney Groff said he was aware of the previous request and said that nothing had changed with the property, but that the variance laws changed since the Simplex case.  He said that the Town had also changed since 1990 and there weren’t many lots for sale in Town. 

 

Mr. Hennessey asked if the driveway would be approximately 700ft. in length.  Attorney Groff answered yes.  Mr. Hennessey asked if there were any circumstances that the Board should uphold a 200ft. frontage.  Attorney Groff said that there were several circumstances in which variances were granted, that he felt should not have been granted.  He went on to discuss the cases in which he had argued against frontage variances.  He said with the exception of one case, he could not recall the Board denying a frontage variance.  Mr. Hennessey asked if the owner had gone to the abutting properties to obtain more frontage.  Attorney Groff said he had not gone to the abutters and didn’t believe it would be possible to obtain additional frontage based upon the surrounding lots. 

 

Mr. McNamara noted on the plan that a special permit would be needed for one of the lots because of a WCD crossing.  Attorney Groff said the applicant would have to appear before the Conservation Commission and Planning Board.  Mr. McNamara asked what the driveway impact would be.  Attorney Groff said the engineer would need to make a notation on the plan. 

 

PUBLIC INPUT

 

Ms. Cynthia (Corriveau) Chamberlin, 6 Economou Drive, did not feel there was a reason to make two house lots in the proposed area.  She said the forested area separated Economou and Michelle very well.  She was concerned with additional flooding if the trees were removed since there was an existing problem.  She also was concerned with noise and the appearance of the neighborhood if the trees were removed.  Ms. Chamberlin also felt because the area was currently wooded, her property would be devalued if the proposed lots were allowed and the trees were cleared. 

 

Mr. McNamara asked the applicant if the area was currently wooded.  The applicant answered yes. 

 

Mr. Gleason asked what the hardship to the land was.  Attorney Groff said the zoning ordinance was designed to prevent overcrowding.  In this case there was more acreage and dry area than what was required.  Mr. Gleason noted that the applicant purchased the land after the enactment of the zoning, knowing he would require a variance to build on the land.  Attorney Groff said the Board had consistently granted variances for similar situations.  Mr. Gleason said he would have to review past practice, but believed other cases had extenuating circumstances.  Mr. McNamara noted that the Board’s ‘stance’ had changed over the past years, specifically regarding frontage requirements.  There was further discussion regarding past cases of the Board in connection with frontage issues. 

 

Mr. Hennessey discussed the case and under Simplex said the lot was unusual, but was uneasy with a 700 foot driveway and believed the Police and Fire Chiefs would also have a problem with it.  Attorney Groff asked if he would allow the proposed subdivision with a shorter driveway.  Mr. Hennessey said the lot on the left would have a problem with WCD.  Attorney Groff noted that the site was less than a mile from the Police and Fire Department. 

 

Mr. McNamara asked for a response to the abutter’s concern about the noise and appearance from an aesthetic view if the trees were cut down.  Attorney Groff said according to his client, the abutter disposed of her lawn trash in the back area and may have a vested interest in continuing.  He noted that his client had the right to use his land as he saw fit.  He didn’t know how constructing a house would impact the abutter since there was a no-cut zone along the wetland area.  Mr. Hennessey didn’t feel that a problem between the abutters should be discussed at this forum; a person opposing a variance should not be attacked.  Attorney Groff wanted the Board to understand the facts.  He said his client had a piece of land he would like to use. 

 

Ms. Donna Allen, 2 Economou said her issue was water in the area and believed that the addition of two homes wouldn’t help the situation.   She wanted to know what would happen to the abutter’s property if the water problems were made worse. 

 

Mr. Gleason asked if the map represented the Town plat relative to the wetlands.  Attorney Groff said the wetlands had been reviewed by a wetland scientist.  Mr. Gleason asked if there was a problem with the rain in the past recent weeks.  Attorney Groff believed there had always been a problem.  He said the Planning Board didn’t allow a change in the water flow, or additional water to be dumped onto abutting properties.  He said his client would have to go before the Planning Board and Conservation Commission. 

 

Mr. McNamara believed the applicant had made some points, but the Board also brought up points such as the applicant having knowledge prior to purchase, and a variance being denied (for one lot) in the past. 

 

Mr. Hennessey said he believed there was hardship regarding the configuration of the land, but had a problem justifying two lots.  He said he would be more sympathetic to one lot.  He also had concern with the length of the 700 foot driveway. 

 

Ms. Beloritsky said she would have preferred if the abutters brought evidence of harm/influence because the plan did not show where the properties were, or the abutter’s property lines.  She was concerned with the impact of the land and wanted to know if the area was dry. 

 

Mr. Hennessey asked if the site line was straight on the access to the proposed subdivision.  Attorney Groff said the road was straight in the area and should have adequate site distance. 

 

Mr. Gowan felt if the proposed was one lot it would be easier to approve.  He believed the Planning Board would do due diligence in terms of the non-permeable surface (700ft. driveway).  He said if the proposed was one lot, and/or had access off a private road it would be easier to approve.

 

BALLOT VOTE:

 

Mr. McNamara – 1) No; 2) No; 3) No; 4) No; 5) No

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

Mr. Hennessey -  1) Yes; 2) No; 3) No a) Yes, b) No, c) Yes; 4) No; 5) Yes

Mr. Gowan – 1) Yes; 2) No; 3) No; 4) Yes; 5) No

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

 

VOTE:

 

(1 -4 -0) The motion failed. 

 

 

VARIANCE DENIED

 

Ms. Ronning returned to the Board.

 

Case #2277 – SCHEDELER, Mark & WHITE, Priscilla/21 West Shore Drive – ML 30/11-108 – Seeking a Variance concerning Article III, Section 307-14 to permit the creation of a lot that will not have 200 feet of frontage on a public right-of-way.

 

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. Mark Schedeler said he owned property on West Shore Drive, which was a private drive and requesting a variance to subdivide their lot.  He said all zoning requirements would be met, with the exception of the frontage requirements.  He reviewed the five criteria as follows:

 

Item #1.  The proposed use would not diminish surrounding property values because: the surrounding property values would be increased because the new structure would be more valuable than the existing properties. 

 

Item #2.  Granting the variance would not be contrary to the public interest because: the value of the property and the abutters would be increased.

 

Item #3.  Denial of the variance would result in unnecessary hardship to the owner because: it would not allow the full use of the property.

                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:

 

                b) that no fair and substantial relationship exists between the general purposes of the zoning                            ordinance and the specific restriction on the property because:

 

                c) the variance would not injure the public or private rights of others since:

 

Item #4.  Granting the variance would do substantial justice because: the property could be utilized to the fullest extent.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: the only criteria not met was being on a public road as opposed to being on a private road. 

 

Mr. Hennessey asked what the dotted line depicted on the plan.  Mr. Schedeler said the dotted line depicted the one-hundred year flood zone.  Mr. Hennessey asked if the parcel abutted a prime wetland.  Mr. Schedeler answered yes and was sure the plan would have to go to the state. 

 

Mr. Gleason asked if the current property would be grandfathered.  Mr. Schedeler said there was no property in the area that had been built without a variance.  He said the original structure was there before zoning was enacted and was acquired in 1985.  Mr. Gleason questioned if there were two variances being requested.  Mr. McNamara said only one variance was being requested.

 

Ms. Ronning asked if the residents had discussed improving the current road through betterment fees.  Mr. Schedeler said there had been discussions, but at this point didn’t feel it would happen. 

 

Mr. Gleason reviewed the regulations regarding non-conforming usages.  Mr. Hennessey felt non-conforming use pertained to the zoning (i.e. residential).  He believed there was only one variance needed because the request was for one lot on a private road.  Mr. Gleason questioned if the creation of an additional lot would alter the status of the existing lot. 

 

Mr. McNamara asked if the applicant had a more detailed plot plan.  Mr. Schedeler said at the advice of several surveyors, it was highly recommended that a variance be granted before he spent the money for the surveying process, which would cost a substantial amount of money.

 

Mr. Hennessey was unsure how much high and dry land there was because of the prime wetlands in close proximity.  Mr. Schedeler informed that after the recent rainfall, he had no water problems.  The current structure is currently 200ft-250ft from the wetland, but had not been flagged by a soil scientist. 

 

PUBLIC INPUT

 

Mr. Charlie Kamitian, 40 West Shore Drive, said there may be a problem with a parcel of land that had been in his family for a number of years, which was not depicted on the Town tax map, but was outlined in his deed.  He didn’t feel there would be a problem with the land based upon previous conversations with the Town Assessor, but because of the proposal, know felt uneasy.  He said the quotes to survey his property were too expensive.  Mr. Kamitian discussed the fact that his additional land was used when calculating the size for when he received an Article K. 

 

Mr. Gleason asked if the applicant had a deed to lot 11-108 and if the deed markings were indicated on the Town map.  Mr. Schedeler said he had a deed, but the markings were not indicated on the Town map. 

 

Mr. Kamitian did not say that he opposed the application for variance, but wanted to ensure that the Board recognized that he had a parcel of land so it would not be encroached if the proposed was approved. 

 

Mr. Gleason questioned the application, and wanted to know how the applicant could know for certain that there would be adequate frontage.  Mr. Kamitian said his lot size was 50ft. x 100ft and was exactly adjacent to the applicant’s lot.  He said he had discussions with the Assessor (Janet Reardon) and the Planning Director (Will D’Andrea) who suggested that he provide information to the Board.  Mr. Schedeler said according to the Town map he had 400ft. of frontage, and according to his deed he had 415ft of frontage.  He said using rough calculations, the footage worked.  He felt if the variance was granted and an official plot plan was submitted to the Town, it would help the Town.  It was not his intention to use Mr. Kamitian’s property. 

 

Ms. Ronning felt the applicant should survey the parcel and then come back to the Board.  Mr. Schedeler said it was recommended by several surveyors that the survey be done after the variance was granted to avoid substantial costs. 

 

Mr. Roger LeMay, West Shore Drive (lot 9), said he had a survey done last week by Herbert Associates (for approximately $1400-$1600) and believed that Mr. Schedeler would only need to have two pins located.  He felt the cost of the survey should be reasonable since two of the pins had already been confirmed. 

 

Ms. Elizabeth Schedeler, West Shore Drive, questioned the frontage.  She was concerned about the wetland and didn’t know how much high and dry land there was in the area.  She didn’t feel having a large home across the street would add to the value of her property.  She said the more building done in the area, the less her home would be worth. 

 

Mr. Hennessey felt it would be in the best interest of everyone to know exactly how much land there was.  He said it would be nice if the applicant withdrew his application and confirmed the frontage.  Mr. McNamara said in order to grant a variance, it would be based on indefinite information, which he was not comfortable doing.  Mr. Schedeler felt a variance could be granted with a stipulation that he be forced to meet the frontage requirements.  Mr. McNamara said the information before the Board was apparently not an accurate plan, and the Board indicated they were reluctant to grant a variance.  He said based on testimony, a survey may be able to be done at a considerably less cost than originally believed. 

 

Mr. Schedeler told the Board that the high cost of the survey would be in order to minimize the overall costs;  it was highly recommended that both lots were done at the same time along with the soils scientist, topology and boundaries.  He didn’t feel there was a problem with the frontage. 

 

There was further discussion regarding what action could be taken.  The Board was reluctant to vote on the variance without additional information about the lot calculations. 

 

Mr. Schedeler withdrew his application.

 

Case #2278 – ROCHE, Michael & Sharyn/14 Spring Street – ML 31/12-41-1 – Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory dwelling in 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. Mike Roche met with the Board to discuss his application for a Special Exception.  He said the accessory dwelling would accommodate his mother-in-law.  The footprint and exterior of the house would not be changed. 

 

Mr. Gleason reviewed the plan.  It was noted the accessory dwelling would not be attached, but rather underneath the main dwelling.  He confirmed that the footage was 447 square feet.  Mr. Roche answered yes.  He said the measurements were from wall to wall. 

 

Mr. McNamara confirmed that there was an approved septic plan.  Mr. Roche answered yes.  Mr. Gleason confirmed that the septic was rated for 4.5 bedrooms and there were currently three bedrooms in the home. 

 

There was no public input. 

 

Ms. Ronning said she would like to know the outside and common way dimensions.  Mr. Hennessey reviewed the calculations and said he was comfortable.  Ms. Ronning asked that a condition be added to include the size.

 

MOTION:

(Gleason/Hennessey) To grant the approval with the stipulation that the drawings be annotated to reflect all dimensions associated with the in-law apartment.

 

VOTE:

 

(5- 0 – 0) The motion carried. 

 

 

BALLOT VOTE:

 

Mr. McNamara – Yes – with condition contained in motion.

Mr. Gleason –  Yes – subject to motion.

Mr. Hennessey -  Yes - with stipulation.

Mr. Gowan – Yes

Ms. Ronning – Yes – with stipulation.

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCEPTION GRANTED

 

The applicant was informed that there was a 30-day appeal period.

 

Case #2279 – SIMMONS, William/138 Windham Road – ML 4/9-142-1 – Seeking a Variance concerning Article III, Section 307-12 (e) and Article VII, Section 307-41 (b) to permit an existing porch to remain within 15 feet of the side lot line; and an existing house to remain partially in the Wetland Conservation District.

 

Ms. Ronning recused herself from the Board.  Mr. McNamara appointed Ms. Beloritsky to vote with regard to the following case.

 

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. 

 

Attorney Dave Groff addressed the Board and said there was a situation with a foundation that had the WCD going through a portion of it, and a porch that was within ten feet of the lot line.  He said a person purchased a house from a builder and found there were problems when he went to sell the property.  The house had been there for three, or four years and the owner would like to make it legal.

 

Item #1.  The proposed use would not diminish surrounding property values because: the house is existing and was constructed in accordance with the building permit that was issued and the foundation survey and occupancy permit.  Not requesting changes, trying to make the existing conform to the zoning ordinance. 

 

Item #2.  Granting the variance would not be contrary to the public interest because: it’s already constructed, the only alternative would be to tear the house down, which would create a bigger mess by going into the WCD.

 

Item #3.  Denial of the variance would result in unnecessary hardship to the owner because: the zoning restriction 50ft. WCD interferes with the reasonable use of the property considering the unique setting of the house which was built exactly where it showed on the plan when permits were issued for it to be constructed. 

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: Not requesting any impingement on the WCD, simply want to make the existing structure legal.

 

 

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 house was built right where it sits now.

 

c) the variance would not injure the public or private rights of others since: already existing and was approved that way.

 

Item #4.  Granting the variance would do substantial justice because: trying to make the existing situation a legal situation.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: not asking to go into the wetlands district; it does impinge a little; the owner is not requesting any expansion. 

 

Mr. Gleason reviewed the setbacks and asked if the porch was constructed subsequent to the building permit being issued.  Attorney Groff said the porch was constructed at the time that the house was built.  Ms. Ronning informed that the porch was part of the original structure. 

 

Mr. Gowan referred to a letter from Peter Zohdi of Herbert Associates to the Town Building Inspector Roland Soucy dated December 13, 1999 where the WCD encroachment was discussed.  It was noted that during that time the problem was identified.  Attorney Groff said it was supposed to be addressed at that time by applying for a variance, but he could find no record that a variance had ever been applied for. 

 

Mr. Hennessey said there was an additional issue with the Conservation Commission because of the no-cut zone being violated. 

 

Attorney Groff discussed the procedure and the purpose of having a certified plot plan so that houses were placed where they were supposed to be.  However in this case, the house was built where it should not have been.  Mr. Hennessey felt there should be some remediation with regard to the Conservation Commission being involved in the process. 

 

The Board reviewed the information they had received.  Mr. McNamara asked Ms. Ronning if she recalled any information regarding the case.  Ms. Ronning could only say that the house was not done intentionally. 

 

Mr. Hennessey didn’t see the harm with having the Conservation Commission review.  Mr. Gleason said he was not adverse to having the Conservation Commission review, but didn’t want to give them the authority to stop anything.  Mr. Hennessey said he would approve a variance and encouraged the Conservation Commission to review within twenty days.  Attorney Groff addressed the WCD.  He said typically the Conservation Commission, upon notice of a violation, could do anything they wanted. 

 

Ms. Beloritsky questioned the integrity of the porch.  Attorney Groff said the porch was not in the WCD.  Ms. Beloritsky then questioned the integrity of the house being in the WCD.  Attorney Groff explained that the house was within the fifty-foot buffer.        

 

The Board reviewed the Variance criteria with regard to Article III, Section 307-12 (e)  (porch):

BALLOT VOTE:

 

Mr. McNamara – Yes to all criteria.

Mr. Gleason – Yes to all criteria.

Mr. Hennessey - Yes to all criteria.

Mr. Gowan – Yes to all criteria.

Ms. Beloritsky – Yes to all criteria.

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED  

 

The Board then reviewed the Variance criteria with regard to Article VII, Section 307-41 (b)  (house)

BALLOT VOTE:

 

Mr. McNamara – Yes to all criteria.

Mr. Gleason – Yes to all criteria.

Mr. Hennessey -  Yes to all criteria.

Mr. Gowan – Yes to all criteria.

Ms. Beloritsky – Yes to all criteria.

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

Ms. Ronning returned to the Board.

 

Case #2280 – TARIS, Kathleen & CASTRUCCI, Eric/19 May Lane – ML 7-9-136-48 – Seeking a Variance concerning Article VII, Section 307-41 (b) to permit an above ground swimming pool in the Wetland Conservation District.

 

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. Eric Castrucci went before the Board to discuss his variance request.  He said last spring he had approached the Planning Department and spoke with the former Planning Director (Clay Mitchell) regarding a building permit for an above-ground pool, at which time he was notified that his house had a twelve foot back yard (a fact they were unaware of previous to purchasing the home).  He said the variance would allow him and his wife to enjoy their property in the same fashion as their neighbors, and would not devalue the surrounding properties.  He said the structure would not disturb the land, or water flow to the WCD.  He said the structure was not permanent and was much like the use of a swing set.  The above-ground pool was proposed to be located in the WCD, not on the conservation land itself.

 

Item #1.  The proposed use would not diminish surrounding property values because: the proposed addition would be the same architecture as the surrounding dwellings and aesthetically pleasing; no decrease in surrounding property values.

 

Item #2.  Granting the variance would not be contrary to the public interest because: the proposed use will add to the taxes being paid to the property.

 

Item #3.  Denial of the variance would result in unnecessary hardship to the owner because: will not be able to use land to the fullest potential if the variance is denied; non-conforming lines already exist.   

                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:

 

                b) that no fair and substantial relationship exists between the general purposes of the zoning                            ordinance and the specific restriction on the property because:

 

                c) the variance would not injure the public or private rights of others since:

 

Item #4.  Granting the variance would do substantial justice because: use being requested is consistent to the use of the surrounding lots and variance being granted will allow use of the property in the same manner.

 

Item #5.  This use is not contrary to the spirit of the ordinance because: it is within the spirit of the ordinance.

 

Mr. Gleason asked why the Planning Director said a variance was required for an above ground pool, which is temporary.  Mr. Castrucci said his wife spoke with the former Planning Director, who said a variance was needed due to the WCD and the wetlands behind the house.  Mr. Gleason confirmed that the ground would not be disturbed by placing a tank.  Mr. Gowan said it was potentially a 10,000 gallon tank of treated water near a WCD. 

 

Mr. Hennessey asked if the applicant had a copy of his deed.  Mr. Castrucci answered no.  Mr. Hennessey believed, based upon the plot plan that there was a no-cut zone behind his house.  He asked if trees would need to be cut to add the pool.  Mr. Castrucci answered no.  He said the land had been cleared prior to him purchasing the property.  Mr. Hennessey asked if the people he bought the house from had cleared the land.  Mr. Castrucci answered yes.  He said it was a new home built for him and his wife.  He said the back yard was being maintained as it had been cleared prior to the home being built.  When they asked the procedure for adding an above-ground pool, they were informed they had a twelve-foot back yard. 

 

Mr. McNamara asked when the applicant moved into the property and wanted to know if the home was new.  Mr. Castrucci said they moved into the home in February, 2003; the home was built for them.  Mr. Gleason asked if there was grass, and if fertilizer was being used.  Mr. Castrucci said he was mowing the lawn. 

 

Mr. Hennessey felt the reason for the variance was because there was a no-cut zone.  He said the former Planning Director had told them that they wouldn’t be asked to fill in the area with trees, but would be able to maintain the area in its existing condition. 

 

Mr. Gleason said he had a problem considering the above-ground pool as a permanent structure.  He felt there was a hardship. 

 

There was further discussion regarding the application.

 

Ms. Beloritsky said that soil tests had been done by the state, and found that virtually every lot that had a pool had chlorine contamination.  She said pools had to be drained and that would pose a problem to the area.  She also felt the chlorine was a problem.  Mr. Gowan noted even if a variance were granted, it was the purview of the Conservation Commission with regard to mitigation.  Mr. Hennessey said he would not grant a variance in a WCD.  It was noted that flags were needed for no-cut zones.  Mr. Hennessey didn’t feel a variance should be granted if a deed had a no-cut zone. 

 

Mr. Castrucci questioned how a house was constructed and the land cleared given the concerns for the wetlands.  He said he would have the same problem when he wants to sell his home. 

 

Mr. Gleason asked if there was an alternate location for the pool.  Mr. Castrucci noted that the entire drainage easement was located on his property and excavation would affect that drainage.  Mr. Gowan asked about the other side of the home.  Mr. Castrucci said the left side of the home was where the driveway was located.  Ms. Ronning said the deed may state a no-cut zone, but might not contain the footage.  Mr. Hennessey said the deed would need to be compared to the plan.  Mr. Gowan said the pool was not a permanent structure, and understood the concern with using the back yard, but the responsibility fell on the purchaser; buyer beware. 

 

Mr. Gleason asked if the home was built through an approved plan of the Planning Board.  Mr. Castrucci said the home was built and believed the plan must have been approved by the Planning Board.  Mr. Gleason asked if the trees were cleared at the time that the occupancy permit was granted.  Mr. Castrucci said the lot was completely populated with trees the first time they viewed it; however it was cleared at the time the occupancy permit was granted.  He said the yard had maintained in the condition it was when the home was purchased. 

 

Mr. Gowan asked if there was a deck, or if the pool was free-standing.  Mr. Castrucci said there was an 8ft.x10ft. deck attached to the pool. 

 

Ms. Beloritsky asked if the land would have to be altered by adding sand.  Mr. Castrucci said sand would have to be deposited. 

 

Ms. Ronning asked when the applicant moved into the home.  Mr. Castrucci said they moved into the home in February, 2003.  Ms. Ronning asked if money had been placed into escrow for landscaping.  Mr. Castrucci said money was escrowed for landscaping, second coat of the driveway and small paint touch ups. 

 

Mr. McNamara was not convinced that the Conservation Commission could do what they wanted if a variance was granted.  Mr. Gleason still believed that the pool was not a permanent structure and questioned if a variance was needed.  Mr. Hennessey noted that a pool would show up on a mortgage survey plan, and if it was within the sideline restrictions, would come before the Board for a variance.  Mr. Gleason said an in-ground pool was a different scenario; an above ground pool could be taken down.  Mr. Hennessey didn’t feel he could go against a deed restriction and no-cut zone.  Mr. Gowan said if the Board’s purview was to grant a variance, he would feel comfortable if the applicant would make the violations legal.  Mr. Hennessey said the only one who could change a deed (remove the restriction) was the court.

 

PUBLIC INPUT

 

Attorney Dave Groff, representing the developer, said the developer didn’t care if the applicant put a pool in, but he did care when violations were being discussed.  He said as far as he knew there had been no violation of the WCD.  He provided the Board with a plan that showed the foundation in relation to the WCD.  He pointed out to the Board that the house had been shifted, at the request of the applicant, to be further away from the drainage and to allow for the driveway access to be on the left side of the home.  He said the applicant reviewed the plans with the real estate agent (Sue Linnehan) prior to signing the contract.  Attorney Groff then provided the Board with a letter written by Mr. Castrucci’s wife (dated August 7, 2002) that requested another lot, if it became available, that didn’t have the conservation land taking up a good portion of the acreage, because the conservation land made the lot less desirable putting restraints on the owners for future expansion, pools, etc.  He said the applicant was not allowed to build a pool in the WCD.  His client cared that the applicant was saying they didn’t know about their back yard, the location of WCD or that they couldn’t add a pool in the back yard.  He said the applicant knew about the constraints and had gone so far as to request an alternate lot because of which. 

 

Mr. Gowan asked when the lot was cleared.  Attorney Groff said the lot had a natural clearing and trees had not been cut down in the WCD.  He said the applicant had requested the house location.  He said there was a lot of area on the parcel where a pool could be located.  He reiterated that his client wasn’t against the applicant adding a pool, he was simply saying that the applicant knew where the WCD was, and had requested the location of the home.  He reiterated that there was a natural clearing on the land and trees were not cut down. 

 

Mr. Castrucci had no response.

 

Mr. Gowan said based upon everything that was heard, he would vote against the variance.  There was further discussion regarding the application for a variance.  Mr. Castrucci noted that there was very little land on the left side of his home to place a pool; the other side of his home had constraints due to the location of his well and the drainage easement.  He asked what the term ‘natural clearing’ meant.  Mr. Hennessey said when a deed had a do not disturb zone, it meant if there was an opening, it should be kept open, and if there were trees, they could not be cut down.     

 

BALLOT VOTE:

 

Mr. McNamara – No to all criteria.

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

Mr. Hennessey -  No to all criteria.

Mr. Gowan – No to all criteria.

 

VOTE:

 

(0-5-0) The motion failed.  

 

 

VARIANCE DENIED

 

MINUTES

 

March 8, 2004deferred to the next scheduled meeting.

 

ADJOURNMENT

 

MOTION:

(Gleason/Gowan) To adjourn the meeting.

 

VOTE:

 

(5- 0 - 0) The motion carried. 

 

The meeting was adjourned at approximately 11:00 pm.

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis              

                                                                                                Recording Secretary