BOA 08-09-2004

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

= August 9, 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 Gl= eason, David Hennessey, Jeff Gowan, Alternate Svetlana Beloritsky

Alternate Cindy Ronning

Mr. McNamara appointed Ms. Beloritsky as a voting memb= er for the evening’s proceedings.

CONTINUED<= o:p>

Case #2286= – BIBEAU, David/36 Atwood Road – ML 29/7-41 – Seeking a Variance concerning Article VII, Section 307-41 (b) to permit the construction of a 30ft. x 40ft. garage partly within the 50ft. wetland buffer.=

As a point of order, Mr. Gleason requested clarificati= on why the Board was hearing the case. He said the Board had granted a variance in 2003 for incursion into the wetlan= ds with no stipulation as to the location of the incursion. He saw no reason for the variance = to come back before the Board to move the building location. Mr. McNamara said the Planning Dir= ector had submitted a memo containing his reasons for the case to come back before the Board. He believed becaus= e the Planning Board suggested that the building be built on the other side of the property the Planning Director felt it was a significant change and should = come back before the Board. Mr. Gl= eason reiterated his position that the variance granted by the Board, with the stipulations made at that time, remained in affect at this time. Mr. Hennessey reviewed the Planning Director’s comments and questioned if the Board would review the requ= est starting from ‘scratch’, or if the Board would only be discussi= ng the change of location. There= was a brief discussion regarding how the Board would review the variance request submitted. Mr. Hennessey made= a motion that despite the agenda calling the case a continuance, the Board tr= eat the request as ‘new’ and start all over again. There was no second to the motion.=

Attorney Paul DeCarolis, representing abutters J. Albe= rt and Mildred Lynch, respected the Board’s opinion, and noted that the meet= ing was noticed to the public was specifically for a variance application, not = an appeal to an administrative decision. Mr. Gleason said his position was that a variance was granted to the applicant for the same type of situation and the variance was still in affe= ct; none of the circumstances had changed, except the location had been moved; = the same criteria would be applicable. <= /span>He was not in favor of starting from ‘day one’.

Ms. Beloritsky said changes in building location could change an abutter’s view regarding a case. She asked if the original variance contained parameters as to the location of the building and wanted to know = if perimeters were set by the Board of Adjustment, or the Planning Board. Mr. McNamara said the Planning Boa= rd had the right to site plan review, and in doing so they came to the conclusion = that the presented plan was not the best plan for the site. The Planning Board asked the appli= cant to come up with an alternative plan locating the garage at the other side of the property, further away from the wetlands. Ms. Beloritsky felt this was a new= case because the Board didn’t know the impact on the abutters with the building being in a different location.&nb= sp;

Mr. Wes Aspinwall of Herbert Associates, representing = the applicant, said they had the same questions as the Board had. The felt the original variance was contingent upon documentation of the state approving the plan and two stora= ge buildings being removed. He s= aid the state Wetlands Board approved the plan based upon the original plans; t= hey have contacted the wetland scientist Jeff Orchard who has sent updated plans showing the proposed location change of the building. He discussed where the building wo= uld now be located. The garage wo= uld be thirty five feet (35ft.) from the wetlands; previously it was twelve feet (12ft.) from the wetlands. Mr. Aspinwall said they were prepared to proceed however the Board wanted them = to.

Mr. Gowan suggested that the Board proceed with just t= he relocation of the building and made a motion to that effect which was secon= ded by Mr. Gleason. Mr. Hennessey believed that a variance request should be a full hearing. Ms. Beloritsky agreed. Mr. Gowan withdrew his motion. With reluctance, Mr. Gleason withd= rew his second. Mr. McNamara didn’t want to put the applicant in ‘limbo’. He believed that the Board had previously discussed everything except the building location.

Mr. Aspinwall asked if the previous variance would be superseded if the Board voted in the negative at this hearing. Mr. McNamara said it was a good qu= estion that would need legal opinion. He said there was a current variance to build on the property. Mr. Gleason felt the previous vari= ance would not be in affect if it was agreed that a new variance was needed. There was further discussion after= which it was agreed to proceed with the hearing.=

Mr. Hennessey read the list of abutters aloud. There w= ere no persons present who did not have their name read. The file did not contain = any written correspondence from abutters. The owner of 29 Atw= ood Road informed that the notification he received had his name incorrect; the lett= er read ‘Norton’ however his last name is actually ‘Nolin’. Mr. McNa= mara said the Planning Director mentioned that there had been some difficulty wi= th a notice (it was refused) and understood that it had been resolved; the abutt= er was aware of the meeting and Mr. Bibeau communicated with the Planning Director.

Mr. Aspinwall reviewed the information previously brou= ght before the Board. He said a variance had been granted March 10, 2003. After t= hat time additional site plan work was done; the wetland flags (done by Mr. Orchard) were located; they correspond well with the original plan (done by= a different company). The plan = shows the new location of the building; a copy of the plan has been forwarded to = Dr. Frank Richardson (the Wetland’s Board agent who primarily reviewed).<= span style=3D'mso-spacerun:yes'> As a result from the public hearin= g in Concord, a wetland= s permit was eventually issued. Mr. Or= chard was also forwarded a copy of the latest plan which he transmitted to Dr. Richardson; through e-mail Dr. Richardson had basically concurred that the proposed plan met the intention of the original plan. The Wetlands permit number is 2003= -0140, a copy of the communications between Mr. Orchard and Dr. Richardson was provided to the Board.

Mr. Aspinwall indicated that the site plan had been up= dated and went on to review the changes with the Board. He reviewed the five criteria as f= ollows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed garage will be wood frame= d and sided and designed to fit in well within the area.

Item #2. Granting the variance would not be contrary to the public interest because: It will allow for indoor s= torage of trucks and equipment that are presently stored outdoors and will allow t= he owner to provide better service to his customers in the winter time. There = are several issues: trucks sitting outside close to the wetland; in the winter- freezing temperatures make it difficult to start the engines. The building would provide a clean= er set up, better function of equipment and better aesthetic look.

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 propert= y, considering the unique setting of the property in its environment such that= : The only location that is conforming= for this building is in front of the existing house and is not suitable for functional and aesthetic reasons.

b) that no fair and substan= tial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: The general purpose of zoning, in this instance, is to protect the wetlands. In this case the bu= ffer is being reduced in width but additional protection is being provided by the slab design and mulch berm (at a later stage this has been changed to an earthen berm). .

c) the variance would not i= njure the public or private rights of others since: All construction will occur on the owner’s property and will improve the appearance of the neighborhood.

Item #4. Granting the variance would do substantial justice because: It will allow for the continued commercia= l use of this property in a neater, more attractive and more functional fashion. =

Item #5. This use is not contrary to the spirit of the ordinance because: If the variance is granted, we will me= et all other requirements of the Town and State.&= nbsp; Also this will provide better protection for the wetland than the present usage.

Mr. Hennessey was concerned with a possible sideline problem; need a thirty foot (30ft) sideline setback, the plan shows thirty point nine feet (30.9ft.). Mr. Aspinwall said a full survey had not been done for the property, but believ= ed a marker was located on the piece next door (Demers property). He said he could locate the line p= rior to construction to ensure the distances.&n= bsp; Mr. Hennessey didn’t see any rods to the back of the lot and s= aid he would request a certified plot plan prior to the issuance of a building permit. Mr. Aspinwall said th= at type of condition would be accepted. Mr. Hennessey said the original conditions cited both sheds to be re= moved; however the new plan did not cite removal of the shed next to the wetlands. He asked if there w= ould be an objection to remove the shed. Mr. Aspinwall said Mr. Bibeau had a permit to build the shed seven o= r eight years ago; they recognize the shed is within the fifty foot setback and wou= ld like to keep it, but would be receptive to moving it. Mr. Hennessey said he would like t= he shed moved out of the Wetland Conservation District (‘WCD’). Mr. Aspinwall said they would try = to incorporate moving the shed in the plan that went to the Planning Board.

PUBLIC INPUT

Mr. Roger Nolin, 29 Atwood Road, noted that his name on the list of abutters was incorrectly stated as Norton and indicated it should be Nolin. For this reason, he re= fused to accept the registered letter. Mr. Nolin was in favor of constructing the garage to get the trucks = out of the weather.

Mr. Gordon Brawn, 15 Atwood Road, felt it was logical to protect the watershed by building the facility rather than leaving the facility as it currently was.

Attorney Paul DeCarolis, submitted photographs that we= re taken from the abutting property during the spring showed significant stand= ing water. The wetland is connect= ed to the Hayes Marsh off Route 38. His clients felt the variance should be denied for several reasons including the following: 1) this is a prior non-conforming use – the lot is in the business district and questioned how many square feet of high and dry land there was (he estimated less than 45,000SF of dry land). He noted that the ordinance requir= ed 60,000SF of dry land. He said= if the square footage is less than what the ordinance called for the case woul= d be an expansion of a prior non-conforming use; a prior non-conforming use is p= ermitted to remain, but not extended under Zoning Ordinance Section 307-8. 2) the WCD has specific criteria and allows specific uses within the wetlands specific= ally not buildings/structures – in this case it’s an industrial use. Attorney DeCarolis submi= tted that the use (truck terminal) is not permitted within the business zone. He believed a commercial truck fac= ility (for waste) belonged in the Industrial Zone; the Table of Uses didn’t limit or exclude this type of business, but when reviewing the permitted us= es they are retail in nature and more compatible with residential uses. 3) the applicant still must meet t= he five hardship criteria – the first being not contrary to the public interest – to preserve the business nature of the business zone. 4) variance has to be consistent w= ith the spirit of the ordinance – business zone; the proposed is more industrial zone. 5) substanti= al justice – there is already one violation to the wetland (the shed location); this is a major industrial use in this business/residential sect= ion of Town on an undersized lot, in the wetland. 6) applicant has to prove there is= no diminution in the value of surrounding properties – there is no evide= nce, however, it was felt that having a commercial facility (garbage truck stora= ge) would not affect nearby apartment buildings.&nbs= p;

Attorney DeCarolis cited the Boccia v. Portsmouth case where an area variance = has been defined. He discussed th= e criteria that has come from the case and ended by requesting that the Board deny the case.

a= )      = the area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property

b= )      = the benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance= .

Mr. Hennessey questioned where the 60,000SF high and d= ry requirement was located. Atto= rney DeCarolis said under Section 307-12 – Table 1 (Commercial Uses) ̵= 1; minimum lot size 60,000SF and Section 307-13 – only dry land can be u= sed in minimum lot size calculations.

Mr. Bibeau felt if Mr. Lynch had a problem with the ga= rage, he should have said something two years ago.

Ms. Beloritsky asked where the photographs had been ta= ken from. Mr. Edward Lynch said t= he pictures were taken from the duplex on the left of the applicant’s property. He showed the locat= ion on the proposed plan.

Mr. Hennessey questioned when Mr. Bibeau purchased the property. Mr. Bibeau didnR= 17;t recall. Mr. Hennessey asked i= f the property was purchased September 4, 1997. Mr. Aspi= nwall said he had a deed dated August 29, 1997. Mr. Hen= nessey noted that 1997 was well after the zoning classification had been established. He wanted to kno= w the use of the land prior to 1997. Mr. Bibeau believed the use was a small engine repair. Mr. Hennessey said it was implied = (by Attorney DeCarolis) that the lot was non-conforming and the use has been expanded. Mr. Aspinwall was u= nable to address the question. He s= aid it was difficult to say if the use was more or less than what was there (in a commercial sense). Mr. Hennes= sey asked when the existing shed was put in.&n= bsp; Mr. Bibeau said it was a pre-fab shed put in approximately seven or = eight years ago. He had a permit; n= o one asked what the use of the shed would be.&n= bsp; Mr. Hennessey said if there was an increase of non-conformity, there= had been no complaints over the years. <= /span>

Ms. Beloritsky was curious if the abutters had seen th= e new location and had a problem with it. Mr. McNamara believed Attorney DeCarolis addressed the abutter’= ;s concerns.

Mr. McNamara discussed whether or not the garage was an expansion of a non-conforming use. He said the legal test for expansion of non-conforming use was the N= ew Hampshire Supreme Court case of New London Land Use Association where there were three criteria: 1) to what extent does the challenged activity reflect= the nature and purpose of the existing non-conforming use; 2) is the challenged activity merely a different manner of utilizing the same use, or does it constitute a use different in character, nature, and kind; 3) does the challenged activity have a substantially different impact on the neighborhood. Mr. McNamara said it seemed to put= up a garage to store trucks that were already parked there was in part the natur= e of the business. He believed the applicant addressed the Simplex criteria because it was felt that the varia= nce was a ‘use’ variance versus an ‘area’ variance. Also, because the use in the WCD i= s a prohibited use.

The Board discussed the case further and the fact that= Dr. Richardson’s correspondence said he agreed that the garage would furt= her protect the watershed.

Mr. Hennessey asked to confirm that the trucks would be empty and there would not be trash stored on the site. Mr. Bibeau said the trucks would be empty.

Mr. Gleason said part of the Board’s previous co= nsideration was the fact that there was a business currently operating and in conjuncti= on with the state’s approval, allowing the garage, would help to control/mitigate the risk to the Town.&nbs= p; He confirmed that there would be a concrete floor and that there wou= ld not be any toilet/drainage facilities in the structure and there would not = be any engine oil draining.   Mr. Bibeau answered yes.

MOTION:<= o:p>

(Hennessey/Gleason) If approval is granted the follo= wing conditions will apply: 1) existing shed on the left (per the plan) is to = be removed; 2) the existing shed (in the rear) per the plan is to be moved outside of the Wetland Conservation District; 3) subject to a certified p= lot plan establishing side lines per the Table of Dimensions; 4) subject to S= tate approvals.

=

VOTE:

(5-0-0) The motion carri= ed.

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria

Mr. Gleason – Yes to all criteria; subject to conditions in motion.

Mr. Hennessey -&nbs= p; Yes to all criteria

Mr. Gowan – Yes to all criteria

Ms. Beloritsky – Yes to all criteria

VOTE:<= /o:p>

(5-0-0) The motion ca= rried.

VARIANCE GRAN= TED

HEARING(S)=

Case #2290= – BEAUDRY, Daniel/23 Fletcher Drive – ML 29/7-2919 – Seeking a Special Exception concerning Article XII, Section 307-76 (III) to permit a small landscaping business within the Residential Zone.<= /p>

Mr. Hennessey read the list of abutters aloud. There w= ere no persons present who did not have their name read. The file did not contain = any written correspondence from abutters. A gentleman stepped forward and informed he had been authorized to s= peak on behalf of Ms. Jacquelyn and Gordon Sonia, 12 Old Lawrence Road who believed t= hey should have been notified. The gentleman said the Sonias were within 300ft of the parcel in question.

Mr. Daniel Beaudry and his son Christopher Beaudry met= with the Board to discuss their Special Exception request. Mr. D. Beaudry said he purchased t= he property approximately one year ago and applied for and was approved for a permit to construct a garage. He said his son ran a small landscaping business and Mr. D. Beaudry’s id= ea was to have a place to work on and keep his mowers; after they were in the process of constructing the building, the Town’s Building Inspector s= aid they should apply for a General Home Occupation if they wanted to house the landscaping equipment in the building.&nbs= p;

The applicant was asked to address the criteria for the Special Exception as follows:

The occupation is clearly secondary and subordinate to the primary residen= tial use and shall not change the residential character of the neighborhood= . Mr. D. Beaudry said the building was pre-fabricated and blended well with = his home and the property – he discussed his property lines and the = location of the garage (40ft.x60ft.).

It shall not consume more than 49% (forty-nine percent) of the gross residential living space and shall n= ot change the residential character of the property. Correct – the attractiveness of the building is resident= ial – Mr. D. Beaudry submitted photographs of the structure.
A maximum of two on-site non-resident employees. Mr. C. Beaudry said= there were no on-site non-resident employees. .

Not permitted in a duplex or multi-family dwelling. N/A

One sign which advertises the business is permitted. It shall be unlighted and shall not exceed three square feet. Mr. C. Beaudry said they didn’t plan on putting up a sign by the road. Mr. D. Beaudry sai= d a sign on the building may look nice.&n= bsp;

All outdoor storage, display and any other external indication of the business activity shall be screened from neighboring view. Mr. D. Beaudry said three sides of their lot had pine trees; their neighbor on the right was the only neighbor who could see the garage clearly. Mr. C. Beaudry said they coul= d add more to block the building, or put up a fence.

Any use that may be objectionable, obnoxi= ous or injurious by reason of the production of emission of odor, dust, sm= oke, refuse matter, fumes, noise, vibration, heat or excessive illumination= is prohibited. In addition,= the use, storage, or disposal of hazardous materials, chemicals, by-produc= ts, medical waste or similar items considered dangerous to health and safe= ty shall not be permitted without full local and state regulatory approva= l. Mr. C. Beaudry said they didn’t have any chemicals on site. Mr. D. Beaudry said it was ju= st a garage to store mowers. = Mr. McNamara asked if any gasoline or oil would be stored on site. Mr. C. Beaudry said the only gasoline would be that in the trucks/ machines. Mr. McNamara asked if there w= ould be any separate container for oil or gas. Mr. C. Beaudry answered no. Mr. Hennessey asked if they w= ould be using any pesticides. Mr. C. Beaudry answered no. = He said their own lawn would be fertilized; they didn’t fertilize t= heir customer’s lawns. =

A maximum of two registered vehicles rela= ted to the business may be kept in view.&= nbsp; All other business related equipment must be garaged and screen= ed from neighboring view. Mr. C. Beaudry said they didn’t plan on keeping any vehicles open in vi= ew, everything would in back, fenced in, blocked from view. Mr. McNamara asked how many t= rucks they would have. Mr. C. Beaudry said they had three business trucks for the business and one personal truck Mr. McNamara asked if the number of trucks would remain= the same in the foreseeable future. Mr. C. Beaudry answered yes.&n= bsp;

Delivery of goods and materials is limite= d to vehicles customarily associated with residential deliveries. Mr. C. Beaudry said UPS and FedEx were the normal trucks. Mr. McNamara asked if there w= ould be any delivery of grass, fertilizer, shrubbery, etc. Mr. C. Beaudry said they pick= ed up those items and bring them to the jobs. No shrubs are stored on site.= The largest truck that would = enter for business use would be a UPS truck. Mr. C. Beaudry answered yes.<= span style=3D'mso-spacerun:yes'>

Customer parking shall be provided off-st= reet and may not be located within the required front, side or rear setback= s of the property. Mr. C. Beaudry said there would b= e no customers or retail use. It will be used as a place to store equipment. Throughout the day Mr. C. Bea= udry said there should be almost no traffic; it would be limited.

No retail sales other than those that are incidental to and customarily associated with business use for which t= he permit was issued. Mr. C. Beaudry said there were no retail sales.

An accessory structure built or converted= for home occupation purposes shall be a size, style and type that are compatible with the surrounding neighborhood and capable of reversion = to uses that are customarily accessory to residential. Mr. C. Beaudry said when the facility was built they tried to make it as appealing as they could. He said they added cupolas on top to go with the neighborhood. Mr. McNamara questioned what = dimension the home was. Mr. D. Bea= udry believed the home was 35ft.x38ft.&nbs= p;

Where the proposed General Home Occupation shall result in an increase of the amount of waste water to be dischar= ged it shall be shown by the applicant that there is subsurface waste water disposal system that has been approved by the New Hampshire Water Supp= ly and Pollution Control Commission (NHWSPCC) or that a system adequate f= or the proposed use shall be installed as a condition of issuing a Special Exception. Mr. D. Beaudry said they didnR= 17;t plan on having a bathroom or any plumbing.

The Board of Adjustment may impose any ot= her reasonable conditions on the home occupation that are necessary to pro= tect the residential character of the neighborhood.   Mr. McNamara said this was criteria was for the Board.

Site plan review and approval shall be ob= tained from the Planning Board. Mr. D. Beaudry said he was aware = of the criteria.

Mr. D. B= eaudry said they were seeking a General Home Occupation. When the garage was built Mr. D. B= eaudry thought it would be used to work on mowers and when he realized it was an actual business and would have to submit an application for a home occupation. Mr. McNamara aske= d if both gentlemen lived on the premises. Mr. D. Beaudry answered yes. Mr. Gleason asked if Mr. C. Beaudry lived at home. Mr. C. Beaudry answered yes. Mr. Gleason questioned if the busi= ness would continue being run from the location if Mr. C. Beaudry moved out. Mr. C. Beaudry said he didn’= t plan on moving anytime soon, but he wouldn’t continue running the business from the location if he left. Mr. Gleason asked if the building could be converted into a garage. It was noted that there was no oth= er garage on the property.

PUBLIC INPUT

Mr. Gordon Brawn, 15 Atwood Road, attended the meeting on behalf of himself and Ms. Jacquelyn and Gordon Sonia, 12 Old Lawrence Road (who were unab= le to attend the meeting). He said = the Sonias were against the operation of the landscaping business and were agai= nst a permit in a residential area. He provided the Board with a copy of the letter, which was read aloud by Mr. Hennessey. Mr. Brawn said he = had several objections: 1) building is not a residential garage – and may= be larger than the dimensions originally provided to the Town; 2) aesthetically the building is a huge steel commercial style structure with two cupolas – the doors are beyond the size of large garage doors; 3) there was a question regarding pesticide/gasoline/fertilizer – it was difficult to believe that a landscaping building wouldn’t store gasoline for the various machines – the Town Fire Department is not expecting this typ= e of business in the event of a fire; 4) the business uses Old Lawrence Road exclusively as its transportation route to the location – Old Lawrence Road is not up to code and narrowed to less than 18ft wide in some areas – there are safety issues with vehicles passing each other – In= the event the Special Exception is granted, Mr. Brawn didn’t want the business vehicles to continue using Old Lawrence Road; 5) will business exp= and; 6) diesel trucks accessing the road is not conducive to a residential neighborhood.

Mr. McNamara read aloud a letter submitted by Gary and= Wendy Williams. The Williams were concerned regarding the commercial activity and hoped that the Special Exception was not issued. The= y did not believed that the landscaping business was consistent with the resident= ial nature of their neighborhood and requested that the Board to deny the application. The WilliamsR= 17; believed that there would be safety concerns such as: 1) large structure th= at is out of character with the rest of the neighborhood; 2) safety concerns f= or the mix of truck and pedestrian traffic; 3) industrial chemicals expected f= rom landscaping business; 4) no confidence that business will be small.

The Williams specifically requested the following restrictions: 1) have oversized shed razed (it is obviously a commercial structure that should not have been permitted without a public hearing); 2)= do not permit the ‘small landscaping business’ or any of the conditions in the neighborhood: a. housing/maintenance of commercial vehicles/equipment; b. chemicals or dust producing materials beyond the com= mon household types quantities; c. commercial traffic; 3) if granted the Williams asked t= hat the applicant agree to the following constraints – a. declare how sma= ll business will be require commercial /industrial activity be limited, b. app= licant fund annual surprise inspections by Fire Department and Department of Environmental Services.

Mr. Roger Nolin, 29 Atwood Road, stated his objections as follows:= 1) noise level; 2) tree branches/lawn clippings dumped over the edge of the property several times per day (some are in plastic bags).

Ms. Diane Brunelle, Old Lawrence Road vouched for the f= act that the business is using Old Lawrence Road. She said the landscaping truck had passed her home quickly at an unsafe speed, which was dangerous.

Mr. Wayne Pitts, Fletcher Drive, said he is the abutter that had the lar= gest impact. His property shared t= he longest property line with the applicant and had a direct view of the building. He said when the bu= siness started it was a one truck operation, but now there were various vehicles a= nd trailers. During the day empl= oyees come to the applicant’s home pick up vehicles and leave their personal vehicles behind. He said the applicants had encroached onto his property. Mr. Pitts questioned if the Board = had reviewed the site and believed it should be reviewed. He said the applicants requested a garage permit from the Town, and now were coming forward requesting a business. He said the trucks = came and went seven days per week. During the winter the applicants runs a winter operation (plowing) f= rom the site. Mr. Pitts was not in favor of the business and noted that it had grown beyond the residential us= e of the property. He said the shr= ubs that were planted will not block the site of the building. He didn’t see a benefit to h= is property and was not in favor of a Special Exception.

Mr. Ken Dunne, 24 Fletcher Drive was opposed to the business. He said when the garage was built = he questioned the Building Inspector regarding its size and purpose. The Building Inspector did not kno= w the purpose, or the size. Mr. Dun= ne said the applicant had been running business for three/four months and beli= eved the applicant knew the purpose of the building at the time of construction. He didn’t= know in the future if fertilizer would be used and how much more gas would be st= ored in the facility. He was conce= rned with the applicant selling the property and later having a different busine= ss move in which would depreciate the values of the surrounding homes. Mr. Dunne reiterated his oppositio= n to the Special Exception. He dis= cussed the safety concerns with having a business in a residential area.

Ms. Mary Alice Dunne, 24 Fletcher Drive said her main con= cern was the safety of the children on the street. She was also concerned with the to= xic chemicals going onto her property. Another concern was the value of their property. Mr. Hennessey said there was testi= mony that there wouldn’t be any fertilizer or chemicals and asked if they = had seen any. Ms. Dunne said she = had seen stuff in the air and had noticed strange smells on a couple occasions.

Mr. Brent Morgenstern, Fletcher Drive, said as the business started it was a one-truck operation. He discussed the size of the garage (40ft. x60ft.)(approx. 35ft high) which was larger than any of the homes in the area. He said the residents of Fletcher Drive viewed the area as a small growing neighborhood with close to twenty-five to thirty children. He discussed= the hours of operation and the amount/speed of truck traffic. Mr. Morgenstern questioned where t= he equipment was being washed out, specifically the hydro-seeder which typical= ly contains chemicals. He said g= rass clippings and mulch etc. could become quite significant with displeasing odors. An issue that Morgenst= ern had was the fact that the structure was perceived to the Town that it would= be a residential structure and based upon its size belonged on Route 38. He was not in favor of having the Special Exception approved. H= e said there had been a depreciation in home values due based upon the constructio= n of the garage. He said he was researching with the local real estate offices the cost of impact of the commercial use in the residential neighborhood. He said he would like to see the structure removed.

Mr. Gowan confirmed that the trucks were running seven= days per week. Mr. Morgenstern sai= d the trucks were running this past Sunday. Mr. Gleason asked in Mr. Morgenstern’s opinion how many trucks were employed. Mr. Morgenster= n said he had seen three or four trucks. It was his understanding that the core business was in Dracut, MA. Mr. Morgenstern was concerned that additional trucks would start utilizing the building in Town. He informed that the vehicles were marked with the business name and Dracut, MA. He didn’t understand why the company was moving to a residential neighborhood in Town.

Mr. D. Beaudry responded to the abutter’s concerns. He began by saying = that they felt it was shorter to utilize Old Lawrence Road. He said there were no chemicals or pesticides because it was not a service provided to customers. They use fertilizer on their own lawn. Mr. Beaudry said they h= ad put clipping at the back of their property to begin to fill/grade the area behi= nd the garage until such time as they had it filled in. Mr. C. Beaudry said they dumped clippings/branches; there may be an occasional bag, but it was not done on a regular basis. Mr. D. Beaudry understood the concern with the number of vehicles and their speed. He said it would need to be controlled. He then spoke to = the size of the building, which was a pre-fab 40ft.x60ft. building to store the vehicles so they wouldn’t bother the neighbors. The interior is high to enable the trailer to access the building. Mr. D. Beaudry said he had a discussion with Mr. Pitts regarding a lot line adjustment so they wouldn’t drive on Mr. Pitts’ property.

Mr. D. Beaudry provided a plot plan so that the lot and location of building and lot lines could be reviewed. He then addressed the residency is= sue and explained that his son previously resided in Dracut, MA with his mother and had recently moved to Town permanently. Mr. McNamara asked if there were additional trucks/equipment in Dracut, MA that would be moved to Pelham. Mr. D. Beaudry answer= ed no. He said they would be amiable to restricting the number of vehicles that could use the garage. Mr. McNamara asked if there was a = winter operation (plowing) and wanted to know how many trucks were utilized for such. Mr. C. Beaudry said he = did plowing in the winter; there were three trucks plus his personal truck.

Mr. Gleason asked how long Mr. C. Beaudry had been a resident in Pelham. Mr. C. Be= audry said for awhile he went between Dracut and Pelham but in June or July he filed the paperwork to be a resident of Pelham (which was his legal residence).&nb= sp;

Mr. Gowan questioned the number of employees. Mr. C. Beaudry said his workers met on-site and then left; they didn’t stay on-site. Mr. Gleason asked if the business = was registered and operated under the state of Massachusetts. Mr. C. Beaudry answered yes and sa= id the company had a Dracut, MA phone number and office.

Ms. Beloritsky asked what the square footage of the ho= use was. Mr. D. Beaudry believed = the square footage of the house was approximately 2400SF. Ms. Beloritsky noted the second cr= iteria under the General Home Occupation and didn’t see where the applicant = was utilizing less than 49% as required.

Mr. McNamara said he would like to see the property an= d the barn before a decision was made. Mr. Gleason said he had a fundamental problem with the application because it appeared that the barn was built for the purpose of the landscap= ing, and not residential. He felt = the size and setbacks should have been taken into consideration. Mr. Hennessey reviewed the ordinan= ce (which is sometimes ambiguous) and said the abutters argued that the character of = the neighborhood had changed. He = also had a problem with the ‘on-site’ employee criteria because there were more than two people that reported to the site. He didn’t feel that the application met the criteria. Ms. Beloritsky agreed. Mr. Gleason noted that the business was registered in Dracut, MA and would be transferred= as a business, which was not a home use; it would be a transfer of an existing business. At this time the bu= siness is not registered in New Hamp= shire.

The Board discussed what action they would take.

MOTION:<= o:p>

(Hennessey/Gleason) To vote regarding the applicatio= n.

=

VOTE:

(4-1-0) The motion carried. Mr. McNamara voted no.

BALLOT VOTE= :

=

Mr. McNamara – abstained

Mr. Gleason – No

Mr. Hennessey -&nbs= p; No

Mr. Gowan – No

Ms. Beloritsky – No

VOTE:<= /o:p>

(0-4-1) The motion failed. Mr. McNamara abstai= ned.

SPECIAL EXCEP= TION DENIED

Case #2291= – GUERRIERO, Lisa/1 Thomas Avenue – ML 34/6-221 – Seeking a Speci= al Exception concerning Article XII, Section 307-76 (III) to permit a home day= care within the Residential Zone.

Mr. Hennessey read the list of abutters aloud. There w= ere 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. Lisa and Mr. Carlos Guerriero met with the Board to discuss their application. Ms. Guerriero said they would primarily be using portions of their basement and= a small portion of their yard for the children. She said per the state they would = be allowed to have seven to twelve preschool children. Mr. McNamara asked if their baseme= nt was finished. Ms. Guerriero answe= red yes. Mr. McNamara asked if any business was currently being conducted.&nb= sp; Ms. Guerriero answered no. Mr. McNamara asked what age the children would be. Ms. Guerriero said the children wo= uld be around the age of two or three. Mr. McNamara asked if an application had been done with the state. Ms. Guerriero said she was in the process of making an application to the state, but needed sign-off from the Board allowing her to do the daycare.

Mr. Gleason noted that the fenced in play area was adj= acent to an existing pool and wanted to know if it was above ground. Ms. Guerriero said the pool was ab= ove ground with a deck and gated entrance.&nbs= p; She said the fenced area would not have access to the pool. Mr. Gleason questioned how the chi= ldren would access the house from the play area.= Mr. Guerriero said the main entrance to the daycare would be through= the basement. He reviewed the sub= mitted plan and showed the path the children would take to access the house from t= he play area.

The General Home Occupation criteria was read aloud and answered by the applicants as follows:

The occupation is clearly secondary and subordinate to the primary residential use and shall not change the residential character of the neighborhood. Yes.

It shall not consume more than 49% (forty-nine percent) of the gross residential living space and shall n= ot change the residential character of the property.   Yes.

A maximum of two on-site non-resident employees. There would not be more than two.=

Not permitted in a duplex or multi-family dwelling. The home is a single-family residence.

One sign which advertises the business is permitted. It shall be unlighted and shall not exceed three square feet. They don’t want a sign.

All outdoor storage, display and any other external indication of the business activity shall be screened from neighboring view. Yes. The fence for the play area i= s of the same type generally used in a residential area.

Any use that may be objectionable, obnoxi= ous or injurious by reason of the production of emission of odor, dust, sm= oke, refuse matter, fumes, noise, vibration, heat or excessive illumination= is prohibited. In addition,= the use, storage, or disposal of hazardous materials, chemicals, by-produc= ts, medical waste or similar items considered dangerous to health and safe= ty shall not be permitted without full local and state regulatory approva= l. Yes.

A maximum of two registered vehicles rela= ted to the business may be kept in view.&= nbsp; All other business related equipment must be garaged and screen= ed from neighboring view. Only personal vehicles will be on site.

Delivery of goods and materials is limite= d to vehicles customarily associated with residential deliveries. Yes.

Customer parking shall be provided off-st= reet and may not be located within the required front, side or rear setback= s of the property. There is about 100ft.of driveway.= Drop off would occur at diffe= rent times. Two cars will be = able to pass each other. =

No retail sales other than those that are incidental to and customarily associated with business use for which t= he permit was issued. There are no retail sales.
An accessory structure built or converted= for home occupation purposes shall be a size, style and type that are compatible with the surrounding neighborhood and capable of reversion = to uses that are customarily accessory to residential. The exterior of building will not be changed.

Where the proposed General Home Occupation shall result in an increase of the amount of waste water to be dischar= ged it shall be shown by the applicant that there is subsurface waste water disposal system that has been approved by the New Hampshire Water Supp= ly and Pollution Control Commission (NHWSPCC) or that a system adequate f= or the proposed use shall be installed as a condition of issuing a Special Exception. The applicants don’t have a problem with their septic system – they perform regular maintena= nce.

The Board of Adjustment may impose any ot= her reasonable conditions on the home occupation that are necessary to pro= tect the residential character of the neighborhood.   This criteria is for the Board.

Site plan review and approval shall be ob= tained from the Planning Board. The applicants understood.

Mr. Hennessey addressed the septic system and questioned how many children were expected. He was concerned that the design w= ould be inadequate. Mr. Guerriero = said the age of the children would be between two and three years old and would still be in diapers. It was u= nknown what rating the septic system was. It was reiterated that the applicants maintained their septic on a regular basis. Mr. Hennessey = asked if a Radon test had recently been done.&nb= sp; Mr. Guerriero said a Radon test had been done within the last six mo= nths which came back below the limits. Ms. Guerriero noted that the state the Town Fire Inspector would review the building before a license was issued. Mr. Hennessey said he would add a stipulation that the Radon test be submitted showing the levels being lower than 4.0 Pico curies as required.<= span style=3D'mso-spacerun:yes'> He asked if the water had been tes= ted for MBtE. Mr. Guerriero said = they had a water filtration system, but had not tested for MBtE.

PUBLIC INPUT

Mr. Richard Liardo, Nancy Avenue knew the applicants si= nce 1995 and said they were great neighbors who kept their yard immaculate.

Mr. Mike Demers, 17 Thomas Avenue, offered his support to the applicants. He believed the proposed use was exactly what the Special Exception was designed for and supported the applicants 100%.

Mr. Hennessey made a motion to request an MBtE test on= the water and also evidence of Radon level (bring report to Code Enforcement Officer). Mr. Gleason confirm= ed that the home was a split-entry. M= r. Guerriero said they were able to access their home by walking straight in f= rom the basement. He noted that t= heir water would have to be tested annually as part of the licensing process.

Mr. McNamara asked if the Board wanted to have a stipu= lation regarding no signage. The Boa= rd did not add a stipulation regarding signage.&n= bsp; Mr. Hennessey said he would still like to add a stipulation for a Ra= don test and would for any daycare. Mr. Guerriero said he had a copy of the test and could provide the Town with a copy. There was a brief discu= ssion regarding Radon testing.

MOTION:<= o:p>

(Hennessey/Gowan) To require that a Radon test be submitted to the Town showing less than 4.0 Pico curies.

=

VOTE:

(3-1-1) The motion carried. Mr. Gleas= on voted no. Ms. Beloritsky abstaine= d.

BALLOT VOTE= :

=

Mr. McNamara – Yes

Mr. Gleason – Yes

Mr. Hennessey -&nbs= p; Yes

Mr. Gowan – Yes

Ms. Beloritsky – Yes

VOTE:<= /o:p>

(5-0-0) The motion ca= rried.

SPECIAL EXCEP= TION GRANTED

Case #2292= – ROGERS, James/22 Shephard Road – ML 24/12-44 – Seeking a Special Exception concerning Article XII, Section 307-74 to allow an accessory dwel= ling and seeking a Variance concerning Article XII, Section 307-74b to exceed the minimum 500SF (672SF), 307-74F to allow an accessory dwelling that does not provide the 75% common wall with the principle dwelling and Article VII, Section 307-41b to allow the structure within the WCD area.<= /b>

Mr. Hennessey read the list of abutters aloud. There w= ere no persons present who did not have their name read. The file did not contain = any written correspondence from abutters. An abutter informed that her name was incorrectly read; it was stated that her name was Kate Irish, when actually her name was Kate Ketelaar.

Mr. James Rogers met with the Board to discuss his application. He explained tha= t his father was handicapped and would require a wheelchair in the future which w= as the reason for the variance request above the 500SF. He said he researched and found a = recent variance where an applicant was approved for 672SF. Mr. McNamara noted that a variance= would also be needed for the common wall. Mr. Rogers said when the plans were being done for the house constru= ction there wasn’t much room so they tried to make their home look cosmetic= ally like the surrounding homes. He reviewed the plan for the Board and said he was unable to get a clear definition for ‘common wall’ from the Planning Department. Mr. McNamara questioned the encroa= chment of the wetlands and asked how far building would go into the WCD. Mr. Rogers said they didn’t = find out about the wetland encroachment until July 7, 2004. He said the land was already cleared and would go approximately twenty-one feet (21ft.). He n= oted that during the planning there was no wetland marked on any of the plans, however, one day before purchasing the house, the wetland was added to the plan.

Mr. Gleason asked if any mechanism had been reviewed to satisfy any of the requirements. Mr. Rogers discussed the difficulties they had due to the placement = of the well, A/C adapter, etc. M= r. Gleason said he had a problem with the way in which the accessory unit was designed. He asked if conside= ration had been given to converting the first garage into an accessory dwelling to meet the requirements. Mr. Ro= gers said he had difficulty getting an answer regarding ‘common wall’. He said the desi= gn presented was believed to be the best design to work with the area given.

Mr. Hennessey asked how many bedrooms the main house had. Mr. Rogers said there we= re four bedrooms. He understood = that he would have to have a septic design for five and a half bedrooms.

PUBLIC INPUT

Mr. Scott and Ms. Kate Ketelaar, 9 Mulberry Lane, said they had a pr= oblem with standing water in their back yard and believed it was due to the applicant’s residence being blasted.= Mr. Ketelaar said they had tried to deal with the builder (the same builder of the applicant), who had been unresponsive. They would like someone who knew w= hat they were doing with drainage and water issues before any new structure was built. Mr. Ketelaar submitted photographs of their property from Easter, 2004, that showed the standing water. He also noted that the= water was standing near their well, which was 505ft. down.

There was a brief discussion regarding the variance gr= anted in the past for an accessory dwelling for a person in a wheel chair. It was noted, in the previous case= that the other conditions of the regulations were being met, which was different= in this case since multiple variances were being requested. Mr. Gleason said he sympathized wi= th the handicap aspect of the case, but had serious concerns with the design. Mr. Hennessey’s concern was = that every alternative hadn’t been tried before the variance was requested. He felt it might be prudent to withdraw and try to satisfy the ordinance. Mr. Rogers said he had to start somewhere and reiterated that he needed a suggestion regarding the ‘common wall’.

There was further discussion regarding how the design = may be altered to better fit the ordinance. It was suggested to have an architect review the design and make it compatible with the regulations. Mr. Rogers asked if he could have guidelines regarding the design. Mr. McNamara discussed the problems surrounding the request and agreed that the design should be re-worked by an architect within the strictures of the Town’s code. Mr. McNamara said the Board could = take a vote, or Mr. Rogers could withdraw his application.

Mr. Rogers withdrew his application.

Case #2293= – SWEREN, John/68 Marsh Road= – ML 28/7-175 Seeking a Variance concerning Article III, Section 307-= 14 to permit the creation of a lot with 100ft. of frontage where 200ft. is required within the Residential Zone.

Mr. Hennessey read the list of abutters aloud. There w= ere 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. John Sweren met with the Board to discuss his vari= ance request. He read aloud the fi= ve criteria (for a use variance – Simplex) aloud as follows:

Item #1. The proposed use would not diminish surrounding property values because: Applicants’ lot is more than 5.5= acres in size. Applicants propose to subdivide their lot into 2 lots, one of which would contain their existing home. The new lot to be creat= ed would be over 4 acres in size, and would be used for the construction of a = new home. The proposed use would = not diminish the values of the surrounding properties. Applicants propose to seek approva= l for construction of a home on the lot to be created, which is consistent with current zoning and the surrounding property uses.

Item #2. Granting the variance would not be contrary to the public interest because: Granting the variance woul= d not be contrary to the public interest. The proposed use will add to the Town’s tax base, once a house= is constructed on the proposed lot. There is a need for this size and type of housing in Pelham. The proposed lot would be over 4 a= cres in size.

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 propert= y, considering the unique setting of the property in its environment such that= : This is a very large lot, containing a single home at present. The proposed use is consistent with the residential use made of the surrounding lots.

b) that no fair and substan= tial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: there is sufficient area available for spacing of a new home on the proposed lot to be created. T= here is sufficient usable land to satisfy all other requirements of the current zoning ordinance, including setback requirement. Other lots in this area are smalle= r than the Applicant’s lot, and are use in the same manner as the proposed u= se.

c) the variance would not i= njure the public or private rights of others since: this use is expressly permitted by the zoning ordinance; residential use is consistent with the use made of all other abutter’s lots. Without the requested variance, Applicants cannot make full use of their property.

Item #4. Granting the variance would do substantial justice because: The lot is zoned residential, and ther= e is no land available on abutting lots that could be acquired by the Applicant = to satisfy the current zoning restrictions concerning frontage. The abutting lots are smaller in s= ize than Applicant’s lot. Withou= t the variance for frontage, Applicants will be deprived of making residential us= e of a substantial portion of their property.

Item #5. This use is not contrary to the spirit of the ordinance because: The lot is zoned residential, the prop= osed use is residential, and all other lots in this area are already improved wi= th residences. The proposed construction does satisfy the other requirements of the current zoning ordinance.

Mr. McNamara noted that the law regarding variances had changed since the application had been submitted. He read aloud the change in the criteria: 1) the area variance is n= eeded to enable the applicant’s proposed use of the property given the spec= ial conditions of the property; and 2) the benefits sought by the applicant can= not be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance.   Mr. Sweren said there was no = way to increase the road frontage because the surrounding land had already been de= veloped. He understood that he had current = use of his land (5.5 acres) with an existing home. He said he was looking to create an additional lot to sell, so that he could pay off his existing mortgage. He noted that there was a consider= able amount of wetlands depicted on the map submitted to the Board. He said there was a clogged culvert across Marsh Road that had since been cleared, which lead to the area drying out and further, he believed would lead to the evaporation of the wetland shown on the plan. There was now proper draining to B= eaver Brook.

PUBLIC INPUT

Ms. Donna Allen, Economou Avenue, said she had taken photographs the day after the previous meeting in April. She submitted the photos to the Board. Mr. Hennessey said one of the Board’s concerns when the proposal was brought in for three lots was = the back end needing a long wetland crossing.&= nbsp; Ms. Allen said she wanted a guarantee that there would not be more w= ater on her lot than she already had. She didn’t want her quality of life diminished. Mr. McNamara said the Board could = not make guarantees. He said the Planning Department would review; he noted that the ‘rule of thumb= 217; was when a person built, the property regarding water flow would remain the same pre- and post-building. = He suggested Ms. Allen to get some objective measurements of water flow so she would have proof. Ms. Allen a= sked who she would provide proof to. Mr. McNamara said proof should be given to Planning. There was further discussion regar= ding what the Planning Board may review.

Mr. Sweren said he had been informed by a land surveyo= r (who also does perk tests and water quality) that a lawn was more absorbent than undeveloped land, which may help his abutters.

Mr. Gleason said the issue had previously been before = the Board and denied. He said one= basis for the previous denial was that the land was purchased after the enactment= of the regulations for frontage requirements.= He didn’t see any difference from the previous application oth= er than the number of lots being requested.&n= bsp; Mr. Hennessey said the Board was reviewing a better plan than what w= as previously submitted, but he was reluctant to approve a property that was purchased with fore-knowledge that there wasn’t sufficient frontage.<= span style=3D'mso-spacerun:yes'> He then reviewed the criteria and = said in this case adding a house to the back may be the exception to the rule as= far as helping the neighborhood, still, given the facts, he was unsure.

Mr. McNamara discussed the new criteria and said it was difficult to provide an interpretation.&nb= sp;

Mr. Gowan suggested walking the site with the Planning Director. Mr. Hennessey and M= r. McNamara were in favor. Mr. G= owan asked if the wetland flags were still in place. Mr. Sweren said the wetland flaggi= ng was done last October, but most were still in place.

A site walk was scheduled for August 21, 2004 at 8:30am. It was noted that abutters would be welcome.

The case was continued to the September 13, 2004.

MINUTES

July 12, 2004- Deferred to the next scheduled meeting.&nb= sp;

ADJOURNMEN= T

MOTION:<= o:p>

(Gleason/Gowan) To adjourn the meeting.

=

VOTE:

(5- 0 - 0) The motion carried.

The meeting was adjourned at approximately 11:15 pm.

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Respectfully submitted,

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Charity A.L. Willis     &n= bsp;

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Recording Secretary