BOA 12-13-2004

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 13, 2004

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

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

PRESENT:

ABSENT:

Peter McNamara, David Hen= nessey, Jeff Gowan, Svetlana (Beloritsky) Paliy, Alternate Cindy Ronning, Planning Director Will D’Andrea

Edmund Gleason

Mr. McNamara informed that Ms. Ronning would vote in M= r. Gleason’s absence.

CONTINUED<= o:p>

Case #2304= – BRIDGEFORD, Holly – 78 Webster Avenue / ML 30/11-353 – Seeking a Variance concerning Article III, Section 307-13 & 14 to permit the construction of a detached 24’x24’ two-story garage on an exist= ing non-conforming lot that does not meet minimum lot size requirements or mini= mum frontage requirement in the Residential Zone.

Mr. McNamara informed that the case would not be heard because the applicant withdrew their application.

HEARING(S)=

Case #2302 VETERANS OF FOREIGN WARS (VFW)– 6 Main Street / ML 22/7-251 – Seeking a Special Exception concerning Article XII, Section 307-73 & 30= 7-75 to allow a change of use from a Municipal Office to a VFW (fraternal organization & membership club). Seeking a Variance concerning Article XII, Section 307-75 (c) is bei= ng sought to allow parking within the setback and without being screened from view.

Mr. Hennessey stepped down because he is a member of t= he VFW.

Because there were only four sitting members on the Bo= ard, Mr. McNamara gave the applicant the option to postpone discussion until the next scheduled meeting. The applicant decided to continue with the hearing.

Mr. Kenneth Stubert, Arlene Drive, Senior Vice Commander= of the John H. Hargreaves Memorial Post Veterans of Foreign Wars #10722 came forward to discuss the application for variance. He reviewed the criteria as follow= s:

Reviewed the criteria for a ‘use’ variance= as follows:

Item #1. The proposed use would not diminish surrounding property values because: Property use will be less intensive th= an prior use.

Item #2. Granting the variance would not be contrary to the public interest because: The public indicated its intent by all= owing the transfer to the VFW.

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= : Parking has been as is now, for decade= s.

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 configuration to the parking has been in place for many years.<= o:p>

c) the variance would not i= njure the public or private rights of others since: No change in configuration.

Item #4. Granting the variance would do substantial justice because: It would abide by vote of the people of Pelham.

Item #5. This use is not contrary to the spirit of the ordinance because: The people have indicated their wishes= .

Mr. McNamara said it would be appropriate to address t= he variance first.

PUBLIC INPUT

Mr. Phil Currier (M&P Trust), whose family owns the property directly to the west of the old Town Hall Map 7-250 wanted to know confirm that the variance request was to continue the existing parking with= in the setback along Woodbury Avenue. Senior Vice Commander Stubert answered yes. Mr. Currier wanted to en= sure that parking would not be imposed or placed within the setback adjacent to = his property line (to the west) but to keep the present/existing along Woodbury Avenue. He said they would object if the r= equest was to create other parking along the property on the west.

Mr. Gowan said as a voter, he originally opposed the building being given up because he believed the Town should hold onto its historical buildings. However= , the voters spoke, their intent was clear and Mr. Gowan said he intended on supporting them. Ms. Ronning didn’t see any argument to oppose, since the voters approved. Ms. Paliy understood that the vote= rs approved the building being turned over, but wanted clarification regarding= the intended use. It was pointed = out that without the variance, the building would not have the effective use th= at it had enjoyed in the past. <= /p>

Senior Vice Commander Stubert explained that the VFW intended to use the building for their regular monthly meetings in addition being a community minded organization they intended to open the building up= to community type activities (i.e. boy scouts, girl scouts or other small groups). Mr. McNamara asked h= ow many members there presently were and how many were active. Senior Vice Commander Stubert said= there were eighty-one members with approximately fifteen to twenty active. Mr. McNamara confirmed that the VF= W did not intend to expand the parking. Senior Vice Commander Stubert said the parking was adequate.

BALLOT VOTE= :

Mr. McNamara – Yes to all criteria

Mr. Gowan – Yes to all criteria

Ms. Paliy – Yes to all criteria

VOTE:<= /o:p>

Ms. Ronning – Yes to all criteria

(4-0-0) The motion ca= rried.

VARIANCE GRAN= TED

The Special Exception request was then reviewed. Mr. Gowan read the pertinent Zoning Ordinance aloud.

Mr. Kenneth Stubert, Arlene Drive, Senior Vice Commander= of the John H. Hargreaves Memorial Post Veterans of Foreign Wars #10722 came forward to discuss the application for special exception. He by reviewed Article XII, Section 307-73 as follows: A) permitted by Special Exception in Table 1 – tax exempt veteran organization; B) propose is consistent with the purpose and intent of the district as it is a continuance of public service well established in that area; C) the use meets all other applicable requirements including the now passed Variance for parking under Section 307-75; and D) = the purpose is compatible with the character of the district given the many buildings used for public use in the immediate vicinity.

PUBLIC INPUT

Mr. Phil Currier (M&P Trust), whose family owns the property directly to the west of the old Town Hall Map 7-250 addressed the Board as an abutter, and also as a person interested in Pelham’s hist= ory and the historical area (he was not speaking for, or on behalf of the Historical Society). He said = this is the most precious and historic area in the Town; to consider the applica= tion the Board had a solemn duty to take the history into account. He noted that the building was bui= lt in approximately 1900 and went on to provide the Board with the history of the area. He didn’t feel th= at monthly meetings by the VFW would destroy the area if the exterior of the building was preserved. Mr. C= urrier informed when he had come before the Board several years ago to change the = use of his property, it was agreed to make no exterior changes to the house so = the historical area was not impacted. He felt whatever decision was made by the Board, it had to take into account t= he historic nature of the area. = Mr. Currier informed that the septic tank and the leach field were on the prope= rty that M&P Trust owned, and went on to explain how it came to be located = on the property. He said up until approximately six or seven years ago there was a written agreement (which is recorded at the Registry of Deeds between the previous owner and the Town), that has since expired and was never renewed. The Town approached M&P Trust a= nd requested continued use of the septic system while working on getting a new municipal building; this was agreed to, however there is no specific written agreement with the VFW. Mr. C= urrier said his concern with a Special Exception request was that all other Town requirements must be met; one of which is an on-site septic system. He said there were two parts to the equation: 1) precious historic nature of the area with the Board being mind= ful and sensitive to the history; and 2) similar restrictions (such as those pl= aced on the Historical Society) regarding the exterior of the building and restricting the use and consumption of alcohol (which would not be a compat= ible use with the historical area). He said further investigation would need to be done regarding the septic syste= m, such as if it could handle a more intensive use.

Mr. McNamara asked if there had been discussions betwe= en Mr. Currier and the VFW regarding the septic.&= nbsp; Mr. Currier recalled there was one general meeting, but the VFW was unclear what additional uses they would place on the property. He said they were willing to have further discussion.

Ms. Ronning asked if there was a copy of the septic sy= stem. Mr. Currier said the Town built the septic, but was unable to find a copy in the Town’s records. He said he was not the owner of the property at the time the septic was done.&= nbsp;

Mr. McNamara questioned the date of the agreement with= the Town regarding the septic. Mr. Currier said the written agreement expired prior to the previous owner pass= ing away (in approximately 1999). Mr. McNamara confirmed that Mr. Currier had an informal agreement with the Town (once the written/recorded agreement had expired) to allow the Town the use= of the septic while they looked for a new facility and municipal building. Mr. Currier answered yes. Mr. McNamara asked if there was ev= er a problem with the septic during the time that Town business was being conducted. Mr. Currier said i= t was never brought to his attention. Ms. Ronning questioned if there was enough land by the Town Hall for a septic system. Mr. Currier had a cop= y of the plot plan (Recorded at the Registry as plan #11004) showed the original parcel as being 7,302 and another 7,000 was added and was now approximately 15,161 square feet. He showed= the Board the plot plan. He said = an engineer would have to answer whether there was enough room for a septic system. Ms. Ronning believed = there should be something in place between M&P Trust and the VFW regarding the septic system providing a certain time period. Mr. Currier said anything was poss= ible, and it would depend on what kind of use was going in. Mr. Gowan believed this has been an issue since the beginning, but didn’t see it as germane to the Board’s vote.

Mr. William Hayes of 9 Pinewood Drive who is also the President of the Historical Society said he would not address the problems = that there was no septic or well on the site.&n= bsp; He wanted to re-emphasize that this was a historical building and si= te between the two churches and everyone needed to be sensitive to the history= of the building and area. He sai= d there was no real objection to the VFW being there but would like the Board to exercise its authority to grant the exception once the septic and well prob= lems were over; with the understanding that there wouldn’t be any changes = to the exterior without coming back with a request for a modification to the Special Exception. Also, like= most of the buildings in the center that the VFW not be permitted to have alcohol consumption. Mr. Hayes said t= hose were restrictions imposed on the Historical Society and hoped it would be considered in the Board’s decision.&= nbsp;

Mr. Charlie Mooskian, Commander of the John H. Hargrea= ves Memorial Post Veterans of Foreign Wars #10722 discussed the septic system a= nd said the VFW had made an agreement with Mr. Currier that once the VFW took ownership would use the building for nothing else, except the VFW. He said any further use they would= discuss with Mr. Currier. The VFW was looking to hook up to Pennichuck and put their own system in when they had = the money. Mr. McNamara asked if = there had been any investigation to placing a septic system on the property. Mr. Mooskian said an engineering f= irm was reviewing; the property was surveyed when the Warrant Article passed (2= 004) and it appeared there would be enough room if they hooked up to Pennichuck water. Ms. Ronning noted ther= e were alternate septic systems (such as those used near the ponds) that pumped air and would therefore require less space.&nb= sp; Mr. McNamara asked if the VFW had been in contact with Pennichuck. Commander Mooskian said the engine= ering firm (who was helping with the site plan) had assured the VFW that they had= a connection with Pennichuck and could be hooked up for free. He felt it could be done within th= ree to five years.

Mr. Dave Hennessey of 71 Dutton Road, speaking as a membe= r of the John H. Hargreaves Memorial Post Veterans of Foreign Wars #10722 didn’t think there was any doubt that the VFW was planning less usage= for the building had seen over the past years.= He said there was an understanding of the VFW that they didn’t intent to alter the essential character of the building. He had a problem with the fact that there was no reasonable mechanism for changes to the structure and felt a restriction to freeze the facade of the building would do a disservice to t= he VFW and the Town. He discussed so= me of the changes that had occurred to the building over the past twenty years (i= .e. handicap ramp, windows). In t= he absence of a Historical District, Mr. Hennessey urged the Board not place t= he restriction regarding the facade. Mr. Hennessey then addressed the issue of alcohol consumption and sa= id there was no intention by the VFW to apply for a liquor license. He felt it was unfair to have an a= lcohol restriction for the only non-governmental building in Town. He noted the reason the Library had certain restrictions was due to it still being a leased municipal building.=

Senior Vice Commander Stubert noted that the organizat= ion was founded just after the turn of the century to honor the veterans going back= to the Spanish/American war and all wars since then. The VFW had been operating in the country since then with a long history of recognizing the importance of town buildings and the community. = He said they were a community minded organization who realized the importance = of the building and its significance to the Town. It was not their intent to change = the historic district or the character of the Town by taking ownership of the building.<= span style=3D'mso-spacerun:yes'> Senior Vice Commander Stubert said= there was no intent to put a bar in (there was no intent at this time).

Mr. McNamara understood there were good intentions to = not apply for a liquor license and trying to keep the building reasonably the w= ay it was, but noted if the Board granted a special exception without restrict= ions, the VFW would be free to do whatever they wanted to the building. He said particularly in areas of sensitivity the Board had commonly placed conditions on special exceptions, where appropriate. He address= ed the use of liquor and pointed out that there were two schools and a daycare in close proximity, which would not be compatible with a bar. He asked if the VFW had looked into obtaining a liquor license and what it would entail. Senior Vice Commander Stubert said= there were absolutely no plans at this point to do it and understood that it woul= d be impossible to obtain one anyway. He didn’t believe that it would be necessary for the Board to be involve= d in the process because there was a separate governing committee that would ‘kill’ it before it became a variance. He reiterated that it was not a consideration of any of the current members. He said if there needed to be a ch= ange in the exterior of the building they would still need to go through the building permit and application process.&n= bsp; Mr. McNamara questioned what would be unreasonable about the Board imposing a condition that the building be maintained in present form (absent general repairs or painting) and coming back to the Board seeking a change = of the special exception condition. Senior Vice Commander Stubert said they would have to review the wording; it was his understanding that currently the VFW could do nothing to the exterior of the building.

Mr. Hennessey requested that the Board come up with a flexible restriction. He disc= ussed some of the problems for the VFW if the Board placed a restriction regarding changing the exterior of the building (i.e. changing the sign, replacing windows, having alternate handicap access, adding an awning). He then suggested that a Historical District be formed for the Town Center.

Mr. Currier said he had confidence in the Board to cra= ft a reasonable restriction to attempt to preserve the historical integrity of t= he building until a Historic District was formed. He noted that the discussion he ha= d with the VFW was preliminary and there was no written agreement; they were waiti= ng to see what specific usage would be proposed. He said they were willing to sit d= own, talk and be reasonable.

Senior Vice Commander Stubert said the VFW was willing= to work with Mr. Currier to develop a reasonable approach to what the meetings= and general focus would be.

The Board discussed the special exception request. Ms. Ronning said she would like th= e Town to have a Historical District. Mr. Gowan suggested adding the following stipulations: 1) no alcoholic beverage= s to be sold on the premises; 2) except for reasonable maintenance, the exterior= facade is to be maintained as is, except for changes that increase the historical character of the building; 3) the sign can be changed, but the existing materials and lettering style to be maintained with the new sign. He reiterated his opinion that the septic system was not germane to the vote.= Ms. Paliy felt the septic was relevant and felt something should be decided regarding such prior to voting.&nb= sp; She noted that nothing within the Town Hall had been preserved and s= he disliked the vinyl siding. Mr. Gowan said the Board was discussing the facade, which had the appearance of= the ‘real thing’. He believed the intent by his conditions was to keep the building looking as it currently did; he was opposed to adding an awning because it would change t= he character. Mr. McNamara belie= ved the vote taken last March counted, as well as the points that had been rais= ed (regarding the condition and look of the building). Mr. Gowan’s conditions were reiterated. Ms. Ronning wante= d to have a specific time period worked out between the VFW and Mr. Currier for = use of the septic system. The Boa= rd does not have the ability to place such a restriction on the applicant. Mr. McNamara wanted to add a condi= tion regarding the parking such as: the existing parking is to remain and not be expanded.

Ms. Paliy questioned if the VFW had current use of a s= eptic system to be able to occupy the building.&= nbsp; Mr. McNamara believed it was an open question and expected that talks would occur between the VFW and Mr. Currier as well as the exploration of options with Pennichuck.

MOTION:<= o:p>

(Gowan/Ronning) To grant the Special Exception with = the following stipulations: 1) no alcoholic beverages to be sold on the premi= ses; 2) except for reasonable maintenance, the exterior facade of the building= is to be maintained in its current visual style, except for changes that increase the historical character of the building; 3) the signage can be changed, but kept in the same style as the existing Town Hall sign; and 4= ) parking is to remain in existing Woodbury Avenue location.

VOTE:

(4-0-0) The motion carri= ed.

SPECIAL EXCEP= TION GRANTED

Mr. Hennessey returned to the Board.

Case # 2305 – LRL DEVELOPMENT OF PELHAM – 13 Mammoth Road / ML 39/1-55 R= 11; Seeking a Variance concerning Article IV, Section 307-50 (B) to permit pers= ons 55 and older to reside in the proposed units.

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.

Attorney Bill Mason representing the applicant informe= d that he had a letter signed by Mr. Peter Zohdi of Herbert Associates (who was appointed the agent by the applicant) that designated Attorney Mason to app= ear before the Board. He said the request was to request a variance to develop an elderly housing complex with the resident’s minimum age being 55, versus 62 as required in the Town’s Ordinance. He re= viewed the plan and explained that two parcels of land would be combined, a road constructed off Sherburne = Road and five lots would be created (one containing an existing home). Lot 1-55 contained 13.13 acres with a minimum of five acres high and dry; Lot 1-55-1 contained 9.55 acres with an excess of f= ive acres high and dry. He explai= ned that each parcel would have approximately thirty units and showed a concept= ual plan. Mr. McNamara asked what= type of unit would be proposed and if they would be rental or for sale. Attorney Mason said the units depi= cted were two-family units; the applicant had not shared whether the units would= be rental or for sale but would reserve their options. He noted that most of the surround= ing communities had similar units with age 55+ that were found to be an asset to the community.

Mr. McNamara questioned why the applicant couldn’= ;t proceed under the current Ordinance. Attorney Mason said that the Town’s Elderly Housing Ordinance = was adopted in 1980 and it references deferring to Federal regulations for guidelines regarding definitions; the Federal regulations and fair housing = act had changed in recognition of a maturing population and need for housing. He said the current fair housing regulations provide for communities of 55+ and this would be an appropriate= age cut off to develop the project. Mr. Hennessey understood that there were two sets of Housing and Urban Developm= ent (‘HUD’) rules that could be abided by in order to (in essence) violate the fair housing laws regarding age discrimination; HUD ruled there= was no age discrimination if one of the two rules were abided by on senior hous= ing: 1) HUD regulation Section 100.303 over age 62 (which the Town had adopted) = or handicapped; 2) under the older persons act of 1995 Section 104-76 & 109-787 – 80% of inhabitants of an over 55 project have to be over 55. He said by substituting 5= 5 for 62 the second act would be invoked. That was also Mr. D’Andrea’s understanding. Attorney said the provision was in= cluded to permit persons under age 55 to not be disqualified from owing one of the units. Mr. Hennessey question= ed if the Town should vote, versus the Board granting an exception. Attorney Mason said the Board was charged with making exceptions to the rules adopted by the Town if it is believed that the circumstances justify a deviation from the rules.

Mr. Gowan questioned what the contiguous high and dry acreage was. Attorney Mason believed a wetlands map was included in the submission. He said the plan would have to be compliant with the subdivision regulations, and noted during this meeting t= hat he was only addressing the age issue.

Attorney Mason discussed the criteria. The following is what had been sub= mitted to the Board:

Item #1. The proposed use would not diminish surrounding property values because: Lowering the age restriction to 55+ wi= ll not have any bearing on surrounding properties.

Item #2. Granting the variance would not be contrary to the public interest because: Most of the surrounding communities allow persons 55+ older to reside in adult housing. We believe that the Town of Pelham is in need= of such a community.

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

&nbs= p; b) that no fair and substantial relationship exists between the general purpos= es of the zoning = ; &n= bsp; ordinance and the specific restriction on the property because: was not answered by applicant.

c) the variance would not i= njure the public or private rights of others since: This project is a benefit to the community and will generate substantial tax revenue. Allo= wing this 55+ community as requested will not have any adverse effect on schools= or other general services provided by the Town.

Item #4. Granting the variance would do substantial justice because: It would allow a greater population of seniors (55+) as opposed to restricting the age limit to 62 and older.

Item #5. This use is not contrary to the spirit of the ordinance because: If the variance is granted we will mee= t all the other requirements that town will place on us such as following the building code, obtaining all necessary permits, etc.

Mr. Hennessey understood that there was one approved e= lderly housing project behind Rite Aid that was restricted to 62+ and another proj= ect under appeal off Dutton Ro= ad with the same restriction of 62+. He questioned if the applicant would be given a competitive advantag= e over the marketing of the other two projects if the variance were granted. Attorney Mason was not familiar wi= th the other two projects.

PUBLIC INPUT

Mr. David Powers, representing his wife Ms. Joanne Pow= ers who is an abutter to the parcel being discussed was unsure why a variance w= as being considered for this project since there were two other projects requi= ring age 62+. He felt that there w= as a big difference between persons aged 55 and 62. The size of the project was also a concern. Mr. McNamara noted i= f the variance was granted the plan would have to go through Planning Board review. Mr. Powers said there= were issues with wetlands/setbacks. He then addressed the fact that demographics showed an increase in persons over age 62.

Ms. Darlene Balzotti, Sherburne Road was opposed to the p= lan because of the traffic and noise, which she felt would be increased if the = age requirement was lowered from age 62 to 55.= She noted that the proposed plan showed a road going along side her parcel as well as behind her parcel. She said she was opposed to the entire project because of the wetlan= ds and other reasons she would address at later meetings.

Ms. Caroline Jones, Mammoth Road said the Town voted 62= + for reasons and didn’t see why it should be changed in this case.

Mr. Gowan felt there was an underlying issue that the Subdivision Regulations needed to be tightened with regard to Elderly Housi= ng because it contained a grey area in the density issue. He said to lower the age opened th= e loop hole up more. He said the con= cept of ‘open space’ was that increased density the Town would get b= ack large areas of green/open space, but that wasn’t happening with this plan. He was hopeful that the Planning Board would address Elderly Housing.

Mr. Hennessey said he was in favor of lowering the age requirement from 62 to 55, which the Planning Board had discussed. He said the Town willingly and kno= wingly chose to keep the age requirement 62. He questioned whether the Board should overturn what was voted in at Town Meeting; he didn’t feel it should be done. He also felt if the variance were granted, the applicant would be given an unfair market advantage. For those reasons, he was opposed.=

Mr. D’Andrea said the Planning Board was discuss= ing amendments to the Elderly Section; one provision that would be changed would be a prop= osed reduction in the age to 55. T= he first public hearing would be held December 20, 2004.&= nbsp; Mr. Hennessey noted if age 55+ was allowed, 20% of the units could b= e occupied by persons under age 55. The = other regulation for 62+ stipulates that all occupants had to be at least 62 year= s of age.

BALLOT VOTE= :

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

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

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

Ms. Paliy – 1) Yes; 2) Yes; 3) Yes; 4) Yes; 5)= Yes

VOTE:<= /o:p>

Ms. Ronning – 1) No; 2) No; 3) Yes; 4) Yes; 5)= Yes

(1-4-0) The motion failed.

VARIANCE DENI= ED

Case #2306= – FLANAGAN, Frank & Judith – 50 Valley Hill Road / ML 6/4-174-2 = 211; Seeking a Variance concerning Article III, Section 307-12 to permit an addi= tion to a grandfathered non-conforming garage in the Residential Zone.

Mr. Frank Flanagan, 50 Valley Hill Road met with the Bo= ard to discuss his variance request. He explained he wanted to add onto a garage that would have a 19ft. setback (Town’s requirement 30ft). He went on to read the criteria aloud as follows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed addition will be aestheti= cally pleasing and add to the property thus having no adverse effect on surroundi= ng properties.

Item #2. Granting the variance would not be contrary to the public interest because: The proposed use will add = to the taxes being paid on the property and I am going to be moving the house which has a portion of it currently in the right-of-way.

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

&nbs= p; a) the zoning restriction as applied to their property interferes with the reasonable use of the &nb= sp; property, considering the unique setting of the property in its environment such that= :

&nbs= p; b) that no fair and substantial relationship exists between the general purpos= es of the zoning = ; &n= bsp; ordinance and the specific restriction on the property because:

c) the variance would not i= njure the public or private rights of others since: It enhances the property.

Item #4. Granting the variance would do substantial justice because: The use we are seeking is a permitted = use for that district.

Mr. Flanagan said his house currently sat 1ft. within = the Town right-of-way and there was a 200-300 year old Maple tree next to the house. Rather than cut the Ma= ple tree down, he was proposing to move the existing house back further into the lot and extend the existing garage out 35ft., which would leave a 19ft. setback (and 35ft from the ed= ge of existing pavement on Valley Hill Road).&nb= sp;

The Board discussed the plan further. It was noted that the existing gar= age was currently non-conforming; therefore the non-conforming use was expandin= g, but the non-conformity was not being increased but rather being decreased.<= span style=3D'mso-spacerun:yes'> Mr. Flanagan also said approximate= ly 1000SF would be added to the house. Mr. McNamara asked if the bedrooms would be increased. Mr. Flanagan said the bedrooms wou= ld not be increased.

There was no public input.

Mr. McNamara questioned if the garage contained a work= ers dormitory with a bath and shower. Mr. Flanagan said it did in the past.

BALLOT VOTE= :

Mr. McNamara – Yes to all criteria

Mr. Hennessey – Yes to all criteria

Mr. Gowan – Yes to all criteria

Ms. Paliy – Yes to all criteria

VOTE:<= /o:p>

Ms. Ronning – Yes to all criteria

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

VARIANCE GRAN= TED

Case #2307= – ERICKSON, Craig & Pam – 27 South Shore Drive / ML 30/11-218 ̵= 1; Seeking a Variance concerning Article III, Section 307-12 to permit a 14x33 addition and garage on an existing non-conforming lot that does not meet the current minimum lot size and frontage requirements in the residential zone.=

Ms. Pam Little of Baldwin, Cowan & Hogan speaking = on behalf of the applicants reviewed the variance request with the Board. She said the applicants were seeki= ng to put an addition on their home and construct a garage. Ms. Pam Erickson said the proposed addition to house was 14ftx33ft. and the proposed detached garage was 24ftx24ft. The house would be= three stories (including the basement); the current two bedrooms would not be increased. Ms. Erickson submi= tted photographs of the existing home. The current square footage of the house is approximately 1800SF and would essentially double the size. <= /span>

Ms. Little read aloud the criteria as follows:

Item #1. The proposed use would not diminish surrounding property values because: The proposed use will be aesthetically pleasing and the building materials will be compatible to the existing materials and design. There w= ill be no adverse effect on the neighboring properties. There will be an increase in value= to other properties due to the increase in value of this property with the addition and garage.

Item #2. Granting the variance would not be contrary to the public interest because: The proposed addition will= add to the taxes being paid on the property.&n= bsp; There is also a need for the additional living space and garage that= is being requested. Many single = family homes in the residential neighborhoods are of this size and have garages for parking, particularly with the harshness of New Hampshire weather in winter. The proposed addition will also in= crease the value of surrounding properties and is consistent with the permissible = uses in the Residential district.

Item #3 Special conditions exist such that literal enforcement of the ordinance result in unnecessary hardship:

a= ) = the area Variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property because: The property is a pre-existing, non-conforming lot with lot size and frontage that does not conform to the current zoning requirements. = The Court in Boccia has determined that, if a landowners plans are for a permit= ted use, but the special conditions of the property make it impossible to comply with some of the requirements, then from a practical perspective a landowner would not be able to make use of the property, as proposed, without a variance. In this case, the pre-existing non-conforming size of the lot requires a variance for the proposed addition and garage. Single family homes are legal and are allowed on pre-existing non-conforming lots, and garages are a permitted accessory use in the residential area.

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 because: The lot size and road frontage can not be increased as there is no additional land to be purchased in order to conform to the zoning. The applicants are seeking additio= nal living space and a two car garage, which is a reasonable and expected use in most residential neighborhoods in New Hampshire. In Bacon, the Court determined that in some cases there are reasonab= ly feasible alternative methods for landowners to accommodate a proposed use without the need for a variance. Here there is no feasible method available to accommodate the propos= ed addition and garage without a variance.&nb= sp; It would not be feasible for the applicants to propose underground parking or additional floors to accommodate their needs. The only feasible method is the one proposed by the applicants. <= /i>

Item #4. Granting the variance would do substantial justice because: Single family homes are permitted in t= he residential district and garages are permitted accessory uses. There are other homes with garages= in the immediate vicinity of this lot and garages are a reasonable expected accessory use for most homes, particularly in New Hampshire.

Item #5. This use is not contrary to the spirit of the ordinance because: We will meet all other setback require= ments and codes, and will obtain all of the necessary and required permits if the variance is granted. Applican= t has already obtained for this proposed project a state approved septic design.<= span style=3D'mso-spacerun:yes'> The applicant has also obtained a = state approved Shoreland Waiver, #2004-01759, dated September 28, 2004 and record= ed in the Registry of Deeds at Book 7335, Page 2909. The ordinance allows for single fa= mily homes in a residential district (on pre-existing non-conforming lots), and garages are a permitted accessory use to homes in the residential district.= Therefore, granting a variance for= the proposed addition and garage is not contrary to the spirit of the ordinance.

Mr. Hennessey asked if an attempt had been made to dra= ft a plan that would avoid being within the 50ft. Wetland Conservation District (‘WCD’) setback; he wanted to know if there was anything on rec= ord that stated they could not build what they were seeking without going into = the WCD. Ms. Erickson said they h= ad nothing on record. Mr. McNama= ra asked how much further into the WCD they were proposing to go. Ms. Erickson believed they were go= ing approximately 33ft. further into the WCD (20.8ft. to the deck).

Ms. Ronning asked for further clarification of the proposed. She noted that the existing home would be modified quite a bit. It was noted that the parcel slope= d down toward the water (Island Pond). Ms. Erickson showed the location of the proposed garage.

Mr. McNamara discussed the history of the site. Approximately fifteen years ago the owner at the time applied for a variance to construct a two-stall garage th= at was approved by the Board of Adjustment, the abutters appealed, it was affi= rmed by the New Hampshire Superior Court; it then went to the New Hampshire Supr= eme Court and the Board of Adjustment decision was reversed. He said although variance law had changed, the Board would do well to consider the history of the parcel.

Ms. Ronning questioned where the former owner’s = garage was going to be placed. Ms. Erickson said the former owner’s garage was going to be closer to the road (and abutter’s property). She said the garage had already been built and they had to tear it d= own.

Mr. Gowan reviewed the proposed plan and noted that the addition would not be moving closer to Island Pond. Ms. Erickson noted that the height= would not change. Mr. Hennessey con= firmed the reason that the applicant had to go to the state was because they were expanding the existing footprint within the 50ft. (Shoreland Protection Act). Ms. Erickson answered y= es and commented that she had received waivers for such.

PUBLIC INPUT

Attorney James Troisi representing Mr. Donald Crossley= , 14 & 16 South Shore Drive= discussed the application for variance.&nb= sp; He began by handing out a packet of Exhibits to the Board (and the petitioner) that included photographs.&nbs= p; He explained that the petitioner’s property was 1/3 of an acre with 100ft. frontage. He said= the land had been elevated away from the shore line because of the past construction done by the previous owner.&n= bsp; Attorney Troisi said his clients had been visiting and using the property at 16 South Shore= Drive for over sixty years; the property at 14 South Shore Drive was purchased in 1985 or 1986. He said there was an application in 1986 for a new garage that was denied; a 1987 application fo= r a garage that was denied; in 1989-1990 the third application for a garage came before the Board and was granted at which time Mr. Crossley appealed the Board’s decision in Superior Court which was upheld and subsequently brought to the Supreme Court on appeal and the decision was reversed. Attorney Troisi reviewed a portion= of the Crossley case (from 1990) and noted that the court didn’t review = the criteria past the hardship condition. He believed the ‘heart’ of the Crossley case was the statement that two hundred neighbors around the pond would also be able to = perfect identical claims; it would be difficult to imagine a set of fact less apt to satisfy the condition that hardship be unique to the parcel distinguishing = it from others in the area. He s= aid it basically went to the character of the neighborhood surrounding the pond.

Attorney Troisi said the petitioner was asking for a substantial variance (three stories, doubling the living space on the undersized lot) for a lot that was not unique to the other lots in the neighborhood surrounding the lake. <= /span>

The next exhibit contained photographs that depicted t= he Crossley’s home and primary impact area of their view, Crossley’= ;s existing home, picture of the Oganowski (former owner of applicant’s parcel) garage that had to be razed, picture of how Oganowski’s garage impacted view. Another exhibit showed the sight line from the Crossley’s kitchen.

Attorney Troisi then addressed the Boccia v. Portsmout= h case and the fact that an ‘area ‘ variance was now a 2-prong test for hardship: 1) the area Varianc= e is needed to enable the applicant’s proposed use of the property given t= he special conditions of the property because – Attorney Troisi didnR= 17;t feel that the applicant’s petition met this; 2) the benefits sought by the applicant cannot be achieved by some other method reasonably feasible f= or the applicant to pursue, other than an area variance because. He said their position was that the petitioner didn’t meet hardship or the other four criteria. Attorney Troisi addressed the Baco= n v. Enfield case and = the test that the landowner must show the hardship is the result of unique condition= s of the property and not the area in general.&= nbsp;

Attorney Troisi discussed the variance criteria as fol= lows: Item #1) The surrounding property would be diminished – he said it was common knowledge that water view property was more valuable giving all other conditions being the same than property that doesn’t have water view – an appraisal from 1988 was included in the exhibits which evidenced= in this case that there was roughly a 10% diminution from property value with water view than without; Item #2) application would be contrary to the publ= ic interest – the Crossley’s property would be devalued and his pr= operty taxes would go down. He said = that there was a lot going on with the parcel and was told by one of the petitioner’s agents that the addition was maybe for a bedroom for an additional member of the family, however the applicant didn’t say that and would be taken at their word that no additional bedrooms would be added= . It was pointed out that there were numerous waivers that were addressed for the lot. Item #3 – the hardship incorporated the 1990 Crossley case that this was not a unique piece of property in the neighborhood (the Boccia case was referenced). Three lots to the right and three = lots to the left did not have garages (other than one lot containing a small old fashioned garage). Item #4 &a= mp; #5 - The Bacon v. Enfield case was also referenced with regard to area lots being similar in nature a= nd not distinct from the area lots. A portion of this case was read aloud. The Enfield Zoning Ordinance was also referenced and a portion of wh= ich was read aloud in reference to the town’s desire to prevent the overcrowding of land and assure the proper use of natural resources. Attorney Troisi said with the case= being presented the circumstances were stronger because in addition to lot conges= tion there was a water view impact from the Crossley’s property. He felt Pelham’s Zoning Ordi= nance (Section 307-2) was squarely interfaced with the circumstances contained in= the Bacon case.

Mr. Hennessey asked if the Shoreland Protection Act superseded the Enfield case. Attorney Troisi answered no. Mr. Hennessey said the To= wn had opted not to adopt a stricter standard than the state and generally abided = by the state’s waiver/enforcement of the Shoreland Protection Act. Attorney Troisi said the building = was within the 50ft. setback; the new building/addition would be within the 50f= t. setback and there would be more of an impact to the lot vis-à-vis the shore. He read aloud a portio= n of the Bacon case in reference to the hardship issue. Item #4 incorporated by reference = everything he had said and added that the petitioners rented the property and subseque= ntly purchased three years ago with full knowledge on the record that this issue= had come before the Board twice and was ‘shot’ down and a third time the Supreme Court ‘shot’ it down and caused a garage to be removed. He felt there would = be an injustice to the Crossleys in this case because of all they have been throu= gh to vindicate their rights as property owners. He said the predominant condition = was no garages on these undersized lots. He noted that the Supreme Court said the precedent value of allowing this kind of variance would be formidable and any injustice would be to his client (The Crossleys).

To better understand the 1990 Oganowski case, Mr. Henn= essey questioned if the variance was overturned because the lot was not unique and was the same as the surrounding; didn’t need a garage because the oth= ers didn’t have a garage and there was nothing particular about the lot to give it the special privilege to have one.= In the cases referenced Simplex was applied essentially, but instead= of talking about the uniqueness of the lot they discussed the undo hardship created by that lot in comparison with other lots of similar characteristics. He said in t= he application garages are talked about as becoming normal in the area around = the lake and an accepted addition to property.= He said what he was hearing is that the Board shouldn’t grant = the variance because the lot was unique in that it would block the view of the lake. Attorney Troisi answered no. He said in the Boccia cas= e they addressed and distinguished the uniqueness of the lot (as being narrow and having a wetland) from the other lots; in this case the lot is not distinguishable. Mr. Hennessey confirmed that Attorney Troisi was saying that the lot applied for was not unique and was the same as all the other lots around the lake. Attorney Troisi answered yes. He said in order to be entitled fo= r a variance a lot had to be unique. He said another important point of the court cases (i.e. Crossley, Simplex) was that the hardship criteria was focused on and the court didn’t addres= s the other criteria. Item #5 ̵= 1; He discussed the applicant’s request which was felt to be contrary to the spirit of the ordinance.

Attorney Troisi requested that the Board consider the evidence, not only regarding hardship, but the other criteria as well.

Ms. Ronning asked if the addition to the house would b= lock the view. Attorney Troisi ans= wered yes. Mr. McNamara said the Bo= ard would walk the site. Ms. Paliy asked if a garage was in place when the appraisal (contained in the exhibit provided by Attorney Troisi) was done.&nbs= p; Attorney Troisi said there was an old small garage that had been rem= oved for approximately five years. He said the garage was done illegally; the appraisal addresses the blocked view versus the view without the garage.

Ms. Erickson submitted photographs that showed what th= ey intended and an artist rendering of what the view would look like if the ga= rage was constructed. Mr. Hennessey questioned what the proposed height would be for the garage. Ms. Erickson said the proposed gar= age height was 20ft., but it was negotiable.&n= bsp;

Ms. Little addressed the points brought up and noted t= hat the home was three-story, but one of the stories was in the basement; the Crossley opinion was made in 1990 and was old law that has changed with the= Simplex, Boccia and Bacon cases. She s= aid a statement had been made that the prior owner had built up the land where the garage was constructed and didn’t feel that what the prior owner did affected what was going on now. Mr. Hennessey disagreed; he said if it was built up it would be germane to the case. Ms. Erickson said the v= iew would be increased with the removal of some of the trees.

The Board was under time constraints; Mr. McNamara sai= d the applicant would be given a full opportunity to address all the issues raise= d at the next scheduled meeting. M= r. Hennessey said he would like a consultation with the Conservation Commission and suggested a joint site walk. Ms. Erickson said she met with the Conservation Commission prior to obtaining a waiver (which was one of the conditions); the Conservation Commission approved.

The Board scheduled a site walk for December 18, 2004 at 9am. The case was continued to the January 10, 2004 meeting.

DISCUSSION=

Proposed Z= oning Amendments

Mr. D’Andrea provided the Board with a draft of = the proposed zoning amendments for the 2005 Town Meeting. He invited the Board members to the Planning Board’s first public hearing scheduled for December 20, 2004.

Item #4 - proposed an amendment to the square footage allowed for an accessory dwelli= ng unit. Increasing it from 500SF to 750SF.&n= bsp;

Item #2 – would change the hardship criteria.

Item #3 – would amend Section 307-13,which dealt= with non-conforming lots. Mr. D’Andrea explained that currently the ordinance made a distinction between lots approved on a plan by a Planning Board prior to 1975 and plans that show up on a plan not approved by a Planning Board. He reviewed the proposed language = which was drafted to eliminate the distinction.&= nbsp; There was further discussion and it was noted that the proposed chan= ges could be discussed at the public hearing.

Mr. Hennessey had a question regarding the proposed ch= anges under Item #7 to allow wells to be located within the Wetland Conservation District by granting a special permit.&nbs= p; He asked if state law contained language that would allow a Planning= Board to issue a special permit. Mr. McNamara said it could be further discussed at the public hearing. Mr. D’Andrea said the draft = would be discussed at the first public hearing and noted there would be two works= hops prior to the second public hearing in January, 2005. He encouraged the Board to review = and join the Planning Board at the public hearing.

There was further discussion regarding Elderly Housing= and the suggestion to lower the age requirement from 62 to 55.

MINUTES

Deferred.

ADJOURNMEN= T

MOTION:<= o:p>

(Gowan/Hennessey) To adjourn the meeting.

=

VOTE:

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

The meeting was adjourned at approximately 11:20 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