BOA20040510

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 10, 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 Ron= ning

None.

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

CONTINUED<= o:p>

Case #2275= – MARALDO – Joseph & Carol/169 Old Gage Hill Road No. – ML 17/13-37-1 – Seeking an Equitable Waiver, pursuant to RSA 674:33 – an exis= ting garage that is 3-feet from the property line where 15-feet is required in t= he residential zone.

Ms. Beloritsky said she had previously met the applica= nt, but did not feel there would be any conflict for her remaining seated on the Board. She had no current relationship with the applicant. The Board did not have a problem with Ms. Beloritsky remaining seated on the Board. Ms. Ronning arrived. Mr. Gowan said he had been a tenan= t of one of the abutters, and did not feel prejudice toward the applicant. The Board did not have a problem w= ith Mr. Gowan remaining seated on the Board.&n= bsp;

Mr. Henn= essey read the list of abutters aloud. There were no persons present who did not = have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters.

Mr. Joseph Maraldo said in 1985 a contractor had been = hired to build a garage and it was assumed that everything was correct. Recently the property was surveyed= , and it was found that the garage was too close to the property line. He said one corner was 3 feet and = the other corner was approximately 12 or 13 feet. He believed the excavator may have= lost the corner points. He didn= 217;t feel that anyone would be affected. He said the area behind was not currently buildable.

Mr. Gleason asked if the abutter behind Mr. Maraldo= 217;s property opposed the request. Mr. Maraldo said his abutter had no opposition and noted that the abutter had attended the previous meeting which had been continued.

Mr. Gowan felt there would not be a proximity issue ba= sed upon the configuration of the lot. He concurred with the applicant’s submission.

There was no public input.

MOTION:<= o:p>

(Gleason/Hennessey) To grant the equitable waiver as requested as requested by the applicant.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

EQUITABLE WAI= VER GRANTED

HEARING(S)=

Case #2281= – MICHAUD, Andre/17 Lincoln Street – ML 14/4-99 – Seeking a Speci= al Exception concerning Article XII, Section 307-74 to permit an accessory dwelling in the residential zone.

Mr. Hennessey read the list of abutters aloud. There 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.

It was noted that the application had previously been withdrawn (case #2274) and had been re-filed under a new case number. The difficulty was that the propos= ed in-law apartment had exceeded the 500SF maximum allowed in the Zoning Ordinance.

Mr. Michaud informed that the latest plan submitted had incorrect dimensions. Ms. Dar= lene Michaud noted that they calculated the dimensions incorrectly by measuring from an inside wall to the outside of an outside wall, which added footage. Since the plan was submitted, the dimensions had been corrected by measuring the inside walls (a copy of such plan was given to the Board). Ms. Michaud pointed out that the floor plan had not changed, simply the way in which the plan was calculated.

Mr. McNamara confirmed that the plan had not changed, = except that the dimensions were now measured using the interior walls. Ms. Michaud answered yes. Mr. McNamara asked if the current calculations met the 500SF requirement.&nb= sp; Mr. Michaud believed the current calculations were approximately 492SF. Mr. Gleason asked if t= he calculations included the shared laundry. = Mr. Michaud answered no. Mr. Glea= son said the Planning Director indicated that the dimensions added up to 527SF. Ms. Michaud reiterated= that the dimensions at the time of the submission were calculated incorrectly because the measurements were taken from an inside wall to an outside wall. Mr. McNamara noted that= the calculation on the plans contained in the Board member packets indicated th= at the dimensions were 493.8SF. = Mr. McNamara said the Planning Director informed the Board that the dimensions = he calculated equaled 527SF. He = asked if the 527SF included the laundry. Mr. Michaud said the laundry was not included in the Planning Director’s calculations. He said some of the markings indicated that some of the dimensional calculatio= ns were taken from an inside wall and measured to the outside of an outside wa= ll which would constitute additional footage.= Ms. Michaud said calculating to the outside wall added approximately thirty feet all the way around the addition.

Ms. Ronning asked how square footage was normally calculated. It was noted that square footage was normally calculated by using the interior dimensions of living space. Mr. Gleason con= firmed that the 492SF was inclusive of the closets, but exclusive of the laundry room. Ms. Michaud answered yes.

There was no public input.

Mr. Hennessey calculated the dimensions and said he ca= me slightly over (within 5ft.), but noted it was difficult for him to calculat= e exact dimensions due to the corridor. Ms. Beloritsky calculated the dimensions and came under the 500SF requirement.<= span style=3D'mso-spacerun:yes'>

Mr. Gleason said the only obstacle with the last appli= cation was the square footage and said it appeared that the plan had been revised.

MOTION:<= o:p>

(Gleason/Hennessey) To approve the Special Exception= as presented by the applicant. <= o:p>

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

SPECIAL EXCEP= TION GRANTED

Case #2282= – FOOTE, Richard/7 Independence Drive – ML 21/3-76-9 – Seeking a Special Exception concerning Article XII, Section 307-74 to permit an acces= sory dwelling in 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. Richard Foote met with the Board to discuss his application for an accessory dwelling.&nbs= p; He was seeking to convert his existing attached two-car garage into = an in-law apartment for his mother-in-law.&nb= sp;

Mr. McNamara said the Planning Director had noted his calculations showed the existing floor plan of the garage as 24ft.x24ft. totaling 576SF, which is over the maximum ordinance of 500SF. Mr. Foote said the proposed plan reflected the proposed changes (i.e. interior walls) which equaled 443SF of living space.

Mr. Gleason reviewed the proposed plan and confirmed t= hat the garage was currently attached. He also confirmed the entrance area for the proposed apartment.

Mr. McNamara asked what the rating was for the septic design. Mr. Foote said the se= ptic design was rated for five bedrooms (the current house had three bedrooms).<= span style=3D'mso-spacerun:yes'>

Mr. Hennessey reviewed the calculations and didn’= ;t feel that the counter tops and cabinet could be excluded. He felt that 500SF was an overly restrictive ordinance. He sai= d the shower and bathtub had not been included.&= nbsp; Mr. Foote said the drawing had been done per the ordinance. Mr. Hennessey said the way in whic= h the space was described went over the 500SF maximum, but felt the design might = be okay if the in-law entry, being a shared space, was deleted from the calculations. He said if the walk-in-closet was reconfigured to include a door on the other side, it cou= ld also be considered common space. Mr. Foote said it would be simple to reconfigure. There was a brief discussion regar= ding what areas could be considered common space and the calculations shown on t= he proposed plan. Mr. Hennessey = said a stipulation could be added to add a door where the kitchen went into the en= try foyer.



MOTION:<= o:p>

(Hennessey/Gleason) To approve the Special Exception= with the stipulation that a doorway be added from the kitchen into the entry f= oyer, which would become the entry for the accessory dwelling unit (the common = wall would be comprised of the wall which is the edge of the cabinet, door ent= ry and the walk area along the wall).

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

SPECIAL EXCEP= TION GRANTED

Case #2283= – GRINLEY, William & Christine/214 Mammoth Road – ML 21/3-123 ̵= 1; Seeking a Special Exception concerning Article XII, Section 307-76(III) to permit a general home occupation in 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. William Grinley and Ms. Christine Grinley met with= the Board to discuss their application for a Special Exception to permit a gene= ral home occupation in the residential zone.&n= bsp; He said two years ago he and his wife set out to built an accessory building and open a welding shop, but their plans were put on hold, an extension was filed under the advice of Building Inspector Mr. Roland Soucy. He was under the assum= ption that they had been approved, and proceeded to erect a sign under the home occupation guidelines. He was= then informed by Mr. Soucy that the approval granted was for a minor home occupa= tion and was advised to pursue a Special Exception through the Zoning Board of Adjustment. At this point Mr. Grinley removed the sign to show good faith and had now applied for a gener= al home occupation permit.

Mr. Grinley reviewed the requirements of the Zoning Ordinance per 307-76, III as follows:

It is located behind the home approximately 127ft. behind the house.

Space was created= to put the building up.
=

Scrap steel is stored in a trailer and transported off-site tra= ded for profit. The rented Acetylene containers (which are considered to be safe) are chained to = the inside of the building. = The machinery is electrically driven.&nbs= p; Other equipment is run by inert gasses (which won’t mix a= nd are not flammable). Based up= on conversations with neighbors, there are no noise problems. It is difficult to hear noise= even when standing in the yard.

He said there = was no night shift, or Sunday hours; rarely work was done on Saturday.

There was no public input.

Mr. Gleason felt the general criteria had been met for= a General Home Occupation.

MOTION:<= o:p>

(Gleason/Gowan) To approve the General Home Occupati= on.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

GENERAL HOME OCCUPATION GRANTED

Case #2284= – LAFONTAINE, Michael & Lisa/18 South Shore Drive – ML 30/11-247 – Seeking a Variance concerning Article III, Section 307-12(E) to per= mit a garage which does not meet the required side setback of 15-feet in 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.

Michael and Lisa Lafontaine met with the Board to disc= uss their request for a Variance. Ms. Lafontaine said there was presently a garage on the premises that was not large enough= to suit their needs. She said if= the garage were expanded in the current location, it would block off access to = the back portion of the lot, therefore they were seeking to move the garage bac= k to maintain access.

Item #1. The proposed use would not diminish surrounding property values because: The proposed structure will be aesthetically pleasing and add to the property t= hus having no adverse effect upon surrounding properties.

Item #2. Granting the variance would not be contrary to the public interest because: The public will benefit from the increase in our property tax.

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: Due to the size and shape of our lot, we are unable to meet the setback requirement.

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 property has an exist= ing building; they are not requesting anything that is not allowed; surrounding properties have such structures.

c) the variance would not i= njure the public or private rights of others since: Only asking to add a garage, = which is not something that is disallowed, the lot is constrained by the size.

Item #4. Granting the variance would do substantial justice because: We only = wish to replace an existing garage with one that is more suitable to our needs. =

Item #5. This use is not contrary to the spirit of the ordinance because: We are only requesting a variance to waive one of the zoning requirements. We will meet all other setbacks and codes.

Mr. McNamara asked if the applicants had a plot plan b= ecause the information submitted was difficult to review. Ms. Lafontaine reviewed the submit= ted site plan and discussed the constraints with moving the proposed location of the garage due to the location of the septic tanks and pipelines.

Mr. Hennessey said the Planning Director informed the applicants the proposed plan was fine, which he disagreed with. He said according to the regulatio= ns, the Board could request a survey. He said the submitted plan didn’t show what was contained on t= he property. He said there was a spring/stream coming in from Town owned land, which went into a culvert und= er the Lafontaine’s property. Ms. Lafontaine said there was an intermittent stream that flowed onto their property that was dry in the summer.= She said the stream was studied when they had their septic system and leach field done. Mr. Henness= ey said the location of the abutters and locus were not contained on the site plan, which was not required, but made review difficult. He believed applications should in= clude a certified plot plan. He sai= d he reviewed the site from the Town owned parcel, but still could not figure out the site. Mr. Lafontaine said= the plan could easily be understood if viewed from the front of the lot.

Mr. McNamara asked the dimension of the existing garage. Ms. Lafontaine said t= he existing garage was 10ft wide 28ft. deep; the back end is narrower (8ft.4in) because the structure is actually a garage with an attached shed.

Mr. Gowan asked when the lot had been subdivided. Mr. Lafontaine said the lot had previously been considered a ‘coffee lot’ (50ft.wx100ft deep).<= span style=3D'mso-spacerun:yes'> He said an additional piece of lan= d had been purchased from Maurice Picard so the septic system could be installed.=

Mr. Gleason said it appeared that the garage could be = moved to meet the setback without imposing on the leach field piping. Mr. Lafontaine said they wanted to ensure room was left to access the back portion of their lot in the event t= he septic system needed maintenance. Ms. Lafontaine also noted that they would need access to the back because for storage of their boat and snowmobiles.&nbs= p; Mr. Gleason asked if it were possible to move the garage around the corner of the lot. Mr. Lafont= aine said their leach field started in the back, and their neighbor had located a garden in the rear of the parcel. He said they were also trying to keep the access to the garage straight. Ms. Lafontaine said= her neighbor was okay with the proposed plan, but if the proposed garage was to= be moved to the back portion, the woods would be gone and her neighbor would m= ost likely oppose their request. = Mr. Gleason said hardship needed to be demonstrated and believed there was adeq= uate land to meet the requirements of the ordinance.

Mr. Hennessey felt the proposed structure was large fo= r the size of the parcel. Ms. Lafon= taine explained that the width would allow them to move things freely in and out = of the garage without moving cars; in the winter the depth would allow them to park two cars deep.

Ms. Ronning said the garage would be tall and asked ho= w the second floor would be used. M= s. Lafontaine said the garage would be built uniformly with the house and the space above would not be finished off, it would be used for storage.

Mr. Hennessey believed a height restriction had been p= laced on a garage in the same neighborhood.

Mr. Gowan asked if the garage were moved 8ft. to the r= ight it appeared to meet the setback, miss the septic pipe by approximate= ly 8ft. and allow for equipment to be moved.&= nbsp;

Mr. Hennessey pointed out if the Variance were denied = the Board would lose control to placing additional conditions regarding the siz= e of the structure. Mr. Gleason sa= id the Board had no right to specify the building size with the Variance. Mr. Hennessey felt conditions coul= d be placed regarding building size and height.=

PUBLIC INPUT

Mr. Peter Shelzi, South Shore Drive, spoke in favor of the Variance request. He felt the request = was reasonable since the Lafontaines were only asking to build another structur= e on the same setback of the existing structure. He said the garage was a reasonabl= e use of the property. He said beca= use of the lot sizes in the area, owners were put at a disadvantage. Mr. Shelzi said there was Town own= ed property behind the parcel, therefore no one’s view would be blocked = by the structure. He ended by reiterating that the request for the proposed garage was to be built with t= he same setback requirement as the existing garage, which in his view was reasonable. He hoped that the= Board would look on the application favorably.&n= bsp;

Ms. Lafontaine said there were other garages in the neighborhood of similar size or larger.&nb= sp;

Mr. Gleason had no problem with the size of the garage= . He said the existing structure was probably grandfathered. He sa= id the site plan was difficult to read and felt the full regulation could be met.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara suggested that the Board walk the site. There was further discussion regar= ding the application. Ms. Belorits= ky asked if there were reasons, other than aesthetics for locating the garage = as proposed. Ms. Lafontaine said= the proposed location would allow them to maximize the use of their property in= a reasonable way. She reiterate= d they would like the garage in the proposed location to maintain access to the ba= ck portion of their lot.

The Board scheduled a site walk on Saturday, May 15, 2004 at 8am.

The application was continued to the June 14, 2004 meeting.

REQUEST FOR REHEARING

Case #2276= – SWEREN, John & Paula/6= 8 Marsh Road – ML 28/7-175 – By John & Paula Sweren.

Mr. McNamara said the Board had reviewed the submissio= n from the applicant’s counsel. Mr. Hennessey addressed point #8 (length of driveway) and felt the Board was allowed to discuss such when reviewing an application for a variance. Mr. McNamara noted that the Planni= ng Board was currently discussing driveway regulations to be included in the subdivision regulations due to issues with length and steepness of driveway= s.

Mr. Hennessy addressed point #12 (actions of the Board= ) he took a great deal of umbrage toward the language used (‘The superior court= may award costs against the Town if there is a finding that the ZBA acted in bad faith, with malice or with gross negligence’). He then discussed point #10 (Metzg= er at 117 N.H. 503-504), which he understood was cited in cases as an exception to zoning. He felt there was a ‘spin’ being placed on the case that he was unaware of. Mr. McNamara said the Metzger case= had been decided in 1977. He said= it did allow a subdivision with frontage less than 200ft. and believed it was = one of the few cases that dealt with the issue. He hadn’t read the case in a= while, but believed it stood on its own.

Mr. Gowan said the application for rehearing made it a= ppear that the reason for denial was based upon the driveway length, which was untrue; there were other issues.

Mr. McNamara said Attorney Groff (representing the applicant) was pleading the case and seeing if there were grounds for the B= oard to reconsider their opinion. =

Mr. Gleason didn’t feel there was any new eviden= ce presented in the documentation. He felt there were other issues (i.e. extenuating circumstances to the varianc= es granted by the Board in the past; taking ownership of the land after the enactment of the law) discussed by the Board during the hearing that were neglected in Attorney Groff’s document. Mr. McNamara noted that Attorney G= roff cited cases that were between 1988-1993, with two recent examples. He noted that the law, composition= of the Board and the Town had changed tremendously since 1993. He said if the Board was ‘chained’ to what was done in the past the Board could never change.

Mr. McNamara felt it was important to point out that t= he applicant had foreknowledge that the lot was restricted; a variance had previously been denied for one lot and there had been no change in the property; there had been a change in the law which allowed the Board to take into account the hardship criteria. Mr. Hennessey questioned if the Metzger case was applicable. After further discussion it was suggested to seek Town Counsel’s expedited opinion since a decision h= ad to be made within thirty days. M= r. McNamara will contact Town Counsel and seek an expedited opinion; the Board will reconvene once Town Counsel provides an opinion.

MOTION:<= o:p>

(Hennessey/Gleason) To stay the request for rehearing pending recommendation from Town Counsel.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

MINUTES

March 8, 2004<= /p>

MOTION:<= o:p>

(Hennessey/Gleason) To approve the March 8, 2004 meeting minute= s as amended.

=

VOTE:

(5 - 0 - 0) The motion c= arried.

<= /u>

April 12, 2004=

MOTION:<= o:p>

(Hennessey/Gleason) To approve the April 12, 2004 meeting minu= tes as amended.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

MISCELLANE= OUS DISCUSSION

Mr. McNamara said he attended the NH Office of Planning Annual Spring Seminar in which a compilation of cases had been reviewed. He said based upon the Bacon v. To= wn of Enfield case, the = hardship criteria may be changed drastically. He will provide the Board additional information to the Board for the next meeting.

ADJOURNMEN= T

MOTION:<= o:p>

(Gleason/Hennessey) To adjourn the meeting.

=

VOTE:

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

The meeting was adjourned at approximately 9:35 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