BOA20050214

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

February 14, 2005

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, Edmund Gl= eason, David Hennessey, Svetlana (Beloritsky) Paliy, Alternate Cindy Ronning

Jeff Gowan

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

REQUEST FOR REHEARING

Case #2305= – LRL Development of Pelham – 13 Mammoth Road / ML 39/1-55 – By Applicant=

Mr. Gleason was not present during the original hearin= g for this case, and therefore recused himself from the request for rehearing discussion.

Mr. Hennessey said after review of the request, saw no= thing new in the application. He no= ted that the Town had an elderly ordinance in place and that there was a warrant article on the ballot in March regarding and age reduction. He did not understand why the appl= icant was making this request prior to Town vote.

Ms. Ronning said she would rather wait until after the= vote in March.

Mr. McNamara said unless the Board felt there was new evidence, or an error in law, then the Board should vote to deny.

MOTION:<= o:p>

To deny the request for rehearing.

VOTE:

(4 - 0 - 0) The motion c= arried to deny the request for rehearing.

CONTINUED<= o:p>

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.

It was noted that the configuration on the plan had be= en changed and new notification had been sent to the abutters.

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.

Pam & Craig Erickson met with the Board to discuss= their variance requests. Ms. Ericks= on explained that the addition had been reduced from 14ftx33 down to 8ftx33ft (approximately 712SF), which put it in the footprint. The existing deck would be removed= to construct the addition. She s= aid when the Board last met, and discussed the case, the Board didn’t see= m to have a problem with the garage and the only problem was with the size of the addition within the WCD and seemed to indicate if the addition was within t= he footprint they would be more likely to award the variance.

Ms. Erickson read aloud the ‘Area’ criteri= a as submitted to the Board:

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 additio= nal living space. Other properties located in the neighborhood have expanded in size over the years, and have added living space and decks within the 50’ setback of the lake.

Item #2. Granting the variance would not be contrary to the public interest because: The proposed addition will increase the taxes being paid on the property. The applicants have a need for the additional living space being requested.&n= bsp; The proposed addition is consistent with the permissible uses in the Residential district and is consistent with upgrades to other properties in= the neighborhood. Making this hom= e more livable, more salable, and of generally higher value is a public benefit.

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 and the existing structure was built by a prior owner wi= thin the 50’ setback from the shore. The Court in ‘Boccia’ has determined that if a landowners plans are for a permitted use, but special conditions of the property make = it impossible to comply with some of the requirements, then absent a variance,= the landowner is impermissible prevented from making a permitted use of his property. In this case, the location of the existing home and deck within the 50’ setback, and the necessity that the addition also be within that setback, requires a varianc= e to allow the proposed permissible residential use. The additional living space will be within the footprint of the existing home and deck. Single family homes are allowed in= this zone, and other homes in the area have expanded in size into the 50’ setback.

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 applicants are seeking additional living space by converting an existing deck into livable space. That converted space will be within the 50’ setback from the l= ake. The applicants are not proposing to build closer to the shore. Su= ch residential expansions and upgrades are reasonable and expected in resident= ial neighborhoods, including this one. In ‘Bacon’, where a variance denial was upheld, the Court determined that there was a reasonably feasible alternative method for the landowner to accomplish his proposed use without the need for a variance (E= g. Moving the proposed heater from an attached shed to the garage or attic). Here there is no feasible alternat= ive method available to accommodate the proposed addition to the structure, whi= ch is already located within the 50’ setback. Thus the variance is necessary to = permit the otherwise allowable proposed residential expansion.

Item #4. Granting the variance would do substantial justice because: The existing single family home is per= mitted in the residential district. = There are other homes with recent additions in the neighborhood that also encroac= h on the 50’ setback from the lake. The planned expansion is modest in size. The applicant has already obtained= state approval to expand into the 50’ setback, for an earlier proposed larg= er proposed addition that has since been amended (by reducing the footprint) a= nd is currently under review by the ZBA.

Item #5. This use is not contrary to the spirit of the ordinance because: We will obtain all of the necessary and required permits if the variance is granted. Applicant has already obtained for= this proposed project a state approved septic design. The applicant has also obtained a = state approved Shoreland Waiver, #2004-01759 dated 9/28/04, and recorded in the Registry of Deeds at Book 7335, Page 2909.= The proposed addition extends only 8’ from the existing home a= nd is not closer to the shoreline. The lot is larger than some other lots with similar additions, and therefore is less ‘dense’, and will retain significant open space, grass, and trees. There are many other l= ots along the lake that have added additional living space within 50’ of = the shoreline. Granting a varianc= e for the proposed addition is not contrary to the spirit of the ordinance, to its application to other properties, or to the standards of the neighborhood.

Mr. McNamara asked if the new plan had been brought to= the Conservation Commission. Ms. Erickson answered yes. Mr. Hennessey read aloud a letter dated January 17, 2005 submitted to the Board by the Conservation Commission, who in summary had voted unanimously not to support the incursion into the WCD with the proposed improvement. The existing deck extends, in part= into the WCD; the addition will be placed in the footprint of the existing deck. It was noted that the applicant’s counsel (from Baldwin, Callen, Hogan) had submitted a let= ter dated February 8,= 2005 which would be reviewed by the Board.

PUBLIC INPUT

Attorney James Troisi representing Mr. & Mrs. Dona= ld Crossley of 14 & 16 So= uth Shore Drive, came before the Board to discuss = the case being presented. He said= the Board had been provided, through reference all the exhibits previously introduced (in December, 2004) their opposition statement (from January, 2005). He pointed out that the applicant’s recent application for the wetland intrusion did not addr= ess the five criteria, which they didn’t feel the applicant satisfied. He said although the plan had been scaled down, it still would be an approximate 40% increase in living space. He went on to address = the five criteria: 1) Surrounding Property Values - they reiterate that property values (especially the Crossley’s) would deteriorate – he said = the appraisal previously submitted by his client was not offered to show the numbers (because values have increased) but rather to show the rational by = the certified appraiser that if the variance was granted, the property value wo= uld be diminished by approximately 10%; 2) Public Interest - remarks had been m= ade that there was a lot of ‘mass’ on the lot – the Conservat= ion Commission letter was expounded upon by a subsequent letter dated February = 7, 2005 by Mr. Yarmo to Mr. McNamara (as submitted to the Board under tab 1 by= Mr. Troisi’s client) – the letter states that the Conservation Commission was concerned with establishing a precedent for incursion into the wetland protection buffer w= ith a structure (as specifically excluded per Article 7, Section 307:37a) and further, supporting additional incursions into the already compromised wetl= and buffer would be contrary to the Conservation Commission’s duty to pro= tect our natural resources it is not in the public interest because Little Island Pond is one of the most valuable natural resources; 3) Hardship - the applicant’s property has to be unique – Attorney Troisi compared this case to the Bacon case, which he felt were alike, since there were lots surrounding the area that did not have garages, several that have garages a= re either small, or older (photos were submitted for the Board to review)̵= 1; further the applicant’s property didn’t have special conditions that distinguished it from other properties in the area (as further acknowledged in the Conservation Commission’s letter dated February 7, 2005) –Attorney Troisi said if all the other homes from around the la= ke came forward there would be more incursion into the wetland, just as stated= in the Bacon v. Town of Enfield and the Crossley case of 1990; 4) Substantial Justice - the applicants rented the property for several years prior to purchase and when purchasing had notice of the history of the property and notice that the Town and court did not permit it to expand. Attorney Troisi said that the appl= icant initially was going to use the proposed addition as an additional bedroom to house a family member, at the last meeting the applicant stated that the addition would be a guest room and bathroom, however two days later, at the Conservation Commission hearing (and contained in their minutes) the applic= ant stated that the addition’s purpose would be to give their daughters a bigger bedroom; 5) Spirit of the Ordinance – Attorney Troisi believed= that the Bacon case and the Town’s Zoning Ordinance was right on point, al= so the Conservation Commission didn’t want to establish a precedent by continuing to add onto houses already in the 50ft. setback from the lake – the house is already predominantly in the WCD – he reviewed t= he Board minutes from the last hearing where one member stated if the lot was = new a variance wouldn’t be granted. Attorney Troisi said there weren’t many cases that had guidance from the past, as this one. He requested that the Board examine each of the criteria. He then submitted a copy of the Conservation Commission minutes.

Ms. Erickson addressed Mr. Troisi’s concerns. She began by stating that the addi= tion had been cut in half and therefore was not increasing living space by 50%.<= span style=3D'mso-spacerun:yes'> Regarding surrounding property val= ues, she said the Crossley’s property had probably tripled since 1988. She noted that the Crossleys had b= each rights which evened things out. In addressing Public Interest, Ms. Erickson was surprised that the State appro= val didn’t have meaning or carry any weight with the Conservation Commiss= ion; the state had no problem with the larger addition. She said the addition was 8ft.x33f= t on an existing footprint. She sa= id that Mr. Crossley had put a large addition on his property as well as decks without permits, or variance. It was Ms. Erickson’s understanding that concerning the Bacon case, a property doesn’t have to be unique onto others, just unique onto themselves. She believed that= the laws from 1990 were less restrictive today. She said she didn’t know all= the details about the property prior to purchasing; she was aware that the prev= ious owner (Oganowski) put a garage in and that it had been torn down. She said the Crossleys had spent t= ime and money protecting their property, and she had spent time and money upgra= ding her property. Ms. Erickson sa= id based upon a discussion she had with the Crossleys plans were made, and now= the information was being used against her.&nb= sp; She said builders received variances all the time for building within the WCD and crossed them to put driveways/buildings in. Mr. McNamara said that was not the= Board of Adjustment purview. Ms. Er= ickson said the difference between her garage and the Oganowski garage (which was 30ft.) was that she proposed to place the building 33ft. back. She said all other setback require= ments had been met.

Mr. Hennessey said in November 1, 2004, the Shoreland Protection Department of the New Hampshire Department of Environmental Serv= ices sent out a letter that appeared to loosen some of the shoreland requirement= s of structures with 250ft. (within 50ft. nothing could be built), except in the definition of accessory structure (which included garages). The accessory structure could only= be constructed if allowed by local zoning and if constructed in accordance with local building code, no more than 20ft in height, no larger than 150SF in s= ize, set back at least 20ft. from reference line and be built on land having less than 25% slope. Ms. Erickson questioned why the state gave her a waiver. Mr. Hennessey was unsure; he didn’t know if the Board could waive it.

Mr. Hennessey asked if a bathroom was being added. Ms. Erickson answered yes. The contingency septic design was = rated for two bedrooms. There was a= discussion regarding the proposed bathrooms. The applicant currently had one and three quarter bathrooms; the proposed plan showed three bathrooms.

Mr. Gleason noted that the deck currently had posts; he discussed the addition and asked if a full basement would be added. Ms. Erickson said the plan had alw= ays been to have a cellar in the addition.&nbs= p; She reiterated that the addition had been cut in half and would stay within the existing footprint (of the deck). She said the variances that seemed= to be awarded around the lake were for those staying within the footprint. Mr. Hennessey said the Board had s= pent a lot of effort reviewing the case (over three meetings) and rejected the idea that others were being treated better than the applicant; the Board was try= ing to apply the Town and state regulations as presented.

Ms. Erickson provided the Board with information regar= ding the parcels in the area that contained garages.

Attorney Troisi wanted to note that the proposed addit= ion was 792SF of living space. He= said the beach rights didn’t equate to the scenic view that the Crossleys = had for the last fifty years. He = said the Crosseley’s addition was of no consequence because he didn’t damage anyone’s property; it wasn’t on the shore blocking view. He said the hardship ‘unique to ourselves’ didn’t ‘cut it’. He ended by saying they had taken = photos of the lots previously highlighted by the applicant and felt it was like comparing ‘apples to oranges’.= He thanked the Board for their time and consideration.

Mr. Hennessey said the Board had spent a lot of time discussing the addition, but not about the garage. He was unsure if the case had been= made for the garage. His main prob= lem with the addition was the bedrooms versus the bathrooms and was concern with the public health issues. He = was struggling with the increased load to the septic system and it proximity to= the lake with regard to the public interest and substantial justice criteria. The Board discussed the applicatio= n and the information submitted to the Board.&nb= sp;

It was noted that the garage would be 14feet in height= .

Ms. Paliy asked when the Board last granted an increas= e of more than 30%. Mr. Gleason sa= id he had sat on cases that were more than 30%.&= nbsp; Ms. Paliy questioned if the Board could take action, based upon the information from DES (read aloud by Mr. Hennessey). Mr. McNamara said it was a recommendation, not a ‘set in stone’ standard; the applicant ha= d a waiver from the state to build into the wetland. He suggested that the Board review= the case piece by piece.

Mr. McNamara began by suggesting that the Board begin = with the garage; he said at a past meeting the criteria for the garage had been = read into the record and would take it that they were incorporated into this mee= ting. Attorney Troisi said the criteria = hadn’t been addressed in the new application for the addition the five criteria wasn’t addressed. Mr. McNamara said this amended request was a further reduction in the size of t= he addition and the criteria applied per force. Attorney Troisi noted that the foo= tprint of the building didn’t include a porch. Mr. McNamara said the porch was in= the WCD and there was human activity currently occurring.

The Board discussed the garage, which did not require = an incursion into the wetland. T= he nature of the variance required for the garage, was due to the structure be= ing built on a non-conforming lot that didn’t meet frontage. The garage was reviewed in connect= ion with the criteria. The following was discussed: the height of the garage se= emed to be keeping with the nature of the neighborhood; if the lot had never been built on, there would be no view because the vegetation would prevent it; T= he applicant proposed to take out pavement (impervious surface), which would b= e a ‘wash’ with the amount of runoff from the building; some benefit to the public by housing vehicles and protect wetlands.

The Board discussed the proposed expansion/addition to= the house. The following was disc= ussed: It was felt once the garage went up, the view would be obstructed, however = if the landowner wanted to plant vegetation, they had the right to do so; the ground will be disrupted and a structure would be put in; property value clause doesn’t necessarily refer to one specific property – the bundle of rights are= not universal – predecessors had the ability to purchase sight easement; = in public interest other Town’s board’s opinion should be acknowledged; Town Conservation Commission has said it is not in the public interest; the state says just because there is a porch, it doesn’t me= an it could be made into a room – the waiver was not for the specific expansion (but for within the 50ft. reference point); Conservation Commissi= on concerned with establishing a precedent for incursion into the wetland prot= ection buffer with a structure; Article 7, 307-37 specifically excludes structures from the buffer; additional taxes being paid on property in itself is not enough; question how not contrary to the public interest; applicant needs additional space - a hardship associated with the restriction; economically expensive to move the location of the addition; not contrary to spirit of zoning regarding dimension ‘in general’, however it is contrary= to and violates the portion of the zoning ordinance regarding wetland protecti= on.

There were variances to two separate articles of the Z= oning code and had been discussed separately, therefore the following motion was made.

MOTION:<= o:p>

(Hennessey/Gleason) To vote on the garage and expans= ion (addition) separately. <= /o:p>

VOTE:

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

Garage variance #2307a

BALLOT VOTE= :

Mr. McNamara – Yes to all criteria

Mr. Hennessey – Yes to all criteria

Mr. Gleason – Yes to all criteria

Ms. Paliy – Yes to all criteria

VOTE:<= /o:p>

Ms. Ronning – Yes to all criteria

(5-0-0) The motion carried.

VARIANCE GRAN= TED

Expansion (addition) variance #2307b

BALLOT VOTE= :

Mr. McNamara – 1) Yes; 2) Yes; 3) Yes; 4) Yes;= 5) Yes

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

Mr. Gleason – 1) Yes; 2) Yes; 3) Yes; 4) Yes; = 5) Yes

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

VOTE:<= /o:p>

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

(2-3-0) The motion failed.

VARIANCE DENI= ED

HEARINGS

Case #2308= – MERCIER, Jennifer & Douglas – 36 Priscilla Way / ML 14/3-91-9 = 211; Seeking a Variance concerning Article VII, Section 307-41 (b) to permit a 1= 6x16 utility shed within the 50’ WCD setback in the residential zone.=

Ms. Rita Mercier, 221 Burnham Road, Lowell, MA, representing her son and his wife (Douglas & Jennifer Mercier), met with the Board to discuss the variance request. She began by apologi= zing for the violation and said ignorance of the law is not a defense; if the applicant was aware of the Wetland Conservation District (‘WCD’= location, they would have sought the necessary permits to build their shed. At the closest point the shed is s= et back 35ft from the WCD line; a small portion of which is not within the WCD= at all.

The variance criteria were reviewed:

Item #1.= The proposed use would not diminish surrounding property values because: The architecture is the same of the main house and consistent with surrounding properties. The shed is surro= unded by trees and barely visible to surrounding homes during much of the year. The shed meets all other zoning se= tback requirements. The WCD violation is internal to this lot and does not encroa= ch on setbacks to other lots. Photos of the shed were submi= tted to the Board.

Item #2. Granting the variance would not be contrary to the public interest because: The essential purpose of t= he WCD can still be maintained due to the remaining 35foot setback and the relativ= ely unobtrusive use of a shed. The shed adds to the value of the property and will increase the taxes assessed to the property. Forcing removal may work greater d= amage to the purpose of the WCD, because relocating the shed will require the rem= oval of several trees. It wa= s not necessary to remove any trees to construct the shed in the first place.

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= : 75% of the lot is either very poorly d= rained or within the WCD. The house = abuts up against the WCD line so some activity within the WCD should have been anticipated and is necessary for the property to be used in a manner consis= tent with surrounding properties. <= /span>

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 no fair and substantial relationship between the purpose of the ordinance when applied to this property since the intent of the ordinan= ce can be achieved with a 35foot WCD setback.= Especially considering the minor burdens normally associated with the use of a residential accessory shed. No tree cutting or other disruption of the natural condition of the = land has occurred, or will occur if the shed is allowed to remain.

c) the variance would not i= njure the public or private rights of others since: No public or private property rights will be affected since the pur= pose of the WCD can be maintained with no tree removal or other disruption and t= he shed meets all other zoning s= etback requirements.

Item #4. Granting the variance would do substantial justice because: Minor encroachments into the WCD ha= ve been permitted for other properties in the neighborhood and in zoning distr= icts elsewhere in the town. The applicants will suffer a significant financial loss with little or no resul= ting benefits accruing to   th= e town or the public.

Item #5. This use is not contrary to the spirit of the ordinance because: All other codes and requirements will = be complied with. The use is unobtrusive and no tree cutting or other natural disturbance will occur, so= the purpose of the WCD to preserve wetlands by maintaining land in its natural state can essentially remain in tact.

Mr. McNamara clarified that a shed had been built with= in the WCD. Ms. Mercier said a porti= on of the shed was in the WCD. Mr. Gleason further clarified that the shed was within the buffer (50-foot setb= ack) to the WCD. It was noted that= the structure was 6ft.x6ft. placed on the ground (with no foundation). Mr. Mercier said he had received conflicting information regarding the need for a building permit. It was his understanding that a pe= rmit was not needed for a shed, and further, if a structure was not permanent, a building permit would not be needed. The shed was constructed, the Building Inspector was contacted and t= he Planning Director then contacted Mr. Mercier.

It was noted that the Certificate of Occupancy for the applicant’s house was issued August, 2002. Mr. Hennessey asked if the builder informed Mr. Mercier of a ‘no-cut’ zone at the time of purchase= , or if there were signs indicating ‘no-cut’. Mr. Mercier answered no. Mr. Hennessey asked if there was a= ny indication of a ‘no-cut’ zone in the deed. Mr. Mercier did not know. Mr. Hennessey read aloud a letter = forwarded from the Conservation Commission, dated September 20, 1999, addressed to Planning Board Chai= rman Jeff Gowan regarding the twenty-one lot subdivision (Currier/Mendes). The letter (as proposed by Jim Gov= e of Gove Environmental) indicated that most (if not all) the no-cut buffers were increased to 75ft. and in no instance would be less than 50ft. from the delineated wetland because of= the very sensitive nature of such wetland.&nbs= p; The deeds and plans shall contain language prohibiting the disturban= ce of the wetland buffer area agreed to at the hearing; all lots shall contain= a specific reference in their deeds. <= /span>Mr. Mercier said when he purchased his property there were no signs placed. Mr. Gleason questioned if the appl= icant had done anything to disturb the wetland buffer zone. Mr. Mercier answered no. Mr. Hennessey felt someone should = have alerted the future homeowners to the sensitivity of the land.

Mr. McNamara said the incursion would occur when the s= hed was being accessed in the warmer months.&n= bsp; He said if the Board was to allow variances such as this as a rule, = the total impact on the wetland would be significant. He was troubled if the Board allow= ed something to stay in the WCD. Mr. Gleason said the applicant did the incursion innocently; there had been a failure on the part of the builder and the Town. He felt applicant would incur fina= ncial hardship to move the shed, which was on top of the land.

Ms. Paliy she would like to see the deed; if the appli= cant signed it, it didn’t matter if the applicant had read it or not.

There was no public input.

Ms. Mercier said they wanted to comply with the law. To move the shed would be a hardsh= ip and trees would have to be removed. The cost to dismantle the shed would be a burden. Mr. Mercier was unsure if the lang= uage in the deed could be understood. Mr. McNamara said with respect to the law, if there were restriction= s on the property the owner was presumed to know. Mr. Hennessey asked if the shed we= re moved, or built on the site. = Mr. Mercier said he built the shed on the site. He said if the Board had the appli= cant remove the shed, there would be more damage. He said this was sensitive land an= d by placing structures into the buffer would potentially create water in baseme= nts in the future.

Ms. Ronning questioned if the Board would be setting a precedent by granting a variance. Mr. McNamara said the Board was supposed to evaluate each case on an individual basis.

Mr. Gleason said the building didn’t disturb the= land because it sat on top and it’s location into the buffer was inadvertent. He also felt that there would be more damage and it would be detrimental to the wetland to ha= ve the applicant move the shed. =

Ms. Paliy had a problem not reviewing the deed. Mr. Gleason said a deed would not = be to scale and show definition where a wetland began and ended. Mr. Hennessey said he reviewed the= site and found no wetland markers. Mr. McNamara noted at the time the subdivision was completed the Town had no continuity of Planning Directors and some things fell ‘through the cracks’.

BALLOT VOTE= :

=

Mr. McNamara – Yes to all criteria

Mr. Hennessey – Yes to all criteria

Mr. Gleason – Yes to all criteria

Ms. Paliy – Yes to all criteria

=

VOTE:<= /o:p>

Ms. Ronning – Yes to all criteria

(5-0-0) The motion carried.

VARIANCE GRAN= TED

Case #2309= – BOGUSH, Edward – 40 Burns Road / ML 28/2-6 – Seeking a Special Exception concerning Article XII, Section 307-76 (III) to permit a sawmill business n 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. Edward Bogush, 40 Burns Road and Mr. Albert Trepanier, 80 Sherburne Road, met with the Board to discuss the request for Special Exception. Mr. Bogush said he had received a = letter from the Town saying that he was running a sawmill business, which he had b= een for over forty years. He said= he had all the proper state permits. Mr. McNamara said per the Zoning Ordinance, a Special Exception was required to operate a business within a residential zone; there are a numbe= r of requirements that have to be complied with in order to run the business. Mr. Bogush said he contacted the s= tate and was informed that the Town had no jurisdiction over the sawmill. Mr. McNamara said the case was bef= ore the Board because of an enforcement action. He read aloud a letter submitted b= y the Planning Director in which it states that the petitioner seeks approval to conduct a log/sawmill/fire wood cutting business in the residential zone; t= he approximately forty acre parcel contains a single family residence and a farm. A complaint had been received that= a logging business (N.E. Firewood) was being operated on the property and that logging trucks from different companies were delivering and stock piling lo= gs on the property; it was the Planning Director’s understanding that the logging business was owned by Mr. Trepanier while the owner of the property= was Mr. Bogush.

Mr. McNamara said under the Zoning Ordinance 307-76 III there were fifteen conditions that would have to be met in order to run a business within a residential zone.

Based upon the testimony given, Mr. Hennessey was unsu= re if the applicant should be seeking a Special Exception; but rather should poss= ibly be seeking an Appeal of Administrative Decision. He explained to Mr. Bogush and Mr. Trepanier the types of issues the Board reviewed. He asked the applicant if they were coming before the Board to request for permission to have an exception to t= he zoning, or it they were claiming that because they were in business for for= ty years, they had the right to continue.&nbs= p; Mr. Trepanier said they were asked to fill the forms out by the Town. He didn’t know wh= y they had to come before the Board because the issue fell under the Forestry / Agricultural Act which states they are allowed to harvest wood. He said there was a similar proble= m in another part of New Hampshire and believed a representative from the Forest= ry Department would be glad to discuss the issue with the Board. He said he would also get the Nort= heast Loggers Association involved. He said the state recognized the business and didn’t feel they should be asked to come before the Board since the business had been going on for many years.

The Board discussed whether the applicant should come = before the Board for a Special Exception or if they should be requesting an Appeal= of Administrative Decision. The decision was made to take testimony from the applicant and the abutters; the case would then be continued to gather more information from the Planning Director and the applicant would have the opportunity to obtain information from the state. Mr. Bogush questioned why after forty years with no complaints, there was suddenly a complaint. Mr. McNamara expla= ined that the Board had a request for a Special Exception, which they didn’= ;t know if it was applicable, but would like to review the criteria, hear from= the neighbors then continue the case to the next meeting and seek clarification= if an Appeal of Administrative Decision should be applied for. Mr. Bogush and Mr. Trepanier under= stood.

Section 307-76 III – General Home Occupations &#= 8211; Mr. McNamara reviewed the criteria; Mr. Bogush and Mr. Trepanier answered (= in italics) as follows:

The occupation is clearly secondary and subordinate to the primary residential use and shall not change the residential character of the neighborhood. There is a house and a farm on the property; there is a barn containing a sawmill(since the early 1960’s) since that time the business has been run. T= he on-site equipment includ= es a diesel engine that runs the sawmill, conveyor belts, chainsaws, skidde= rs, tractors. The existing h= ome is a two-story farm house. =

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. The property is a typical farm; approximately 20% of the property is cleared.

A maximum of two on-site non-resident employees. The business is run= by Mr. Bogush and Mr. Trepanier.

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. There is no sign.

All outdoor storage, display and any other external indication of the business activity shall be screened from neighboring view. In the past = there were no neighbors, however now there were a few neighbors within view. Mr. Gleason noted = that the logs were visible from the street.

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. Gasoline and fuel oil is located = on site in separate 1000 gallon tanks located outside of the barn. The State Fire Marshall has reviewed the site.

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. Logging trucks (2), and tractors = (2 or 3) are located out of sight.

Delivery of goods and materials is limite= d to vehicles customarily associated with residential deliveries. A logging truck makes deliveries approximately once per month (sometimes not for two or three months).<= span style=3D'mso-spacerun:yes'> There is not a steady five-da= y week operation.

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 are no customers.

No retail sales other than those that are incidental to and customarily associated with business use for which t= he permit was issued. Sometimes firewood is sold. Mr. Bo= gush said he owned and ran the business; Mr. Trepanier also ran the business.

An accessory structure built or converted= for home occupation purposes shall be a size, style and type that is compatible with the surrounding neighborhood and capable of reversion = to uses that are customarily accessory to residential. The barn is approximately one hundred years old, forty feet in height and approximately one hundred fifty feet from the house.

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. There is no waste w= ater by-product.

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. Not an action by the applicant.

Site plan review and approval shall be obtained from the Planning Board. Not an action by the applicant.

Mr. Hennessey asked if the business had expanded in the forty years it was in operation. Mr. Bogush said it was about the same. Mr. Hennessey asked if the amount = of equipment and size of structure had changed. Mr. Bogush said it hadn’t ex= panded that much. Mr. McNamara asked= what N.E. Firewood was. Mr. Bogush= said that was the name. Mr. McNama= ra asked if that was the business running from the property. Mr. Bogush answered yes. Mr. Gleason asked if there was a s= tate permit, to whom it was issued and what the duration was. Mr. Bogush said the permit was for= cord wood, lumber, pulp wood. Mr. Trepanier said the duration was for one year; the date of issue was January 14, 2003, the issuer was the Department of Resources and Economical Development, Division= of Forest and Land. He showed the Board a copy and said it was up to date and would provide a copy at the next meeting. Mr. Bogush explained= what was reviewed in order to be issued a permit. Mr. Gleason confirmed that safety = and operational elements were reviewed. Mr. Bogush answered yes.

PUBLIC INPUT

Ms. Daryle Hillsgrove of 20 Pond View Road began by submitti= ng a letter composed by Ms. Laurie Adams who resides on = Luanne Lane (across from the work b= eing done. Mr. Hillsgrove said she couldn’t answer to the building containing the sawmill, but noted whe= re the work currently was being conducted was adjacent to a wetland that abutt= ed the rear of her property and the others residing on Pond View Road. She said there had been recent cle= aring over the past two or three years; the understanding was that Mr. Bogush was removing some of his own wood for personal harvest however the logs brought= in are new. Ms. Hillsgrove found= a significant amount of concerns in relation to the environment, safety and quality of life. She highligh= ted a few of the issues she had, such as the access road going through the buffer= zone and possibly in the WCD itself; dam being razed and lowered, the wetland le= vels have changed in the past two years, and the wildlife has changed. Pictures of the area have been submitted; a site walk was suggested. Ms. Hillsgrove said a number of 55-gallon drums (some rusted) were b= eing left out in the elements and there was no apparent spill containment. There was a concern with the poten= tial damage coming over the boundary. There was also evidence of improper tire disposal and abandoned vehicles. There is also a sit= uation with the coyotes incurring into the surrounding yards and the neighbors are concerned with children safety. Ms. Hillsgrove discussed the roadway, which in 1999 was studied by NRPC and fou= nd to have approximately 1600 cars daily.&nbs= p; She then discussed possible fire hazards and the concern with qualit= y of life. There was not a huge co= ncern with Mr. Bogush’s personal wood cutting, but as a business, there wou= ld be an excessive amount of noise thereby affecting the neighbor’s enjoyment of their yard. This= could also devalue surrounding properties forcing an economic impact in the neighborhood. Operating a saw= mill business in the residential area is not contusive to the harmonious balance listed in the regulations.  &nbs= p;

Mr. Albert Barton, 54 Burns Road, said the business was being operat= ed behind his house; N.E. Firewood, Mr. Trepanier, not Mr. Bogush. He said it had been going for approximately four years and there were logs going approximately 1000ft. do= wn the road. He submitted photog= raphs to the Board for review that were taken in March, 2003 by his father who had some altercations with the N.E. Firewood gentleman. Mr. Barton said the business was b= eing run seven days per week (some times no one was around for a week). He said the logging trucks stopped= in front of his house and backed down the long driveway. The trucks during warmer weather accessed the property every day, to every other day. Mr. Barton was concerned with the = dust generated by the trucks affecting his well that was approximately 100feet f= rom the road. He said there were different companies accessing the area and stacking logs two stories high; = it is similar to a transfer station. Mr. Barton said if it was Mr. Bogush cutting for his own personal use there wouldn’t be a problem, but there was a company running and processing cord wood. He didn’t like strangers coming onto his property looking to purchase co= rd wood. He said the operation w= as being run approximately 150ft.-200ft from his house. Mr. Barton also voiced concern reg= arding the age of the equipment and possible spillage of fluids into the wetlands.

Mr. Dave Ward, Quail Run Lane, who had resided in the area approximately one and a half years, was concerned with pedestrian traffic (= i.e. children walking to school) along an already busy road being accessed so heavily by additional traffic and logging trucks.

Ms. Joanne Sordillo, Pond View Road said one of the purp= oses she and her husband purchased their property was due to five or six acres b= eing in the pond (the back portion directly abuts Mr. Bogush). She said that piles of logs, debri= s, abandoned rusted cars were clearly visible from her lot. She said she used to canoe in the = pond, however approximately three years ago the pond was completely drained (20 acres). It took approximately= one year to fill back up, however during the dry time the vegetation grew and n= ow it is virtually impossible to get a boat out there. Over this past weekend, the pond h= ad been drained again. Ms. Sordi= llo was concerned with the conservation land and the destruction of such. She questioned if anyone had seen = the area, and if the Conservation Commission should review. She strongly agreed with Ms. Hillsgrove’s comments. =

Mr. Brian Smith, 58 Burns Road, had resided in the area for approximately thirty-five years and knew Mr. Bogush very well. He had no problem with Mr. Bogush running a sawmill on his property, however what is being done now is logs b= eing stocked. He was concerned wit= h what would happen if they decided to abandon the business; logs were being stack= ed quite high. He also noted that there had been a difference to the wetland in the past four years. It was noted that the sawmill was = run close to Mr. Bogush’s house, however the work being done over the past four years was in close proximity to the back of the abutter’s property. Fire and insects (i= .e. termites) was a concern.   It appeared that logs were being stored and had not moved. In the past there was no log stora= ge in this area, just over the past few years.&n= bsp; Mr. Smith said he hadn’t heard the sawmill run for a few years. Mr. Hennessey asked if= there was an interruption of activity on the site. Mr. Smith said there was a period = of approximately two or three years that there was no activity on the site.

Mr. Fred Stamatatos, Pond View Road, had resided in the = area for approximately nine years, voiced his concerns. He said his family and neighbors w= ere concerned with the potential sawmill in the residential neighborhood. He said the operation had been goi= ng on for a few years and heard chainsaws very early in the morning. When walking his property he viewed massive log piles, abandoned vehicles, 55 gallon drum barrels etc. which ca= used great concern regarding the possible environmental effects, specifically we= ll water, wildlife and noise. He= said the pond had been drained approximately two years ago and appeared to have = been drained over the past weekend. It was felt that the pond was drained to accommodate the logging operation. It was feared there were chemicals= from the trucks and equipment seeping into the ground water. The safety of the children was of concern because there was nothing more than a stone wall between residences= and the logging operation. Increa= sed traffic was a concern. Mr. St= amatatos said if there was a need for the Fire Department to access the property, th= ere would be no way for them to access the applicant’s property or abutti= ng parcels. He asked that the Bo= ard decline the request for the protection of the environment and its abutters.

Mr. Gleason asked who the owner of record was for N.E. Firewood, as listed with the state. Mr. Trepanier said both he and Mr. Bogush were the owners. Mr. Gleason asked where Mr. Trepan= ier resided. Mr. Trepanier said he lived on Sherburne Road. Mr. Gleason asked who the owner of= the company was. Mr. Trepanier sa= id he and Mr. Bogush were the owners. He said they didn’t have to be registered as a company. He said it was not a company, or i= ncorporated. He said he sold a little bit of wo= od, stored logs and gave some to Mr. Bogush.&n= bsp; He said there was no North East company.

Mr. McNamara said the case would be continued to the <= st1:date Year=3D"2005" Day=3D"14" Month=3D"3" w:st=3D"on">March 14, 2005 = meeting to see if the case was properly before the Board as a Special Exception. He said he would speak to the Plan= ning Director and suggested that the applicant do so as well.



MINUTES

January 10, 2005

MOTION:<= o:p>

(Gleason/Hennessey) To approve the January 10, 2005 meeting mi= nutes as amended.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

REQUEST FOR NON-PUBLIC SESSION

MOTION:=

(Gleason/Hennessey) Request for a non-public session= per RSA 91-A:3,II,e (Consideration or negotiation of pending claims or litiga= tion)

=

ROLL CALL:<= /b>

Mr. McNamara-Yes; Mr. Gleason-Yes; Mr. Hennessey-Yes= ; Ms. Paliy-Yes; Ms. Ronning-Yes

Mr. McNamara noted that the Board would not take any o= ther action publicly; the minutes of the non-public session would be sealed. The public session was adjourned; = The Board entered into a non-public session at approximately 10:45 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

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