BOA20051013

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 13, 2005

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

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

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Kevin O’Sullivan, Alternate Robert Molloy, Alterna= te Cindy Ronning (after the meeting commenced), Planning Director Jeff Gowan=

Svetlana Paliy

Mr. McNamara announced th= at Mr. Molloy would vote in Ms. Paliy’s absence.

CONTINUED

Case #2323 – GARCIA, Don – 30 Hillcrest Lane /= ML 42/10-131 – Seeking a Variance concerning Article III, Sect= ion 307-14 to permit the construction of a dwelling with associated septic and = well without the appropriate frontage on a public way.

Mr. McNamara informed tha= t the case had been continued at the request of the applicant.

The case was date specifi= ed to the November 14= , 2005 meeting. A member of the publ= ic asked how many continuances an applicant was allowed. Mr. McNamara said this was the sec= ond continuance and suspected without good reason, the Board was about at its limit.

Case #2329 – POULIN, Linda – 6 Meadow Lane /= ML 42/10-230 – Seeking an Appeal from an Administrative Decisi= on of the Building Inspector’s opinion that there are two dwellings on o= ne lot. Article III, Section 307= -9

Mr. McNamara said this ca= se was heard at the last meeting and had been continued pending the Town Code Offi= cer going back to the property and ascertaining the status of the property and provid= ing suggestions. He understood th= at Building/Code Inspector Roland Soucy had visited the property and asked that the applicant discuss the outcome. <= /span>

Ms. Linda Poulin (applica= nt) and her brother Mr. Don Goyette (who resided with the applicant) met with the B= oard to discuss the Variance request. Mr. Goyette said Mr. Soucy wanted them to get a letter from the sept= ic company and from Ms. Poulin’s doctor. Ms. Poulin said she had her septic cleaned out and she brought the requested letter to Mr. Soucy. Mr. McNamara said the file had not= es from Mr. Soucy. Mr. Gowan sai= d he spoke with Mr. Soucy regarding the case.&n= bsp; He said Mr. Soucy reviewed the property/building and spoke with the = plumbing and electrical inspectors. He= said Mr. Soucy saw no ‘red flags’ in terms of how the work had been done. Mr. Gowan said permits = would need to be pulled for the work and a small penalty would need to be paid. He said Mr. Soucy said one room, w= hich was currently being used as a pool table room, could essentially be used as= a bedroom. He said this should = be clearly stipulated that the room could not be used as a bedroom and recorde= d on the deed accordingly.

Mr. Hennessey questioned = if the applicant was withdrawing their Appeal from an Administrative Decision since there didn’t seem to be an issue before the Board if an agreement was reached with the Building Inspector. Mr. McNamara asked if the applicant would be penalized if the appeal= was left as is. Mr. Gowan said th= e code enforcement issue wouldn’t go away until the conditions were met. He said it could be handled throug= h the Planning Department and the Code Enforcement Officer. He said the applicant would need t= o drop their appeal.

Mr. McNamara said if the applicant agreed to withdraw their appeal they could meet with Mr. Gowan and the Code/Building Officer and satisfy the conditions. The recommendation was to pay the penalties, pull required permits (for completing work without permits), and= add a note to the deed stating that the structure in question be used for recre= ation and/or storage only and that no bedroom will be allowed in the structure. Mr. Gowan said the applicants woul= d need to have their attorney add the note to the deed.

The applicant withdrew th= eir Appeal from an Administrative Decision.&nb= sp;

HEARINGS

Case #2318 – MARTINAGE, Patrick Joseph – 348 Gage Hi= ll Road / ML 17/13-60 – Seeking a Vari= ance concerning Article III, Section 307-12 & 307-13 to permit a single fami= ly home to be built on an undersized lot of record in the residential zone.

Attorney David Groff, representing the applicant asked that the Board hold-off hearing the case u= ntil a full Board was present. The= Board (which had four members sitting) granted the request and would revisit late= r in the meeting. See below for additional action.

Case #2332 – PV LIMITED PARTNERSHIP – 74 Old Gage Hill Road South /= ML 23/8-18 – Seeking a Variance concerning Article III, Section 307-12 to permit a lot with less than 200 feet of frontage to be subdivided= out of a large parcel.

Mr. McNamara informed tha= t the applicant had the right to have the Variance heard before a full Board (the= re were only four members sitting). He said the applicant would need a 3-1 vote to have the Variance pass; a 2-2 v= ote would result in denial.

Mr. Wes Aspinwall of Herb= ert Associates, who represented the applicant, asked that the Board hear the ca= se later in the evening. See bel= ow for additional action.

Case #2333 – CARES, Jonathan & Roseann – 55 Wind= ham Road / ml 15/8-217-1 – Seeking a Va= riance concerning Article III, Section 307-12 & Article IV, Section 307-16 (A)= to permit a three family home to be maintained on a lot approximately 2.3 acre= s in size in the residential zone.

Attorney David Groff, the applicant’s attorney requested that the case be heard when a full Boa= rd was present. See below for fu= rther action.

Case #2334 – NELSON, David & Michelle – 46 Castle Hill Road / ML 2/5-157-2 – Seeking a Spe= cial Exception concerning Article XII, Section 307-74 to permit an accessory dwelling in the residential zone.

David and Michelle Nelson= , the applicants, were aware there wasn’t a full Board sitting, and wanted = to proceed.

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

Mr. Nelson said he was se= eking permission to construct an accessory dwelling for his mother. He believed all the conditions had= been met. The accessory unit would= be 512SF. There were three bedro= oms in the existing home the accessory unit would add one bedroom.

There was no public input= .

Mr. McNamara said it appe= ared that the conditions had been met. Mr. Gowan saw no problems with the application. He said the Code/Building Inspector Roland Soucy also reviewed the drawing and had no problems.

MOTION:

(Hennessey/O’Sull= ivan) To grant the Special Exception. All requirements had been met.

VOTE:

(4-0-= 0) The motion carried.

SPECIAL EXCEPTION GRANTED

Case #2295 – BOUCHER, Barbara – 55 Gibson Road /= ML 6/4-166 – Seeking renewal of a Variance concerning Article = III, Section 307-14 to permit the renewal of a Variance that was granted on Octo= ber 14, 2004 for the creation of a lot with frontage on a class VI road within = the residential zone.

Ms. Barbara Boucher, the applicant, was aware there wasn’t a full Board sitting, and wanted to proceed.

Ms. Boucher said it had b= een suggested that they find an area for the septic system (due to the ledge on= the land) before the lot was surveyed. She said someone came out after approval was granted, but a location could not be found prior to it snowing last year. Once the spring came, they found a= spot (which has been approved by the Health Officer); however, they were now wai= ting for survey to be completed. M= s. Boucher said nothing had changed; it was just a long slow process.

Mr. Gowan said the Varian= ce wouldn’t expire until October 15, 2005, but the applicant was being pro-active in requesting = an extension. He noted that the = Board had unanimous voted in favor of the Variance when initially granted.

There was no public input.

Mr. Hennessey asked if th= e Board was granting an extension or a new variance should be granted. Mr. Gowan said he would interpret = it as an extension of the variance granted.

MOTION:

(Hennessey/O’Sull= ivan) To extend the Variance granted October 14, 2004 (Case #2295) for an additional year.

VOTE:

(4-0-= 0) The motion carried.

VARIANCE EXTENSION GRANTED=

The Board took a brief re= cess to contact an additional Board member. Ms. Ronning arrived; the Board continued hearing the scheduled cases= .

_________________________= ____________________________________________________________

Mr. Hennessey read the li= st of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification.

Attorney David Groff, representing the applicant met with the Board to review the re-filed Varian= ce request. He said there had be= en a question regarding the title of the property. He said his abstracter determined = there was nothing wrong with the title. He said they had also been awaiting a driveway permit from the state, which had now been received and submitted to the Planning Director. The driveway permit had been grant= ed to install a driveway off Old= Gage Hill Road for purposes of constructing a house= on the lot. Attorney Groff said = they were seeking a variance for lot size only (one acre minimum and 35,000 contiguous square footage); the lot conformed in regard to frontage; there = was sufficient area for building setbacks.&nbs= p;

Attorney Groff reviewed t= he Variance criteria (following is the criteria submitted to the Town):

1. The proposed use would not diminish surrounding property values because: The proposal is to construct a new single family home on the lot. There are older single-family homes constructed on abutting lots. The closest abutting lot is approximately .3 acres in size and is improved with= a single-family home.

2. Granting the variance would not be contrary to the public interest because: The new construction (2080 sq. ft. or less) will be priced for medium income families. There is a high dem= and for moderately priced housing in Pelham.

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

“Area”

a. The a= rea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: The lot is about .7 of an acre in size. There is not any additional land available in this area that could be added to this lot. Gage Hill Road is an established ro= ad with established homes of varying lot sizes. This Lot is zoned residential; but is undersized under current zoning requirements.<= span style=3D'mso-spacerun:yes'> No residential use of this lot can= be made without the requested variance. A title search shows that this lot has been a lot of record since at least 1962. This property con= sisted of a lot of record that existed prior to the current lot sizing requirements were added to the Pelham zoning ordinance.

b. The b= enefits 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 abutting lots have established homes. No additional land is available to expand the lot. = The lot does not meet current area zoning requirements, but is zoned residential. No residential u= se can be made of the lot without the area and frontage variances. The home to be built will be in compliance with all local building codes, including building setbacks and septic installation.

Item #4. Granting the variance would do substantial justice because: The cu= rrent zoning laws were passed years after the lot was created. The owner has been paying taxes on= this property for years.

Item #5. This use is not contrary to the sp= irit of the ordinance because: A single = family home can be constructed on the lot that will comply with all setback and ot= her building requirements. <= /o:p>

Mr. McNamara asked if the proposal was materially exactly the same as that submitted several months a= go (Case #2318). Attorney Groff = said the only exception was the previous variance request included frontage beca= use he mistakenly thought there wasn’t enough. He said the current two variances = were for lot sizing. In all other material respects, the variance requests were the same.

Mr. McNamara noted that M= r. Molloy would be voting and confirmed with him that he had read the minutes = of the prior meeting and familiarized himself with testimony/evidence that was presented. Mr. Molloy was comfortable that he had enough knowledge to vote.

Mr. McNamara read aloud t= wo letters that had been received regarding the case: 1) letter dated August 29, 2005= submitted by the Conservation Commission who voted unanimously not to support grantin= g a variance. The Conservation Commission concluded the environmental impact of the development (significa= nt portions of grading for the structure would be located in wetland buffer) of the parcel is excessive and not in the best interest of the Town. 2) letter dated September 6, 2005 submitted by= Police Chief Evan Haglund for the Highway Safety Committee. It was the consensus of the Commit= tee, after reviewing the plans of the proposed home and driveway that the drivew= ay would have a negative impact on an already intolerable and dangerous situation at= the intersection of Old Gage H= ill Road North and Route 38.

Mr. Molloy asked if the d= riveway location was the original location (off Old Gage Hill Road North). Attorney Groff said the location hadn’t changed, it was the location approved by the state when the pe= rmit was issued.

Mr. O’Sullivan aske= d how much of the parcel was high and dry. Attorney Groff didn’t know.&n= bsp; Mr. Hennessey said the Septic System Design sheet showed the area of usable land outside of Wetland Conservation District (‘WCD’) equaled 9576SF.

Mr. McNamara asked if the applicant had any documentation regarding the title. Attorney Groff said he had a large= title search from his abstracter who informed him there were no title issues at a= ll. Mr. McNamara said the Department of Transportation (‘DOT’) driveway permit had 13 conditions and wa= nted to know if the applicant was confident that they could meet such. Attorney Groff said the builder had informed him that the issued conditions were standard and could be met. He believed it was boiler plate la= nguage issued for permits off a state road. Mr. McNamara questioned if the proposed would be possible, given the condition of the lot. Attorney Groff said the permit was issued based upon the submitted application and if the conditions could not be met the state wouldn’t approve the use of= the driveway.

PUBLIC INPUT

Mr. McNamara reiterated t= hat the Board would take previous testimony (from Case #2318) and would consider it= at this hearing for the application now before the Board. He said that the public address th= e new information presented.

Mr. Len Bellmore, 107 Old= Gage Hill Road North, informed since the letter (dated September 6, 2005) was submitted by the Highway Safety Committee (which noted there had been seven accidents since March, 2002) there had been two additional accidents. He said he had run into a situatio= n with a pond that he allowed the state to access by a culvert. He found that his gazebo was movin= g and would therefore be asking for relief (of his pond), which would result in t= he culvert becoming more active. Mr. Bellmore said his main concern was the safety issues and the water around t= he culvert. Mr. McNamara confirm= ed that the water was not draining from the applicant’s property. Mr. Bellmore said there was an additional culvert that ran down from the Croteau property, across his, and down Old Gage Hill Road which was not shown on all maps because it was allowed just a few years ago. He said if the state rel= ived his pond, the state would put a culvert to the lowest level (the other culv= ert which was under water). He reiterated his concern regarding safety and the fact that his fence had been hit several times. He was also concerned for the wildlife if the applicant was allowed to build.

Mr. Hennessey reviewed the definition of frontage contained in the Town’s Zoning, which specified that ‘frontage’ had to be where the lot was accessed. He said the proposed showed the dr= iveway on 108ft. of frontage on O= ld Gage Hill Road, which would require a variance. Attorney Groff said he reviewed th= e plan as having contiguous frontage by the way the lot was on a corner. He said he took the frontage reque= st out when he refilled because he thought that the frontage was contiguous (approximately 325ft.) around the corner.&= nbsp; Mr. Hennessey said the lot was unusual. He discussed the issue of the dangerousness of the site being 108ft. where the driveway came out.

Mr. Armand Berard, 134 Ol= d Gage Hill Road North, provided the Board with a handout containing information r= egarding the site (including photographs), which he then reviewed. He felt 307-14 (frontage) should be included in the applicant’s variance request. He said the language contained in = 307-14 was clear that frontage had to serve as access, and didn’t reference ‘contiguous’. He = said information submitted to the Town regarding the length of the property was = not consistent. He said the lot w= as not an approved lot. He discussed= the dimensions and didn’t feel that the setback requirements could be met based upon measurements he took from the site. Mr. Berard informed that the Polic= e had installed a black box on O= ld Gage Hill Road North to monitor traffic; a study (d= one over 46 hours during the week) showed 2200 vehicles passing the spot. He continued his review of the han= dout provided to the Board. He said because of the grading needed (12 feet and lowered 4 inches), the area/water shed would be polluted, which was not consistent with the spirit of the ordinance. He reiterated that= the lot being presented was not an approved lot and it had no meets and bounds (specified on the deeds) and nothing indicating that the Planning Board had approved it. He said the information submitted was a plan of survey (perimeter plan) prepared for Raymond and Sharon Croteau, not a survey done for either Anna Sexton or Pat= rick Martinage. He said the Subdiv= ision Regulations specify that there should not be an error in closure (of a lot = on a field survey or final plan) in excess of 1/8000 which was not contained on = the information submitted. He rev= iewed minutes of past Planning Board meetings which referenced a submitted perime= ter plan for the Croteaus, which had also been submitted in connection with the proposed lot. He reiterated t= hat the lot being proposed was not an approved lot. Mr. Berard said Council wrote the = Board a letter (in connection with merging lots for the DiCesare Case #2316) and reviewed such for the Board. = He ended by saying the courts (to which the Board was bound) in the Boccia v. = City of Portsmouth case, the area variance was a relaxation of one or more incidentals. He felt the proposed went against = the spirit of the ordinance and hoped the Board took his comments into consideration when voting.

Ms. Pamela Keefe, 103 Old Gage Hill Road North, resided at the lot known as the old school house. She discussed her reasons for resi= ding in Pelham, one of which was the fact that houses didn’t crowd each other. She said she was appro= ached to purchase the land behind her land and therefore had it informally assessed. She was informed th= at due to the amount of wetlands, it was not worth the amount being requested for = the land. She was also told that = the land was not buildable. She s= aid she didn’t purchase the land because it was not buildable (and becaus= e of the price). Ms. Keefe said one reason her lot was for sale was due to safety involving the traffic. Mr. Hennessey asked if Ms. Keefe property was above, or below the property behind the wall of the proposed l= ot. Ms. Keefe said her property was approximately 3ft.-6ft. above the proposed lot’s property line. She said from the wall, the proper= ty in question dipped down (due to water running through) and then sloped back up= to Route 38. She explained that = the back of her house was approximately 5ft.-6ft. above the property line and the la= nd then sloped.

Mr. Jim Bergeron of 27 Plower Road, representing Bergeron/Bedard Property, LLC., (an immediate abutter across t= he street from the parcel in question) met with the Board. He said the testimony heard carried heavy legal points, such as the presented plan being misrepresented as being approved by the Planning Board (the plan was not approved by the Planning Board). He pointed out that a= fter 1955, no lot less than one acre could be approved by the Planning Board or = the Town. He then discussed the s= pirit and intent of the ordinance and the continuation of lots/structures. He said there had been no establis= hed use (vested right) on the proposed property; the property shared no differe= nce than any other property that came before land use boards except it didnR= 17;t meet the dimensional requirements for a single-family house lot. Mr. Bergeron said his family owned= a parcel (farther up the road), which was similar to the proposed parcel beca= use it had been segmented by the highway and was not buildable (there are also three more parcels that had been similarly segmented – one of which h= ad been recently denied). He sai= d the parcel (in question) could not be treated any differently than any other lot before a land use board and to do so would be re-zoning and in violation of= the Board’s statutory authority. <= /span>

Mr. Bergeron confirmed th= at all the information submitted in previous cases would be part of the current pa= ckage. Mr. McNamara said that was correct= , and was done in an effort to speed the case up since the Board had heard the testimony and had the presentation. He said the Board had considered the testimony (from the last hearin= g) and Mr. Molloy had reviewed the meeting minutes of such. Mr. Bergeron said the Board had questioned the title and he therefore submitted a copy of the transfer (of = the proposed property) from James Sexton to the Town of P= elham and State of New Hampshire. Included was a caveat for the Depa= rtment of Transportation and the Town providing full covenants and easements to use any portion of the property in question for highway access, maintenance, widening, straightening etc. (his predecessor in title owned the property a= nd was awarded frontage on the other side of the road for granting such).

Mr. Bergeron said if consideration were given to the fact that James Sexton sold the half acre to the Town and the State to be used for the road (and they could use any port= ion of such) there could never be a deed for the property in question that show= ed meets and bounds. He said nob= ody could bring closure to the lot due to the covenants and easements and the p= lan presented couldn’t be a registered survey guaranteeing 1/8000. He provided additional history reg= arding the lot and the title for the land and said it was clear there was no legal foundation for a variance to be granted.&n= bsp; He ended by praising the work of the Board’s Recording Secretary.

Mr. Gowan commented that = 307-14 was an oversight on his part and should have been included in his review. He agreed (with Mr. Hennessey) tha= t the frontage would have to be on Old Gage Hill Road North.

Attorney Groff said if th= at was the Board’s interpretation, the application would have to be withdrawn and re-filed again. He said t= he reason he left it off (this submission), was because he believed (similar to the Glance case on Burns Road/Marsh Road) that the ordinance referred to lots with frontage on two road, not one contiguous frontage. Mr. Hennessey suggested (since a s= ketch of the driveway was included in the submission) that the Board proceed (ignoring the driveway) and review the underlying request for area variance= ; if granted, the applicant could come back for a second variance (for the front= age). Mr. McNamara believed the purpose = of the Planning Board changing the wording to read ‘200 contiguous feet̵= 7; was to include situations of corner lots; it was meant to exclude situations where there was 100feet of frontage on one side of a lot and 100feet of frontage on the other side (parallel, not connecting). There was a brief discussion regar= ding driveway placement and possible wetland impacts. Mr. Hennessey felt the issue was t= he area variance.

Mr. Hennessey asked Attor= ney Groff to address the allegations of the proposed lot being unapproved. He said it had been said that Atto= rney Groff’s title examiner had stipulated that it was a valid lot of record. Attorney = Groff said that’s what the lot was and it was approved by the Planning Boar= d. He noted that there were plenty of= lots less than an acre in Town, including a subdivision behind his office (on Ro= ute 38). He said there were plent= y of lots in the neighborhood of the proposed that were less than one acre.

Mr. Hennessey discussed t= he issue of undersized lots. He said t= he proposed lot had 9576SF of high and dry land. He also said the proposed lot had peculiar issues that made it serious for the Town, future owners and the abutters (down stream). He sa= id another issue was an abutting lot having a house on the property line. Mr. Hennessey said the Conservation Commission had submitted a letter stating there would be negative results if the lot was approved. He said another concern was that the Safety Committee had also submitted a negative letter regarding safety. He s= aid if the variance was approved he would request a letter from Town Counsel weigh= ing in if it was a valid building lot. <= /span>

Mr. McNamara said he was = not as concerned regarding the size of the lot, but rather the type of lot and the configuration/location of it. He said the Board had the power (under state law) to grant variances allowing a use of land not permitted under a town’s zoning. He said the language in the letter= from the Police Chief (for the Safety Committee) was strong in connection with safety would constitute a public danger in the area and went against two/th= ree of the conditions, however he felt the hardship burden had been met (for an area variance).

BALLOT VOTE:

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

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

VOTE:

Mr. O’Sullivan &#= 8211; 1) No; 2) No; 3) No; 4) No; 5) No

Mr. Molloy – 1) N= o; 2) No; 3) No; 4) No; 5) No

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

(0= -5-0) The motion failed.

‘AREA’ VARIANCE DENIED

Mr. Wes Aspinwall of Herb= ert Associates (land surveyor for the project) presented the Variance request to the Board. He explained that = the property was presently being used as the Pine Valley Golf Course and they w= ere proposing to set up one lot (2.79 acres) on the westerly end of the property that contained an existing house and driveway. He said they were requesting relie= f of the frontage requirements because the owner would like to take the house ou= t of the partnership and separate the ownership. The remaining lot was taken up mai= nly by the golf course.

Mr. Aspinwall reviewed the Variance criteria (following is the criteria submitted to the Town):

1. The variance will not be contrary = to the public interest because: There are = other house lots in the same area.

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e:

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: Because this property is primarily a golf course, the owner wishe= s to subdivide off a lot with his own home on it and meeting the 200’ fron= tage requirement would result in a very odd shaped lot and would potentially interfere with the use of parcel 8-18 as a golf course.

ii. 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 existing house is closest to the westerly side of the parcel. = Adding frontage to lot = 8-18-1 would provide little practical benefit to this lot and would be detrimental= to the golf course, parcel 8-18.

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance to waive one of the zoning’s requireme= nts and we will meet all other setbacks & codes.

4. Substantial justice is= done because: The use we are seeking is a permitted use for that district.

5. The value of the surro= unding properties will not be diminished because: The existing house and proposed lot is and/or will be of equal or greater value than that of surrounding properties.&n= bsp;

Mr. O’Sullivan aske= d if any of the 2.791 acres currently used as parking for the golf course. Mr. Aspinwall answered no; to his knowledge most of the parking was across the street (parcel 8-38).

Mr. Molloy said it was no= ted that meeting the 200foot frontage would result in an odd shaped lot that may potentially interfere with the use of the golf course; he wanted to know if= there was any chance that it wouldn’t interfere. Mr. Aspinwall said as long as Mr. = Madden owned the house lot the golf course could co-exist; however, if it was sold= in the future the use may be precluded. Mr. Molloy asked if the front of the golf course was a parking area. Mr. Aspinwall said it w= as basically grass (parcel 8-18).

Ms. Ronning asked what th= e intent was for the house when it was built. Mr. Aspinwall said there was one parcel when the house was construct= ed; the westerly edge was wooded and not used and they tried to put the house i= n so as to not interfere with the golf course.&= nbsp;

Mr. Hennessey asked if th= e house was a single-family home. Mr. Aspinwall answered yes.

Mr. McNamara asked how fa= r away the intersection was for H= eather Lee Lane and Gage Hill Road. Mr. Aspinwall said the intersectio= n was approximately 500 feet. Ms. Ronning, who had golfed at the course didn’t feel that the traffic wo= uld be interfered with. Mr. McNam= ara noted that there was a problem with insufficient sight distance at Heather Lee Lane, which was currently being worked on. He asked if the driveway for the proposed lot was presently existing. Mr. Aspinwall answe= red yes. He believed there was go= od sight distance in both directions. <= /span>He showed the Board photographs of the sight distance.

There was no public input= .

The Board discussed the v= ariance request. The house was approximately six years old and the owner of such was intending to stay the= re for the present time.

BALLOT VOTE:

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. O’Sullivan &#= 8211; Yes to all criteria

Mr. Molloy – Yes = to all criteria

Ms. Ronning – Yes= to all criteria

(5= -0-0) The motion carried.

‘AREA’ VARIANCE GRANTED

Mr. McNamara confirmed th= at the applicant was requesting an ‘area’ and a ‘use’ variance. Attorney David Grof= f, representing the applicant, answered yes.&= nbsp; He said the structure had been existing for at least twenty years th= at was a three-family in a residential zone.&= nbsp; He said the Town had recognized that it was a three-family for some period of time, however his client had received a notice that they were in violation. He said the Zoning Ordinance didn’t allow for more than a single-family or two-family residence in the Residential Zone. <= /span>He said they were requesting a variance for size (one acre per living unit); a= nd for use because it is a three family (not a single- or two-family).

Attorney Groff reviewed t= he Variance criteria (following is the criteria submitted to the Town):

1. The proposed use would not diminish surrounding property values because: The proposal is to maintain an existing three family home on this property. The home has been configured as a 3 family home for more than 10 years, and was purchased as a 3 family home by applicants. No change in the present configuration of the existing structures on the lot is proposed.

2. Granting the variance would not be contrary to the public interest because: There is a high demand for rental housing in Pelham. The existing structure has been re= cognized as a 3 family home by the Town Planning Department for more than 10 years. =

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

“Area”

a. The a= rea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: The lot is about 2.3 acres in size, which would be about .7 acres l= ess than the minimum lot size for a 3 family home, if 3 family homes were a permitted use in the residential zone.&nbs= p; There is not any additional land available in this area that could be added to this lot. The lot is already developed with a 3 family home.&nb= sp; According to the tax card fro the Assessor’s office, the previ= ous owner of the property purchased it as a 3 family home, and maintained that = use until he sold it to applicants in 2001.&nb= sp; Applicants have maintained the structure as a 3 family rental proper= ty since they purchased it in 2001. The existing septic system on the property is adequate to support th= e 7 bedroom located in the structure.

“Use”

a. The z= oning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environ= ment such that: The property is zoned residential, and 3 family homes are not a permitted use in the residential = zone under the current zoning ordinance. However, the existing structure has been a 3 family rental home for = over 10 years, and was purchased in its present configuration by the applicants. The Town building department has recognized this use, and the existing septic system is adequ= ate to support this use. See atta= ched letter from John Tucker to the DES, dated October 11, 1994; and property assessm= ent card notation dated 9/= 6/93.

b. No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: The applicants purchased t= he house in its present configuration; the septic system is adequate for 7 bedrooms, which has been, and is, the configuration of the house; and the house is of= a size and design which is consistent with other homes along this road.

c. The variance would not injure the public or private rights of ot= hers since: No change in the existing structure is requested; and the existing structure has been in its present configuration since the previous owner acquired title to it in 1986.

Item #4. Granting the variance would do substantial justice because: It wou= ld allow the existing structure to remain in its present configuration. <= /o:p>

Item #5. This use is not contrary to the sp= irit of the ordinance because: The exist= ing structure is consistent with the type and size of other homes in this area;= and the existing septic system is adequate to support the 7 bedroom current configuration of the structure.

Attorney Groff submitted a photograph of the property, showing the house.

Mr. Hennessey said he had= a listing sheet (Remax) from when the house was purchased (July 3, 2001) that showed it a= s a duplex. Attorney Groff said t= he Assessing records and the record provided to the Board showed the house as a three-family home. Mr. Gowan = said there were a number of cases where tax cards typically reflected what was on a si= te; however, they were not an indication that what was on a site was legal. Mr. McNamara noted that there was a letter on file (dated October 11, 1994) in the Planning Department from the former Planning D= irector (John Tucker) indicating that there was a three-until apartment on the site= in question. Mr. Gowan said ther= e was nothing on record indicating that approval had been granted to have a three-unit structure. Mr. Hen= nessey said the record he reviewed said that it was portrayed as a duplex at the t= ime of purchase. Mr. Jonathan Car= es, 51 Windham Road, owner of the property, said the property was purchased through private sale (with Mr. George Kandar) and Remax wasn’t involved. He said he and his wife resided in= their home since 1983 and the property in question had always been a three-family; when it came up for sale, they didn’t pay attention to a listing card because they assumed it was a three-family.

Mr. Molloy asked if the a= pplicant had a copy of the violation notice from the Code Enforcement Officer. Attorney Groff let the Board revie= w a copy.

Mr. O’Sullivan aske= d if the house had a single heating system for the three units. Mr. Cares answered yes; there were= three zones with circulators. Mr. O’Sullivan asked if there was a single hot water system. Mr. Cares said there was a large commercial boiler outside the building that had proven sufficient; there wa= s a single hot water system with three individual side arm hot water heaters wi= th circulators. There is a three-bedroom unit in the basement, a slightly larger two-bedroom unit upst= airs (to the left), and a small two-bedroom unit upstairs (to the right). He noted there were three egresses= from the basement unit; the other two units had at least two egresses.

There was no public input= .

Mr. McNamara reviewed the= code violation letter. Attorney Gr= off said the letter was generated as a result of a tenant requesting Town assis= tance and rental payments; as a part of the process the Town sent someone out to = make sure the unit was adequate. H= e said he asked the Town Building/Code Officer if there were any records that a variance had ever been granted for the property; a letter was written back = that stated the only thing found was a 1984 building permit for the garage.

Mr. Cares said he had addressed/resolved the items contained in the code violation letter. Mr. O’Sullivan asked if the property had been re-inspected. Mr. Cares answered no; he left messages for the Building Inspector, but had not been in direct contact. He discussed what had been done to correct some of the items in the letter. It was noted that the building con= tained seven bedrooms; two of the units were rented, one was vacant.

Mr. Gowan commented that = should the Board grant a variance, there would be additional requirements from the Fire Inspector as a multi-family unit.&nbs= p; Attorney Groff said Mr. Cares had spoken to the Fire Chief regarding additional requirements. Mr. = Cares said he was a volunteer in Town and would do whatever was required. Mr. O’Sullivan said he would= like to see the property re-inspected. Ms. Ronning questioned if the Board had the right to limit the numbe= r of people that could be in the apartments.&nb= sp; It was noted that there were Health Code Regulations that limited the number of people per bedroom.

The Board continued their discussion regarding the variance requests. Mr. McNamara discussed the case an= d said it was a bit unique in that the tax records showed the building as a three-family; it is taxed as a three-family; there was a letter on file fro= m a Planning Director (from ten years ago) acknowledging that the building was a three-family. He said the pro= perty had been let go and acknowledged for an amount of time. He also felt it was in the public interest to have rental housing. Mr. Hennessey said the property had been seen by the Town and neighborhood as a three-family. There was further discussion; Mr. McNamara wanted it clear that the Board was not setting any type of precedent and weren’t giving an acquiescent decision. Mr. Hen= nessey believed the previous owner should have disclosed. Mr. McNamara said the lot (accordi= ng to the description) appeared to have sufficient acreage on the lot to allow pe= ople recreational use, sufficient acreage for a septic and a well. It appears that it had been establ= ished that the lot was viable in terms of the number of people and the amount of years that the house had been there.

Mr. Molloy asked where the parking was. Mr. Cares said p= arking was along the side of the house on the garage side and in front of the gara= ge; he added a crushed stone parking area after he purchased the home.

Ms. Ronning questioned if= there was a statute that allowed the use based on the amount of time it had been = recognized. Mr. McNamara said the Town was awa= re of, and allowed the situation to continue.&nbs= p;

Mr. Molloy confirmed if t= he variance were allowed, it would trigger additional requirements of the Fire Department. Mr. Gowan said th= ere was a different level of standards (i.e. lighting, egress) that would be managed through the Fire Department regulations. At that point the house would beco= me legal and transferred as such if sold (because a variance goes with the land). Mr. McNamara said the = Board could place conditions so that there was no further expansion of the property/units.

MOTION:

(Hennessey/Ronning) Con= ditioned approval, with the stipulation to maintain the building as (no more than) seven-bedroom/three-unit property that meets all applicable codes for a three-family in the Town of Pelham; the property will be re-inspected and comply in all respects with the Building Inspector and Fire recommendations.

VOTE:

(5-0-= 0) The motion carried.

BALLOT VOTE

#2333A:

Mr. McNamara – Ye= s to all criteria with conditions as stated

Mr. Hennessey – Y= es to all criteria with stipulations

VOTE:

Mr. O’Sullivan &#= 8211; Yes to all criteria

Mr. Molloy – Yes = to all criteria

Ms. Ronning – Yes= to all criteria

(5= -0-0) The motion carried.

‘AREA’ VARIANCE GRANTED

-------------------------------------------------------------------= ----------------------

Ballot reads as follows: =

1. The Variance will be c= ontrary to the public interest = Y N

2. Sp= ecial conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.Y N

3. The variance is consistent with the spirit of the ordinance. Y N

4. No substantial justice is done. = Y N

5. Th= e value of surrounding properties will not be diminished. Y N

Final approval Y N

BALLOT VOTE

#2333B

Mr. McNamara – 1)= No; 2) Yes; 3) Yes; 4) Yes; 5) Yes – final approval Y per conditions

Mr. Hennessey – 1= ) No; 2) Yes; 3) Yes; 4) Yes; 5) Yes – final approval Y with stipulations

VOTE:

Mr. O’Sullivan &#= 8211; 1) No; 2) Yes; 3) Yes; 4) Yes; 5) Yes – final approval Y

Mr. Molloy – 1) N= o; 2) Yes; 3) Yes; 4) Yes; 5) Yes – final approval Y

Ms. Ronning – 1) No; 2) Yes; 3) Yes; 4) Yes; 5) Yes – final appro= val Y with stipulations

(5= -0-0) The motion carried.

‘USE’ VARIANCE GRANTED

MINUTES

Septe= mber 12, 2005 –= ;deferred to the November= 14, 2005 meeting.

CONTINUED CASE(S) –November 14, 2005

Case #2323 – GARCIA= , Don – 30 Hillcrest Lane / ML 42/10-131 – Seeking a Var= iance concerning Article III, Section 307-14 to permit the construction of a dwel= ling with associated septic and well without the appropriate frontage on a public way.

ADJOURNMENT

MOTION:

(Hennessey/Molloy) To a= djourn the meeting. <= /b>

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 11:05 pm.

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; &n= bsp; Respectfully submitted,

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; &n= bsp; Charity A.L. Willis &n= bsp;

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; &n= bsp; Recording Secretary