BOA20060213

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

February 13, 2006

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

The Secretary, Ms. Svetla= na Paliy, called the roll:

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Planning Director Jeff Gowan

Alternate Robert Molloy, Alternate Cindy Ronning

HEARINGS

Case #2340 LEMIEUX, Andre – 35 Irene Drive = / ML 40/6-185-37 – Seeking a Variance concerning Article VII, Section 307-41 (b) to permit keeping an existing building permit approved for a swimming pool & deck in it̵= 7;s present location and be able to maintain the existing lawn within the 50ft.= WCD area.

Ms. Paliy read the list 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.

The applicant, Mr. Andre = Lemieux met with the Board to discuss his application. Mr. McNamara informed that because= there were only four Board members present, an approval would require a 3-1 vote = to pass; in the event of a 2-2 vote, the request would fail. He told Mr. Lemieux that he had the right to a full Board and could request a continuance to the next meeting.<= span style=3D'mso-spacerun:yes'> Mr. Lemieux decided not to request= a continuance and opted to have the case heard with four sitting members.

Mr. Lemieux read aloud a = letter dated October 6, 2005 that was submitted as part of their application for a variance. In summary, they le= arned about the wetland buffer zone when a prospective buyer reviewed the plot pl= an and inquired about the limitations of such.

Mr. Lemieux read his answ= ers to the variance criteria into the record as follows:

1. The variance will not be contrary = to the public interest because: It will not adversely affect the surrounding properties values or the WCDs continued gr= owth and well being.

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: Without a variance the close proximity of the WCD buffer makes it impossible to use and maintain a rear back yard area.

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: = not answered.

3. The Variance is consis= tent with the spirit of the ordinance because: The pool and deck were installed and built in good faith on existing lawn with = town permit.

4. Substantial justice is= done because: The swimming pool and deck already exist and were built with at permit issued by the town. =

5. The value of the surro= unding properties will not be diminished because: The pool, deck, and surrounding lawn area add to the value and appearance of the property and surrounding properties.

Mr. Hennessey was disturbed by the situation; the applicant was not the first to come before the Board with such. He reviewed the approve= d plan that had been signed by the Planning Board; specifically note #6 and #9. He asked if the applicant had rece= ived a mortgage survey plan and noted if the wetland was not delineated, they may = have an issue with the mortgage survey person appointed by the bank. Mr. Hennessey asked if the applicant’s property had been clear-cut and if there were markers indicating ‘no-cut’ zone. Mr. Lemieux said the property had been clear-cut, there was lawn and= no markers indicated the ‘no-cut’ zone. Mr. Hennessey didn’t underst= and how a building permit was issued or why the Planning Board continued to ins= ist on the Wetland Conservation District (‘WCD’) being observed at = the point of a building permit being issued, and not insisting that it be obser= ved through the issuance of an occupancy permit.

Mr. Hennessey discussed v= ariance criteria #1 and didn’t understand what the applicant was trying to say. Mr. Lemieux didn’t= feel that the existing lawn area would affect surrounding properties, since it w= as existing when his property was purchased.&= nbsp; Mr. Hennessey said the applicant was showing a misunderstanding of w= hat the WCD was. He read the defi= nition of WCD. He asked if the appli= cant, or his neighbors, had water in their basement. Mr. Lemieux answered no. Mr. Hennessey didn’t underst= and why the applicant felt they should continue having a lawn in the WCD. He asked if chemicals/fertilizer w= ere being used on the lawn. Mr. L= emieux answered no. Mr. Hennessey as= ked if the shed shown on the plan was portable and if it could be moved. Mr. Lemieux answered yes.

Ms. Paliy asked if the Conservation Commission had already heard the case, and questioned if they should review prior to the Board. Mr. McNamara didn’t believe that the Conservation Commission h= ad heard the case. Ms. Paliy ask= ed if the pool was above ground and if the applicant had photographs of such. Mr. Lemieux said the pool was above-ground and indicated that he had submitted a plot plan showing where = the pool and deck were located. M= s. Paliy asked the age of the pool and deck.&= nbsp; Mr. Lemieux believed the permits were in 2000 and 2001. Ms. Paliy asked how dry the land was. Mr. Lemieux said the lan= d was very dry in the location of the pool and deck; he didn’t have any wat= er problems. Ms. Paliy asked if = the Conservation Committee had been approached. Mr. Lemieux said the Planning Depa= rtment indicated that the first step would be to come before the Board of Adjustme= nt.

Mr. Gowan indicated that = once the Planning Board approved a plan they didn’t have a lot to do with the enforcement of WCD sign installation; building permits are issued by the Planning Department in conjunction with the Building Inspector. He said with occupancy permits, th= e department checked to make sure that WCD signs were in place (where applicable). This had been improved significant= ly within the last six to eight months. Mr. Gowan said he had sympathy with the applicant and suggested that= the Board walk the sight (with the Conservation Commission).

Mr. O’Sullivan aske= d how much of the WCD area was being maintained as a cleared area. Mr. Lemieux said it was probably 2= 0-feet from the pool.

Ms. Paliy asked if the po= ol was partially emptied when winterized. Mr. Lemieux said they didn’t empty the pool because it was not recommended due to possible collapse. Ms. Paliy was concerned with pool water going into the WCD around the pool. Mr. Lemieux said there = was no draining of the pool. Ms. Pal= iy asked if the applicant had considered moving the pool to the side of the house. Mr. Lemieux said he considered moving the pool, but didn’t feel it was feasible because of the two-tiered deck being attached to the house.

There was no public input= .

Mr. Hennessey said he was= familiar with the area, but was not opposed to walking the site. He said since he came to Town, he = had been requesting deed restrictions and review of lots prior to occupancy per= mits being issued. He said the iss= ue was enforcement and keeping a builder from passing on a property with a cleared lot. He made the following mo= tion: To have no-cut signs on posts along the line (as originally delineated on t= he plan); the existing lawn beyond that (into the WCD) immediately become ‘no-cut/no-fertilizer zone’; no discharge of chlorinated water = from the pool into the area; the shed is to be moved. Ms. Paliy wanted to know how to gu= aranty there would be no discharge from the pool into the area. Mr. Hennessey said all of which wo= uld need to be done in the form of a consent remark in the deed. Mr. O’Sullivan seconded the motion.

Ms. Paliy felt the notati= on in the deed was good, but felt the practicality of enforcement also had to be reviewed. She believed that t= he water in an above ground pool had to be changed. She wanted to walk the site. Mr. Hennessey said his motion stip= ulated that there was to be no chlorinated water put into the wetlands, which he didn’t feel was unreasonable to ask.=

Building Inspector/Code Enforcement Officer Roland Soucy didn’t understand the debate about chlorinated water (from a swimming pool) contaminating the wetlands. He said he owned a pool for over t= wenty years and had backwashed it onto his lawn without losing grass. Mr. Hennessey said he was only try= ing to heighten respect for the wetlands. Mr. Soucy discussed the process of reviewing plans compared to what = was in the field. He pointed out = that there was no clear definition of what a structure was.

There was further discuss= ion.

Mr. Gowan he took the WCD extremely seriously and discussed the fact that there had been more strict enforcement in the past months. He said that he and the Conservation Commission Chair would be putting togethe= r a brochure about the WCD and its importance which would be distributed to rai= se people’s consciousness. Mr. Hennessey said the lot within the subdivision being discussed had a specific note indicating WCD signs should be installed, however the lot was clear cut and later the applicant was given a permit to build within the WCD. He felt the Town should get rid of= the WCD if it wasn’t going to be enforced. Mr. Gowan noted that the applicant= came before the Board because it was an enforcement action.

Mr. McNamara suggested th= at the Board walk the site. After a = brief discussion, the Board decided to set a site walk for February 25, 2006, 8:30am. Mr. Gowan was asked to invite the Conservation Commission to the site walk.

Mr. Hennessey withdrew his motion; Mr. O’Sullivan withdrew his second.

The Case was continued to= the March 13, 2006 meeting.

Case #2341 K &= K EQUIPMENT – Pulpit Rock Road / ML 41/6-138 – Seeking a Variance concerning Article III, Section 307-12 to permit develop= ment of a lot that was created prior to current area requirements which the Town= is considering undersized.

Mr. Wes Aspinwall, repres= enting the petitioner, requested that the hearing be continued to the March 13, 2006 = meeting so they would have the opportunity to be heard by a full Board.

The hearing was date spec= ified to the March 13, 20= 06 meeting.

DATE SPECIFIED HEARINGS – March 13, 2006

Case #2340 LEMIEUX, Andre – 35 Irene Drive / ML 40/6-185-37 – Seeking a Variance concerning Article VII, Section 307-41 (b) to permit keeping an existing building permit approved for a swimming pool & deck in it̵= 7;s present location and be able to maintain the existing lawn within the 50ft.= WCD area.

Case #2341 K & K EQUIPMENT – Pulpit= Rock Road / ML 41/6-138 – Seeking a Vari= ance concerning Article III, Section 307-12 to permit development of a lot that = was created prior to current area requirements which the Town is considering undersized.

SITE WALK – February 25, 2006

MINUTES

January = 9, 2006

MOTION:

(Hennessey/O’Sull= ivan) To approve the Jan= uary 9, 2006 meeting minutes as amended. <= o:p>

VOTE:

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

ADJOURNMENT

MOTION:

(Hennessey/O’Sull= ivan) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:15 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