BOA20060612

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 12, 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, Robert Molloy, A= lternate Bob Haverty, Planning Director Jeff Gowan

None.

REQUEST FOR REHEARING

Case #2341 K &= K EQUIPMENT – Pulpit R= ock Road /= ML 41/6-138 – By abutter, Prolyn Corp.,

<= st1:address w:st=3D"on">5 Lawrence Corner = Road

Mr. McNamara said the Boa= rd was just informed that the abutter who filed a request for rehearing had asked = for a 30-day extension. This may = be problematic because (per Statute) once a request for rehearing is filed, the Board must act on it within 30-days.

Mr. Hennessey suggested t= he Board grant the appeal and schedule a rehearing based on unlike what was heard at= the hearing, there was not a ‘meeting of the minds’ between the applicant and the abutter. If= a rehearing is not granted, the variance (as stipulated) would be approved and there would not be another opportunity to make changes to the site except w= hen the plan went before the Planning Board.

Mr. Gowan said although t= he applicant and abutter were in the process of drafting a covenant. The Board discussed the testimony = given at the hearing and how they would proceed with the extension request.

MOTION:

(Hennessey/Molloy) To r= ehear the case (#2341) at the next meeting.

VOTE:

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

Mr. Peter Zohdi of Herbert Associates wanted to know if abutter withdrew their request, if they would = have to come back before the Board. Mr. McNamara answered no. If some= one files a request for an appeal, they have the ability to withdraw it.

CONTINUED

Case #2347 SAVOY, Patrick & Michele – 98 Dutton Road / ML36/10-370-1 – Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision o= f a 2.3 acre lot into two lots, one having 165.15ft. of frontage and the other having 42.04ft. of frontage where 200ft. is required.

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 contained one returned abu= tter notification sent to Anthony and Audralee Linardos; it was ‘unclaimed’. Mr. Meisner said he would proceed.

Mr. Kurt Meisner of Meisn= er Brem met with the Board to discussed the requested variance. He said the site was 2.3 acres containing 207-feet of frontage. He said they met with Mr. Gowan, made some minor alterations to the plan to satisfy the issues brought up by the Board. Mr. Meisner said there was an exis= ting house on the property with an addition that was presently under construction (not completed). There are tw= o driveways currently being used; one is circular and the other leads to a carport. They are proposing to build a new single-family house to the rear of the property; this new lot would contain 7.19-feet of frontage and a driveway easement incorporating the existing driveway to service the rear of the property. The existing house/lot would be in= full conformance with the current zoning regulations; the new lot would need a variance for frontage. Mr. Me= isner circulated photographs of the current conditions. He said the applicant proposed to = remove the older portion of the house when the newer portion was completed. He discussed the driveways and exp= lained they proposed a section of a driveway easement (less than 200SF) over the f= ront 12-feet where the driveway currently existed; both lots would service the a= rea.

Mr. Hennessey confirmed t= hat the existing home (with the unfinished addition) was a habitable home. Mr. Meisner answered yes. He said the intention was to finis= h the addition (to become the habitable portion of the home) and remove the older section. Mr. Hennessey asked = what the difference was between the current structures and a duplex. Mr. Meisner said he hadn’t b= een inside the addition, but re-iterated the intention to tear down the older section. Mr. Molloy asked if = there was access between the two structures.&nbs= p; Mr. Meisner believed there was access between the two, but noted the addition was incomplete.

Mr. Hennessey asked how m= any bedrooms the septic design was approved for. Mr. Meisner believed the septic wa= s put in prior to the state requiring septic designs. He said there was an existing sept= ic system (older than 1970) behind the existing dwelling. Mr. Hennessey asked if the applica= nt built the addition attached so they wouldn’t have to go through the s= tate approvals for septic systems. Mr. Meisner didn’t know; he was told if approved, the applicant would take the old building out.

Mr. Hennessey asked when = the wetlands were delineated. Mr. Meisner believed the wetlands were delineated in approximately 1989, when t= he initial subdivision was done. Mr. Hennessey said he would have a serious problem looking at plans that hadn&#= 8217;t had wetlands done in the last month (due to recent rains). Mr. Meisner said the state had cri= teria for wetlands and regardless of the amount of rainfall, it didn’t crea= te wetlands. He said there was a= clear delineation between the slope and where the wetlands started; the topography was clear and the underlying soil wouldn’t change. Mr. Hennessey reviewed/read aloud a portion of the Wetland Conservation District Article 8 (flood plain development) (that didn’t follow the state).

Mr. McNamara confirmed th= at the parcel with the existing house would be in compliance. Mr. Meisner answered yes. Mr. McNamara asked if frontage wou= ld be the only non-conformity with the back parcel.&= nbsp; Mr. Meisner answered yes. Mr. McNamara asked if the land was a parcel before 1984. Mr. Meisner said the parcel was cr= eated in September, 1984. Mr. McNam= ara asked if it had been the subject of any variance or special request since t= hat time. Mr. Meisner didn’t believe so; the homeowners received a driveway permit in 1994.

There was no public input= .

Mr. Hennessey discussed t= he request and noted he had issues with the width of the drive.

Mr. O’Sullivan conf= irmed that the existing dwelling was occupied.&n= bsp; Mr. Meisner answered yes.

Mr. Meisner said he had c= opies of the 100-year flood plain maps and informed that the property was not contai= ned in such. Mr. McNamara noted t= hat the maps were in the process of being updated.

Mr. Meisner let the Board= know that the sight distance on Dutton Road was 200-feet to the West and 200- feet mo= re to the East. The two driveway= s were approximately 30-feet apart. = Mr. McNamara asked if the applicant would request any waivers from the Subdivis= ion Regulations if the variance was approved.&= nbsp; Mr. Meisner believed they would seek one waiver for the proposed wel= l on the new lot due to the radius (a portion of which would be on the existing lot. Mr. McNamara asked if an= y consideration had been given to develop the back lot.&nb= sp; Mr. Meisner said he spoke with Mr. Gowan and it was never mentioned. Mr. Gowan said it wasn’t discussed because a 50-foot right of way would be needed.

Mr. O’Sullivan aske= d if the width of the proposed driveway fell within the requirements for safety vehicles. Mr. Gowan said the = Fire Chief may have issues with the proposed and the access of fire apparatus. He said if the plan went forward i= t may be appropriate for a shared use of the driveway.

Mr. McNamara asked if the= re was any attempt to acquire additional frontage. Mr. Meisner understood that there = was no ability to get more frontage.

Mr. Molloy questioned wha= t the width of the driveway was past the culvert and wetlands. Mr. Meisner said he didn’t h= ave a problem driving his SUV into the property; it measured off as 13-feet wide.

There was further discuss= ion regarding the request. Mr. Hennessey said the lot looked like a duplex lot and questioned what the per= mit (for the addition) looked like, since there was no new septic system approved for the site. Mr. Gowan said the = permit pre-dated his position and didn’t research it because the existing dwelling was to be removed. M= s. Paliy felt the property may be more suited to be a duplex property rather t= han two lots.

BALLOT VOTE:

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

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

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

VOTE:

Mr. O’Sullivan &#= 8211; No on all criteria

Mr. Molloy – No o= n all criteria

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

‘AREA’ VARIANCE DENIED

HEARINGS

Case #2348 CHARAKA= LLC – 49 Atwood Road / ML 29/7-45 Seeking a Variance conc= erning Article VII, Section 307-41 (B) to permit the construction of a new building and a fire lane partially on the 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.

Mr. Peter Zohdi of Herbert Associates, representing the applicant, discussed the variance request with= the Board. He said the parcel was= 3.87 acres and zoned commercial. T= he applicant was proposing an addition (7400SF) to the existing building a por= tion (925SF) of which would be in the Wetland Conservation District (‘WCD’). Mr. Zohd= i said during a site walk for a project across the street he asked the Planning Bo= ard to review the area and appreciate the fact that the proposed would be safer/better. The wetlands we= re flagged in the last six months by Gove Environmental.

It was noted that Mr. Zoh= di submitted criteria for a ‘use’ variance, but changed such at the meeting to be a variance for ‘area’. The criteria was reviewed as follo= ws:

1. The variance will not be contrary = to the public interest because: The propos= al is for a new, larger medical office building that will add to the taxes being = paid on the property.

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

“Use”

i.   the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in it’s environment such that: T= he current building is not large enough to accommodate the patient volume.=

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: Because this is an existing building on a relatively large piece of land, the owners with to expand the= ir facility.

iii. the variance would not injure the public or private rights of others since: An expanded medical facility is a positive addition to the town offering more availability of medical care.

“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: It is an existing lot= of record. They are not creating= a new lot. For the applicant to run= their business at the location the area is needed. Other property was reviewed, but no other property has the centralized location and the applicant would like to= stay on the property and expand such.

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 applicant reviewed other propertie= s on Route 38 and none would provide the facility that they want to provide to t= heir patients.

3. The Variance is consis= tent with the spirit of the ordinance because: The owners will meet all town codes and requirements including having a septic system designed for the proposed use.

4. Substantial justice is= done because: The use the owners are see= king is a permitted use(in zoning) for that district.

5. The value of the surro= unding properties will not be diminished because: The proposed building will be aesthetically pleasing and add to the property th= us having no adverse affect on surrounding property.

Mr. McNamara questioned i= f the existing building would remain. Mr. Zo= hdi answered yes; they might move it to make the addition square. Mr. Gowan said they may raise the existing building move it and incorporate such into the proposed addition.<= span style=3D'mso-spacerun:yes'>

Mr. O’Sullivan ques= tioned if consideration was given to building a smaller building so it wouldn̵= 7;t go into the WCD. Mr. Zohdi sa= id he discussed this with his client; however, for the facility/equipment the proposed structure would be the minimum space needed. Mr. O’Sullivan asked if the = property would deeded as three suites. Mr. Zohdi answered no; it would only be used for medical.

Ms. Paliy asked if the pr= oposed fire lane was currently above water. Mr. Zohdi answered yes. He said the fire lanes were required by the Fire Department. The fire lane bordered the wetland= . Mr. Zohdi said the lane was 18-fee= t and they could possibly ask the Fire Chief to change it to 14-feet.

Mr. McNamara asked how fa= r the building went into the WCD. M= r. Zohdi said in the corner the building would go 32-feet into the WCD. Mr. McNamara asked if any consider= ation was given to constructing the building elsewhere on the lot. Mr. Zohdi showed another location = that was considered. He said the building needed parking in the front for patient drop off/pick up (approxim= ately 50-feet). If done, they would= still have a portion of which in the WCD and the fire lane may be even more affected.

Mr. McNamara said in the = current configuration it looked like it would be difficult to access the back portion. Mr. Gowan said he li= ked the location where the building was proposed because there was an existing driveway that could continue to be utilized to access the back of the building. He said three-sided access may be adequate, but would pose the question to the Highway Safety Committee. He proposed that a= ny portion of the fire lane done in the WCD should be done using grass pavers,= or other porous material. Mr. Mc= Namara asked if the proposed use of the building would create an increased flow of traffic. Mr. Zohdi answered yes. Mr. McNamara asked if additional physicians would be in the building (i.e. blood lab), or if the equipment would be for the use of the doctor. Mr. Zohdi said the equipment would= be used by the current doctor. <= /p>

Mr. O’Sullivan aske= d if there was a number of additional parking spaces. Mr. Zohdi showed where the existing parking was located and where the proposed new parking would be located.

Mr. McNamara asked if any= waivers (other than the septic under pavement) would be requested in terms of Site Plan. Mr. Zohdi said he would request a waiver for the number of parking spaces and other minor items from site plan such as septic, parking etc.&nbs= p;

Mr. Gowan noted that the = plan would be reviewed by the Conservation Commission Wednesday night.

Mr. Hennessey had concerns regarding the site into the WCD. He read a public notice posted on the Pelham Website which indicated the roads that were shut down due to flooding during recent storms. He said there were problems in that corner of the Town.

PUBLIC INPUT

Ms. Ellen Grant, 6 Dutton Road had serious concerns regarding flooding in the area. She questioned the size of the sep= tic and where the septic would be located.&nbs= p; She also wanted to know where the flood plain would be replaced. She said during the recent rain, t= wo feet of water came into her house. Mr. McNamara said the Board would walk the site and explained if the variance is granted, the plan would be further reviewed by the Planning Boa= rd and their engineering people. He said this wouldn’t be the only time the plan would be reviewed.

Mr. Michael Grant, 6 Dutton Road said there was a fear of flooding and was surprised with the proposed design bec= ause the area was recently flooded. He believed the proposed would hurt surrounding properties. He noted there was a culvert that = ran under the road and flowed into Beaver Brook; when the brook backs up the ar= ea being discussed gets flooded. Mr. Grant reiterated the concern with flooding. He felt the building may need to be smaller. He said there were o= ther areas in Town where the building would fit. He was also concerned with the sep= tic system and didn’t want it backing up into his house. He suggested if the building couldn’t be made smaller, the applicant should consider selling and looking elsewhere for a facility to meet their needs. Mr. McNamara informed that the Pla= nning Board was holding a public hearing June 19^th so residents would = have the opportunity to testify what areas had been flooded. Mr. Grant submitted a photograph (= taken two years ago) of his back yard showing the water.

Mr. Robert Smith, 8 Dutton Road, was concerned with flooding and questioned where the water would go if the prop= osed was built. He said the recent flooding came within a few feet of his house.

Ms. Carol Smith, 8 Dutton Road, was very concerned with more flooding on her property. Mr. McNamara reiterated if the pla= n was approved by the Board, there would be further hearings by the Conservation Commission and Planning Board. Mr. Hennessey said this may be an opportunity to for the Town to ask for the applicant to demonstrate an improvement to the drainage to help the abutters out in exchange for a variance. Mr. McNamara noted that the applicant would have to meet the variance criteria.

Mr. Jeff Husson, 3 Livingston Road, wanted clarification of how the building would be situated. He was very concerned with flooding. He was also concern= ed about traffic. Mr. Husson ask= ed what view of the building he would have.&n= bsp; Mr. Zohdi showed the architect rendering of the proposed building and which view Mr. Husson would have from Livingston Road. <= /span>He explained that they would take the existing building and incorporate it into the proposed addition. Mr. Hu= sson reiterated his concern about additional traffic and what the proposed would= do to make the water situation worse. <= /span>

Mr. Zohdi discussed how t= he lot would be developed and how the drainage system tied into Beaver Brook. He said he had all the elevations = for the lot and believed the culvert worked.&n= bsp; He discussed the fact that they would have to submit drainage information to the Town and state and make the drainage pre- and post-development the same. He didn’t have an explanation for what occurred during recent rains where the area flooded.

Mr. Grant reiterated his = concern regarding flooding. Mr. McNam= ara said the Board was also concerned regarding the drainage. He suggested abutters attend the Conservation Commission meeting on Wednesday as well as the Planning Board = meeting on June 19.

A site walk would be sche= duled and the public would be welcome to attend.=

Mr. Hennessey asked if th= e WCD maps for the Town would be re-drawn. Mr. Gowan said the WCD was 25-feet from whatever established wetlands were (based on soils). He sai= d FEMA scheduled a meeting and took back from the meeting the existing flood plain maps. He said one possible ca= use for the flooding during the recent storm could be due to bark mulch (recent= ly put out at the Pelham Plaza) clogging the culvert. Mr. Hennessey said d= uring the site walk the Board would review where drainage flowed.

After a brief discussion = the Board scheduled a site walk for June 17, 2006 at 9am (on site).

The Case was date specifi= ed to the July 10, 200= 6 meeting.

Case #2349 CLEGG, = David & Catherine – 60 Burns Road / ML 28/2-4 – Se= eking a Variance concerning Article III, Section 307-12 & 307-14 to permit the construction of a 20x28 addition on an undersized lot that does not have the required 200-foot of frontage

Ms. Paliy read the list o= f abutters aloud. There were no persons present who did not have their name read, or w= ho had a problem with notification. The file did not contain any written correspondence from abutters.

Ms. Catherine Clegg met w= ith the Board to discuss her variance request.&nbs= p; She began by reading aloud the variance criteria submitted as follow= s:

1. The variance will not be contrary = to the public interest because: There is a= need for what is being requested.

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: There is no additional land to be purchased in order to conform to zoning.

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: = We will not be able to use our land to= its fullest potential if the variance is denied & non-conforming lines alre= ady exist.

3. The Variance is consis= tent with the spirit of the ordinance because: If the variance is granted, we will meet all the other requirements that Town = will place on us such as following the building code, obtaining all necessary permits, etc.

4. Substantial justice is= done because: The use being requested is consistent with uses of the surrounding lots & variance being granted w= ill allow us to use our property in the same manner.

5. The value of the surro= unding properties will not be diminished because: The proposed addition will be aesthetically pleasing and add to the property th= us having no adverse effect on surrounding properties.

Mr. McNamara asked what t= he current square footage of the existing home was so he could determine the s= ize of the addition being requested. Ms. Clegg didn’t know. Mr. = Gowan said the home appeared to be twice the size of the addition.

Mr. O’Sullivan aske= d what the height of the addition would be. Ms. Clegg said it would match the existing home (2-story).

Mr. Gowan said he would h= ave considered granting a building permit because he considered it a natural expansion. He said he always advises applicants that ‘area’ variances go along with the land= and give a higher protection of such. Mr. McNamara confirmed that the only oddity of the lot was that it w= as .9 acres. Mr. Gowan said the = lot was under an acre and the frontage was not 200-feet. Mr. McNamara asked how long Ms. Cl= egg had resided in the home. Ms. = Clegg said she lived in the home thirteen years.= Mr. McNamara asked if the abutting lots were developed. Ms. Clegg answered yes. She said she had letters from the = people adjacent to her informing they had no problem with the addition.

There was no public input= .

BALLOT VOTE:

Mr. McNamara – Yes to all criteria.

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes t= o all criteria

VOTE:

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

Mr. Molloy – Yes = to all criteria

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

‘AREA’ VARIANCE APPROVED

MINUTES

May 8, 2006

MOTION:

(Hennessey/O’Sull= ivan) To approve the May= 8, 2006 meeting minutes as written. <= o:p>

VOTE:

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

ADJOURNMENT

MOTION:

(O’Sullivan/Mollo= y) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 9:45 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