BOA20061113.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 13, 2006

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

PRESENT:

ABSENT:

Peter = McNamara, David Hennessey, Svetlana Paliy, Kevin O’Sullivan, Robert Molloy, Alternate Bob Haverty, Planning Director Jeff Gowan

None.

CONTINUED

Case #2351 COOKE, Judy – Surrey Lane ML 16/13-125-15 – Seeking a Variance concerning Article III, Section 307-12 to permit the subdivision o= f an 11.3 acre parcel into two (2) parcels.&nbs= p; One (1) containing 6.216 acres with 113.51 feet of frontage where 200 feet is required.

Mr. McNamara said the cas= e had been on the agenda for several months; testimony had been heard and a site = walk was conducted.

Attorney William Mason, representing the applicant, met with the Board to discuss the variance requ= est. He believed the last hearing was in August and there were some questions regarding the high and dry land. The engineer, Mr. Peter Zohdi of H= erbert Associates was present to answer any questions. Attorney Mason said a site walk ha= d been done in September and answered as many questions as possible. There was some upland on the prope= rty; the applicant was proposing a single-family residence with no further subdivisi= on of the parcel and didn’t have an objection to having a variance conditioned upon such. Attorn= ey Mason discussed the drainage and believed it was an achievable objection to ensure there was not an increased flow.&nb= sp; He said the property had been staked and noted that certain parts th= at had been landscaped and treated as property belonging to the abutters, but = that was not the present discussion. He said the applicant would rather have a driveway rather than a roadway.

Mr. Zohdi was asked to co= mment regarding the plan. Mr. Zohdi= said when he was asked to work on the plan, he had the wetlands flagged by a wet= land and soil scientist; the information had since been checked by Gove Environmental and found to be correct.&nbs= p; He said the parcel had been reviewed and if subdivided into two lots each would have 35,000SF contiguous high and dry land and would meet the subdivision and zoning regulations, except for the frontage. He said the existing house would h= ave 200ft frontage onto Surrey= Lane and the proposed lot would have approximately 113.51 feet of frontage.

Mr. Hennessey asked how m= uch contiguous high and dry was contained on the new lot.= Mr. Zohdi said over 50,000SF; there was an additional high and dry a= rea, but it was not contiguous. Wi= th regard to an abutter comment regarding ‘stacked’ housing, Mr. Hennessey asked for an explanation of why the proposed area was preferred.<= span style=3D'mso-spacerun:yes'> Mr. Zohdi said to access the other portion of the site a wetland would need to be crossed. He said the applicant didn’t object to a condition of having a 50-foot buffer versus the required 15-foot setback from the lot line. At= torney Mason discussed the proposed house placement and noted that the abutters wo= uld be viewing a back yard, which wasn’t an unusual situation. Mr. Hennessey said each case is considered new; however, the fact is that the applicant had previously come before the Board twice, both times being turned down. He asked if there was anything in = the law, on the site, or the current proposal that was significantly different = from the previous two applications. Attorney Mason said he wasn’t present for the other proceedings and it was his understanding they were dealing with a parcel that was creat= ed as a result of a prior subdivision regulation that required dedication of a= certain amount of land which was later over turned by the Supreme Court. He said he could only tell the Boa= rd that he was dealing with a parcel of land that had 113 feet of frontage, six acres and more than enough high and dry.&n= bsp; He said if the variance was turned down, it would not stop the proce= ss, it would just direct the applicant to alternative uses. Mr. Hennessey said there had been a change in the zoning. He ques= tioned if there had been any changes with the state that would have affected the p= lan. Attorney Mason said Mr. Zohdi= could address such, but noted there had been a change in the soil base and subdivision regulations (lot sizing). He understood there were some unhappy abutters but they were trying = to balance their concerns and the applicant’s reasonable use of the land. He didn’t feel one house on six acres was unreasonable.

Mr. McNamara questioned h= ow many lots the (11 acre) parcel could handle.&nb= sp; Mr. Zohdi said at one time they considered constructing a cul-de-sac= and making two lots. He discussed= the things that had changed with = the state and local regulations. = To obtain an additional area, the applicant would need a dredge and fill permit.

PUBLIC INPUT

Mr. Gary LeBlanc, 12 Surrey Lane reviewed the plan and showed the location of his lot. He said one quarter of his propert= y was wet during several months of the year and was concerned about additional wa= ter (due to the placement of the applicant’s driveway) flowing onto his property and the affects it would have on his septic. He was also concerned for the deterioration of the wetlands from allowing dredge and fills. His main concern was flooding.

Ms. Paula McLatchy, 24 Surrey Lane submitted a plan copy of the topography and soil samples on the property provided during the time of the (subdivision and variance application) hear= ings in 1993. She didn’t see= how the variance could be allowed at this time since it had been denied last time. Mr. McNamara said the B= oard had to determine if the reasons for previous denials are still in effect. Ms. McLatchy said if the variance = was approved she asked that the applicant be asked to do a new soil sample, and reassess the elevations. Mr. McNamara said if the variance was approved, the application would go to the Planning Board for review. He= said it was recognized that there was wet in the area. Ms. McLatchy said she had wetlands= on both sides of her property and a pond.&nbs= p; She was concerned with the water if the drainage was changed.

Mr. Richard Matte, 16 Surrey Lane said the applicant was using the same argument he used during the previous meeti= ngs; hardship and not having full use of his land. He said in 1993 a member of the Bo= ard stated that the owner had created his own hardship by subdividing the land. He felt reasonable use = had been exercised and achieved by the owner building off Orchard Land by using frontage on Surre= y Lane. He referred the Board to the crite= ria and quoted a past Board member who stated there had been a violation in the spirit and intent of Zoning because there wasn’t a hardship. Mr. Matte said the land was walked= in September, 2006 and the markers were supposed to show the high and dry land= and it seemed as though a portion (where the markers were placed) of which was sloping. He said there was a concern about stacking houses and the possible devaluation of surrounding homes. He felt there was a go= od possibility if the proposed were approved it would devalue the homes. Mr. McNamara said if a variance was granted, it would be conditioned upon the other property achieving 35,000SF= ; if they didn’t prove it at the Planning Board stage, the applicant wouldn’t have a variance and wouldn’t be able to subdivide. He discussed the fact that the har= dship criteria had changed several years ago making it easy to pass and it was difficult to deny applications on that basis. He didn’t believe that the l= and changed just how the law is applied. = Mr. Matte reviewed a portion of the meeting minutes from 1993 which indicated t= he reason for substantial loss to the property value because a house would be placed directly behind another one which didn’t exist on Surrey Lane= . He said it still appeared to be the plan. Mr. McNamara said it ma= y be relieved by adequate buffering. He said the other side of the argument was if the applicant was deni= ed the variance and they decided to put a road in and additional lots.

Ms. Linda Matte, 16 Surrey Lane had a map with a legend stating that the soils in the area are very poorly drai= ned soils. She showed where her l= ot was located. She provided the Boa= rd with a copy of the map which was an overlay of the entire region.

Mr. Hennessey didn’= t see a big grade as indicated by one of the abutters. He questioned if there was suffici= ent high and dry land on both lots. Mr. Zohdi said if the variance was granted they would have to deal with the issues. He discussed the slop= es being shown at this point and understood the regulations. Mr. Hennessey asked for a descript= ion of the type of property to be built on the site. Attorney Mason said they have disc= ussed (as a condition for variance) one single-family house lot with no further subdivision. He said he discu= ssed with the applicant what items the Planning Board would discuss. He said they had discussed placing= eight acres of the total parcel into a permanent conservation easement so it would remain undisturbed and undeveloped and the poorly drained areas would funct= ion as they currently were. He sa= id if one single family residence was built on the six acres it would be comparab= le to the surrounding. He said t= hey weren’t looking to stack the house; there would be some distance betw= een the two houses. The back yards would abut. Mr. Hennessy aske= d if the house would still be able to be placed in the high and dry area if there was a stipulation for a 50-foot setback.&n= bsp; Mr. Zohdi answered yes.

Mr. McNamara asked what p= ercent of the parcel (being reviewed for a variance) were very poorly drained soils. From what he recalled,= Mr. Zohdi said of the six acres approximately 2.5 acres was high and dry, 3.5 w= as poorly/very poorly drained soil. He said they based their information (and flagging) from the soil/wetland scientist. Mr. Gowan agreed t= hat the information was true.

Mr. Gowan said if the var= iance was granted, the plan would go before the Planning Board for a presentation= and abutters would have the opportunity to provide feedback. He said the precautions mentioned regarding setback and screening combined by the scrutiny of the Planning Bo= ard should mean that a house would be constructed without negative impact on drainage.

Mr. O’Sullivan disc= ussed the difficulties with the case. Mr. Hennessey said in reviewing the minutes from previous hearings regarding the property illustrated the changes that had occurred in the zoning laws. He went on to discussed the change= s and how they applied to past hearings versus the present. Based on the criteria, Mr. Henness= ey didn’t see that the variance could be turned down. Mr. McNamara also discussed the ch= anges in the current case versus the past requests in connection with the criteri= a. He said testimony was given that t= he only deficiency of the lot was that there was lack of frontage; every other subdivision and zoning requirement could be met. He discussed the purpose of the fr= ontage requirement. He believed if t= he variance was denied, the Board would be ‘hard pressed’ to defen= d it in court.

MOTION:

(Hennessey/McNamara) If= the variance request is passed it will have the following stipulations: 1) th= e (applicant’s front) setback will be changed from 15-feet to 50-feet in addition there should be a screening (of adequate type and amount to be determined by the Planning Board); 2) no further subdivision; 3) recommendation to the Plan= ning Board (at their discretion) that a drainage study be done; 4) restrict to= a single-family lot.

VOTE:

(3-2-0) The mot= ion carried. Ms. Paliy and Mr. Molloy voted n= o.

BALLOT VOTE:

Mr. McNamara – Yes to all criteria; with stipul= ations

Mr. Hennessey – Yes to all criteria; with stipul= ations

Ms. Paliy – Yes t= o all criteria

VOTE:

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

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

(<= st1:date Month=3D"3" Day=3D"2" Year=3D"2000" w:st=3D"on">3-2-0) The mot= ion carried.

VARIANCE APPROVED

HEARINGS

Case #2356 FOX, De= bra & TRAYNOR, William – 7 South Shore Drive ML 30/11-208 – Seeking a Var= iance concerning Article III, Section 307-12 To permit a 400SF addition on an undersized lot.

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 two mail receipts indicating that the lot owners didn’t pick up notification (11 South Shore Drive and Smith Trust - Maurice Picard)

Ms. Debra Fox said she an= d her husband had owned the house for eleven years. Her husband’s family had liv= ed around the pond since the early 1930’s. She discussed the request, which if approved, would enable them to construct an addition (family room) with a fireplace. She said construct= ion had already begun before they realized they needed to apply for a variance; once they became aware construction stopped. They had no intention of not follo= wing the law. The addition will no= t be visible from the pond, or block anyone’s view of such. The addition will conform to all o= ther setbacks and codes. Ms. Fox n= oted that a new septic system had been installed.

Mr. McNamara indicated th= at two return receipts had not been received.&nbs= p; He wanted Ms. Fox to be aware of the fact if one of the abutters did= not get notice they could object to the proceedings. Ms. Fox said she wanted to proceed= .

Ms. Fox then read the cri= teria aloud (as submitted):

1. The variance will not be contrary = to the public interest because: the propos= ed addition will be aesthetically pleasing and add value to the property and surrounding. <= /p>

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: the lot is undersized and there is no additional land that can be acquired 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: = there is no additional land that can be purchased.

3. The Variance is consis= tent with the spirit of the ordinance because: we are only requesting a variance for the lot size, all other setbacks and cod= es will be met.

4. Substantial justice is= done because: the use we are seeking is a permitted use and consistent with ones of the surrounding lots.

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, t= hus having no adverse effect on surrounding properties.

Mr. Hennessey asked what = height the addition would be. Ms. Fo= x said the peak of the addition would be slightly lower (6”) than the current cottage. Mr. Hennessey noted = that the new septic system was prominent on the lot. Ms. Fox said it was designed by a = septic engineer and approved by the Department of Environmental Services (‘DES’). She woul= d have preferred something less invasive but informed that it was what the law req= uired. Mr. Hennessey discussed the Shore = Line Protection Act and the fact that it indicates 50% of the basil vegetation s= hall be maintained within 150-feet of the lake.= He asked if 50% of the trees would be able to be put back to the sta= te of the lot prior to the septic system and the addition. Ms. Fox said there were two large = pines taken down for the septic system; she intended to try and naturalize the area as = much as she could. They felt they = were being responsible when adding the septic system because it was previously a hole in the ground.

PUBLIC INPUT

Mr. Richard Pieslak, 9 So= uth Shore Drive discussed the history of the lot and noted that the applicants = were professional and did a beautiful job with the aesthetics of the lot. He didn’t feel there had bee= n an aesthetic impact and said the applicant was meticulous with their lot. He ended by saying he and his wife= had no objection to the request. =

Ms. Paliy asked if there = were any photographs of the property. = Mr. Gowan answered no. Ms. Fox sa= id she didn’t bring any.

Mr. Molloy wanted to know= where the water was located. Ms. Fox showed the water line and explained that the addition would be placed betwe= en the road and the house.

Mr. O’Sullivan conf= irmed that a permit had been pulled. Ms. Fox said there had been an active permit before the process began. She explained what had occurred. It was noted that construction beg= an prior to the permit being issued. To clarify, Mr. Gowan said an application had been applied for, and the applic= ant’s contractor began work prior to the permit being issued. Once this was realized, a stop work order was issued and construction stopped.= In his view the addition didn’t make the lot more non-conformi= ng. Mr. Gowan believed this was a case= of an honest mistake; however, the applicant will have to pay a fine.

Mr. McNamara confirmed th= at the addition would be one-story containing no bathroom facilities or sink. Ms. Fox said the addition would be= a family room with a gas fireplace. The addition would be on posts.&nbs= p;

Mr. O’Sullivan aske= d if the gas fireplace would require the installation of a new propane supply; if so= , he wanted to know if it would be above or below ground. Ms. Fox said the tank would be abo= ve ground.

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

Mr. Hennessey addressed a= ll the lake properties and noted because of the basil growth there should be photograph= s of the premises so there could be a record in the file. Mr. Gowan said he would consider t= he point and somehow update the building application process.

Case #2357 REDIMIX COMPANIES, INC – Bridge Street ML 41/6-126 – Seeking a Variance concerning Article III, Secti= on 307-12 to permit the construction of a concrete batch plant with less than = the required front setback and one of the side setbacks.

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. Hennessey said the Bo= ard had discussed projects of regional interest and questioned if the Dracut Planni= ng Board had received notice. Mr= . Dan Blais of TFMoran answered no. Mr. Hennessey said this was a project of regional interest and felt per the RSA’s that Dracut should be notified. Mr. McNam= ara said the proposed had gone before the Planning Board as a conceptual and it was noted that further progress would require notification to Dracut. He was unsure how the Board wanted to proceed at this time. Mr. Blais noted that the proposed = was before the Board due to front and side setbacks, neither of which were in <= st1:place w:st=3D"on">Dracut. Mr. Hennessey said the Board recen= tly attended a conference on zoning where a point was made that there was exposure on bo= th an applicant and a Board if on a regional basis abutting government entities are not notified. Mr. McNamara suggested that the Board hear the case, but hold off on taking a vote, noti= fy Dracut and continu= e the case to the next meeting. The= re was further discussion regarding how the Board would proceed. It was decided that the Board would proceed with the hearing, schedule a site walk and continue the case to the next meeting for a decision. =

Mr. Dave Bissonnette, Pre= sident of Redimix Companies, Inc provided the Board with an overview of the Redimix Companies.

Mr. Blais then reviewed t= he proposed plan with the Board. There are four parcels that make up the Keating property. Redimix is proposing to operate a concrete batch plant with a footprint approximately 100ftx40ft (4000SF). There will be silos for aggregate = storage and a dust collection component. It was anticipated that some of the components would have a height of approxim= ately 70-feet. The subject parcel i= s a previously quarried area; there is an earthen berm along the frontage (Rout= e 38 and Coburn Road) that has trees. When measured= from the street, the berm is approximately 20-feet high; the measurement from the inside of the property it is approximately 30-feet. A representative from Ensar (wetla= nd company) visited the site and found no wetlands. The applicant anticipated running between 6-8 trucks off the property each having five round trips per day (Monday – Friday and some Saturdays). There were existing sewer and sept= ic facilities on site so none were being proposed. There will be a field office that = is similar to a construction trailer and would meet all the setbacks. Lighting will be motion activated.=

Mr. Blais went on to revi= ew two Exhibits that had been submitted with the application and answered the vari= ance criteria. See attached for Ex= hibits A & B.

Mr. Hennessey questioned = why a variance was needed. Mr. Gowa= n said it was for the setback. Mr. Hennessey said the entire parcel by common owner. Mr. Gowan said in his review the o= nly variance he felt the applicant needed was in the front. Mr. Hennessey agreed. Mr. McNamara said this was a separ= ate parcel and had to comply with zoning.

Mr. Molloy asked how high= the proposed concrete batch plant would be. Mr. Bissonnette explained the different parts of the batch plant. The building will be approximately 40-feet high.

Mr. McNamara asked if the= trees on the berm had reached full height. Mr. Blais said that there was a mix of mature trees and some were st= ill growing. Mr. McNamara asked i= f the silos would be visible from the road. Mr. Blais said the height of the silos was at approximately the same height of = the trees on top of the berm. Mr. McNamara confirmed that the quarry would continue to be active for approximately ten-fifteen years. Mr. Blais said in speaking to Keating it may be closer to twenty years. Mr. McNamara asked if = the batching plant would operate after the quarry was done. Mr. Bissonnette said it could stay; however, at this time it was economical to locate at the facility because t= he materials were there. Mr. McN= amara questioned what would happen in the event of a fire or explosion because the Town̵= 7;s Fire Department was not equipped to handle a fire at the proposed height. Mr. Bissonnette said the material = they would use wasn’t flammable. Mr. McNamara confirmed that there wouldn’t be personnel locate= d in the building. Mr. Bissonnette= said there was no personnel; the operation was computerized and only required one person. Mr. McNamara question= ed if the vehicle trip count (30-40 trips per day) included the deliveries. Mr. Bissonnette said the trips ind= icated didn’t include the deliveries. Mr. Blais said the trucks would access the Route 38 corridor, but didn’t know which direction they would come from. He noted that the Department of Transportation (‘DOT’) studied the traffic and had a trip count= of approximately 12,000 trips per day. Mr. McNamara said the trucks entering traffic (fully loaded) would c= ause some reduction in the traffic because they took awhile to come up to speed. He then asked what con= stituted the dust control apparatus. M= r. Bissonnette described the unit that captured the dust and recycled it back = into the silo. Mr. McNamara asked = if there were components other than the silos and dust control apparatus. Mr. Bissonnette said there was als= o an aggregate bin. Mr. McNamara confirmed that there would be no increase in noise through the operation of= the apparatus and there would be no odors.&nbs= p; Mr. Bissonnette said there would be none.

Ms. Paliy asked if there = was an illustration of what the plant would look like. Mr. Bissonnette said he could prov= ide such. The Planning Board had = been given photographs. Ms. Paliy = questioned if pollution (dust) would be generated.&nb= sp; Mr. Bissonnette said the plant wouldn’t generate additional dust. The dust would come fro= m the road and trucks driving over it. Ms. Paliy asked if the trees would remain alive after the plan was p= ut in. Mr. Bissonnette answered = yes. Mr. Blais said the site would basi= cally be a slab on concrete with a paved driveway.

Mr. O’Sullivan aske= d if the applicant would utilize the trees currently on the berm, or if they intende= d to augment what was currently there and fill in any spaces. Mr. Bissonnette said the growth was fairly uniform. Mr. Blais sai= d any gaps in the visual barrier would be addressed. Mr. O’Sullivan discussed the= water usage of the plant (approximately4 million gallons per year). Mr. Blais believed the average (of 15,000 gallons per day) was an aggressive number. Mr. Bissonnette said they were rev= iewing possibly recycling storm water that accumulates at the quarry or to extend = the water line from Dracut. Mr. McNamara said this would be an ongoing concern of planning. =

There was no public input= .

A site walk was scheduled= for December 9, 2006 at 9am. The Conservation Commission and Pl= anning Board members would be invited.

The case was continued to= the December 11, 1006 meeting.

Case #2358 GILLIGA= N, Karen & Timothy – 9 Mammoth Road= ML 39/1-57 – Seeking an Equitable Waiver concerning Article II= I, Section 307-12 to permit a four (4) family home on two (2) acres of land. <= o:p>

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. There was no return receipt received from the owner of 18 Mammo= th Road. The applicant, Mr. Gilligan unders= tood if notice was found to be faulty the process would need to be repeated.

Mr. Timothy Gilligan disc= ussed the requested Equitable Waiver with the Board. He explained that he and his sister purchased the property in May, 2004. Since the time of purchase, there = had been issues regarding the property size and the type of residence contained thereon. Mr. Gilligan believe= d he had been mislead at the time of purchase; copies of the Purchase & Sales and appraisal were provided to the Board for review. He said the P&S indicated the property to be three acres; when the property was refinanced (for the third time) the attorney found the property size to be two acres. He said an Equitable Waiver was be= ing requested for the forth unit. No change has occurred to the property since the property was purchased. Mr. Fox said he and his sister had long-term plans to reside in the home; functioning in the four units played= a big part of their ability to do such. When the property was purchased they were lead to believe it had bee= n in existence for many years.

Mr. McNamara questioned w= hat the forth unit was. Mr. Gilligan = said the in-law apartment was the forth unit and was located in the back of the third unit. Mr. Gowan provided background to the Board. He s= aid due to the Town’s greater code enforcement effort the Board would see additional cases. He understo= od that the home was built in the 1800’s and believed it was a multi-fam= ily (three-family) for a very long time; however, he didn’t have evidence= of this. He said in 2000 he was a member of the Planning Board and at that time the ‘parent’ lot = was subdivided to create the J= ones Farm Road subdivision. He didn’t recall any discuss= ion regarding the number of units in the house. He had a copy of the recorded plan and pointed out that the engineer (in early 2000) had a couple different layouts for the parcel. The subdivision approval given to = the Board of Selectmen had two plans attached to it; one showing two acres, one showing three acres. Mr. Gowa= n said the lot should have been three acres if there was a three-family house. He said unfortunately there were no meeting minutes in the file from when the plan was approved.

Mr. McNamara asked if the three-acre configuration was included in the recorded plat. Mr. Gowan said the three-acres was= an earlier version of the plan and may be where the confusion of the lot began. He said the crux of the problem was there were four units currently in the house. He felt the Equitable Waiver crite= ria was the best way to deal with this type of scenario. In this case there was nothing in = the file indicating that the applicant had ever been notified of the issue. He said the Board had to come to s= ome resolution on the issue. He reviewed some of the options.

Mr. McNamara questioned i= f the in-law apartment was pre-existing if it would be an allowable non-conforming use.<= span style=3D'mso-spacerun:yes'> Mr. Gowan said the recorded plan m= ade no reference to the number of units; however, a previous version of the plan presented to the Planning Board and Selectmen clearly stipulated three exis= ting units. He said the forth unit= must have come into play after the subdivision of Jones Farm Road, but before the app= licant purchased the property. Mr. McNamara said if it had not been in existence ten years, the applicant would have to cover the full version of the criteria.

Mr. Hennessey said he saw= the listing sheet and the purchase & sales agreement and said it was clear = from the application that the applicant believed an in-law apartment was a legal/rentable apartment. Mr. Gilligan said when the property was purchased the seller informed them that= it had been in existence and accepted. Mr. Hennessey questioned what (the applicant felt) the distinction w= as between an in-law apartment and a rentable apartment. Mr. Gilligan discussed how the uni= ts became occupied. Mr. Hennessey questioned if anyone had explained the difference between an in-law and rental. He said a licensed re= al estate agent in the state needed to explain the difference. He said someone failed in their jo= b of explaining the difference which is considered an ignorance of the law. He said the applicant should seek = the advice of a real estate lawyer. Mr. Hennessey asked if the applicant was given a mortgage survey when the prope= rty closed. Mr. Gilligan answered= no; he was given a septic design (which had been done prior). Mr. Hennessey reiterated that the applicant should have a real estate attorney review the appraisal. He said the applicant should speak= to the mortgage company that gave the loan.&n= bsp; He said the applicant was entitled to the mortgage plan and he wanted to review such to ma= ke a determination. Mr. Hennessey discussed the situation. He s= aid he was willing to stipulate that prior to zoning there were three units in the building; unfortunately, when the land was subdivided there needed to be th= ree acres (for the three units) and that didn’t happen. He said the applicant now owned a two-family that had an illegal in-law and third apartment. He said depending on how it happen= ed, the Board may, or may not be able to grant an Equitable Waiver. He wanted to review the plot plan.=

Mr. McNamara noted that o= n page two of the property appraisal report it listed that there were four apartments.

There was a discussion ho= w the Board would proceed. Mr. Gowa= n said he would look for past meeting minutes to provide the Board. Mr. Hennessey reiterated that the applicant should seek the advice of a real estate attorney.

Mr. Hennessey said there = was a question whether the applicant should be before the Board for an Equitable Waiver or a Variance. He said= the applicant should discuss this with an attorney.

Mr. O’Sullivan ques= tioned if the abutter that didn’t receive notification could now be re-notified. Mr. Gowan said notification was given; the abutter didn’t pick it up. He said the address would be check= ed against the Assessor’s records to ensure that the correct address was used.

The case was date specifi= ed to the December 11= , 2006 meeting.

SITE WALK – December 9, 2006, 9am

Case #2357 REDIMIX COMPANIES, INC – Bri= dge Street ML 41/6-126 – Se= eking a Variance concerning Article III, Section 307-12 to permit the constructio= n of a concrete batch plant with less than the required front setback and one of= the side setbacks.

DATE SPECIFIED- December 11, 2006

Case #2358 GILLIGAN, Karen & Timothy R= 11; 9 Mammoth Road ML 39/1-57 ̵= 1; Seeking an Equitable Waiver concerning Article III, Section 307-12 to permi= t a four (4) family home on two (2) acres of land.

MINUTES

September = 11, 2006

MOTION:

(O’Sullivan/Henne= ssey) To approve the meeting minutes as written.

VOTE:

(4-0-= 1) The motion carried. Ms. Paliy abstained.

October 1= 2, 2006

MOTION:

(Hennessey/O’Sull= ivan) To approve the meeting minutes as written.

VOTE:

(4-0-= 1) The motion carried. Ms. Paliy abstained.

ADJOURNMENT

MOTION:

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

VOTE:

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

The meeting was adjourned= at approximately 10:25pm.

&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