APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 13, 2011

 

 

The Chairman David Hennessey called the meeting to order at approximately 7:00 pm.

 

The Vice Chair Svetlana Paliy called roll:

 

PRESENT:

 

 

ABSENT:

David Hennessey, Svetlana Paliy, Peter McNamara, Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

 

Robert Molloy, Kevin O’Sullivan, Alternate Bill Kearney, Alternate Lance Ouellette

 

Case #ZO2011-00026  MESSINEO, Augustine & Joyce  /  Washington Street – Map 14 Lot 4-118-1  -  Seeking a Variance to Article III & VII, Sections 307-12, 307-14, 307-39 & 307-41 to permit a new house to be constructed on a lot with 175 feet of frontage on a class V town road rather than 200 feet, to permit a portion of the house to be constructed within the WCD* and to permit the leach bed to be constructed 10 feet from the Wetland Conservation District rather than 25 feet.  *(A use not specifically permitted under section 307-39a and not allowed under section 307-41).

 

Mr. Hennessey asked the applicant to come forward to discuss the proceedings and to provide choices.  He explained that (with four seated Board members), if they chose to proceed, three votes would be needed to approve the variance.  He said he couldn’t tell the applicant which way the Board may vote; however,  in the past, applications with impacts to the Wetland Conservation District (‘WCD’) are often held over to a second meeting with a site walk in between depending on the pleasure of the Board.  The Board had regularly asked for input from the Conservation Commission with similar cases.  He gave the applicant the option to have the Board take the application and entertain a motion to seek input from the Conservation Commission and conduct a site walk.  Mr. Hennessey asked the applicant if they wanted to continue with the hearing, or hold off to another month.    

 

Mr. Wes Aspinwall and Mr. Shayne Gendron of Herbert Associates came forward to discuss the requested variance.  Mr. Aspinwall stepped away to speak with his client.  He asked the Board if they were to hear the application at the present meeting and continue it to a later meeting if only four members would vote at that later meeting as well.  Mr. Hennessey said with similar cases in the past the Board had conducted site walks and requested input from the Conservation Commission.  They usually held off on taking a vote until the second meeting and receiving the Conservation Commission’s input.  He said he couldn’t promise that a site walk would be scheduled, and he couldn’t ask the Board to vote because the application was not yet officially in front of them.  Mr. Aspinwall asked if the absent Board member would be allowed to vote at the next meeting.  Mr. Hennessey answered yes, per case law.  Mr. Aspinwall said given the likelihood that the hearing would take a couple meetings, they would like to proceed.  He said they would be happy to provide additional information if the Board requested, or to take the case to the Conservation Commission.  Mr. Hennessey wanted the applicant to understand there may be a risk. 

 

Ms. Paliy read the list of abutters aloud. There were no persons present who did not have their name read, or who had difficulty with notification or who had an interest in the case and claimed standing on the case.

 

Mr. Aspinwall reviewed the Letter of Intent submitted with the application.  The applicant purchased a home and then purchased the lot next door; they had owned all the land since 1986.  The lot was part of a subdivision (Kimberly Estate – Section 2 1966); the two lots purchased by the applicants were #10 and #11.  Lot #11 on the plan (Map 14 Lot 4-118-1) was the proposed lot under the variance request.  A septic design (and approval) was submitted to the Board.  There were some distance waivers on the septic design that was put in front of, and approved by the Pelham Board of Health; subsequently it was approved by the State.  For purposes of the variance the issues were that the lot was set up with 175ft. of frontage on Washington Street versus the required 200ft. of frontage.  Mr. Aspinwall believed because the frontage was going around a curve, they found it acceptable at that point in time (of the subdivision approval) to have an average width of 200ft., or a width of the setback distance.  The proposed house was shown to be 63ft. off the road; the width of the lot at that point is 207ft.  The other request pertained to the WCD portion of zoning (Article VII, 307-39 & 41).  These dealt with a portion of the house being proposed within the WCD and to allow the leach area within 60ft. of the poorly drained soil, versus the required 75ft.  Another called for a 25ft. setback from the WCD line; the applicant was requesting to be 10ft. from the WCD line.  Mr. Aspinwall said originally the applicant’s lot was going to be for their son; however they would now like to build themselves a smaller house and move out of their current house.  He discussed the proposed house. 

 

Mr. Hennessey pointed out to the public that the testimony being discussed regarding the applicant’s son wanting the lot, or the size of the house etc. was not binding.  There was no requirement for the applicant to only sell the lot to their son, or to only build per the particular plan (being shown) as long as the setbacks and what was provided to the Board was similar; it didn’t need to be exact. 

 

Mr. Aspinwall read aloud the variance criteria as submitted to the Board with the application.  Mr. Hennessey explained that the Board was compelled to approve or deny variances based on five criteria; the last one was broken down into two levels/types. 

 

Mr. Paliy asked for an explanation of the FEMA letter and how it impacted the house placement.  Mr. Aspinwall replied that the current FEMA map (September 25, 2009-update to flood insurance map for Hillsborough County) did a study and defined flood levels within defined zones, such as Beaver Brook.  Where the maps got difficult to work with was up the tributaries of Beaver Brook that got to a point that traced a zone on the contour sheet.  He said that’s what happened in the area being discussed.  The map showed a wide swath going through the applicant’s lot across to the north and eventually connected to Beaver Brook at a lower level.  He said there wasn’t a great amount of land that drained across the applicant’s property; there was something erroneous about the way the zone crossed Brookview Drive.  To correct this, they did various studies (i.e. boundary work, computer analysis of the area) and by standard hydrographic engineering methods the information was reduced down to determine the levels.  That level was basically higher than the street; meaning it ran across the street instead of in addition to the culvert under the street.  Mr. Aspinwall said they put an information package together and sent it to FEMA.  FEMA issued a LOMR-F (map amendment); it was believed that a fair part of the applicant’s lot was filled in the 1960’s and in the 1990’s and was done legally for the time it was done.  The letter of map amendment took a portion of the lot out of the flood zone, indicating there was no conflict with the proposal and the Pelham Zoning Ordinance having to do with the flood zone.  The house will have a slab at least a foot above the established 100-year flood zone. 

 

Mr. Hennessey said assuming the hearing would be carried over to another meeting, he would be interested in a letter from an insurance carrier saying that they would accept the property as not being in a flood plain; or not requiring flood insurance.  Mr. Aspinwall said they had a letter from FEMA.  Mr. Hennessey said he would like an insurance agent’s letter.  Mr. Aspinwall believed they could do so.  The applicant, Mr. Messineo, said there were others in the neighborhood that had gone for the LOMR package and had been approved. 

 

PUBLIC INPUT

 

Mr. Hennessey noted that letters from abutters had been submitted to the Board by the applicant.  The letters were from: David Provencal of 68 Nashua Road, John Dinitto 6-8 Washington Street, Paul Soucy 40 Brookview Drive, Keo Taing 36 Brookview Drive.  There was one additional letter, however, it didn’t correspond with the abutter’s list read aloud. 

 

Mr. Charlie Baker, 7 Washington Street told the Board that he got a LOMR on his land.  He provided the Board with a copy of the letter he received.  He said there was standing water on the back corner of the applicant’s property (almost year round) and wanted to know how the proposed drainage would be done.  He noted water didn’t only cross the street when it got high, it also went onto his lot.  He wanted to know how the existing culverts would be affected if the proposed house was constructed.  Mr. Baker questioned how much higher the proposed house would be to the rest of the neighborhood, if the slab was put in at two feet above the flood zone. Overall, his concern was how the water pressure would change if the proposed house was allowed to be constructed within the WCD. 

 

Mr. Hennessey said the Board was interested in the questions, but would shortly be entertaining a motion to conduct a site walk as part of the public hearing.  Mr. Baker had questions about the lot and statistics of similar lots in Town.  Mr. Hennessey replied that the applicant’s lot was a legal lot at the time it was subdivided and remained as such moving forward.  He said there was a WCD overlay district put on top of the existing lots.  There had been some discussion in Town as to whether lots, previously approved, came under the WCD.  Mr. Hennessey said it was clear from court cases, as well as advice from Town Counsel, that yes, those pre-existing lots were subject to the WCD.  He said the Board weighed the rights of the property owner versus the rights of the Town, as expressed through the Zoning Ordinance whether to relieve the homeowner from the enforcement of the Zoning. 

 

Mr. Hennessey then entertained motions by the Board.

 

MOTION:

(McNamara/LaFrance) To request input from the Conservation Commission and to schedule a site walk.  

 

VOTE:

 

(4-0-0) The motion carried. 

 

Mr. Aspinwall said they would try to get onto the agenda for the next Conservation Commission meeting. A site walk was scheduled for November 5, 2011 at 9am; the public and the Conservation Commission was invited to attend and provide testimony. 

 

Mr. Hennessey said the hearing would be continued to the site walk and date specified for the November 14, 2011 meeting.

 

SITE WALK-November 5, 2011   9am

Case #ZO2011-00026  MESSINEO, Augustine & Joyce  /  Washington Street – Map 14 Lot 4-118-1  -  Seeking a Variance to Article III & VII, Sections 307-12, 307-14, 307-39 & 307-41 to permit a new house to be constructed on a lot with 175 feet of frontage on a class V town road rather than 200 feet, to permit a portion of the house to be constructed within the WCD* and to permit the leach bed to be constructed 10 feet from the Wetland Conservation District rather than 25 feet.  *(A use not specifically permitted under section 307-39a and not allowed under section 307-41).

 

DATE SPECIFIED HEARING – November 14, 2011

Case #ZO2011-00026  MESSINEO, Augustine & Joyce  /  Washington Street – Map 14 Lot 4-118-1  -  Seeking a Variance to Article III & VII, Sections 307-12, 307-14, 307-39 & 307-41 to permit a new house to be constructed on a lot with 175 feet of frontage on a class V town road rather than 200 feet, to permit a portion of the house to be constructed within the WCD* and to permit the leach bed to be constructed 10 feet from the Wetland Conservation District rather than 25 feet.  *(A use not specifically permitted under section 307-39a and not allowed under section 307-41).

 

MINUTES REVIEW

September 12, 2011-deferred.

September 19, 2011-deferred.

 

ADJOURNMENT

 

MOTION:

(LaFrance/McNamara) To adjourn the meeting.

 

VOTE:

 

(4-0-0) The motion carried. 

 

The meeting was adjourned at approximately 7:50 pm.

Respectfully submitted,

                                                                                          Charity A. Landry Willis

                                                                                          Recording Secretary