APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 9, 2011

 

 

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

 

The Secretary Robert Molloy called roll:

 

PRESENT:

 

 

 

ABSENT:

David Hennessey, Svetlana Paliy, Robert Molloy, Peter McNamara, Kevin O'Sullivan, Alternate Chris LaFrance, Alternate Bill Kearney, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan

 

None.

 

HEARINGS:

 

Case #ZO2011 – 00011    PALIY, Svetlana  /  188 Mammoth Road  - Map 33 Lot 1-30 – Seeking an Appeal relating to the interpretation and enforcement of the provisions of Article V, Section 307-18, Table 2 of the Zoning Ordinance.  Decision of the Code Enforcement Officer to be reviewed to cease operation of Commercial Landscaping and Tree Cutting Business and storing construction related equipment.

 

Ms. Paliy stepped down from the Board due to the fact she was the applicant for the hearing; Mr. Hennessey appointed Mr. Kearney in her stead. 

 

Mr. Hennessey provided the public with a brief description of the cases in front of the Board and how the meeting would proceed. 

 

Mr. Molloy read the list of abutters aloud. There were no persons present who did not have their name read, or who had difficulty with notification. 

 

Victor and Svetlana Paliy came forward to discuss their appeal.  Ms. Paliy read aloud their letter, dated April 13, 2011, appealing the decision of the Town (see file in Planning Department).  She submitted a copy of the document from the Corporate Division of the State indicating officially when the Happy Trees LLC business started. 

 

Mr. Hennessey explained that the hearing could possibly be two parts, the first being the specific arguments presented by Ms. Paliy as to whether the Administrative Decision by the Town was correct or incorrect.  With regard to the Administrative Decision, Mr. Hennessey asked Ms. Paliy if she had anything else to add.  Ms. Paliy had letters from those in favor of her request and wanted to know if they should be read aloud.  Mr. Hennessey believed the letters would be more appropriate in a Zoning application rather than the appeal of Administrative Decision application.  The Administrative Decision falls/stays on the application of the law.  Mr. Paliy said the letters from customers and associates will indicate that Happy Trees activity (large part of the business structure) was receiving income from the forestry products (i.e. timber and pulp).  Mr. Hennessey said they could be read.  Letters were submitted to the Board and read aloud by Mr. Molloy (see file in Planning Department).  The letters were signed by Joseph Raza (226 Mammoth Road), Christa Martell (5 Castle Hill Road), Sandra Robaiz (sp?) and James Mills (118 Bush Hill Road, Hudson). 

 

Ms. Paliy asked if the Board wanted to review photographs of the property.  Mr. Hennessy was confused and read aloud the last sentence of Ms. Paliy’s letter which read “In conclusion the small logging, timber harvesting company we are running on 188 Mammoth Road is allowed by state RSA.  Pelham Zoning Board of Adjustment affirmed this in 2005 case 2309.”  He said that was the basis of the appeal.  Ms. Paliy replied there was also the issue of the Planning Department who had never agreed with the Forestry Statute.  She said in the past they were always fine working under Minor Home Occupation.  Mr. Hennessey wanted to deal with the first part of the case and commented he would later give Ms. Paliy the opportunity to address the Minor Home Occupation prong of the appeal.  Ms. Paliy said they had been accused of conducting a landscaping business and told the Board they had never done that.  She said the only thing they done was have wood cut to heat their home, they never sold it.  They don’t work on their property, they strictly do forestry work outside of their property.  Mr. Hennessey allowed the photographs to be submitted but wanted to focus on the cease and desist order that was being appealed.  He wanted to hear from the Town. 

 

Planning Director Jeff Gowan clarified that the code enforcement action that took place was by no means and indictment of the business.  He said Happy Trees had a good reputation and had conducted work for the Town.  He said when Minor Home Occupation was changed in 2008 there was no change in the number of (allowed) vehicles; it had been a standard part of the ordinance from when it originally began.  The changes in 2008 were: 1) the amount of square footage (25%) that was not previously defined; 2) not allowing landscaping business; and 3) not allowing hair dressing businesses.  Mr. Gowan stated that the only issue at hand was the visibility of business vehicles; the Paliys had made a fine effort of dealing with the business vehicles by building a substantial wall in front of their home, but it didn’t hide the visibility of more than one business vehicle associated with the business.  He said he obtained Town Counsel’s opinion regarding conformance with the RSA cited by Ms. Paliy, in which he found the lot didn’t comply.  The opinion was provided to the Board.  He had also spoken with the Forest Ranger Neil Biledeau who is responsible for enforcement in Pelham; in Mr. Biledeau’s opinion the RSA cited by Ms. Paliy doesn’t cover Ms. Paliy’s one-acre lot and the business taking place on that lot.  Mr. Gowan reiterated the Town didn’t have an issue with anything except the storage of vehicles.  He explained that when Code Enforcement wrote a letter, if someone wasn’t in compliance with a minor home occupation, it meant De facto that they were running a general home occupation without the benefit of approval from the Zoning Board or site plan review from the Planning Board. 

 

Mr. Hennessey ruled that Town Counsel’s letter would not be read into record, which was felt to be lawyer/client privilege. 

 

Mr. Kearney asked how many vehicles were visible.  Mr. Gowan said several pieces of equipment were visible from time to time; the file contained several photographs that showed more than one on site.  Mr. Kearney asked if the vehicles were sometimes garaged or always in sight.  Mr. Gowan said when the equipment was not out in the field, they were kept on the property. 

 

Mr. Molloy asked for the height of the wall (in front of the property).  Mr. Paliy said the wall itself was six feet, there was approximately one foot of soil on top.  He said the trucks were all under CDL-State of New Hampshire.  He noted when traveling on Mammoth Road only one vehicle was visible because the second vehicle was hidden by the wall.  He said if traveling in the opposite direction on Mammoth Road the second vehicle would be seen, but the first vehicle would be hidden.  He didn’t feel that any visibility issues were being created by his property, especially given that there was a store across the street.  Ms. Paliy

 

In reference to Case #2309 (in 2005) brought in Ms. Paliy’s letter, Mr. O’Sullivan asked what size the lot was for that applicant.  Mr. McNamara said it was large area.  They were conducting forestry activities including storage of lumber and materials; it was a farm and also a logging area.  Mr. Hennessey said they had been staging and collecting for a long time. He said the Board had placed a lot of restrictions and it was quite different from what was presently being discussed. 

 

Mr. Hennessey noted that the Board was only hearing the appeal of Administrative Decision at this point, but would accept public comment and asked that people only address the Administrative Decision. 

 

Ms. Paliy wanted to confirm the wording of the old Ordinance because she believed it allowed for two vehicles to remain in sight.  Mr. Gowan went to the Planning Department to retrieve a copy of the old ordinance.  Mr. Hennessey asked if Ms. Paliy and Mr. Gowan agreed that the current regulation allows for no more than one vehicle.  Ms. Paliy answered yes and added that there had been a change in 2008.  Mr. Hennessey confirmed that Ms. Paliy agreed that the current regulations prohibit more than one vehicle, regardless of what can be seen from the street.  Ms. Paliy answered yes.  She said they had been in compliance from 2005. 

 

Ms. Paliy brought forward photographs of her property and the view looking out to the street from her property.  Mr. Hennessey said the commercial impact on the area would apply to decisions regarding variances; it did not apply to the appeal being discussed.       

 

Mr. Hennessey invited the public to speak regarding the Administrative Decision.

 

PUBLIC INPUT

 

Mr. John Fendelander, 2 Kennedy Drive said he had done business with Victor of Happy Trees for five or six years buying timber and lumber.  He had never been offered landscaping services and had not known him to do those services.  He said he had referred people to Victor for work; those people have all spoken highly of him as well. 

 

Mr. Eric Johansen of Jeremy Hill Road had known Victor of Happy Trees for approximately five years.  He said he had seen Victor at Old Home Day and felt he was well respected.  He commented that Victor was selling/presenting his forestry services; it was not landscaping.  He had trees removed from his property and felt Victor had done a fine job.  He also received pulp from him that was further processed for compost and garden soil.  Any product received comes directly from a job site and is never stored on Victor’s property.  Mr. Johansen said as he drove down Mammoth past Victor’s property with the improvement of the wall height, he didn’t see the issue with the vehicles.  He supported the appeal of the zoning issue.  He was also in concurrence with the letters read into record. 

 

Mr. Jeff Sirois  4 Daniel Drive said he had been a stump grinding subcontractor of Victor’s.  He said in the many years of working with Victor at no time had he ever done any landscaping.  He said with the new fence he didn’t see any problems with vehicles on the property.  The vehicles weren’t visible.  Mr. Sirois said he had known Victor for approximately ten years and felt he was an asset to the community.  He said he had helped the area and people’s needs.

 

Mr. Bill Cann Kennedy Drive stated that Victor had supplied him with wood for six years.  He had always been courteous and never had a problem with him.  He said Victor had not offered to do landscaping.  He said he referred many people to him.  He stated Victor was always polite and felt he was great for the community. 

 

Mr. Gowan reviewed past zoning regulations/ordinances and told the Board that in 1995 a maximum of one registered vehicle related to a business could be kept in view.  In 1996 the same language was indicated.  He said he could go all the way through the years until the change was made. 

 

Ms. Annettee Descoteaux of 176 Mammoth Road, two houses south of the Paliy property.  She came forward on behalf of herself and her neighbors who did not want a tree cutting business or any kind of commercial business.  She felt the business/home was very unsightly, undesirable and noisy especially when the chipping machines were running.  These things took away from the enjoyment of her property.  She had resided at her home for thirty-eight years and had never had noise like she did now.  She commented that the wood chipping sometimes occurred on Saturdays and Sundays making it so they couldn’t enjoy their time outside.  Ms. Descoteaux didn’t feel the home was built for a commercial business of any kind.  She said having two or three big trucks pulling out of the property early in the morning and in the afternoon caused traffic disturbance from Bowley Drive to Mammoth Road.  She reiterated that the noise factor during the summer was unbearable.  If there is a breeze, the fuel from the machines could be smelled.  She was worried about possible soil contamination because of the machine use.  In the past (during a four-five year timeframe) she had to have her water tested because of a junkyard spilling oil and gasoline into the landfill; she didn’t want the same issue happening again with the tree cutting business.  She already had to put a new well in.  Ms. Descoteaux then addressed the wall.  She said it was a big monstrous wall appearing to be 7ft.-8ft. in height.  She said the wall was just boulders piled on top of each other and was a hazard.  She believed that being a tax payer and resident on Mammoth Road her property should be protected.  She put a lot of time and effort into making her property looking good.  She felt the tree cutting business was unsightly and had seen piles of wood chips.  She wanted her neighborhood to be quiet, peaceful and beautiful, like it had been.  She believed if the business continued it would bring her property value down immensely. 

 

Mr. Hennessey said much of what Ms. Descoteaux said was entwined between the appeal of Administrative Decision and what the Board may be discussing in terms of a variance.  It was hard to divide.  He suggested Ms. Descoteaux remain at the meeting; property values was germane to their decision. 

 

Mr. Shawn Murphy of Chagnon Lane met Victor a few years ago.  He said Victor always donated wood to him so it could be burned at the house.  He reiterated that he never picked up any lumber at Victor’s house.  He said the rock wall hid quite a bit of Victor’s vehicles. 

 

Ms. Paliy stated they took their equipment off their property and it sometimes remained off for days, weeks and sometimes months.  They don’t own a log truck; someone else has to pick them up from the site and deliver them to the buyers.  She said they didn’t have the ability to process logs.  The amount of stuff generated would cover their entire property. 

 

Mr. Paliy told the Board he believed Ms. Descoteaux was confusing him for some other noise source because he didn’t bring his client’s trees to his property to process.  He said it wouldn’t make financial sense to do so.  He said he generated approximately 160 tons of wood chips annually.  If this were stored on his property it would cover it at a height of approximately twenty feet.  Mr. Hennessey said that topic would be better for a variance hearing. 

 

Mr. Hennessey questioned if they did chipping on his site.  Mr. Paliy answered no.  Mr. Gowan commented that no accusation had been made (by the Town) that chipping was done on the site.

 

The public hearing was closed and brought back to the Board for discussion. 

 

Mr. Molloy said it seemed to be cut and dry.  They could only keep one truck, but they were keeping more than one. 

 

Mr. McNamara believed the crux of the issue in the Administrative Appeal was if it’s a business, if it was in violation of the Zoning Code as Mr. Gowan has alleged.  He said he drove by the property several times per week.  Last night at 7pm he viewed two trucks with related equipment behind the wall.  He said there were multiple pieces of equipment on the site on any given day and time.  Mr. McNamara noted that legal’s opinion was the property was not a farm, it was a one-acre house lot with a business being conducted on it.  He said the argument failed on the basis that somehow forestry laws exempted this from local zoning. 

 

MOTION:

To uphold the Town in its Administrative Decision.

 

VOTE:

 

(5-0-0) The motion carried. 

 

ADMINISTRATIVE DECISION UPHELD

 

Case #ZO2011-00012   PALIY, Svetlana  /  188 Mammoth Road  -  Map 33 Lot 1-30 – Seeking a Variance to Article V, Section 307-18 Table 2 to permit a small logging tree cutting/harvesting company with tree cutting equipment in the Residential Zone.

 

Mr. Hennessey reappointed Mr. Kearney to sit in on the hearing. 

 

Mr. Hennessey stated that the abutter’s list did not need to be re-read since the Board had already done so.  He explained to the public the process the Board would use when reviewing the Variance request; which was to focus on the five Variance criteria.

 

Victor and Svetlana Paliy reviewed their Variance request.  Ms. Paliy read aloud a letter dated May 9, 2011 (see file in Planning Department) summarizing why they felt a variance was necessary.  She provided photographs to the Board that showed the area around her property as well as photographs showing what Victor did.  Ms. Paliy then read aloud responses provided to the Variance criteria, as submitted (see file in Planning Department). 

 

Mr. Paliy commented that the screening on the wall was not yet finished.  He wanted to plant evergreen bushes, which would totally screen the top of the trucks.  As well as have a similar fence, or other things to screen the view from north to southbound traffic.  He said an engineer from the Department of Transportation visited the site and was told they owned several pieces of equipment.  The engineer didn’t feel a traffic study was needed for the three trucks that left the site in the morning and returned in the evening or next day.  A new safer driveway had begun to be constructed; Mr. Paliy explained the area was mud making it so he couldn’t fully finish the driveway at this time.  He explained that the current north entrance would actually be an exit closer to Bowley Drive. 

 

Mr. Hennessey confirmed that the Paliys had spoken with the state and didn’t need an additional curb cut.  Ms. Paliy said they had a driveway permit.  Mr. Paliy said they had a driveway permit from the state because Mammoth Road was a state highway.  He said the state designated the entrance and exit; when the driveway is completed in the future, the vehicles will enter the property from the south side and exit on the north side.  Ms. Paliy showed a site plan depicting how the vehicles would be situated on the lot and that one vehicle would be parked behind the existing barn.

 

Mr. Hennessey wanted to make sure the Paliys were aware they would have to go to the Planning Board for site plan review if the Variance was granted.  They Paliys told the Board they were aware of that fact.  Ms. Paliy said they had done the site plan for that reason. 

 

Mr. Paliy said he was sure when the work was done on the property the trucks would be less seen, or not at all from Mammoth Road.  The change would also not dramatically increase traffic on Mammoth Road. 

 

Mr. Gowan told the Board that everything stated by the Paliys he believed to be matter of fact.  It was true that the state issued/approved driveway permits for any state road.  He called the Board’s attention to the aerial images and Google maps included in the application package.  He said one could argue that they demonstrated other business activity close to their property.

 

Mr. Hennessey said it was unusual having a member of the Zoning Board come in front of the Board as an applicant.  He wanted to make sure everyone in the public understood what the Board was talking about.  He explained that the Board not only looked at what the zoning was on paper, but also, according to the State of New Hampshire, the Board was obligated to look at what was (actually) in the area, not just what was supposed to be there. 

 

Ms. Paliy reviewed the aerial photograph stated that Jean-Guy owned property behind her.  She said the tax map was a bit off; there were certain curves on the properties because of the curve on Mammoth Road.  This threw Carol Drive off.  Ms. Paliy said the junkyard could be viewed behind her and not Carol’s Path.  She provided a description of the photographs that had been circulated for the Board’s review.  She also gave a brief description of the work Victor performed.  She said per state statute they had to clean up a lot after cutting trees.  Ms. Paliy showed the Board a photograph taken from inside her home pointed across the street at the convenience store, both during the day and at 10pm.  She noted that the store was open everyday between 9:30p-10p, which was not residential.  Mr. Hennessey allowed the comments because it was germane as to the nature of the neighborhood.

 

Ms. Paliy gave the Board a listing of the businesses along Mammoth Road to show that spot zoning was only in Pelham.  She said the commercialization of Mammoth Road was happening no matter what Pelham did.  Mr. Paliy noted that a commercial property would increase property value. 

 

Ms. Paliy continued to review the information provided to the Board regarding the business activity.  Mr. Hennessey asked if the Paliys would accept a condition for approval that materials would never be sold from the site.  Mr. Paliy answered yes.  He noted if the variance was not granted, the wall would remain.  He said the rocks would not fall by themselves even with heavy artillery.  Ms. Paliy discussed the sale activity in Pelham and noted that Mammoth Road was going a little higher in pricing than some of the cul-de-sacs.  She said it could be said that people were buying the properties because they were interested in running home businesses or other businesses.  Mr. Hennessey said the Paliys had made one of the bases for their argument that the area was in effect commercial.  He wanted to know why they, and the other businesses in the area not come before the Town with a warrant  article to re-zone as people had done on Route 38.  Ms. Paliy said she had started to try just that last year.  One thing that had her step back was because she was afraid if she couldn’t organize it well enough and it failed, it could actually cost her a variance.  She felt she was better off going for a variance and then going back; it was something she strongly believed in and wanted to work on.  She said she had to take care of her problem first.  Ms. Paliy stated that commercial properties were selling at a premium, unlike residential. 

 

Mr. Hennessey asked Ms. Paliy if the variance met the spirit of the ordinance.  Ms. Paliy said it was in the spirit of the ordinance because so many businesses were spot zoned commercial.  She didn’t know why it is said that the area is residential.  As she did research there had been a gasoline station and a store that was now a paving company.  Mr. Paliy spoke with a contractor who resided on Mammoth Road who wouldn’t sign a petition to make Mammoth Road commercial because he was worried if he signed and the article failed people would go after him.  Mr. Hennessey asked if, under the five criteria, the Paliys wanted to add anything else.  Ms. Paliy stated they abutted an industrial property; Jean-Guy owned all the land around her. 

 

Mr. McNamara asked Mr. Gowan if the only matter that concerned him for the minor home occupation was having one vehicle in view.  Mr. Gowan said that was correct.  Mr. McNamara questioned why the application wasn’t for a Special Exception.  Mr. Gowan said the applicant decided what they wanted to do.  He said they could have come in under a Special Exception, which had a limit of two vehicles.  Often times there were three vehicles on site.  Mr. McNamara questioned the Paliys if there was a particular reason they chose not to apply for a Special Exception.  Ms. Paliy said the Special Exception caused problems; it would expire with them, and that the area was basically commercial/industrial so she would  have a huge problem in the future if she wanted to sell the property.  She then told the Board that they had a truck with the Department of Transportation (‘DOT’) that was not on site, but wanted permission, if a variance were granted, to locate the vehicle behind the barn.  Mr. Hennessey said that would be part of the site plan review by the Planning Board.  Ms. Paliy said the vehicle was currently parked on a commercial property.  She explained that the DOT leased it from them. 

 

Mr. Hennessey wanted everyone to understand what was being discussed.  He explained if the applicant were to come in front of the Board with a request for Special Exception to allow the business to continue operations it would be allowed to have two vehicles.  When they went to sell the property it would remain a residential property and could not be sold with the Special Exception in place unless it was the same type of business with the same restrictions.  Mr. Hennessey said a Variance ran with the land.  If the Board issued a Variance it would now become in effect a commercial property that could be sold as such with the Variance in place.  Mr. Gowan noted that a Special Exception, like a Variance, ran with a property in perpetuity. 

 

Mr. Molloy asked at any given time what was the most amount of equipment on the property.  Ms. Paliy referred to the site plan depiction. Mr. Paliy said there were three trucks as well as the DOT truck.  He explained that the DOT truck (a six wheel truck) was used for plowing in the winter.  It was used for six months and then parked at an industrial site for six months.  Mr. Paliy said he would like the ability to park the DOT truck on his site behind the barn.  Ms. Paliy reiterated that the DOT leased the truck from them.  Mr. Molloy asked how many trucks were associated with the tree business.  Mr. Paliy said there were three trucks and was thinking of possibly minimizing the number. 

 

Mr. McNamara questioned what other equipment was typically stored on site.  Mr. Paliy said there was one trailer behind one of the trucks.  Inside the trailer was a skidder and a stump grinder.  He said there was a chipper behind the chip truck.  There was currently a second chipper that was up for sale.  Mr. McNamara asked if the machines or trucks were serviced on site.  Ms. Paliy answered no.  Mr. Paliy said it wasn’t legal to service the vehicles.  Mr. McNamara confirmed that they didn’t do any work on the equipment/trucks on site.  Mr. Paliy answered no.  Mr. McNamara asked if there was an office in the house.  Mr. Paliy answered yes.  Ms. Paliy stated that Victor ran the business basically from a cell phone.  Mr. McNamara asked if the business was being run from the property.  Mr. Paliy answered yes; he had a corner in one of the rooms.  Mr. McNamara said the comment was made that they had Methyl Tertiary Butyl Ether (‘MTBE’) in their drinking water.   Mr. Paliy said it was from the junkyard. Ms. Paliy said the level went up and down.  The Department of Environmental Services (‘DES’) monitored.  Mr. McNamara asked if any equipment was run on the premises that would produce the type of noise that would be generated from a wood chipper.  Mr. Paliy answered no.  Mr. McNamara confirmed that no work was done on site.  Mr. Paliy answered no.  Mr. McNamara asked for the hours of operation.  Mr. Paliy said the trucks left at 7am and usually the average job took two-three days.  In some situations, with a shorter job, the trucks would come back at approximately 3p-4p and stay overnight.  Mr. McNamara asked if the business ran on Saturdays and Sundays.  Mr. Paliy answered no, unless there was an emergency. He noted that type of situation only happened twice in 2010. 

 

Mr. Hennessey asked if the trucks were parked elsewhere at times.  Mr. Paliy said they were parked at a client’s property. 

 

Mr. McNamara wanted to know if they were adding shrubs on top of the (screening) wall.  Mr. Paliy answered yes.  Mr. McNamara asked if there was another fence.  Mr. Paliy said there was an additional (70ft. long) fence on the south side of the property.  Mr. McNamara asked if they Paliys intended to remain living at the property.  Mr. Paliy answered yes. 

 

Mr. Kearney questioned what happened to material that wasn’t sold from client’s properties; if it was brought home.  Mr. Paliy said materials were presently sold through 2012.  He said there were no problems selling materials.  Nurseries took wood chips and materials when there was dirty material from a job.  There was a brief explanation of the vehicles on site and what their visibility would be, based on the provided site plan.

 

Mr. O’Sullivan said it was clear that the equipment was the core of the issue.  He asked for an explanation of the hardship in relocating the equipment.  Mr. Paliy said unnecessary payment for parking; if he moved them across the street it would cost $500 per month and it wouldn’t change the appearance.  Ms. Paliy said their property was in a high speed zone and they dealt with other issues of being on a main road.  Mr. Paliy noted that the wall cost approximately $20,000 and it primarily protected them Mammoth Road versus trucks behind a wall. Ms. Paliy said because they were in the commercial area, they had to buy water due to MTBE.  She said the property’s use as residential was very limited without having the application for being able to use it with trucks.  She said in the event the property was sold, the mess had to be disclosed. 

 

Mr. LaFrance asked how many employees worked for the business on a regular basis.  Mr. LaFrance said the people he used most were subcontractors.  He only needed one truck driver who would pull the second truck; occasionally the third truck.  Those employees would park on his property behind the fences and not be visible.  Ms. Paliy said there would be no more than two cars.  Mr. LaFrance asked for the location where the employees would park.  Mr. Paliy showed where the employees would park.  He said he had room for six parking spaces. 

 

Mr. McNamara asked why the barn wasn’t being used to store equipment.  Mr. Paliy said it was a chicken coop.  If he walked in, his head would touch the ceiling.  Ms. Paliy said the building was also four feet above the ground.  Mr. McNamara asked for further explanation of the site plan. 

 

PUBLIC INPUT

 

Mr. Hennessey noted that the letters read during the previous hearing were incorporated as part of the evidence in the present hearing. 

 

Mr. Bob Schweida, 3 Gladys Street stated he was a satisfied customer.  He commented that Victor came to his home to remove one tree and the grinder was brought with him.  He thought it would be a shame if the business were shut down and Victor had to move some where else. 

 

Mr. Eric Johansen, Jeremy Hill Road wasn’t clear if the applicant met the five criteria for the Board to be able to grant the Variance.  He said if they had met the criteria, he encouraged the Board to grant the variance. 

 

Mr. Bill Cann, Kennedy Drive couldn’t speak to noise or work being done on Victor’s property.  He said over the past six years Victor had done approximately twelve different jobs for him.  He discussed the type of work that had been done.  He said in order for the wood chips to be sold, they had to be clean and fresh. 

 

Mr. Phil Cane, 75 South Shore Drive stated that he worked with Victor a few times.  He described how work was conducted and how wood was treated. 

 

Mr. Ouellette asked to recuse himself from the Board so he could speak in favor of the application.  Mr. Hennessey said he would have to step down and not be seated with the Board.  Mr. Ouellette stepped down and approached the Board as a member of the public.  Mr. McNamara commented that Mr. Ouellette should have recused himself at the beginning of the case.  Mr. Hennessey noted that Mr. Ouellette had not participated in the discussion.  Mr. Hennessey said he allowed Mr. Ouellette to step down because he had not participated in the discussion. 

 

Mr. Lance Ouellette, 13 Gaston Road said he had the opportunity to work for Victor.  He said he hired Victor to work for his clients as well as referred him to several of his clients.  He’s had the opportunity to be on Victor’s property.  He said nothing was done at his home that he had personally witnessed.  He commented that there was lots of ledge behind Victor’s home.  He said the Paliys had cleaned up the site quite a bit to accommodate the vehicles with the wall in thee front.  Mr. Ouellette felt the business was a good fit given the lumber companies down the street.  He believed it was more of a fit given that vehicles were being parked and no site work was happening on the property.

 

Mr. Hennessey said the Board had made Mr. Ouellette move off site to store his equipment.  He asked if it was considered fair to allow the Paliys to do what they didn’t allow him to do.  Mr. Ouellette said the Paliys were requesting a variance.  He said he had filed an appeal against an Administrative Decision.  He said the Paliys were in a better location and the site contained a full acre.  He said he was on a non-conforming lot on a private road.  He said given the circumstances and conforming of Mammoth Road and the amount of commercial/industrial use the business fit. 

 

Mr. John Fendelander, Kennedy Drive said during the six year all the work he had done work with Victor was on (client’s) site. 

 

Mr. David Descoteaux of 176 Mammoth Road said the hearing was not to discuss the integrity of the applicant or the service they provided.  He said the question was what would happen to the lot if the request was approved.  He wanted to know if/how the lot would be reshaped.  He requested a concrete story regarding the equipment that came and went; it may be added on, it may be leased or it may be rented.  He wanted to know what would fit on the lot, given its size (of one acre).  He reiterated that he wanted to understand what would happen.  Mr. Hennessey stated that the applicant was requesting a change in usage; currently the lot was zoned residential.  The applicant was asking permission to basically change the usage to a commercial use, as it was currently being used.  In granting the variance, some restrictions could be placed upon it.  The Board was open to suggested restrictions.  If the Board approved the variance, the applicant would still need to go before the Planning Board for site plan review.  Mr. McNamara discussed the items discussed during site plan review.  Mr. Descoteaux commented he was not trying to put someone out of business. The issue was what would happen when it changed and if there was a plan in place to be reviewed.  He said he had been a resident since 1974 and had watched the neighborhood grow nicely.  He would like to keep it that way. 

 

Mr. John Berard, 177 Mammoth Road stated that the matter at had was the vehicles on the lot itself.  He said at any given time there was at least three big trucks, Kubota bucket loader, chipper and several other different things.  This concerned him because it started to look like a used car lot at some point.  He said a possible solution was to store the vehicles/equipment off the property.  Mr. Berard was concerned that his home value would decrease if the request was granted.  He said a lot of people had testified about how nice the applicant was, but none of them lived in the residential neighborhood that he lived in.  He reiterated that the matter at hand was the amount of vehicles on the property.  Mr. McNamara asked if Mr. Berard had any evidence, other than his opinion, that his property values have decreased, or would decrease if the variance was granted.  Mr. Berard said traditionally if commercial property went in the residential property values decreased.  He said the applicant cited Jean-Guy and the store across the street, but those had both been in existence for several years, much before the applicants had started their business. 

 

Ms. Carol Michaud, 184 Mammoth Road said the applicants were very good people and had done work on her home.  Her concern was her property value.  She said values had already decreased so much in the economy.  She questioned what would happen to her property that had already decreased in value if the applicant was to be a commercial residence.  She said would probably owe more than she would ever be able to sell it for.  She didn’t feel it was okay to keep increasing commercial property so there was no longer residential in the area. 

 

Ms. Paliy believed there was a misunderstanding that the property would somehow start being commercial rather than the fact that it would be limited to what they were requesting and what the Board dictates to be.  She commented that the Zoning Board and the Planning Board would place restrictions.  She said having a site plan would make the situation better, not worse.  She said it would increase the values. 

 

Mr. Paliy said the property would not be commercial it would only have a variance and would have a good buffer between a true commercial property and a residential property.  He addressed the concern about his property becoming a junkyard.  He said he lived at the property and had a child.  He wanted to enjoy his property.  Mr. Paliy said the equipment was three trucks, a trailer and a chipper.  He noted that the Kubota was his personal vehicle.  Regarding moving equipment off site, Mr. Paliy said he had the right to have one vehicle and questioned why he should have one vehicle on site and another off site.  Ms. Paliy noted that Route 38 was spot zoned, like Mammoth Road.  Mr. Paliy said having a vehicle off site would waste time, fuel and cause an increase in traffic.  He reiterated he was not trying to make his property commercial.  He was trying to peacefully live his life and have his equipment stored in his driveway.  Ms. Paliy added that they were not changing the area, because it already was what it was.   She discussed the surrounding businesses and commented that when a property was being sold the owner had to disclose what they were abutting. 

 

Mr. Molloy was concerned with the amount of trucks/equipment on the property. 

 

Mr. McNamara said the Board had heard a lot of testimony which was favorable to the applicants personally, but that was not the issue to be decided.  He said in terms of the property itself, it was zoned residential.  The fact was that the applicant was abutting Jean-Guy’s business and there was a store across the street.  The Board was concerned with what was in the immediate area.  Mr. McNamara said the applicant was restricted because of the uses around them.  He was unsure whether that fact translated into the applicant meeting the variance criteria.  He said it seemed as if the only thing being discussed was the truck visibility.  Mr. Molloy agreed that the issue was the parking of the vehicles and the ancillary things that happened because of it (noise, traffic etc). 

 

Mr. Hennessey said part of the Board’s job was to represent the community.  He asked for Mr. LaFrance’s opinion given he was in a similar situation. 

 

Mr. LaFrance stated he had been in a similar situation as the applicants.  He knew having equipment where he resided would only be temporary and he would need to find a place to store equipment as his company grew.  In his opinion, though the applicants were good people and business people, they were in a similar in that fact.  He said the nice part of the variance process was reviewing each case.  He understood the Mammoth Road area and the difficulty in the configuration of the applicant’s lot.  It was a small area that forced everything to the road where it could be seen.  Mr. LaFrance said in doing well and building their company, it was the cost of business to have to move to commercial property. 

 

Mr. O’Sullivan commented that he lived in the area and had seen the efforts of the applicants to screen the equipment and do what they could to bring the property into a place where it would be less noticeable.  He said there comes a point when a successful growing business can outgrow the property that it’s on.  This particular business requires extremely large pieces of equipment and on a one acre lot it doesn’t take a lot to max out the available space. 

 

Mr. Kearney questioned if there was a potential for the applicant to garage the driveway and just have one vehicle visible and be able to fall into compliance with home occupation.  Mr. Hennessey said it was the applicant’s choice whether to request a variance or a special exception. 

 

Mr. Hennessey discussed the testimony provided and believed Ms. Paliy ably spoke about how the area was not entirely residential.  He noted that two years ago the Board turned down a special exception on a home occupation just north of Marsh Road because it was going to be too large and too extensive.  He said he looked at the fact that the Town h ad twice voted down changing Route 38 into business, but had voted that a portion become commercial.  He said as a Board they had to look at what an area was, but on the other hand he didn’t like spot zoning.  He wrestled with the question if the area was sufficiently residential for the Board to enforce the Zoning, or if it was a lost cause. 

 

Mr. Molloy said when he walked and drove down the street he felt like he was in a neighborhood and not through a commercial zone. Mr. Hennessey said he saw more residential property than not.  He said there were some incursions in that.  Mr. McNamara stated it was primarily still residential.  Mr. Molloy felt the commercial properties were subtle.  Mr. McNamara replied the abutter (directly behind) that wasn’t seen, was a junkyard.  In term of the impact to the applicant’s property, it was more than what was seen on Mammoth Road.  Mr. O’Sullivan said it was a heavily residential neighborhood, but it was Mammoth Road with areas that were blurred. The Board found the discussion difficult. 

 

Mr. Hennessey said as someone who had been involved with economic development in Town, he didn’t want to discourage businesses from expanding and succeeding, but on the other hand, he had a problem taking a residential zoned property and making it commercial.  He had less of a problem with a special exception that was more restrictive by its nature. 

 

The Board reviewed the variance criteria.  Mr. Gowan asked if the Board felt a site walk would be beneficial.  Mr. Hennessey said given the restrictions he would put on a variance, the governing factor and value of property was the volume of traffic on Mammoth Road.  The amount of affect on abutting properties, if the Board and the Planning Board did their job right with proper restrictions, would be infantesimal.  Mr. O’Sullivan asked if the question was more about allowing a business to exist within a particular geographic area, or whether or not the Board was assisting a property owner to be in a position to sell their property for a better price further down the road.  Mr. Hennessey believed the crux was the unnecessary hardship clause. The Board discussed the issue.  The Board saw no need for a site walk, they were well aware of the property and what was in the area. 

 

The Board then made the following motions. 

 

MOTION:

(McNamara/O’Sullivan) If variance approved there will be no retail/commercial sales (related to the business) from the site.

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(McNamara/Molloy) If variance approved, screening to be increased (at the determination of the Planning Board).

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(McNamara/Molloy) If variance approved there will be no storage of wood chips or other materials on site. 

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(McNamara/Molloy) If variance approved the vehicles and related equipment are to be limited to what is depicted on the plot plan provided to the Zoning Board, minus one chipper.

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(McNamara/Molloy) If variance approved, the applicant must go to the Planning Board for site plan review. 

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(McNamara/O’Sullivan) If variance approved, restrict the business to tree cutting company.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria- with conditions

Mr. McNamara – Yes to all criteria- with attached conditions

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

Mr. O'Sullivan – No to all criteria

Mr. Kearney – Yes to all criteria- with all conditions

 

VOTE:

 

(3-2-0) The motion carried.  Mr. Molloy and Mr. O’Sullivan voted no. 

 

 

 

VARIANCE GRANTED

 

 

Case #ZO2011-00013  INGLEE, Paula  /  Mammoth Road  -  Map 14 Lot 4-135-1 – Seeking a Variance to Article VII, Section 307-41 to permit the construction of a home with a well and a septic system within the 50 foot wetland buffer. 

 

Ms. Paliy returned to the Board. 

 

Mr. Molloy read the list of abutters aloud. There were no persons present who did not have their name read, or who had difficulty with notification. 

 

Mr. Hennessey read aloud the Letter of Intent (dated April 20, 2011 and revised April 25, 2011) submitted by Paul Carideo, Project Manager, TF Moran.  He stated that the Board would treat the application as a new application and would make no reference to the previous application in 2003. 

 

Mr. Paul Carideo of TF Moran came forward to discuss the requested variance.  He noted that there wouldn’t be a well on the lot; there was municipal water available on Mammoth Road.  He stated that the property dated back to an earlier subdivision in June, 1980.  The lot was 1.25 acres in size and had received Town and State DES approval at the time of the subdivision approval.  The site had a wetland located on the northerly boundary; the same boundary that shared in common with Muldoon Park.  The water flowed across Mammoth Road from subsequent properties up stream.  Mr. Carideo stated it was their intent to explain and provide data that would support their findings why the variance should be approved.  He provided the Board with additional information that identified the USGS topography in the area that would help to explain the natural drainage pattern.  There was also an aerial photography view depicting the site and the upstream drainage areas that associate flows to the applicant’s property.  Mr. Carideo reviewed the information provided, which was the topography, the development above the applicant’s property and what it had caused that property to endure.  A wetland scientist (Luke Hurley of Gove Environmental) had identified the wetlands in October, 2009.  A test pit, witnessed by the Town Health Officer, had been done and passed.  A septic design was done, but not yet reviewed by the Town Health Officer. 

 

Mr. Hennessey confirmed that they were using the wetland delimitation from 2009.  Mr. Carideo answered yes.  Mr. Hennessey asked when the septic design was done.  Mr. Carideo said it was done this year.  Mr. Hennessey confirmed that they had not had a new wetlands survey, but they had a new septic design using the 2009 delimitation of the wetlands.  Mr. Carideo answered yes.  He noted they had been in the process for some time.  He had the wetland scientist verify that nothing had changed; however the plans were not restamped, he received a phone call assuring him the wetlands didn’t move.  Mr. Hennessey said there had been a great deal of discussion (during the previous hearing) as to how the wetlands had increased over the years due to Town action.  There was an increase in the size of the wetlands prior to 2002, but apparently nothing since the past two years.  Mr. Carideo said that was correct.  He noted that the submitted wetland was new from the one previously submitted; it had not substantially increased. 

 

Mr. Carideo discussed the septic design.  He said the Town Health Officer didn’t review it; he didn’t want to sign off on it because the building required a variance.  He noted that he brought it up for discussion at the Department of Environmental Services.  The design met state requirements.  He reiterated that the test pit passed.  The system was a pre-treatment system that treated all the effluent before it discharged into the ground.  Mr. Carideo then discussed the proposed building, that would be designed on a crawl space situation (no basement).  The reason for this was the close proximity to the wetlands and it would limit the fill and keep disturbance to a minimum.  They felt the lot was created before the Wetlands Conservation District (‘WCD’) took place.  It was zoned residential and would keep it as such. 

 

Mr. Carideo read aloud the variance criteria as submitted with the application. 

 

Mr. Hennessey questioned the answer to the last criteria which read “The property is zoned residential and could accommodate a single family home if granted a variance within the fifty foot wetland buffer area.  This would allow the construction of a home within the Wetlands Conservation District without interfering with the wetlands themselves and allow the installation of a state of the art NHDES approved septic system, which would meet the fifty foot setback requirement.´  He said if it was a true statement the applicant shouldn’t be in front of the Board.  Mr. Carideo believed it was trying to indicate that the septic wasn’t in the buffer, but the building was.  Mr. Gowan asked if there was any portion of the subject parcel that was in the 100-year flood plain.  Mr. Carideo answered no; it was just barely off their property. 

 

Mr. McNamara asked how much of the parcel was high and dry.  Mr. Carideo said there was 26,000SF of contiguous high and dry; the small island in the middle of the wetland was not included in the calculation.  Mr. McNamara asked if there was a requirement for 35,000SF for a lot.  In Mr. Gowan’s view, the 35,000SF requirement was for new lots.  He said lots of record didn’t have to meet the 35,000SF threshold, but there was ample legal opinion that the 1991 passage of the wetland conservation district was considered an overlay district that applied to lots of record.  Mr. McNamara asked if the dwelling was entirely within the 50-foot WCD.  Mr. Carideo answered yes.  Mr. McNamara questioned if it included the back yard area.  Mr. Carideo said they had the backyard area and the wetland off the property (located on the two abutter’s properties) they had flagged. 

 

Mr. Gowan noted that typically the Board would seek the Conservation Commission’s opinion on matters such as this.  He also suggested that a site walk possibly be scheduled.  The Board discussed the suggestion and decided to schedule a join site walk with the Conservation Commission. 

 

The applicant Ms. Paula Inglee expressed to the Board that the process had been long and arduous for her with innumerable delays in getting things done.  She said she would appreciate if the Board would expedite the process. 

 

A site walk was scheduled for May 14, 2011.  The hearing was date specified to the June 13, 2011 meeting and would be placed first on the agenda. 

 

DATE SPECIFIED HEARING(S) – June 13, 2011

Case #ZO2011-00013  INGLEE, Paula  /  Mammoth Road  -  Map 14 Lot 4-135-1 – Seeking a Variance to Article VII, Section 307-41 to permit the construction of a home with a well and a septic system within the 50 foot wetland buffer. 

 

SITE WALK – May 14, 2011 - 8:30am

Case #ZO2011-00013  INGLEE, Paula  /  Mammoth Road  -  Map 14 Lot 4-135-1 – Seeking a Variance to Article VII, Section 307-41 to permit the construction of a home with a well and a septic system within the 50 foot wetland buffer. 

 

MINUTES

 

MOTION:

(Molloy/McNamara) To approve the April 11, 2011 minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

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MOTION:

(Molloy/O’Sullivan) To approve the Zoning Board’s portion of the April 18, 2011 joint board meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

ADJOURNMENT

 

MOTION:

To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 10:30 pm.

 

                                                                                          Respectfully submitted,

                                                                                          Charity A. Landry Willis

                                                                                          Recording Secretary