APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 13, 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, Planning Director/Zoning Administrator Jeff Gowan

 

Alternate Bill Kearney, Alternate Lance Ouellette

 

Mr. Hennessey explained how the Board would conduct the hearings. 

 

CONTINUED

 

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. 

 

Mr. Hennessey stated that the hearing was reopened.  He noted that the Board conducted a joint site walk with the Conservation Commission. 

 

Mr. Paul Carideo of TFMoran and the applicant, Paula Inglee, came forward to review their variance request.  Mr. Carideo stated that they held an additional site walk with the Conservation Commission.  He explained that during the joint site walk the Commission had requested that a few of the flags be re-reviewed.  He had Gove Environmental return to the site and conduct further review.  A packet of information was given to the Conservation Commission as well as the Board members which included a plan showing what had changed since the last meeting.  In summary some of the wetlands toward the rear (near the building) had changed, due to a new rule change on how wetlands are delineated.  During the site walk with the Conservation Commission there was a suggestion that there was a lot of impact on the site in the Wetland Conservation District (‘WCD’).  Mr. Carideo said he looked at reducing the impact.  The plan set given to the Board showed: 1) the current proposal with the revised wetland; 2) area of WCD impact, 3) alternative proposal based on Conservation site walk, and 4) alternate proposal showing WCD impact.  He reviewed how the plan had been revised.  He believed the Conservation Commission submitted comments via e-mail. 

 

Mr. Molloy read aloud the June 11, 2011 correspondence from the Conservation Commission to the Board.  The letter indicated a joint site walk was held May 14, 2011 and an additional site walk was conducted June 6, 2011 to see new wetland flags that had been placed by Gove Environmental.  Much of the lot (1.25 acres) is classified as wetlands and the balance is almost all within the WCD.  The letter outlined the initial proposed plan.  The Conservation Commission voted (0-4-0), not supporting the proposal.  With the deciding factor being the amount of WCD disturbance for a single-family home.  The WCD is a no-cut/no-disturb zone intended to buffer the wetlands; approving such a proposal would make a mockery of the WCD Regulations.  The letter then outlined the revisions of the alternate plan.  The WCD disturbance was decreased.  The Conservation Commission voted (2-2-0); those opposed continue to feel that there was simply too much WCD disturbance and too much filling of the low lying wet parcel and that it should be deemed unbuildable.  Those voting in favor were in favor only because this made the lot buildable with the least impact to the wetlands.  The members voting in support would not approve such a large amount of WCD disturbance unless it was the determining factor in making the lot buildable versus non-buildable. 

 

Mr. Hennessey noted that they asked for input from the Conservation Commission, but they had no official advisory position within the Board.  Mr. Carideo commented that the letter from the Conservation Commission was accurate in the what was discussed through their meeting and the way the plan was presented.  He noted that the lot was created in 1980; the overlay was put in after the lot was created therefore, the applicant was trying to keep the disturbance down to a minimum and provide an area that could be built outside the wetlands. 

 

Mr. McNamara asked if the revised dwelling was the same size.  Mr. Carideo said it was a little smaller; the total square footage was approximately 1500SF for one floor.  The living space would be designed as a two-floor dwelling with the thought that the second floor over the garage would be occupied.  It was noted that there wouldn’t be a basement, the area would only be a crawl space.

 

Mr. Molloy asked what setback footage from Mammoth Road the new proposal showed.  Mr. Carideo said it was approximately 44ft. at the closest point.  The driveway would be 70ft. from the edge of pavement. 

 

PUBLIC INPUT

 

Ms. Paula Inglee, the applicant, stated that she had the lot subdivided in the 1980’s. At that time it was a buildable lot with no wetlands on it.  She said things beyond her control have now made it a difficult lot.  She felt that some consideration should be made for that. 

 

Mr. Donovan Billings, 92 Nashua Road, was in favor of land use if it didn’t affect his property.  He was concerned about his property, which abutted the applicant’s parcel.  He said he had water under his home and was concerned that retaining walls, fill etc. would push water over and damage his house.  He stated he would rely on the Board’s expertise. 

 

The public hearing portion was closed; discussion was brought back up to the Board members. 

 

Mr. McNamara discussed the engineering for the drainage.  He knew that Mr. Carideo had taken into account the drainage from the driveway and the roof which would go directly into a system.  Mr. Carideo said that was correct.  Mr. McNamara questioned if the engineering specifications would be reviewed if the plan didn’t go in front of the Planning Board.  Mr. Gowan answered no, the plan would not go to the Planning Board because it was not a lot that was being further subdivided.  He recommended (in belief that the Board would vote regarding the alternative impact plan) that it be conditioned upon the placement of WCD signs along the northern and eastern borders of the property.  He said this would ensure that future residents would have an understanding of the WCD issues and be better informed as to what they meant. 

 

Mr. Hennessey asked if the applicant would like to comment regarding the suggestion of WCD signs.  Ms. Inglee asked if the signs meant the people who own the property couldn’t go out in their back yard or walk across it.  Mr. Hennessey said they could walk, they could traverse, they wouldn’t be able to change, damage, dig, clear or alter the terrain.  Mr. Gowan said he would require the signs to be posted prior to issuing a building permit. 

 

The discussed the request. 

 

Ms. Paliy reviewed the plan and didn’t see the measurements for the septic system.  She wanted to know if the system was in the Department of Transportation’s (‘DOT’) right-of-way, and if it was, if they needed the DOT’s permission to do so.  She wanted to know if the proposed plan made sense.  Mr. LaFrance believed it would be fine; they previously didn’t show the measurements and the system wasn’t moved.  Mr. Hennessey commented that the plan was subject to state approval for the septic design and installation.  Ms. Paliy questioned the system’s distance from Mammoth Road or the neighbors. Mr. Hennessey said the Board could only deal with the information before them.  Ms. Paliy questioned what would happen if the plan was approved and the owner couldn’t figure out where to place the septic because it was a small area.  Mr. Hennessey stated to get a building permit the owner would need a valid septic system design and approval.  Ms. Paliy asked what impact there would be if the Board voted yes, but the owner wasn’t able to complete it.  Mr. Hennessey said they wouldn’t be able to get a building permit. Mr. McNamara stated that the owner would need to satisfy the setback requirements otherwise the building permit couldn’t be issued. 

 

The Board reviewed the variance criteria. 

 

Mr. Hennessey heard the applicant’s testimony that the lot was done after the change in zoning, but couldn’t address the assertion that it was done through faulty drainage across the street.  He was concerned with the amount of WCD on the lot.  He was surprised that testimony was not received by the Town (being an abutter) because of the (Town’s) playing fields.  In looking at the driveway and what was next to it, he was unable to say that a variance would be not be contrary to the public interest because he didn’t see that the lot was in the public interest to be developed.  As to the spirit of the ordinance, there was proposed building and development on a lot that was almost entirely wetland setback. He had to agree that substantial justice would cause the Board to grant the variance; the applicant was wronged by having the lot into wetlands.  Value to surrounding properties, the Board heard from an abutter who’s only concern was the expansion of wetlands; Mr. Hennessey didn’t disagree that the applicant wasn’t harming the surrounding properties.  Hardship – Mr. Hennessey said the Board had reviewed the ‘B’ criteria under number five and felt there was perhaps an unnecessary hardship because the lot was so different it perhaps could not be used for anything else.  He said the applicant may have a good case for that hardship, but it didn’t offset the fact that he would vote no on criteria one and two, despite the strong case for a hardship.

 

Mr. Molloy questioned why Mr. Hennessey felt it was contrary to the public interest.  Mr. Hennessey said even though the WCD overlay and setbacks was done after the lot was created, it was done for a reason.  He couldn’t think of another lot before the Board that had so much of the lot into the setback of the wetlands.  He said if it was in the public interest to  have a wetlands overlay with setbacks then how could the Board then say it was in the public interest to vote for the variance.  He didn’t know how the two statements could be reconciled. 

 

Mr. McNamara discussed public interest.  He said the applicant didn’t have to show that it was a benefit, but rather they had to show it was not contrary.  The test was if the variance altered the essential character of the neighborhood or did it threaten the public health, safety and welfare.  Mr. McNamara said the applicant was building a relatively small house in an area that was residentially zoned.  In terms of altering the essential character, he didn’t see it happening.  He said an argument could be made both ways if it threatened the public health, safety and welfare.  If homes were built in every WCD, it would be a cumulative effect that would be harmful.  He reference the Bacon v. Enfield case in which the Supreme Court upheld the denial of the variance; the impact on the WCD from a single home might not be substantial, but if all the lots around the lake added a similar building the cumulative effect could be considered as violating the spirit of the ordinance.  He was unsure if that was the case with the proposed variance.  Mr. McNamara agreed with Mr. Hennessey regarding the hardship.  He felt the proposed use was reasonable, even though an argument could be made on both sides.  He felt the Governor’s Island test applied to the second prong of criteria five.  As for diminution of properties, the Board hadn’t heard testimony one way or another.  One abutter (Mr. Billings) testified, justifiably, that his property would be disturbed by drainage.  Mr. McNamara felt the fact that the house was relocated seemed to minimize runoff. 

 

Mr. Hennessey felt Mr. McNamara’s argument was strong.  He said there was a WCD overlay and felt that the lot was a ‘poster child’ for that overlay.  He stated that the Board had heard numerous accounts about the traffic dangers of Mammoth Road and the proposed showed a driveway within a short distance of one of the busiest intersections in Town.  He suggested if a Board member was thinking about approving the variance, they might think about doing so conditioned upon having a traffic survey.  Mr. McNamara didn’t feel a traffic study would show anything.  He commented that the applicant should have proper sight lines and meet those guidelines. 

 

Ms. Paliy discussed the hardship criteria.  Her understanding was that the applicant was saying that the WCD area was delineated after the lot was subdivided and felt they had a good lot to begin with.  Ms. Paliy was having a hard time because the hardship was put onto the lot.  She had a hard time because of this.  Mr. Hennessey said the Board focused on hardship, however it was one of five criteria. 

 

There was continued discussion regarding the request.  Mr. Hennessey said as a matter of law, the Board had to vote on the assumption that the house would be built as described. 

 

Mr. Molloy commented that he was basing his decision on what the lot looked like today and whether or not there was currently a hardship. 

 

Mr. McNamara noted that the applicant had other recourse if they felt there was an equitable argument, however, that wasn’t in front of the Board.  He noted one of his original objections to the site was that there was no room for anyone to use the back yard without getting into the wetlands.  With the new proposal he felt there was more of an opportunity for outdoor recreation/typical outdoor uses.  He said the WCD was an overlay district; opinion was received from Town Counsel that it applied to all lots regardless of when they were approved. 

 

MOTION:

(McNamara/Molloy) If variance approved, the applicant is to show sufficient sight lines in both directions for the proposed driveway.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

MOTION:

(McNamara/O’Sullivan) WCD markers are to be placed as per Mr. Gowan’s comments.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

BALLOT VOTE:

 

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

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

Mr. McNamara – 1) Yes; 2) Yes; 3) Yes; 4) Yes; 5a) N; 5b) Yes

Mr. Molloy – Yes to all criteria – with sight line motions and WCD markings as stated

Mr. O'Sullivan – No to all criteria

 

VOTE:

 

(2-3-0) The motion failed.  

 

 

 

VARIANCE DENIED

 

 

HEARINGS:

 

Case #ZO2011-000014  HODGE, John & MALVAROSA, Nancy  -  61 Patriot Drive – Map 40 Lot 6-185-13  -  Seeking a Variance to Article III, Section 307-12 (Table 1) to permit a two-family dwelling on a lot that does no meet the 2-acre requirement (1.89 acres).

 

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. Shayne Gendron of Herbert Associates and the applicant John Hodge came forward to discuss the variance request.  They requested relief from a two-acre requirement for a duplex.  Mr. Gendron provided a history of the project.  Originally the applicant approached Mr. Gendron to do an in-law apartment.  The applicant was advised (by Herbert Assoc. and Mr. Gowan) it was unlikely that the Special Exception requirements would be met for an in-law apartment based on the configuration.  When reviewing the property they noticed the property contained 1.89 acres which was just under the requirement for a two-family home.  The applicant was looking to take the existing single family home with an attached garage and make the area above the garage a living space for in-laws.  Mr. Gendron stated that a test pit was done along with a new septic design for two 3-bedroom homes, which was approved by the Town and the state.  They met the loading calculation of 1636 gallons per day.  Mr. Gendron said the only exterior change would be a door for the entrance to the apartment.  He reviewed the information contained in the package provided to the Board.  It was noted there were two lots in close proximity that were duplex lots with existing homes.  Mr. Gendron read aloud the variance criteria as submitted.        

 

Mr. Molloy read aloud a letter of support signed by several people residing on Patriot Drive and Township Road. 

 

Mr. Molloy questioned if the change with the door moved it to the front of the house.  Mr. Gendron answered yes and described where it would be located. 

 

Mr. McNamara confirmed, other than the door, the appearance/footprint of the house wasn’t going to change.  Mr. Gendron stated that was correct.  Mr. McNamara asked if the existing well radius went into the neighbor’s property.  Mr. Gendron said the existing well radius went off the lot.  The design met the requirements (for potable water). He said it was common for wells that were place in the 1980’s to not meet the current building setbacks.  The alternate well location was shown as being completely within the property. 

 

Ms. Paliy questioned why six bedrooms were being requested.  Mr. Gendron said they weren’t asking for a bedroom count, they were only requesting a two-family use.  He explained there was a requirement in the Town’s Health Ordinance that required any single unit to be designed as a three-bedroom (minimum).  He noted that there was approximately 900SF above the garage that the applicant would like as a two-bedroom use.  They were not looking to rent it out or turn it into a condex.  They were looking to have their in-law move in. 

 

Mr. Hennessey explained that the applicant, rather than conforming to zoning for the in-law (accessory) apartment, they requested a variance for a two-family.  He said if granted the unit could be rented out and would be entitled to do so.  He heard the applicant’s intention, but understood that the Board could not bind them to it.  Mr. Gendron said the applicant would like to use the space that he already had but there appeared to be too many things stacked against them to be able to do so. 

 

Mr. O’Sullivan questioned if there was an attempt made to acquire land to reach the two acre requirement.  Mr. Gendron stated there were existing lots with no land for sale. 

 

Mr. Gowan commented that there was no way the applicant could meet the common wall requirement in order to request a Special Exception.  With regard to the variance they were seeking, the requirement for a duplex was two acres and two hundred feet of frontage; the creation of a new lot had additional requirements.  He routinely would approve lots for duplexes that contained two acres and two hundred feet of frontage.  The majority of duplex lots in Pelham don’t have the high and dry square footage that the proposed lot contained. 

 

PUBLIC INPUT

 

Mr. George Saurman, 6 Scenic View Drive told the Board that he owned the property across the street (from the applicant) that contained a two-family home.  He spoke in favor of the proposal; it was a good lot that met the high and dry requirements.  He said the proposal met all the criteria except for a little bit of land.  He had no objection to the proposal.

 

The public hearing was closed. 

 

Mr. Hennessey commented that the purpose of zoning was to provide relief and in this case it was a small deviation from the minimum lot requirement.  The compelling factor was the amount of high and dry area.  He felt it met the criteria.  Mr. McNamara noted that there were other duplexes in the area, one being across the street.  The request kept within the character of the neighborhood. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O'Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

VARIANCE GRANTED

 

 

Case #ZO2011-000015  O’LOUGHLIN, John  -  23 Lane Road  -  Map 7 Lot 4-12 – Seeking an Equitable Waiver to permit an existing 2-car attached garage that does not meet the side setback requirement.

 

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. 

 

The applicant, Mr. John O’Loughlin, came forward to discuss his request for Equitable Waiver.  He said he purchased a property knowing that the garage was within the 15ft. offset from the lot line.  He worked out an agreement with the neighbor and submitted a letter indicating they were in favor of the Equitable Waiver.  He said he had invested approximately $40,000 into the home which increased the value to the neighborhood.

 

Mr. Hennessey explained that an equitable waiver was the mechanism to correct an error that had gone undetected for a period of time.  He said it was ‘dimensional’ and had nothing to do with ‘use’.  The non-conformity had to have gone undiscovered for a period of time.  He reviewed the regulations and read a portion aloud that listed what finding the Board had to make. 

 

Mr. Gowan said when the property previously came to the Board the owner (which was a bank) sought an equitable waiver and the abutter had the opinion that there were things that may have been done knowingly that had an impact on their property value.  The previous application was withdrawn without prejudice.  Once the applicant purchased the property, Mr. Gowan felt perhaps because of the good faith way the property was cared for and through communication with the neighbor, the neighbor changed their opinion.  Evidence of this was contained in the file.  He said it was only at the time the previous case came in that the Town found out about the deficiency, which had been there for a number of years, they were not aware of the problem prior to that.  For this reason he believed the equitable waiver threshold was met.

 

Mr. O’Loughlin commented that he didn’t know why a person would put a garage in the location on purpose.   

 

Mr. Hennessey asked that the applicant read the requirements for equitable waiver.  Mr. O’Loughlin read aloud his responses to the equitable waiver as contained within the application.        

 

Mr. Molloy read aloud a letter in support of an equitable waiver, dated April 22, 2010, submitted by the abutters Stephanie and Kenneth Cote of 25 Lane Road. 

 

Ms. Paliy questioned if the applicant tried to purchase land from their neighbor.  Mr. O’Loughlin reviewed doing a lot line adjustment, but the problem was the bank rarely released property unless the mortgage was paid down. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O'Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

EQUITABLE WAIVER GRANTED

 

 

Case #ZO2011-000016  SJS REALTY  - 3-5 Carol Drive  -  Map 39 Lot 1-19  - Seeking an Equitable Waiver to permit an existing detached garage that does not meet the setback requirement to the lot line. 

 

Ms. Paliy stepped down from the Board for the hearing.  Mr. LaFrance was appointed to vote. 

 

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 explained if the Board found that the Equitable Waiver criteria was met and voted in favor of such there would be no reason for the variance.  However, if the Board found that the Equitable Waiver criteria was not met, they would then hear the case for the submitted Variance request. 

 

The Board began by reviewing the request for Equitable Waiver. 

 

In representation of SJS Realty, Holly and George Saurman came forward to discuss the request for Equitable Waiver.  Ms. Saurman stated that they purchased the property in April; during the purchase process it came to their knowledge that the existing garage falls did not fall within the required setbacks of the Town.  The original owners (from the 1970’s) and who sold the property to the Saurmans were unaware of this fact.  At closing arrangements were made so they would be able to come before the Board and have the issue resolved on behalf of the seller.  Ms. Saurman read aloud a portion of the Equitable Waiver requirements.  Prior to closing on the property, she reviewed the property file and spoke with Mr. Gowan and was unable to find anything in the records that indicated the Town was aware of anything regarding the violation regarding the garage when it was built in the 1970’s.  Photographs were provided.  Ms. Saurman noted that the garage was not outstandingly out of the ordinary for the neighborhood; there were only four houses on t he street.  She said they also owned 2-4 Carol Street (located across the street).  She asked the Board in light of the affidavit provided to the Board (signed by the seller at closing) indicating that the garage had been in that location for twenty (or more) years. 

 

The Board reviewed the photographs of the property.  Mr. Hennessey read aloud the (notarized) affidavit from Eileen Kupstas into the record, dated April 21, 2011.  In the letter, she certified she was not aware of any issue with the setback requirements for the garage and that the garage had been in existence for more than twenty years. 

 

Mr. Gowan stated he had a conversation with the Town Deputy Health Officer, Paul Zarnowski because he reviewed the lot; they both agreed and concluded that the garage was one foot from the property setback, but that it was well off the pavement (as the photographs demonstrate).  It was Mr. Gowan’s opinion that the garage did not pose any safety risk as long as the owner didn’t build anything out within the Town’s right-of-way.  Ms. Saurman stated they had no intention to. 

 

Mr. O’Sullivan asked if the garage was structurally sound.  Mr. Gowan said he hadn’t, and wouldn’t, do an inspection on the garage, that was for the Building Inspector to do.  In his opinion, that wasn’t an issue for the Board.  He noted that the Saurmans were in the construction business and had no doubt if there were any deficiencies they would become safe and secure.  He commented that the road was a short cul-de-sac with very little traffic; the setbacks and proximity to the pavement should be considered in that context. 

 

Mr. McNamara asked if there was any record of any action by the Town.  Mr. Gowan found none what-so-ever.  There was no record of any contact by the Town.  Mr. McNamara asked how close the nearest home was to the garage.  Ms. Saurman said the garage was detached.  The nearest home was over one hundred feet (approximately) from the garage.  Mr. McNamara asked if it was buffered.  Ms. Saurman answered yes.  She reiterated there were only four homes on the street and very little traffic.  Mr. Gowan noted it was a front setback issue to the cul-de-sac.

 

There was no public input. 

 

Mr. McNamara felt it had been demonstrated that the garage had been in existence for at least twenty years with no action on the part of the Town.  He believed it qualified for the requested waiver. 

 

Mr. Hennessey believed the criteria was clear and saw no need for the variance application. 

 

    

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O'Sullivan – Yes to all criteria

Mr. LaFrance – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

EQUITABLE WAIVER GRANTED

 

 

Case #ZO2011-000017  SJS REALTY – 3-5 Carol Drive  -  Map 39 Lot 1-19 – Seeking a Variance to Article III, Section 307-12 to permit existing garage to remain in place.

 

Due to the Equitable Wavier request being approved, the Variance request was removed. 

 

Ms. Paliy returned to the Board.

 

Case #ZO2011-000018  BLUEBERRY REALTY TRUST – 11 South Shore Drive – Map 30 Lot 11-210 – Seeking a Variance to Article III, Sections 307-7, 307-8 & 307-14 to permit the existing boathouse/structure to be razed and reconstructed with a different roof line and an increase in volume (upper level).

 

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. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the variance request.  He described the lot, which contained approximately 33ft. of frontage on Little Island Pond and approximately 9ft. of frontage on South Shore Drive.  The property’s main essential use was a boat house type structure used as the main land access for the house on the island.  The boat house portion of the structure was one side of the structure; the place where a boat would typically pull in had a garage door on the lake side, but the inside had been decked over and was now utilized as storage/utility space. The applicant would like to rebuild the structure on the same footprint with a few modifications and location on the lot and also to allow for a second story allowing for additional storage.  Photographs were provided to the Board for review.  The surrounding lots were heavily vegetated; the lot directly to the western side was a separate parcel used as access to the water for one of the residents.  A letter of support from the abutter directly behind the applicant’s lot was submitted to the Board.  The lot is approximately 4700SF.  The existing structure sat approximately 3ft. off the water, 18in off one sideline and approximately 4ft. from the other sideline.  The proposed new structure will have the same footprint as the existing and would be approximately 9ft. off the pond.  The lot shape prevented them from moving the structure back considerably more.  A new septic system will be installed for the existing bathroom.  The septic system plan went before the Board of Health; an application for the Shore Line permit will be submitted after they submitted the septic design to the state.  Mr. Maynard reviewed the variance criteria as submitted with the application. 

 

Mr. McNamara asked the present square footage of the structure.  Mr. Maynard said it was approximately 650SF.  Mr. McNamara asked what size the proposed new structure would be.  Mr. Maynard said the new structure would be two levels at 650SF.  A picture of the home across the street was shown to inform the Board that the neighborhood had larger homes with larger garages than what the applicant was proposing.  Mr. McNamara asked for the height of the existing structure as well as the height of the proposed.  Mr. Maynard said the existing structure was approximately 11ft. tall.  The proposed would be approximately 20ft. in height.  The nearest home to the boat house was across the street.  Mr. McNamara asked if the proposed new boat house would restrict in anyway anyone’s view to the lake.  Mr. Maynard answered no; not to his knowledge. 

 

Mr. Hennessey asked if existing structure had ever been used for overnight occupancy.  Mr. Maynard said to the best of his knowledge it had never been utilized in that manner.  It was a staging area for people to get to and from the island home.  Mr. Hennessey asked if the proposed new structure would be used as a dwelling unit or to remain strictly a staging area not to be used for overnight occupancy.  Mr. Maynard said it was strictly a staging area not for overnight occupancy. 

 

Mr. Molloy asked how many rooms would be in the structure.  Mr. Maynard said the first level was where the boat would park.  The second level would be used for accessories coming and going; there was a third room for the bathroom (a toilet and sink). 

 

Mr. McNamara asked if the second floor would be used exclusively for storage, other than the bathroom.  Mr. Maynard said that was his understanding. 

 

Mr. Gowan said the standard he would use when issuing a building permit was there could be no kitchen and no bedroom (space with a closet). 

 

Mr. O’Sullivan asked if the proposed structure would have an occupancy permit.  Mr. Gowan said it would have a final inspection but not a certificate of occupancy.  He would ensure that it was noted the structure would not be considered for dwelling in the future.  Mr. O’Sullivan asked if the existing septic system was in-ground or above-ground.  Mr. Maynard said it was in-ground.  He said typically with that type of system they abandoned them in place, but in this case because of excavating for a new structure it would be removed. 

 

Mr. McNamara asked where the well was located.  Mr. Maynard said there was no well, they used lake water.

 

Mr. Molloy read aloud the abutter’s letter (Steven Pieslak) of support. 

 

PUBLIC INPUT

 

Mr. Richard Pieslak, 9 South Shore Drive  had no objection to the applicant’s request.  He questioned how far back the structure would be moved and wanted to know the base dimensions.  Mr. Maynard said the base dimensions were 32ft.x19ft. with a 5ft.x8ft. jog on the side. 

 

Ms. Julia Steed Mawson, 17 South Shore Drive thanked the applicant for her due diligence in bringing her thoughts before the Board.  She had some concerns/questions.  She said because they were on a protected body of water they needed to be careful about how development occurred because of incremental impacts of development.  She was very familiar with the existing structure and knew the family needed to do something with the property.  She asked if the proposed conformed to wetland regulations.  Mr. Hennessey said the proposed would replace what was there prior.  It is in the wetland setback, but more importantly it was within the 50ft. Shore Land Protection area.  He said it would be contingent upon getting DES and Shore Land Protection approval.  Mr. Maynard said it was kind of difficult, because they couldn’t apply for a permit for a boat house, but when there was one in existence, an application can be submitted to rebuild it for the same use.  As part of the permitting process the applicant will apply to the NH Wetlands Board to restore a portion of the wall at the lake that will be under the Conservation Commission’s purview.  Ms. Mawson saw some advantages to the proposal, such as getting the structure off the water.  She said another issue was hard surfaces and would have concern if the roof line was larger.  Mr. Maynard said there would be a small decrease because of the structure moving back.  He said with any Shore Line Permit, if they were over 25% impervious surface they would be required to do a drainage measure as part of the approval.  In this case, he believed there would be some sort of dry well to capture runoff.  He said the roof surface area would be the same as what presently existed.  Mr. Mawson discussed the visual impact of the proposed.  Mr. Maynard said the height would be changed by approximately 8ft.-9ft.  Ms. Mawson said another consideration would be the view of the structure from the lake itself.  She believed the question of residential use was answered, but noted that would be a concern relative to cumulative impacts of use on the property.  In general Ms. Mawson was very concerned with the issuance of variances for properties such as the one being discussed.  Because they were small they affected neighbors in ways that aren’t anticipated. 

 

Mr. Hennessey said in the past the Board had routinely conducted site walks on this type of property to review the visual impact.  He noted there was a good chance there would be significant changes to the Shore Line Protection Act in the next week.  He said it may behoove the abutters and the Town to let the application proceed in the manner described by the applicant, or it could be delayed by thirty days to allow for a site walk and risk the elimination or significant change to Shore Land Protection.  He asked Ms. Mawson what her choice would be.  Ms. Mawson said everyone was trying to do their best and their due diligence; she left her concerns with the Board to make the final decision and asked them to take careful consideration when doing so. 

 

Ms. Paliy asked if the boat house was partially under water during the Mother’s Day storms a few years ago.  Ms. Mawson answered yes, in 2006 when everything was quite high. 

 

Mr. Pieslak saw nothing wrong with the proposal, but suggested the Board consider walking the site to satisfy everyone. 

 

Mr. Hennessey discussed the annual planning and zoning conference at which there were discussions regarding immanent changes to Shore Land Protection, including if a rebuilt structure became less non-conforming it would be acceptable.  No one knew what the final bill would look like.  He believed Shore Land Protection would look a lot different than how it currently was.  

 

Mr. Gowan commented in the event Shore Land Protection was dissolved, the Town would still have its Wetland Conservation District Ordinance. 

 

Ms. Paliy asked if the existing structure would be razed.  She felt the structure needed to get out of the water.  Mr. Maynard said the intention would be to put a full foundation under the new structure.  He said being that the structure fell within the 50ft. area would need a number of variances and waivers to the ordinance and with those they would have to show betterment. 

 

Ms. Mawson commented about the 2006 Mother’s Day storm.  She believed the way the property would be configured would be an improvement over where it currently was.  The storm event was something that had not been witnessed before. 

 

Ms. Paliy believed a site walk was needed, however she felt it should be done from the lake side (by boat). 

 

Mr. Hennessey questioned what the most likely outcome would be in the event the Board conducted a site walk.  He said the Board had been given quite a bit of testimony and received support of abutters.  He felt it was unlikely that they would turn the proposal down.  He said in the past the Board had restricted the height of structures.  He said in reviewing the site, the applicant was fixed in where they were going because of the narrowness of the lot.  The only alternative outcome he could foresee from a site walk would be a change in height.  Mr. Hennessey asked the applicant if they could reduce the height, even if they didn’t want to.  Mr. Maynard said when the applicant came up with the design, they tried to keep the height down with the proposed roof line.  He noted because of the narrowness of the structure the roof pitch would be a determination as to the storage capacity on the second floor.  He said the applicant tried their best to come up with a plan with a roof line that worked with storage space associated with it. 

 

Mr. LaFrance reviewed the plan and questioned the grade of the garage floor.  Mr. Maynard said it may come up some because the way the slope came across the lot.  Mr. LaFrance said it was currently at 148; based on the proposed, there may be a 7ft. difference just in the lot.  The house across the street had a high standing scenario.  Mr. LaFrance with an increase in height, he believed the only people to worry about were across the street and that wouldn’t be an issue. 

 

Ms. Paliy reiterated that the property couldn’t be seen from the road because of the trees.  She said the surrounding houses were significantly taller and larger.  Even with raising the foundation, she believed the structure would be covered by trees. 

 

The Board discussed if they would conduct a site walk. 

 

Mr. McNamara commented that the applicant was providing a new septic, the building was being moved away from the water with a foundation and there were better aesthetics.  He noted, based on the photographs provided there were three homes considerably bigger than the proposed.  He believed the only thing was the affect of the view; testimony was received from the abutter across the street who was not opposed to the proposal.  He felt the request for storage was reasonable. 

 

Mr. Hennessey said the Board would usually conduct a site walk, but in this case he was concerned that delay would unnecessarily risk the community as to changes in the protection of Shore Line.  He was inclined not to conduct a site walk, but would do so if the Board desired. 

 

There was no motion for a site walk.

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O'Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

VARIANCE GRANTED

 

Case #ZO2011-000019  LAFFERTY, Warren Jr. & Deborah – 3 Webster Ave Ext. – Map 30 Lot 11-363 – Seeking a Variance to Article III, Sections 307-7, 307-8 & 307-14 to permit the conversion of the existing structure (24ft.x28ft. garage with room above) to a single family dwelling on a 11,267 SF lot with 125 +/- frontage on a private road.

 

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 discussed the request. He noted if the Board provided variance relief and the Selectmen didn’t approve it, the Zoning Board was the appeal board for the Selectmen’s decision.  He said for the purposes of maintaining the appellate role, he asked that the application to the Selectmen be separated out. 

 

Mr. McNamara asked what specifically the applicant was requesting the variance from.   

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, said they were requesting a variance to all the items in the sections. 

 

Mr. Gowan said the reason the case had to go to the Selectmen was if a new lot was being created, he couldn’t issue a building permit without the Selectmen. 

 

Mr. Maynard stated that the property was 11,266SF with 128ft. of frontage.  He provided the Board with a brief history.  The applicant, who lives in one of the abutting homes, purchased the property in the late 1990’s and had an existing camp on it.  It had always been the applicant’s intentions to build a home on the lot and retire to it.  In the early 2000’s the applicant pulled a building permit to raze the existing camps and construct a new structure.  The existing structure was approximately 24ft.x28ft.  The permit issued was for a garage with a room above it.  Mr. Maynard said he became involved approximately four months ago to design a septic system.  A test pit was done with Deputy Health Officer Paul Zarnowski and came up with a state approvable septic design that met all current regulations; it was a pipe and stone system.  As part of that the Town’s Ordinance required them to go to the Board of Health.  The Board of Health postponed actions because they had questions if the structure could be used as a home and if there had been another home on the property.  Mr. Maynard said that Mr. Gowan advised in order to have the structure’s use expanded a variance would be needed.  He said the lot was larger than many in the area.  The existing structure had a 35ft. setback to Webster Avenue Ext. (a private road) and set back 38ft. from the applicant’s abutting lot.  It was setback 24ft. from any of the abutters.  In general the lot previously had a camp that was razed.  The lot was greater than 250ft. from the pond.  Mr. Maynard reiterated that the proposal was to allow the existing structure mostly to be utilized as a two-bedroom, single-family dwelling.  They were working toward permitting a new septic system and a well to be installed with the lot with the application. 

 

Mr. Maynard read aloud the variance criteria as submitted in the application.  Old photographs of what was previously on the lot (the camp) were provided to the Board.  Also submitted was a survey done in 1999 by Herbert Associates that showed the location of the structures.  One of the neighbors, who had resided in the neighborhood for an extensively long time, wrote a letter indicating there had been a building on the lot; this was submitted.  A letter from a direct abutter (75 Webster Ave,) was submitted that indicated they had no objection to the proposed single-family dwelling. 

 

PUBLIC INPUT

 

Mr. Tim Doherty, 29 Wood Road, spoke on behalf of the property.  He said they had a unique neighborhood in that there were a lot of unoccupied properties (seasonally) and there were only two ways to access if someone wanted to do ‘riff-raff’.  One was to swim, the other would be to come through a group year round homes, with the exception of the applicant’s property.  He said if there was someone residing at the proposed property it would tremendously benefit the entire neighborhood because that access point would be eliminated.  Mr. Doherty pointed out if no one lived at the location it would remain a garage/storage location, which would eventually turn into a junk yard.  He said there would be difficulty finding a comp. sale with the property only having a garage.  He ended by saying it would be a good thing to allow the proposal to go forward. 

 

Mr. McNamara asked if the camps had been razed.  Mr. Maynard stated they had been razed with the proper permit that the applicant applied for when applying for the garage.  Mr. McNamara said the existing structure looked like a residence.  Mr. Maynard stated there were no plans to change that (appearance) in any way. 

 

The information provided was marked as entered into the record. 

 

Mr. Hennessey discussed a situation in Amherst and commented that the point regarding the difficulty getting a comp. was well taken. 

 

There were two variances; the Board took one ballot vote for both.  If approved, the variance would be subject to Selectmen approval. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O'Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

VARIANCES APPROVED

-----------------------------------------------------------------------------------------------------------------------------

Given the late hour, the Board voted to hear the next case.

 

MOTION:

To continue the meeting and hear the remaining agenda item. 

 

VOTE:

 

(6-0-0) The motion carried.  Mr. LaFrance voted.   

 

 

Case #ZO2011-000020  HOWE, Holly – 10 Jericho Road -  Map 41 Lots 10-251 & 10-251-2 – Seeking a Variance to Article III, Sections 307-12 & 307-13 (B.1) to permit 35ft. of frontage on Jericho Road to be conveyed via Variance and Lot Line Adjustment from Lot 41/10-251-2 to an existing land locked lot 41/10-251. 

 

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. 

 

Ms. Holly Howe came forward to discuss her variance request to permit 33ft. of frontage on Jericho Road to be conveyed as well as a variance for a lot line adjustment.  She stated she owned three pieces of property and when seeking a permit to improve her home found that home was on a lot with no access.  She proposed to take the three lots and combine them into two lots; one having frontage on Shannon Circle and the other maintaining access from Jericho Road as it had always been. 

 

Mr. McNamara asked for clarification of how the lots were being combined.  Mr. Gowan reviewed the plot plan and explained what the end result would be.  He noted if the variance was granted, the plan would then go to the Planning Board for the lot line adjustment at which time they could discern if it met the standard. 

 

Ms. Howe read aloud the variance criteria as submitted with the application. 

 

There was further discussion about the lots.  Ms. Howe said by doing the lot line adjustment she was trying to have the lots conform (with the Town) as well as gain access to her house. 

 

Mr. Hennessey commented if any Board member was unsure or was tired because of the late hour, the Board could hold off from voting. 

 

Mr. Gowan asked that to clear up some confusion when the Planning Board reviewed the plan; the Zoning Board was voting to allow one lot as (somewhat undefined) to have 33ft. of frontage and another lot to have 200ft. of frontage. 

 

Mr. McNamara confirmed that once the land swap was done there would still be a totally conforming lot with access on Shannon Circle.  Ms. Howe answered yes.  Mr. Gowan said the applicant would have to demonstrate to the Planning Board that the lot would contain one acre and 200ft. of frontage and any structures to be built would need to meet any setbacks. 

 

MOTION:

(McNamara/Molloy) An approval by the Board is subject to Planning Board approval of lot line adjustment.  That lot line adjustment has to be effectuated (approved) within ninety (90) days.  

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria – with conditions in motion.

Mr. Molloy – Yes to all criteria – with motion for Planning Board approval 90 days.

Mr. O'Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

VARIANCE APPROVED

 

MINUTES

 

April 11, 2011 – deferred.

May 9, 2011 – deferred.

 

ADJOURNMENT

 

MOTION:

(Molloy/O’Sullivan)To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately  10:25 pm.

Respectfully submitted,

                                                                                          Charity A. Landry Willis

                                                                                          Recording Secretary