APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

August 8, 2011

 

 

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

 

The acting Secretary Chris LaFrance called roll:

 

PRESENT:

 

 

 

ABSENT:

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

 

Robert Molloy, Kevin O’Sullivan, Alternate Bill Kearney

 

Mr. Hennessey appointed Mr. LaFrance as acting Secretary.  Mr. Ouellette was appointed to be a voting member. 

 

REQUEST FOR REHEARING

 

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. (NOTE: This BOA case will be limited to the request for rehearing only.  If the request for rehearing is granted a hearing date will be specified and all abutters will be notified via certified mail)

 

Mr. Hennessey asked if the Board members read the rehearing request.  Mr. Ouellette said he had not read the request for rehearing.  Mr. Hennessey asked that Mr. Ouellette not participate in the discussion.  The Board discussed amongst themselves whether to grant a rehearing on the merits of the request. 

 

Mr. McNamara commented that the applicant’s representative requested a new hearing solely on the issue of ‘contrary to the public interest / spirit and intent of the Zoning Ordinance’.  He felt were the Board to grant a new hearing it would be wide open and brand new; the Board couldn’t limit the scope of rehearing to one item.  He recognized the receipt/submittal of the Gove Environmental report.  He recalled there was testimony that Gove went out to the site prior to the meeting at which the case was decided, however the Board did not receive the report (Exhibit A -Gove Environmental- dated July 11, 2011) that was attached to the letter submitted by the applicant’s representative prior to their meeting.  Mr. McNamara stated it was not newly discovered evidence, or information that otherwise could have been produced.  He was unsure if it should be considered in the application.

 

Ms. Paliy didn’t see anything that had changed.  Mr. LaFrance agreed. 

 

Mr. Hennessey saw nothing new except for the letter from Gove Environmental.  He was bothered by one of the comments that indicated the thrust for the appeal was the lack of damage being done by the application.  He said it seemed that was not a burden upon the Town; it would have been up to the applicant to in effect persuade the Board that the Town’s wetland zoning was of no use.  Mr. Hennessey believed the Board had to start with the premise that the voters knew what they were doing when they approved the zoning.  In the absence of overwhelming evidence that the ordinance was defective, Mr. Hennessey said the Board was not to overturn the zoning ordinance, but rather was to listen to exceptions.  Mr. McNamara noted that the reason for the variance request was because it was contrary to the zoning ordinance.  Mr. Hennessey understood that the Board weighed the exception, versus the thrust of the rule.  He reviewed the letter (dated July 13, 2011) from the applicant’s representative (Attorney Morgan Hollis of Gottesman & Hollis) in which he believed was saying despite zoning, the thrust of the variance request was that the structure would pose no harm to the community.  Mr. Hennessey said in this case he respectfully disagreed.  To him it was clearly an overwhelming overturn of the zoning ordinance itself; the ordinance itself was under attack with the application.  He saw nothing new submitted. 

 

Ms. Paliy said on every property where the Board had allowed some development in a buffer, the land usually had been dry and it was not seen where/why that piece would have been considered wet to begin with.  She said they had found that other pieces were wetter than where the person was requesting.  She said in this situation it was opposite, even the buffer zone was very wet when the site was walked.  Because of this, Ms. Paliy didn’t see any reason that they would look at it any different or how anyone else could look at it any different who walked on the land. 

 

Mr. Hennessey commented that at the bottom of page 3, paragraph 4, (of Attorney Hollis’ letter dated July 13, 2011) the sentence reading “Denial of the variance results in no reasonable use of the applicant’s property as a result of the past conduct of the Town of Pelham increasing the flow of water through drainage pipes onto the applicant’s  property…).  He said during the course of the hearing the Board questioned several times the cause of the property being in the wetlands.  They specifically said it was beyond the scope of the Board to determine what caused the wetlands; there was an assertion by the applicant that the Town had done so.  The Board never heard that evidence, nor should they have, therefore he questioned putting that paragraph into the request for rehearing.  The Board never ruled on that point because it was beyond their scope.  Mr. McNamara believed Counsel was raising the argument regarding the taking of the property.  He agreed that there was no proof, one way or another, for how the land came to be wet. 

 

Mr. McNamara said he did not vote with the majority on the case, but felt it could be argued both ways.  He believed the applicant’s counsel was simply bringing up the fact (in going through the various listings) that in terms of the application to this specific property, there would not be an impact to the law.  He didn’t see anything new, and would vote not to rehear, but felt there was a strong argument to be made. 

 

MOTION:

To not approve a rehearing.

 

VOTE:

 

(4-0-0) The motion carried.  The Board voted in the affirmative to deny rehearing.

 

REQUEST FOR REHEARING DENIED.

 

 

HEARINGS:

 

Case #ZO2011-00022   NORMANDIE, Steven & Taryn  - 31 Willow Street  /  Map 34 Lot 6-4  - Seeking a Variance to Article VII, Section 307-71 A&B to permit a proposed septic system to be constructed 5ft. from the WCD where 25ft. is required, and to construct an addition for an accessory dwelling to an existing home 24ft to the edge of poorly drained soil where 50ft. is required.

 

Mr. LaFrance 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 abutter’s list applies to this case as well as the following – Case #ZO2011-00023) 

 

Mr. Shayne Gendron of Herbert Associates, representing the applicant, came forward to discuss the requested Variance.  He provided a brief history of the case.  The applicant would like to construct an in-law at their home; to do so they met with the Building Inspector to determine the best way to do so.  The Planning Board approved the subdivision that was plotted in 1965.  It was recommended by the Building Inspector to extend the front line of the existing home over to the attached garage.  The owners would also like to put an addition onto the garage to allow for an extra stall as well as to provide additional living space for the accessory dwelling.  The wetland was flagged by Gove Environmental.  Based on the appearance of the property it would be difficult to tell that it was a wetland.  Photographs of the property were submitted with the application package.  There were a lot of upland species and the land didn’t look like a wetland; however Gove Environmental came back with information that a wetland basically wrapped around the property.  Mr. Gendron said the area to the left of the garage was a wetland based on hydric soils; there was no standing water and very little movement of water from the front to back of the lot but the soils maintained a hydric content.  He said his office contended in the past that a pre-existing lot of record didn’t have a Wetland Conservation District (‘WCD’), but history of the Board has shown that it was better to ask forgiveness. 

 

Mr. Gendron reviewed the plans and showed the Board the area for the edge of wet.  He noted that the existing garage maintained a 29ft. setback to the poorly drained soil.  The proposed addition would be 24ft. (being a linear move with the wetland).  The photograph of the property showed the lot as being maintained as lawn; the wetland flags fell within the tree line.  In meeting with the Town’s Deputy Health Officer Paul Zarnowski, they understood they needed to put together a state approved septic system.  The WCD Ordinance was reviewed carefully for restrictions.  There was no where on the lot to meet the 25ft. setback requirement outside the WCD.  Mr. Gendron informed that Mr. Zarnowski reviewed the proposed plan, was happy with it, and signed off on it so it could be sent to the state (with a disclaimer indicating Town approval was conditioned upon approval by the Board of Adjustment granting relief from Article VII, Section 307-41 – allowing a leach bed with less than 25ft. to WCD).  Mr. Gendron then reviewed an architect rendering of the proposed addition.  In the package provided to the Board was a plot plan, a copy of the state approved septic design, a construction approval slip from the state, several photos of the site, and floor plans.

 

For the benefit of the public, Mr. Hennessey explained that the Board was reviewing a variance request because of the wetlands issue.  The issue whether to grant an in-law/accessory apartment was governed under Special Exception, which meant if it met the criteria it would be granted.  The architectural rendering would be reviewed separately from the wetlands incursion. 

 

Mr. Gendron reviewed the five variance criteria as submitted with the variance application. 

 

Mr. McNamara asked for the total amount of square footage being added.  Mr. Gendron said they were adding 16ftx24ft addition to the end of the garage (384SF pad).  They were also adding 12ftx24ft (288SF) pad between the existing structure and the garage; however, there was an existing covered porch in that area so it wasn’t a total of 288SF, it was approximately half that.  Mr. Gendron explained how the owners would like to modify their home to create a bigger living space.  He noted that the 750SF maximum requirement for the in-law was met and would be reviewed in the floor plans.  Mr. McNamara asked for clarification of the applicant’s request.  Mr. Gendron said the wording on the plot plan was different on the plot plan.  He said they were 55ft. from poorly drained soil.  The WCD is 50ft., they would be an additional 5ft. (beyond WCD) with the proposed leach field. 

 

Mr. Hennessey read aloud a letter from Loriann and Chris Millar of 29 Willow Street that had been submitted; it stated they did not oppose the proposal. Mr. Gowan explained to the Board that he had a verbal conversation with Mr. Zarnowski who subsequently followed up via e-mail (August 3, 2011).  A copy of the e-mail was distributed to the Board.  Mr. Gowan read the e-mail aloud.  The e-mail indicated Mr. Zarnowski approved the plan with a Waiver to Article K subject to Zoning Board approval of the variance to the setbacks.  Mr. Gowan stated that the WCD Ordinance was an overlay district and that Town Counsel had confirmed that it applied to lots of record.  He said the Town’s zoning was put in 1956 and basically codified in 1964; the applicant’s lot was created in 1965.  Zoning was very fresh when the house was put in; Mr. Gowan expected that there was not a lot of enforcement capability at that time.  He said relocating the leach to the front of the lot seemed to make good sense. 

 

Mr. Hennessey questioned if the 24ft. drainage easement on the left of the lot was an open swale.  Mr. Gendron said the area was just wooded.  He had a copy of the original plot plan done in 1965.  He commented that there was a road behind the lot that was never constructed.  He didn’t know if the drainage easement was associated with that to continue drainage through the area.  At this time, there was nothing existing in the area.  He said it was very dry with a pine needle forest mat.  It was only when the augur was put in the ground that the soil type could be determined.    

 

PUBLIC INPUT

 

Mr. Jeff Sirois, 4 Daniel Drive, stated he and his wife had no problem with the applicant’s request.  He said the applicant was a great neighbor who had always maintained the property.  He believed the proposed would add to the ‘look’ of the overall area. 

 

Mr. Hennessey commented that when dealing with WCD the Board traditionally discussed walking the site.  He said the applicant’s lot was on his daily route and the photographs accompanying the application were accurate.  He said there was no visible wetland, the area looked like a lawn.  No one requested a site walk. 

 

Mr. McNamara asked Mr. LaFrance if he was aware of the proposed Enviro Septic System.  Mr. LaFrance said he hadn’t installed one, but explained that the only difference was a white lining at the bottom of the envoi tube that was supposed to help the process.  Mr. McNamara questioned if the system was supposed to last significantly longer than other systems.  Mr. LaFrance didn’t believe so; the period of time was comparable, the difference was the manner in which it cleansed. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. LaFrance – Yes to all criteria

Mr. Ouellette – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

 

VARIANCE GRANTED

 

Case #ZO2011-00023  NORMANDIE, Steven & Taryn -  31 Willow Street  / Map 34 Lot 6-4 – Seeking a Special Exception to Article XII, Section 307-74 to permit construction of an accessory dwelling unit.

 

The abutter list read aloud for the previous case (Case #ZO2011-00022) applied.

 

For the benefit of the public, Mr. Hennessey explained if the criteria were met the Special Exception would be granted. 

 

Mr. Shayne Gendron of Herbert Associates reviewed the Special Exception request.  He reviewed the floor plan of the proposed accessory dwelling unit and the additional construction that would occur. 

 

Mr. Gowan said sometimes in the case of an accessory dwelling unit an applicant had to have the septic designed for the additional 1.5 bedrooms, but not always installed.  In this case the Town’s Deputy Health Officer Paul Zarnowski’s recommendation was part in parcel to the Board’s decision regarding the variance.  Mr. Gowan asked if the applicant planned to install the septic system.  Mr. Gendron said the applicant had not said one way or another whether the septic system would be installed.  He noted that the existing system was not in failure.  He believed Mr. Zarnowski’s comment was due to the seasonal high water on the lot only being down 28inches-30inches.  The existing system was within the water table for seasonal high water table.  The applicant hadn’t stated whether they would be installing the proposed system, but they were thinking of doing so because they didn’t want any problems in the future.  Mr. Hennessey asked what the existing system was rated.  Mr. Gendron said the existing system wasn’t a state approved design.  He could only provide a rough square footage of what was in the ground; there wasn’t much information in the building file other than the system was replaced in the 1980’s.  He said the system was not backing up or having any issues. 

 

There was no public input.

 

Mr. Hennessey was a bit concerned and wished there was additional information regarding the septic system.  Mr. Gendron believed the system was a thousand gallon septic tank.  He said it was a stone and pipe system, but couldn’t get elaborate about the shape or condition of it. 

 

The Board discussed their thoughts regarding the proposed septic system.  Mr. Hennessey put it on the record that the lot needed to be watched carefully and alert Mr. Zarnowski that the applicant’s intent was not to necessarily replace the septic at this point.  Mr. Gowan said now that the septic system has been approved by the state, he believed Mr. Zarnowski’s only authority would be to consider the existing system failed.  He didn’t feel it had reached that threshold.  It was his opinion that Mr. Zarnowski implies that the system should be replaced, but felt that would have been a better question asked/answered during the variance hearing.

 

Mr. Ouellette questioned if the Board could add a stipulation that the applicant had to replace the system if Mr. Zarnowski deemed it to be in failure.  Mr. Hennessey said that point was ‘a given’ within the Town’s Health Regulations.  Mr. Ouellette questioned if the applicant had to use the proposed system, in the event the existing system failed, or if they could use a different system.  Mr. Hennessey said the applicant would have to use a state approved system.  Mr. Ouellette asked if the just the field could be upgraded.  Mr. Gendron said during the past spring through the legislature there were new rules with the regulations (DES); there is no more in-kind replacement.  Mr. Hennessey closed public comment.  He stated that a Special Exception didn’t allow for additional stipulations.  Mr. Gowan stated he would seek legal opinion so the Board would be informed in the future.

  

BALLOT VOTE:

 

Mr. Hennessey – Yes

Ms. Paliy – Yes

Mr. McNamara – Yes

Mr. LaFrance – Yes

Mr. Ouellette – Yes

 

VOTE:

 

(5-0-0) The motion carried.

 

 

 

SPECIAL EXCEPTION GRANTED

     

MINUTES

 

There was a brief discussion regarding approval of minutes.  Mr. Hennessey commented that two alternate members and two regular members that participated on the cases within the minutes.  He said there was an appeal before the Board and was concerned with waiting an additional month to have minutes approved.  He questioned if, outside a regular meeting, Mr. Gowan could send an e-mail to each member asking if they approved the minutes as read/amended.  Mr. Gowan hadn’t researched the issue.  He believed minutes had to be approved at a regularly scheduled meeting, during which one regular member could be called by phone.  He said there was a similar conversation at the Planning Board, at which it was Selectmen McDevitt’s opinion that if there was a quorum present to take a vote, members who are unable to vote because they weren’t present (for the meeting being reviewed) could abstain, but it would still be a vote of the Board.  The Board discussed how they would proceed. 

 

MOTION:

(McNamara/LaFrance)To approve the May 9, 2011 meeting minutes as written.

 

VOTE:

 

(3-0-2) The motion carried.  Mr. Ouellette and Ms. Paliy abstained.

 

 

MOTION:

(McNamara/LaFrance)To approve the June 13, 2011 meeting minutes as amended.

 

VOTE:

 

(3-0-2) The motion carried.  Mr. Ouellette and Ms. Paliy abstained.

 

 

ADJOURNMENT

 

MOTION:

(Paliy/LaFrance)To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 8:05 pm.

Respectfully submitted,

                                                                                          Charity A. Landry Willis

                                                                                          Recording Secretary