BOA20070611.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

June 11, 2007

The Chairman, Mr. David H= ennessey called the meeting to order at approximately 7:00 pm.

The Secretary, Robert Mol= loy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Svetlana Paliy, Robert Molloy, Alternate Lance= Ouellette, Alternate Bill Kearney, Alternate Ken Dunne (arrived after the meeting commenced), Planning Director Jeff Gowan

Kevin O’Sullivan<= /p>

Mr. Hennessey appointed M= r. Kearney to vote in Mr. O’Sullivan’s absence.

CONTINUED

Case #2376    JAREK, Nicholas & Paula – 378 Mammoth Road&= nbsp; - Map 7 Lot 5-39 – Seeking a Variance concerning Article III, Section 307-9 to permit the continued existence of two dwelling units on one lot.

Mr. Hennessey said the si= te walk scheduled for June 2, 2007<= /st1:date> did not take place. He explained = that he received a telephone call from Mr. Gowan informing that the Jareks had g= one to the Police Station asked for a no-trespassing order so the abutters would not be allowed to go onto the site. He said at the previous meeting (May 14, 2007) the Jareks were told that in order to = have a public hearing site walk that abutters would have to be allowed onto the property. Mr. Hennessey said = when Mr. Gowan gave him this information, there was a mis-communication and he thought Mr. Gowan was going to poll the Board members as to what they wante= d to do and Mr. Gowan thought Mr. Hennessey was going to poll the Board members; however, no one was polled. H= e said they had to make a decision regarding the site walk on Tuesday in order to = give notice to the abutters. He sa= id they cancelled the site walk because site walks were public hearings and th= ey could not conduct a site walk without the public. Mr. Hennessey said several people = were at the site on the morning of June 2, 2007 (he went to make sure all the notices went out) and the= re was a brief conversation with the Jareks about their willingness to allow t= he public to attend the site walk.

Mr. Gowan said he contact= ed Town Counsel and said the Chair of any land use board, at their discretion, could cancel= any site walk, meeting or any event if there was a reasonable reason to do so; = in this case their was. He apolo= gized about the communication.

Mr. Dunne arrived.

Ms. Paliy felt that not e= nough thought went into situation. = She said the Board should have gone to the site to see if the applicant would a= llow abutters onto the property. S= he would have preferred to have the meeting cancelled on site only in the even= t of the applicant not allowing abutters on the property. Mr. Hennessey noted that the meeti= ng was cancelled on Tuesday and he signed the letters to the abutters on Wednesday= in order to provide proper time for receipt of certified mail.

Mr. Hennessey then read a= loud an e-mail letter dated June 10, 2007 sent by the applicant Paula Jarek. In summary the e-mail requested th= at the site walk be rescheduled. She encouraged the Board to contact the original neighbors Mr. Cusson and Mr. Klinkhamer to confirm that the apartment was built by the original owner. She wrote that she contacted Town Administrator Tom Gaydos and Selectmen Chair Ed Gleason regarding other leg= al matters. She indicated, if ne= cessary, the Zoning Board could speak with them.&nb= sp; Mr. Hennessey felt it would be inappropriate for the Board to speak = with Mr. Gaydos or Mr. Gleason. Mr. Hennessey said he received an e-mail letter dated June 5, 2007 from Ms. Jarek asking if = it was necessary for them to be present at the (June11, 1007) meeting. He responded that it would be up t= o the Board whether or not to conduct a site walk and/or meeting and urged her (a= nd her husband) to attend. He sa= id they requested that the site walk be put off until next month. He said the Board had the power to= waive the site walk and proceed with the hearing; however the applicant was not present.

Mr. Kearney asked what had changed between then and now for the Board to grant a site walk. Mr. Hennessey understood that the = Jareks indicated their willingness to allow the abutters on the premises. He said the Police could suspend t= he (no trespassing) order for the purpose of the walk. He said it was recommended to have= a Police Officer present during the site walk. He said there was still the questi= on of who would pay for the officer. Mr. Gowan said while speaking with Town Counsel he asked about the issue with t= he police. He said based upon a conversation with Sergeant McCarthy, if an officer was present, any restraining/trespassing order would be suspended while the officer was present. He said Town Counsel questioned the need for an officer, and wasn’t sure that the Board co= uld compel the Jareks to pay for such. <= /span>He said he would pay for an officer out of his budget.

Mr. McNamara said the Boa= rd had asked for a site walk because there was information needed that could be provided by a site walk. He s= aid the actions of the abutter troubled him.&n= bsp; He reviewed the e-mail and said the applicant was well aware that th= ere would be a subsequent public hearing and site walk. He said the applicant’s acti= ons caused the site walk to be cancelled because it could not be conducted with= out the public. He felt the Board= had the authority to move forward with the proceeding and there was case law to support the fact that an applicant’s refusal to allow public access o= n a site walk could be reason for a denial of a variance request. In effect the applicant was preven= ting the Board from getting information that was vital in making a decision. Mr. McNamara said to be on the safe side, the Board should agree to do a site walk, but make it very clear that= if something subsequently happens where the site walk is frustrated by anything the Jareks do, he would make a motion at the next meeting to deny the varia= nce on various grounds (obstruction of public process). Mr. Hennessey then read aloud the = e-mail dated June 5, 200= 7 sent by Paula Jarek in which they asked if they were required to attend the meeting. He said he responded= and informed that the Board would discuss whether the site walk was needed, or = if they would proceed with the case. He urged the Jareks or their representative to attend.

Mr. McNamara made a motio= n to continue the site walk and reschedule the matter to the next meeting. Mr. Molloy seconded the motion.

Mr. Dunne was confused ba= sed on correspondence with the applicant why they were not present for the meeting. Mr. Hennessey said he advised the applicant to attend. Mr. Dunne questioned why a Police Officer should be present if they had a site walk. Mr. Hennessey said ther= e was obviously an estrangement between the applicant and the neighbors based on = the fact that cross-restraining orders were taken out. Mr. Gowan said from a legal point = of view Town Counsel didn’t see the need for an officer. Mr. Gowan advised the presence of = an officer because of the potential of an explosive meeting. He said he would not be attending = the site walk.

MOTION:

(McNamara/Molloy) To co= ntinue the site walk to a date in the very near future and reschedule the matter to = the next meeting.

VOTE:

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

A site walk was scheduled= for June 23, 2007 b= eginning at 9am. Mr. Hennessey said the site walk w= ould be a posted public hearing and abutters would be allowed onto the premises = or they wouldn’t conduct the site walk.= Mr. Gowan asked the Board to be specific regarding the police detail= and the payment for such, which he said could be paid for out of the Planning budget. There was further dis= cussion regarding the site walk and the trespass order. Mr. Gowan read Town Counsel’s response to him regarding the police detail and the associated costs, which= the Board could not compel the applicant to pay for. He said in this unusual circumstan= ce, if the Board is going to require an officer, it should come out of the Plannin= g budget.

Mr. Ouellette was concern= ed that the site walk would be lengthy if one Board member was the ‘point person’. Mr. Hennessey = explained that the site walk would be conducted by him in an orderly fashion similarl= y to a meeting. He said Board memb= ers would stay together and minutes would be taken.&= nbsp;

There was no objection by= the Board, therefore, Mr. Hennessey asked Mr. Gowan to arrange for a Police Off= icer to be present at the site walk.

The hearing was adjourned= to the site walk meeting of June 23, 2007 and to the next Board meeting.

HEARINGS

Case #2377 WOODSVI= LLE TRACTOR, INC. – 4 Forman Lane -= Map 24 Lot 12-202 - Seeking (variance from Article I= II, Section 307-12 & 307-14) the creation of a subdivision of an existing l= ot approximately 5.47 acres in size, with approximately 389 feet of frontage, = into two lots, one with less than 200 feet of frontage.

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

Attorney David Groff, representing the applicant, met with the Board to discuss the requested variance. Attorney Groff said the applicant provided two alternatives for the lots. He= said the existing house was constructed in 1970 (according to the Assessor’= ;s records) and was purchased from the former owner. He said with the amount of land it= could be possible to tear down the existing house and put in a short cul-de-sac, = but this wouldn’t be beneficial to the Town to have to maintain the cul-d= e-sac. He said the alternative was to req= uest a variance for frontage; one lot would have less than the required 200feet of frontage.

Attorney Groff reviewed t= he variance criteria; following is what was submitted:

1. The variance will not be contrary = to the public interest because: The proper= ty is zoned residential, residential use is proposed; and the proposed lots will = meet all current setback and other zoning requirements.

2. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship becaus= e:

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: The existing lot has only about 390 feet of frontage on a public wa= y. There is an existing home of the ex= isting lot, which was constructed in 1970, according to the Assessor’s records. There is not any additional land available in this area that could be added to this lot to increase the road frontage. T= his Lot is zoned residential.

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because: = The abutting lots have established homes. No additional land is available to expand the lot frontage. The Owner does not want to raze the existing home. The Owner does not want to constru= ct a cul-de-sac on this property solely for the purpose of creating additional frontage, as that new road would have to be maintained by the Town once accepted.

3. The Variance is consis= tent with the spirit of the ordinance because: The area is zoned for residential use. The proposed lots would both be more than 2 acres in size. The proposed lot with less than 20= 0 feet of frontage would meet all other requirements of the current zoning ordinan= ce for residential construction.

4. Substantial justice is= done because: The existing lot has suffi= cient usable area available for the proposed subdivision, and both proposed lots would meet all other requirements in the current zoning ordinance.

5. The value of the surro= unding properties will not be diminished because: The proposal is to create a new lot, which could be used for construction of a = new home. The area is zoned for residential use; and this is the proposed use. The abutting lots are all develope= d with homes.

Mr. McNamara asked if the= re were any prior variances or special exceptions on the lot. Attorney Groff answered no. Mr. McNamara asked if the applicant proposed to build a single family and if they had 35,000SF dry. The applicant, Mr. Alfred Gagnon s= aid they proposed to build a single-family home. Mr. McNamara asked how much of the property was wet or in the Wetland Conservation District (‘WCD’). Mr. Gagn= on pointed out the wet areas. Mr. McNamara asked where the location of the present driveway was to the existi= ng home. Attorney Groff showed t= he location.

Mr. Gowan encouraged the = Board to consider the variance. He sug= gested that they grant such to the overall property and let the Planning Board dec= ide which plan they wanted to accept. He said there was a note on the plan indicating that there was 62,248SF of dry area on the lot and questioned if it was contiguous. Mr. Gagnon answered yes.

Mr. Dunne saw that the pr= oposed well was close to the existing well and asked if any test pits had been don= e to see if the water would be enough to sustain two houses. Attorney Groff didn’t have an answer. Mr. Gagnon said if th= ere was a problem, they could find another area to locate a well. He said soils had been reviewed by= the state, but no well drilling had been done.= Mr. Ouellette believed the question would be answered by planning if= the variance were to be approved. Mr. Gowan said the question would not be the location/proximity of the two well= s, but rather the location of the well to the septic.

Mr. McNamara said the pro= posed property line appeared to bisect the well radius so the applicant would nee= d a waiver for the radius.

Mr. Ouellette asked for clarification of the term ‘poorly drained’. Mr. Hennessey noted if the varianc= e was approved, the applicant would need to bring the plan to the Planning Board. Mr. Gowan said poorly = and very poorly drained soils describe wetlands which the Planning Board would review.

PUBLIC INPUT

Mr. David Forman, lived a= cross the street from the proposed property, informed that there was quite a bit = of runoff from the left of the property and was concerned that development wou= ld cause more water runoff flooding his property. He was also concerned with a decre= ase in water to his well if another well was added.

Mr. Peter Loosigian, 8 Foreman Lane said there were currently three households on Foreman Lane, all of which opposed = the granting of the variance. He = said fifteen years ago when he purchased property and built his home people were= n’t happy, however, because the lot was conforming the neighbors had to get use= d to it. He then discussed the har= dship criteria and his understanding of such.&nb= sp; He found out from the planning that ‘hardship’ could als= o be interpreted as a hardship for the Town based on garnering taxes. He didn’t feel the applicant= had a hardship because the property could be lived in and developed as it was. Mr. Hennessey noted that the term ‘hardship’ was defined in the application and the applicant answered the criteria concerning such.&nbs= p;

Mr. Molloy asked why Mr. Loosigian opposed the property. Mr. Loosigian said he opposed the property because it didn’t meet the regulations. He discussed the= situation of a neighbor who was selling two house lots. Mr. McNamara pointed out that the applicant had not listed tax base as a reason to grant the variance. Mr. Loosigian understood that the applicant was not using taxes as a reason but was just noting that it could= be a reason for granting a variance. Mr. Hennessey said the Board was confining itself to the application= in front of the Board.

Ms. Margery Staples, 5 Foreman Lane resided in the neighborhood for approximately 15 years and had a small horse farm. She agreed with Mr. For= man about the water drainage. She= said the front (left) section flooded and was quite a problem. She said the road was recently pav= ed and one of her biggest issues was the narrowness of the road and increased traffic. Mr. McNamara said if= the variance was granted, the applicant would need to go before the Planning Bo= ard and show that the post- and pre-development drainage had to remain the same. He said the abutters wo= uld be re-notified of the Planning Board meeting.= Ms. Staples felt the road would need to be expanded if a subdivision= was done. She said traffic was currently an issue.

Attorney Groff discussed = the road and said it had been paved recently. Mr. Gagnon said when the road was paved the road bed was done higher than the property so water pockets against the road bed and subsides after a couple hours. He said the soil samples were done and came out fine; there were no wetlands found at the ed= ge of the road. Attorney Groff discussed the frontage and noted when the applicants purchased the property they were informed that they had 475ft. of frontage, but when the property = was surveyed they found they had less. <= /span>He mentioned that Mr. Loosigian approached the applicant about purchasing the property and the offer was not accepted.&n= bsp; He said that might have some bearing on why he now objected. He said Mr. Loosigian owned approximately 7-acres and if he had purchased such, he would be able to do a larger subdivision.

Mr. Loosigian said he wan= ted to purchase the property and his reason was to control who lived there. He said he didn’t want to pu= rchase it to make a subdivision.

Mr. Foreman said the water didn’t subside in a couple hours; it came over the road for as long a= s it rained and for a time after. = He said it would eventually wash the road away. He said it was known (by his mothe= r who sold the property) that there was less than 400ft of frontage and didn̵= 7;t understand how it could have been mistaken. He said his mother would have aske= d for more money if there were two lots. <= /span>

Ms. Staples said there we= re ducks that came every spring. She s= aid she had problems with her driveway and water since Mr. Loosigian came in. She said once he built his house a= nd roadway the water came down to her property and destroyed her driveway. She said with the road being built= up it had made the situation worse. It was her understanding that when the applicant purchased the home that he ga= ve the impression he would reside in such and not subdivide.

Mr. Hennessey asked if th= e road was a public road. Mr. Gowan = said it was public and had a dead end. Mr. Hennessey asked if the Town paved the road. Mr. Gowan believed so. Mr. McNamara asked if the drainage= was a Town issue. Mr. Gowan said to= an extent, but he hadn’t seen the road.=

Mr. Kearney asked who det= ermined traffic. Mr. Gowan said in a = new subdivision where roads were being built that was part of the planning proc= ess; typically it was not in a one-lot subdivision. He said in this situation, there w= ere many factors the Planning Board would consider.

Mr. Hennessey asked for clarification of the applicant’s request. Mr. Gowan said the variance was to= the issue of frontage; not to create a lot.&nb= sp; Mr. Molloy questioned if the Board should know what frontage was bei= ng granted because there were two plans proposed. Mr. Gowan said there was one appli= cation that showed two options. He s= aid limitations could be placed on the variance, but the Board was not making a decision regarding the specific lots. Mr. McNamara said the case was unusual but went on to note that the = applicant was only lacking 10ft. and if the Board denied the variance it would end up= in court and the Town would lose. He noted hardship was to the property, not to the applicant. He said the Board was duty bound t= o base decisions on the five criteria. Mr. Hennessey said the board would be looking at the Boccia case when making the decision for the area variance.

Mr. Kearney confirmed tha= t the applicant was proposing a single-family home. Mr. Gagnon answered yes. Attorney Groff said the Board could stipulate such.

MOTION:

(Kearney/McNamara) If V= ariance is passed, it is stipulated that it is a single-family dwelling.

VOTE:

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

Mr. Dunne referenced the Subdivision Regulations in connection with wells and the required radius for such. He asked if the existin= g well would need a variance because it would be located on the new property. Mr. Hennessey said it wouldn’= ;t need a variance because the well radius was not contained in zoning. He said the regulations would have= to be followed.

Mr. McNamara confirmed th= at the Board was not recommending one plan over the other. Mr. Hennessey said that was correc= t.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria – based upon stipulation of single-family home

Mr. McNamara – Ye= s to all criteria – based upon a single-family home

Ms. Paliy – Yes t= o all criteria

VOTE:

Mr. Molloy – Yes = to all criteria

Mr. Kearney – Yes= to all criteria

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

‘AREA’ VARIANCE GRANTED

MINUTES

May 14, = 2007

MOTION:

(McNamara/Molloy) To ap= prove the meeting minutes of May 14, 2007 as amended.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/Kearney) To a= djourn the meeting. <= /b>

VOTE:

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

The meeting was adjourned= at approximately 8:22 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary