BOA20080211.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

February 11, 2008

The Chairman David Hennes= sey called the meeting to order at approximately 7:00 pm.

The Secretary Robert Moll= oy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Robert Molloy, Svetlana Paliy, Kevin O’Sullivan, Alternate Bill Kearney, Planning Director/Zoning Administrator Jeff Gowan

Altern= ate Lance Ouellette, Alternate Ken Dunne

Mr. Hennessey said Mr. Du= nne had not been present for several months and asked that the Selectmen take notice.

HEARINGS

Case #2396 MARION, Michel – 5 Woodbury Avenue / Map 22 Lot 7-256 = 211; seeking a “Use” Variance to Article III, Section 307-8 (C) & 307-12 to permit the construction of a cold storage addition on an existing foundation on an undersized lot.

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.&nb= sp; He noted that the letter for Scott Moody was returned stamped moved.

Mr. Michel Marion met wit= h the Board to discuss his Variance request.&nbs= p; He said the cold storage unit would make the property neat looking in appearance and would replace the rental storage unit currently there. He said the addition was in the ba= ck of the building and was basically invisible from the street. He said it would be built in accor= dance with the rest of the neighborhood. <= /span>

Mr. Marion read the follo= wing variance criteria aloud (as submitted):

1. The variance will not be contrary = to the public interest because: The additi= on will add to the taxes being paid on the property.

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

“Use”

i.   the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environment such that: There is no available property to purchase in order to conform to zoning.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: The addition is being buil= t on existing foundation and meets all setbacks.

iii. the variance would not injure the public or private rights of others since: I will meet all code = and setbacks, with a pleasing appearance, with no change in current use of the property.

3. The Variance is consis= tent with the spirit of the ordinance because: I am only requesting a variance to waive lot size requirement, all other setb= acks and codes will be met.

4. Substantial justice is= done because: The use I am seeking is a permitted use for that district.

5. The value of the surro= unding properties will not be diminished because: The proposed addition will be aesthetically pleasing and add to the property, t= hus having no adverse effect on surrounding properties.

Mr. Hennessey confirmed t= hat the use in the district was residential and asked if Mr. Marion was allowed to operate his machine shop because it had been there so long. Mr. Marion informed that he receiv= ed a variance approximately ten years ago to operate the machine shop.

Mr. McNamara asked if Mr.= Marion had a drawing of what the shop would look like. Mr. Marion showed the Board a draw= ing of the building’s footprint. Mr. McNamara asked what would be stored in the building. Mr. Marion said he would store equipment, furniture and whatever he didn’t want outside in the weath= er. It would be the same thing that he stored in the container now. =

Mr. Gowan provided the Bo= ard with a brief history of the property. He said he had been to the machine shop and if someone wasn’t aware of i= ts existence they probably wouldn’t.&nb= sp; He said the shop didn’t generate a lot of noise or traffic and didn’t have night hours. He said there was a slab that Mr. Marion wanted to build the structure on. He said he couldn’t find any= thing in the former variance that contemplated the type of expansion being reques= ted. He said the building met the setba= cks and would be beneficial in that the container that was currently there woul= d be gone. He said the applicant exhibited a concern for the way the property looked. Mr. Marion discussed the look of t= he building which he didn’t feel would give anyone cause for concern.

Mr. McNamara asked for th= e dimensions of the addition. Mr. Marion s= aid the addition would be 25ft.x50ft.

There was no public input= .

Mr. McNamara asked if it = would make sense to restrict a variance to the use proposed, since there was a variance previously granted. = Mr. Hennessey asked if the previous variance stipulated that the business had t= o be a machine shop. Mr. Marion sa= id the variance mentioned that it was a machine shop but there was no stipulation regarding varying it. Mr. McN= amara suggested that a variance should have a stipulation that it could only be u= sed as a machine shop. Mr. Marion didn’t have a problem with such a stipulation.

Mr. Hennessey said the ap= plicant was requesting cold storage. = He asked if anyone had a problem with it being used as work space. Mr. O’Sullivan said the space could potentially lend itself to an expansion of the business. Mr. Marion said at the moment he w= as requesting cold storage not an expansion; the business wasn’t changin= g. Mr. Hennessey said the Board was restricting the business to the current use. He wanted to be clear about the Board’s intent and if they were allowing the applicant to expand into= the proposed space. Mr. McNamara didn’t think he wanted to restrict the use to cold storage. Mr. Hennessey said the motion, as described, left it open ended.

MOTION:

(McNamara/Paliy) The Va= riance will be predicated on the use of the addition in conformity with the exis= ting business going on, which is a machine shop.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

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

“USE” VARIANCE APPROVED

Case #2397 BEAUREG= ARD, Chad – 43 Hinds Lane /<= span style=3D'mso-spacerun:yes'> Map 27 Lot 104 – seeking an “Area” Variance to Article III, Section 307-12 & 307-14 to permit the construction of a 28ft.x36ft. single family house with a 24ft.x2= 4ft. attached garage on an undersized lot with less than 200ft. of road 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.&nb= sp; The letter to Marjorie Butterfield was returned ‘not deliverable’.

Mr. Chad Beauregard and M= r. Tim Beauregard came forward to discuss their variance request with the Board. Mr. C. Beauregard said they would = like to take down the existing structure and build a new structure. The existing structure was close t= o the road (within 17ft.) and also sits on the same time as where the state appro= ved septic would be located.

Mr. Beauregard read the f= ollowing criteria aloud (as submitted):

1. The variance will not be contrary = to the public interest because: Increased taxes paid on property. I am improving the property environmentally as well as visually and increasing surrounding property value. Reconstructed dwelling= will be closer to conformance due to: 1) State approved septic will be moved fur= ther away from water; 2) Set back dwelling further than existing 17.7ft. from ro= ad and comply with Wetland Conservation District (‘WCD’).

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: Lot was created prior to Zoning Restrictions. Property is currently with nonconf= orming structure.

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: = There is no additional land to acquire= from adjoining properties to satisfy area requirement.

3. The Variance is consis= tent with the spirit of the ordinance because: Request makes site more conforming to setbacks and wetland.

4. Substantial justice is= done because: The proposal will enhance = the existing lot as well as bettering the environment. Property site was created for residential structure.

5. The value of the surro= unding properties will not be diminished because: Variance will allow upgrade of existing structure which will enhance property value = and surrounding properties. =

Mr. C. Beauregard display= ed the plan and explained what was being proposed. He said the new structure would be= built off the road and allow a driveway, parking and a garage. He planned to update the septic sy= stem and move it away from the water because the existing septic disposal system was dated. He noted that the sept= ic system was approved by the Town and the state.

Mr. Hennessey asked if the proposed structure (house and garage) would be closer to the shore line and substantially larger. Mr. C. Beauregard said the structure would be closer to the water. Mr. Hennessey asked if the applica= nt had gone to the Department of Environmental Services (‘DES’) to obt= ain a permit to build within the setback of the shore land protection. Mr. C. Beauregard showed Mr. Henne= ssey a copy of DES’s approval of the plans.=

Mr. O’Sullivan aske= d if the current structure was on a foundation.&nbs= p; Mr. C. Beauregard said some of it was cement and the majority was fi= eld stone. Mr. O’Sullivan a= sked if it was ground level and above. Mr. C. Beauregard answered yes.

Mr. Molloy asked if the p= roposed house would be a two-bedroom home. Mr. C. Beauregard answered yes.&nbs= p; Mr. O’Sullivan confirmed that the proposed structure would be approximately the same dimension as the structure being torn down. He also confirmed that the applica= nt would be adding a driveway and a garage.&n= bsp; Mr. C. Beauregard said that was correct. Mr. Molloy said it seemed like a l= ot of house to be a two bedroom. Mr= . C. Beauregard said he lived alone.

Mr. O’Sullivan aske= d if the existing water supply was pumped up from the pone. Mr. C. Beauregard answered yes. Mr. O’Sullivan asked if ther= e was a well. Mr. C. Beauregard sai= d he upgraded the well. Mr. Gowan = wanted the record to be clear that the drilled well was new and was installed. Mr. C. Beauregard answered yes.

Mr. McNamara said there w= as note on the plan regarding the maintenance of the septic. He asked if this was different fro= m a typical system because it looked fairly sophisticated. Mr. C. Beauregard said he didnR= 17;t know technically how the septic worked.&nb= sp; Mr. McNamara asked if the applicant had septic approval for a two-bedroom. Mr. C. Beauregard answered yes.

Mr. Kearney asked how much clearing of vegetation would be required.&= nbsp; Mr. C. Beauregard said approximately seven to ten trees would be removed for the house and garage; there were a total of approximately twenty trees on the property. Mr. Hennessey noted there would be certain restrictions by the state because they were within 250ft. of the sh= ore line; at least 50% of the basal vegetation was supposed to stay in place.

Mr. McNamara asked at wha= t height the peak of the house would be. Mr. C. Beauregard said he didn’t have the exact height, but believed it w= as approximately 32ft. Mr. T. Beauregard said the structure was a typical two-story Cape with 4.5ft. dormers. Mr. Henn= essey asked if the lot was sloped down from Hinds Lane. Mr. C. Beauregard said the lot was sloped. Mr. Hennessey asked if there was a= nyone directly across the street. M= r. C. Beauregard answered no.

There was no public input= .

Mr. McNamara said his con= cern was the septic (inspection, pumping and effluent filter) and if the Board wante= d a stipulation for it to be mentioned in the deed. Mr. Gowan discussed how the plan c= ould be recorded at the Registry. = The Board discussed having the applicant record the plan at the Registry; there was a consensus that the plan should be recorded.

Mr. O’Sullivan said= if the Board granted a variance, he would like to see something in place to recover/protect the area from the square footage remaining. Mr. Hennessey said traditionally f= or lots with shore lands the Board had conducted site walks. The Board discussed walking the si= te.

A site walk was scheduled= for February 16, 2008 at 9am.   The case was continued to the= site walk and date specified to the March 10, 2008 meeting.

Case #2398 MZL REA= LTY TRUST LLC – 8-12 Bridge Street / Map 41 Lot 10-246 &#= 8211; seeking an “Area” Variance to Article VII, Section 307-41 to pe= rmit the construction/paving gravel portion of the site within the WCD, construct portion of new building within the WCD & expand size of existing buildi= ng within the WCD.

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.&nb= sp;

Mr. Joseph Maynard of Ben= chmark Engineering met with the Board to discuss the variance request. He provided the Board with a letter submitted by one of the abutters that indicated that they didn’t have= an objection to the request. He = then discussed the property and its history.&nb= sp; He said his client had merged three properties so there was now 3.15 acres. He said the Wetland Conservation District (‘WCD’) was exerted from the wetlands that surrounded approximately three sides of the lot. He showed the WCD line. Mr. Maynard continued reviewing th= e plan and showed where the building would be constructed and where they proposed parking. He said currently th= ere was approximately 21,600SF of pavement and gravel surface and approximately= 1000SF of building surface within the WCD. Upon post development (and impact to the center of the parcel) there would be 3800SF of building and 5200SF of pavement that would be effected by the variance.

Mr. Maynard said they had= been to the Planning Board and reviewed the project as a whole; they also spoke to = the Conservation Commission to try to get everyone’s input prior to comin= g to the Board of Adjustment. He discussed the current drainage, which sheet flowed into the wetlands before they crossed Route 38 and went into Beaver Brook. He said their proposal would be to improve the quality of the runoff that left the site. He said they would be providing treatment for any runoff, not just exiting portions, but also from any prop= osed portions of the site. He show= ed that a detention ponds would be located in the southerly portion (to capture runoff from parking), and also to the rear of the Advanced Pool and Spa building to capture the middle portion of the runoff and the roof drainage. He said another improvement was to combine add an oil/water separator catch basin and send = the water to the detention pond in the rear of the Advanced Pool and Spa building.

1. The variance will not be contrary = to the public interest because: Sit e has numerous existing commercial buildings now. Some of the existing buildings are= with in the WCD. Drainage improvem= ents proposed will be a substantial improvement to water quality to the surround= ing wetlands.

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

“Use”

ii. the z= oning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environ= ment such that: Site consists of regarded & filled land surrounded on 3 sides by wetlands. WCD extends into area that is curr= ently developed.

ii. no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the proper= ty because: Existing building & ot= her improvements currently exist with in the WCD. Currently site has no treatment for run-off from pavement or roofs. With variances granted detention pond and/or treatment swales will be constructed to handle run-off from the buildings & parking. =

iii. the variance would not injure the public or private rights of others since: all improvements are = within this properties units. Develo= pment will take place mostly between the two existing dwellings. Also the quality of site run-off w= ill be substantially improved with the proposed detention ponds & treatment swales.

“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: Existing developed property is surrounded on 3 sides by wetlands. Existing improvements limit locati= on for additional improvements with out working in the WCD.

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: = Applicant/owner has already purchas= ed all available usable land in this area. This properties size, shape, existing improvements & this configuration of on-site wetlands restrict development of this site.

3. The Variance is consis= tent with the spirit of the ordinance because: although building & parking are proposed with in the WCD the existing developed portions of the site offer little protection for site run-off. This proposal if allowed, would cr= eate detention ponds & treatment swales to treat run-off from the site prior= to the wetlands. =

4. Substantial justice is= done because: Will allow site to be deve= loped commercially as it is zoned. Drainage improvements, as proposed, will be a major improvement to existing on-site conditions also upon development (2) older septic systems = will be reconstructed outside of the WCD. Old systems will be removed.

5. The value of the surro= unding properties will not be diminished because: Majority of this site is surrounded by a gravel pit. Improvements to building & sit= e will be substantial. Planning Board approval is still required & landscaping will be installed across entire lot.

Mr. Gowan read aloud a le= tter dated December 17, 2008 that was forwarded by the Conservation Commission.<= span style=3D'mso-spacerun:yes'>

There was no public input= .

Mr. Gowan discussed the s= ite comparing the past to the present, which he believed had improved greatly.<= span style=3D'mso-spacerun:yes'>

Mr. Hennessey asked when = the gas station was built and if it was before, or after the Town had a WCD. Mr. Maynard said the station was b= uilt in the mid-1990’s after the Town had a WCD. He explained that there was an exi= sting building that operated as a convenient store for a number of years. Mr. Hennessey didn’t underst= and why the detention swales and evaporator weren’t done when the station= was built. He asked when the buil= ding on left (Advanced Pool & Spa building) was built. Mr. Maynard said it was rebuilt in November/December, 2007 to present. Mr. Gowan said the building was built on the same footprint; the sep= tic system was functioning. He sa= id the applicant went to the Planning Board for the change-of-use.     Mr. Hennessey asked if the en= tire parcel was in the 100-year flood plain.&nb= sp; Mr. Maynard said approximately 2/3 of the property according to map,= but pointed out that owner had operated the store for a number of years and dur= ing the Mother’s Day floods two years ago didn’t lose one day of business because the water didn’t come near the elevation of the store (which was the lowest portion of the site). Mr. Hennessey asked if the fill th= at was used to construct was so high that the 100-year flood didn’t touch the buildings. Mr. Maynard noted = that the fill that was in place to fill the wetland had been there prior to the state adopting wetland regulations in 1970.

Mr. Hennessey asked if th= ere was any consideration to mitigation. Mr. Maynard said their mitigation was the drainage improvements since the prope= rty didn’t have treatments for the runoff. Mr. Hennessey asked if there was a= ny additional land being offered to add to the wetlands or the WCD. Mr. Maynard said it wasn’t a= lways the best idea to go in and do mitigation; they were proposing to fill 1500S= F. He said they could potentially exc= avate out 1500SF to the south east corner of the property. He said the issue with creating mitigation was that sometimes an area ended up being disturbed more than it would be worth. He said gener= ally the state looked for mitigation when the wetland impact was more than 10,00= 0SF. He didn’t feel it would be b= eneficial in this area to create mitigation. <= /span>He said to create additional WCD buffer, they could possibly create landscapin= g to the south parcel against the Keating lot as a form of mitigation (the area = was currently a gravel lot).

Mr. Hennessey said he rec= eived assurances from Mr. Gowan, but wanted a stipulation that the wetlands behind the property were not prime wetlands. Mr. Maynard said the Conservation Commission recently put their map = on line. He said he reviewed the= map and the prime wetlands are 200ft-300ft. behind the site. Mr. Hennessey didn’t underst= and how a distinction could be made between the two wetlands if they were flowi= ng together. Mr. Maynard said th= e land was flowing toward their lot. He pointed out the prime wetland area on a map. Mr. Gowan said he spoke with Conse= rvation Commission Chairman Paul Gagnon earlier in the day who discussed the project. He said there was a = newly designated prime wetland across the street from the site being discussed. He said there was a finger of prime wetland within the wetland that surrounded the site; the finger was hundred= s of feet from the proposed project. He believed Mr. Gagnon felt the encroachment was mitigated by the additional drainage structures. He felt = it was important to remember that the state didn’t have a setback to wetlands. Mr. Hennessey said = there currently was a law on the books (that hadn’t gone into effect) that called for 100ft. setback from prime wetlands. Mr. Gowan said the Board had to de= al with the laws that were already in effect.=

Mr. O’Sullivan aske= d if the pump island would remain the same number of pumps. Mr. Maynard said it would remain; = there was no expansion of the gas station.

Mr. Hennessey said he had= severe problems with the project within the WCD.&= nbsp; He said he would make a motion if necessary that if the variance was granted that the parking spots and vending machine within the changed (post development) WCD come out. He didn’t understand why the proposal called for increased parking within the WCD. Mr. Maynard said the= re was no issue with moving the vending machine.&= nbsp; He pointed out that the parking (at the northerly area) had been a gravel surface that was used a parking area for a number of years; the prop= osal would be to pave an area for 7-8 parking spaces, the remaining area would be loamed/seeded and landscaped. He showed the areas that were currently a packed gravel surface from when the = site was built. He then showed the= areas that would be landscaped.

Ms. Paliy suggested that = the Board walk the site to see what it should have been and what it currently was. The Board discussed walk= ing the site.

A site walk was scheduled= for February 16, 2008 at 8am. The case was date specified to the= March 10, 2008 = meeting.

MINUTES

October = 11, 2007

MOTION:

(McNamara/O’Sulli= van) To approve the O= ctober 11, 2007 meeting minutes as written.

VOTE:

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

November= 15, 2007

MOTION:

(McNamara/O’Sulli= van) To approve the N= ovember 15, 2007 meeting minutes as written.

VOTE:

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

December= 10, 2007

MOTION:

(McNamara/O’Sulli= van) To approve the D= ecember 10, 2007 meeting minutes as written.

VOTE:

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

January = 28, 2008

MOTION:

(McNamara/O’Sulli= van) To approve the Ja= nuary 28, 2008 meeting minutes as amended.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/O’Sulli= van) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:20 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