BOA20080310

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 10, 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, Alternate Lance Ouellette (arri= ved after the meeting commenced – 7:20pm), Planning Director/Zoning Administrator Jeff Gowan

Altern= ate Ken Dunne

REQUEST FOR REHEARING

Case #2392 - CURRI= ER, Priscilla G., Trustee of the M&P Real Estate Trust - Map 22 Lot<= /st1:place> 8-140 – By applicant

Mr. Hennessey read aloud = a letter submitted by the applicant’s representative Attorney Brad Westgate who said they had been advised by Jeff Gowan that no other motion for rehearing= had been filed in the case. As a consequence, the applicant advised the Board that the Mrs. Currier’s motion for rehearing had been withdrawn.&n= bsp;

CONTINUED HEARINGS

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. Hennessey said the Bo= ard had conducted a site walk. He sai= d the abutters had been notified and did not need to be re-notified. Mr. Molloy provided a summary of t= he site walk minutes.

The applicant Mr. Chad Be= auregard and his brother Mr. Tim Beauregard had no further comments.

There was no public input= .

Mr. Hennessey said one his concerns had been the height, but given that the land sloped off the road b= ed and that it was obvious no abutters would be impacted he was in favor of the application.

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.

AREA VARIANCE GRANTED

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

Mr. Hennessey described t= he location of the building. He = noted that the Board had conducted a site walk with member of the Conservation Commission. Mr. Molloy provid= ed a summary of the site walk minutes.

Mr. Joseph Maynard of Ben= chmark Engineering met with the Board to discuss the variance request. He said a question was raised if t= hey could move an air machine. He= said they would work with the Board and move it outside of the Wetland Conservat= ion District (‘WCD’) if it was an issue.

There was no public input= .

Mr. Molloy questioned wha= t the concern was with moving the air machine.&n= bsp; Mr. Hennessey said he brought it up not just because of the air mach= ine, but also because of the parking at the drop off. He said he didn’t want anyth= ing located on that portion of the site. He said he was still opposed to the proposal and felt that the Board should pull as much usage abutting the wetlands back.

Mr. McNamara was in favor= of the proposal. He felt the totalit= y of it represented a substantial improvement than what currently existed. He didn’t have a problem bri= nging the air machine out. He asked= how many handicap spaces were proposed. Mr. Maynard said there was one handicap space and three regular park= ing spaces. He said the Fire Depa= rtment would like access to three sides of the building, so the handicap space that was directly adjacent to the building would be moved over one space; now th= ere would be two parking spaces and a handicap space to allow fire access. He showed on the plan where the sp= aces would be located.

Mr. O’Sullivan aske= d Mr. Maynard to review the net affects intrusion into the WCD before and after t= he development. Mr. Maynard show= ed the property and said currently existing there was 900SF of retail space. Pre-development there was approxim= ately 5400SF of pavement within the WCD. He said the proposed impacts to the WCD would be 2200SF for parking,= 700SF for the existing spaces, and 3700SF of building in the WCD.

Mr. McNamara understood p= art of Mr. Hennessey’s difficulty was how the existing building got there and how the gas station was built up. He didn’t believe that was the responsibility of the applicant. He believed that the drainage improvements being suggested, particularly that from the parking area (impervious surface) would be treated, where it was not currently being done. He also noted that there would be treatment on the other side of the lot as well. He said it was not a new intrusion= into the WCD; it was an existing site and improvements were being made on it. Mr. McNamara said the nature of the constrictions the applicant had to deal with in term of the closeness of the WCD and wetland made it difficult to put anything in there without having s= ome impact. He felt the applicant= had gone a fair way to mitigate the impact.&nb= sp; He said the other practical problem he had was where the handicap sp= ace would go if it wasn’t close to the building.

Mr. Hennessey said the pa= rcel was not only in the WCD, but it was also in the wetlands. He said it was built up and there = was an intrusion into the wetlands and filled in.= He would like to pull it back as much as possible. He said it didn’t make sense= to allow parking immediately at the drop off.= His concern was under the zoning laws; it was a violation of the zon= ing regarding the WCD. He didn= 217;t feel it was unreasonable to ask for it to be mitigated as much as possible.

Mr. Gowan said there was = no doubt that wetlands were filled to create the parcel, but it long pre-dated the wetland ordinance in the Town and the state. He said when wetlands were measured based on today’s soils, not by what was wet.

Mr. Molloy pointed out th= at the Conservation Commission’s letter stated they were in favor of the proposal because it was a marked improvement of what was currently there now.

Ms. Paliy said Pelham dec= ided at one point to put a business area in the wetlands. She said it had been there a long time. She said it was a great improvement and was being developed further as a business area. She said the business wasn’t= there by accident; it wasn’t just one business, the whole area had business= es. She said it would be going against= what Pelham decided to do to say that the area shouldn’t be allowed.

Mr. Hennessey wanted the = Board to discuss the parking and asked for a motion just for the parking and air mac= hine so it could be discussed.

For discussion, Mr. McNam= ara made the motion to relocate the parking and air machine abutting the edge of pavement. Mr. O’Sullivan seconded the motion. Mr. McNa= mara understood Mr. Maynard had agreed to take out the air machine, so the discussion would= be regarding the parking. Mr. Hennessey believed if the variance was approved, the Board would be giving = an enormous concession to the developer in putting the parcel in. He didn’t feel it was unreas= onable to pull the parking back.

Mr. McNamara asked if the= re were alternatives for placement of the spaces anywhere nearby.   Mr. Maynard said there wasn’t any alternative in the general area because of where the exist= ing gas pumps currently sat. He s= aid the next nearest space was approximately 50-feet away.

Mr. Molloy asked if there= was treatment for the runoff in the parking area. Mr. Maynard said the existing park= ing area would flow toward a treatment swale and would be treated before it exited. He said that is where= the existing parking spaces were currently located. Any proposed spaces would flow eit= her toward the treatment swale or detention pond. All runoff from the parking and th= e roof would go toward some form of treatment.&nb= sp; Mr. Molloy asked if there was anything on site now. Mr. Maynard answered no.

Mr. Kearney asked if the = spaces were required. Mr. Maynard sa= id he was asking for a waiver to reduce the number of parking spaces. Mr. Gowan said the proposal had to= be ADA compliant. He asked if there was a porch or w= alkway that connected all of the structures. Mr. Maynard said there was a walkway along the front. He showed where the parking stoppe= d in front of the building, which was due to the configuration of the isle in fr= ont of the pumps. He showed where= the three handicap spaces were proposed.

MOTION:

(McNamara/O’Sulli= van) To restrict the variance to require the relocation of the parking and air machine immediately abutting the edge of the pavement (wetland).

VOTE:

(2-3-= 0) The motion failed. Mr. McNamara= , Mr. Molloy and Ms. Paliy voted no.

Mr. Hennessey believed th= e pumps and island were put in approximately ten years ago. He said at the same time the curre= nt owners of the parcel requested that the building behind the pumps be made i= nto a Mobil Mart and were turned down. He said the area was zoned commercial but the Town had an overlay district to protect the wetlands. Mr. Hennessey said when he looked at the site he saw increased densi= ty and usage for a site that was by definition very sensitive. He believed the proposed would be = an improvement, however, he felt it should have been required at the time the station was redone to protect the wetlands from any potential runoff. He said he had a problem because t= here should have been a site requirement to fix the runoff, put in a new septic system and to do the things the applicant proposed as a trade off to increa= se the usage.   He didn̵= 7;t think it was in the best interest of the Town to encourage development of commercial properties into the wetlands in sensitive areas.

Mr. McNamara agreed that = the Board shouldn’t encourage incursion into wetland. However, in this case, the Board h= ad a positive recommendation from the Conservation Commission for what was being proposed. He said what the applicant was suggesting to do would be better protection of the WCD than w= hat currently existed. He felt it= was an overall benefit to the Town to have a better looking and better protected place than currently exists. =

Mr. O’Sullivan said= due to the nature of the business, he was concerned that there is no significant on-site storage of any chemicals or treatment materials considering the site was very close to a natural water source.&= nbsp; Mr. Hennessey believed there was a representation made at the site w= alk that the applicant would limit the amount of storage on the site. Mr. Maynard said when ASAP moved f= rom the plaza they had an industrial storage space in Hudson where a majority of the chemicals would be stored. He said the proposed building didn’t have the room to store large quantities of them. Mr. O’Sullivan as= ked if there would be any outside storage. Mr. Maynard said the plan was not approved for any outdoor storage.<= span style=3D'mso-spacerun:yes'> Mr. Gowan said it was a specific condition of the Planning Board for the approval of the change-of-use that there would be no outside storage. He said the plan still had to go to the Planning Board and should be discussed there. He said reco= mmendations should also be made by the Fire Chief with regard to overall amounts (of storage) and to have a spill mitigation plan on file.

Mr. Hennessey reviewed the criteria. 1) he had an issue whether it would be contrary to the public’s interest; 2) yes; 3) he didn’t feel it was in the spirit of the ordinance because it specific= ally states protection of wetlands; 4) he said this came down to the balancing a= ct; 5) he didn’t feel the value of gravel pit would be affected.

BALLOT VOTE:

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

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=

(<= st1:date Month=3D"4" Day=3D"1" Year=3D"2000" w:st=3D"on">4-1-0) The mot= ion carried. Mr. Hennessey answered no.

AREA VARIANCE GRANTED

HEARINGS

Case #2399 - LUSSI= ER, Gerald & DOOLEY, Douglas – Dracut Line -= Map 39 Lot 1-62 – Seeking an ‘Area’ Variance to Article III, Section 307-13 (B) 1&2 to permit the subdivision of the pa= rcel into residential lots without direct access to a street that is directly accessible to police, fire, medical emergency and school transportation vehicles without these vehicles first having to leave the corporate limits = of the Town of Pelham.

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. Hennessey said althou= gh he didn’t have a conflict, he wanted to known that he worked for one the applicants, Mr. Lussier, thirty one years ago selling his homes.

Attorney Jeffrey Zall, 221 Main Street, Nashua NH, representing the appl= icants came forward to discuss the variance request. He explained that the parcel of la= nd was located on the Pelham, NH/Dracut, Ma. town line with approximately eight ac= res in Pelham and approximately four acres in Dracut. He said it was bordered in the wes= t by Long Pond, the north and east by a 50ft. strip of land owned by Mary Ann Coravos on the other side of the strip of land was Town owned land (Pelham Veteran’s Memorial Park – ‘PVMP’) and on the south = the property was bordered by residential lots in Dracut. He said the 50ft. strip of land wo= uld be acquired as part of the development and added into such. He said the eight acres located in Pelham was landlocked within Pelham with the only access being through Clement Road in Dracut (that was c= urrently being constructed). He said traveling the most direct route it was approximately .8 mile from the Pelham line on Mammoth Road. Attorney Zall said his client was proposing to subdivide the lot into a single family residential subdivision. The proposed conceptual subdivision was shown as part of the application and had not been engineered.

Attorney Zall said Articl= e III, Section 307-13(B),1 & 2 was problematic because the zoning change throu= gh the 2007 Town Meeting would prohibit the development because new lots must have 200ft. of frontage on an existing or new street that was directly accessible to Police, Fire, Medical Emergency and School transportation vehicles without the need to leave the corporate limits of the Town. He said the lot could not be developed in any reasonable way that would conform with the ordinance. He said t= he only way to access the lot was to travel .8 of a mile from the Town line, d= own Mammoth Road, then up Clement Road in Dracut. He said neither the 50ft. strip of= land or PVMP could provide access wholly in Pelham.

Attorney Zall said there = was an important aspect of the development that should be considered. He said his client proposed to mak= e town water available to the subdivision through the Dracut Municipal Water System. He believed that Pelh= am could significantly benefit from access to the municipal water for the building’s located in PVMP. As a condition of the variance the applicant’s were willing, at their cost, to bring water through the new subdivision to the buildings in PVMP. He said they had discus= sed the concept with members of the Town and there seemed to be a great deal of interest in having municipal water.

Attorney Zall then addres= sed the Variance criteria as follows (as submitted):

1. The variance will not be contrary = to the public interest because: Police, fi= re, medical emergency and school transportation vehicles will only have to trav= el .8 miles outside of the corporate limits of Pelham to provide service to residential lots created out of the applicant’s property. =

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 property is landlocked within the Town of Pelham and the only means of access to the property is through existing streets in= Dracut, Massachusetts.

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: = Without a variance from the restrictio= ns of the ordinance, the property cannot be reasonably developed. =

3. The Variance is consis= tent with the spirit of the ordinance because: It will allow the reasonable development of the property under the guidelines = and controls of the Pelham Planning Board.

4. Substantial justice is= done because: Granting the variance will= allow the applicant to reasonably develop the property.

5. The value of the surro= unding properties will not be diminished because: Residential development of the property will not adversely affect the value of surround= ing properties. The abutting property is a Town ow= ned park.

Attorney Zall said if the= y were successful in obtaining a variance, the next step would be to meet with the Selectmen and propose the services and offer the water and access. He said the next step would be to = meet with the Planning Board and have the project thoroughly reviewed.

Mr. Hennessey said in add= ition the applicant would have to go through Dracut. Attorney Zall said the planning process would have to include the Town of <= st1:City w:st=3D"on">Dracut and have them approve the section of road that would go through the Dracut section. He believed the Drac= ut Planning Board meeting would be straight forward because there were no lots proposed in Dracut<= /st1:place>. He said they would need assurances= from Dracut Municipal Water that they would allow the water to be purchased by Pelham residents and the park. He reiterated that his client would pay the cost of bringing the water service= to those locations. Mr. Hennessey asked if sewer would be available as well.= Attorney Zall said it wasn’t available to this area.

Mr. Hennessey asked if th= e plan (since it was still conceptual) would come under the new Shore Land Protection (am= ended as of April 1, 20= 08) since there were two lots immediately abutting Long Pond. Mr. Gowan said lots 7 & 8 woul= d be within the Shore Land jurisdiction. He said if the variance was grante= d, they could do so subject to Shore Land Protection approval. He then informed that the Highway = Safety Committee (‘HSC’) had not given and official written opinion on= the matter. He discussed the prop= osal and felt getting water infrastructure heading north as a positive thing. He wanted the Planning Board to ta= lk about emergency egress through PVMP to the subdivision. He said there were opportunities to improve the Town’s infrastructure.&n= bsp; He said he could seek an official comment from the HSC and Park & Recreation for the next meeting.

Mr. Hennessey questioned = whether the Board should proceed, or wait for advisory comments from the Conservati= on Commission and the HSC. He sa= id another issue was whether the project was of regional impact and believed it had to be declared as such and send notice to Dracut. Mr. Gowan said notifying Dracut would be appropriate. He said= the determination of a project being a regional impact was typically (in NH) made/advised by the Regional Plann= ing Commission; he would ask their opinion.&nb= sp; He noted that the standard for a project of regional impact had to do with significant environmental and traffic impact. Mr. Hennessey felt any development= on the shores of Long Pond would meet the criteria. He discussed the possibility of conducting a joint meeting with the Planning Board and the Conservation Commission.

Mr. McNamara said general= ly he was in favor of conducting joint meetings, but in this case, he didn’t know whether it would be useful or not because the variance request had different criteria than what planning would review. He said he would be open to whatev= er the Board suggested.

Mr. McNamara asked how lo= ng the applicant had owned the property. Attorney Zall said they owned the property for approximately three years. Mr. McNamara asked if = the applicant was aware of the nature of the situation when they purchased the = land; that it was in fact landlocked. Attorney Zall said his client had purchased a larger tract that was subdivided in Dracut (called Great Woods) which left this piece over. Mr. McNamara asked if the applican= t had made any effort to contact Pelham officials regarding the potential access through PVMP. Attorney Zall s= aid they met with Mr. Gowan to discuss the feasibility of such and discounted it from the beginning; from the financial and feasibility point of view. He didn’t think Pelham would= want a public road going through the park. Mr. McNamara asked if the .8 mile from the Town line included the footage that the subdivision would add.&nb= sp; Attorney Zall said it was from the start of = Clement Road, where it intersected = from the Town line. It would be approximately a full mile to the end of the road. Mr. McNamara asked what the topogr= aphy was like surrounding the conceptual lot heading toward PVMP. Attorney Zall said other than slop= es, he didn’t know. Mr. McNama= ra said with the discussion about having the water line go further north up Sherburne Road, he wanted to know if it would be feasible given the area and PVMP. Attorney Zall said he didn’t= have an answer to the question, but imagined if the water was brought to the new subdivision that it would be all down hill from there. Mr. McNamara said he would like to= hear from HSC and the Conservation Commission because there would be eight homes= a mile away from the Town. He believed the zoning provision being appealed by the applicant was added to prevent scattered and premature development prior to roadways being constru= cted and secondly, current Town services could protect public safety and welfare. Attorney Zall said t= hey could deal and assist by making the road private so it could be privately maintained by a homeowner’s association. He said emergency services would be different because Dracut couldn’t pr= ovide the services in the first instance even though there was municipal contact between Dracut and Pelham.

Attorney Zall addressed t= he question about the Shore<= /st1:PlaceType> Land district. He said they weren’t request= ing a variance for eight lots, the were requesting a variance for new lots; the number of lots would be determined at the planning board level. He said dealing with Shore Land would be something they dealt with if they received a variance, and prior t= o/during the planning board process. M= r. Hennessey said there was an enormous amount of confusion regarding Shore La= nd Protection because the state had rewritten it effective as of April 1. He said approvals of the first ins= tance were now being approved by the state. He said it could probably be cleared up by the phone call Mr. Gowan = will make to NPRC. Attorney Zall s= aid he was hoping for the input to help guide them.

To summarize, Mr. Henness= ey said the Board was asking for input from the Conservation Commission, HSC, NRPC = (for Shore Land Protection and regional impact), Town Administrator Tom Gaydos a= nd Park & Recreation. He sai= d once they had input they should schedule a joint site walk with the other boards= .

Mr. Hennessey said those = who would like to would be given the opportunity to speak at the next meeting.

The plan was date specifi= ed to April 14, 2008.=

Case #2400 - PV LI= MITED PARTNERSHIP – Old Gage Hill Road South -= Map 23 Lot 8-18 – Seeking an ‘Area” Variance to Article III, Section 307-7, 307-12 & 307-14 to permit a subdivision whi= ch creates a 30.5 acre lot with less than 200 feet 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;

Mr. Peter Zohdi of Herbert Associates and Attorney Bill Mason, both representing the applicant, met wi= th the Board to discuss the variance request.= Mr. Zohdi said they would like to subdivide the Pelham Pine Valley G= olf Course (parcel 8-18) which consisted of approximately seventy acres. They would like to subdivide the p= arcel into two parcels; one would have approximately 200ft. frontage onto Old Gage Hill Road, the other would have approximately 90ft. of frontage onto Heather Lee Lane. Mr. Zohdi said the Code Administra= tor ruled that they needed a variance. He said he disagreed with that opinion and if the Board doesn’t grant the variance, he will appeal that decision.

Mr. Zohdi said they were proposing an adult community on the second lot. He said last year, when the zoning language was written for adult communities, the frontage was changed from 200ft. of frontage to 50ft. of frontage.&n= bsp; He said there was a section of zoning that incorrectly states 200ft.= of frontage is needed. He said t= hat was a typographical error. He explained when the zoning was changed, the Table (page 12 of 70 of zoning) = was not (updated) corrected. Mr. = Zohdi said last year’s warrant article was very specific the frontage was changed from 200ft. to 50ft. = He said based upon that he didn’t believe he needed a variance, but the Zoning Officer said they needed a variance.

Mr. Hennessey said in the recommendations to the Board there was a suggestion that they add stipulati= ons to the variance. He wanted to= make sure that the applicant understood this.&n= bsp; He questioned if they were appealing the Administrative Decision. Mr. Zohdi said they were not. Mr. Hennessey asked if the applica= nt was willing to go ahead with the variance with the understanding that the Board= may add stipulations to such. Mr.= Zohdi said if the variance was granted he would ask the Board to stipulate that t= he new lot was for an adult community. Mr. Hennessey confirmed once again that the applicant was not appeal= ing the Administrative Decision and was requesting a variance to which the Board would add the stipulation. Mr. Zohdi said that was correct. =

Mr. Gowan explained that = the application had started out as an application to the Planning Board. He said an abutter raised some con= cerns, at which time it appeared to him that the frontage was significantly short. He said in thinking ab= out the role of the Planning Board, the regulation was clear that frontage is 200ft. He said Mr. Zohdi rais= es the argument that with regard to a senior project (or conservation subdivision = if it passes at Mar= ch 11, 2008 Town Meeting) it would only need 50ft. to gain access to the property. He said rather than have confusion= at the Planning Board level and uncertainty about their authority; it appeared= to him to send the applicant to the Zoning Board. He felt it was reasonable for the = Board to grant the variance with the stipulation discussed.

Attorney Mason said they = would ask the Board to stipulate the variance being conditioned upon Planning Boa= rd approval of a project that met Subdivision Regulations or further relief by= the Board if the project didn’t go forward as anticipated. He said they weren’t intendi= ng to create an undersized lot for something other than Senior Housing as is under the ordinance. Mr. Hennessey confirmed that the applicant was agreeing to the stipulation that a varianc= e be conditioned upon construction of a Senior Housing project. Attorney Mason said that was corre= ct. He said the applicant was intendin= g to pursue with that intention. <= /p>

Ms. Paliy wanted to know = if the applicant would be free to come back before the Board if the ‘cluster housing’ Zoning amendment passed Town Meeting (March 11, 2008). Mr. Zohdi said if they wanted to do something else that was allowed in zoning, he wouldn’t come back befo= re the Board, he would go to the Planning Board. He noted that the variance being requested would stipulate they could only build adult community, other than that, he had the right to do anything allowed under zoning. Mr. Zohdi said he was in front of = the Board to request a variance for a lot with 50ft. of frontage for the purpos= e of an adult community. Ms. Paliy= felt the proposed zoning wasn’t very well thought out. Mr. Gowan said it may be appropria= te for the Board to grant a variance with a broader stipulation for either senior housing or a conservation subdivision (if the voters approve). Mr. Hennessy said the applicant wa= s in front of the Board for a senior housing project and offered the stipulation= ; he felt the more restriction was best. He suggested restricting the stipulation to senior housing. Attorney Mason agreed. He said senior housing was the contemplated development on the site. Mr. Hennessey said the stipulation to be entertained would be conditioned upon the applicant building senior housing.

Mr. McNamara said when th= e plan was presented to the Planning Board, there was discussion as to whether an alternative access was feasible. He believed Mr. Zohdi said he would look into it and asked if an approval of a variance would change it. Mr.= Zohdi said they had spoken with the owner of the golf course and reviewed the area. He said if a road was p= ut in at Old Gage Hill Road Sout= h, the golf course would be no more. He informed the Board that when they were in front of the Planning B= oard they said if the project was going to go through the Town would be offered = the first right of refusal on the remainder of the golf course.

Attorney Mason reviewed t= he variance criteria as follows (as submitted):

1. The variance will not be contrary = to the public interest because: The propos= ed will not interfere with any public use or interest, it will allow for the continued use of the golf course on Parcel 8-18 and will add to the taxes b= eing paid on the property.

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 special condition here is the existence of the “Pine Vall= ey Golf Course”, and important facility in the Town of Pelham which serv= es the public located in the northerly portion of the property and using up the entire road frontage along Old Gage Hill Road South. The owner would like to make use o= f the 30.5 acre portion of the land at the southerly portion of the property whic= h is not used or needed for the golf course operation by utilizing the road fron= tage along Heather Lee Lane.

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 only other method to subdivide and= make a different use of the back land and conform with the frontage requirement would require using frontage on Old Gage Hill Road for the back lot. This is not reasonably feasible be= cause it would conflict with the golf course.

3. The Variance is consis= tent with the spirit of the ordinance because: The Variances requested are consistent with the spirit of the ordinance because they are consistent with the purposes of the zoning ordinances as stated in Article I and 307-2.

4. Substantial justice is= done because: It allows the Owner to make reasonable use of a large portion of his land which he cannot use now witho= ut a large disruption of the existing golf course use.

5. The value of the surro= unding properties will not be diminished because: The future uses of Lot 8-18-2 will remain consistent= with the permitted uses in the residential district.

Mr. Kearney asked how man= y units would be proposed. Mr. Zohdi = said the current proposal was forty units.

Mr. O’Sullivan aske= d if Heather Lee Lane was a Class V or higher road. Mr. Zohdi said it was. Mr. O’Sullivan asked if a traffic study had been done. Mr. Zohdi said a traffic study had= been done and was submitted to the Planning Department. He said they didn’t see any problem with the sight distance or safety; the road was built a few years a= go in compliance with AASHTO to the Town standards. Mr. O’Sullivan asked how the topology of the parcel was. M= r. Zohdi said the slopes were between 3%-15%.= He said they didn’t ask any waivers for slope and would comply with the Town’s road ordinance.

Mr. Ouellette asked if th= e units would be in buildings, or separate. Mr. Zohdi said the units would vary in size and some would be individual. He said didn̵= 7;t know what the Planning Board would want in the future. Mr. Ouellette asked how many acres= the parcel was. Mr. Zohdi said the parcel was 30.5 acres.

Mr. Ouellette said he was familiar with Heather Lee = Lane. He believed there were several dra= inage points that went into the area being discussed. Mr. Gowan said as part of Planning= Board review would be to look at existing drainage on Heather Lee Lane to be sure= any drainage issues are addressed. Mr. Ouellette was aware that there was flooding at the end of the cul-de-sac la= st year. He asked if there were = any wetlands on the parcel where the drainage flowed. Mr. Zohdi answered no. He said Gove Environmental Service= s did the wetland mapping and the HISS of the site.&= nbsp; He said there were no wetlands in that location, but there were wetl= ands within the thirty acres. They= will be requesting two minimum impact crossings for driveways. He said he wasn’t aware of a drainage problem on Heathe= r Lee Lane and if there was they would have to either correct, or do something with it. Mr. Ouellette said there was 200ft.-300ft. that drained down to the = area (at the end of the cul-de-sac). He said there was a pretty substantial drop off where the development would access. He didn’t know = what the impacts would be if the area was blocked. Mr. Hennessey said the plan would = be reviewed by Planning, where the drainage would be reviewed. He said the Board would have to re= view if the issue bought up would constitute an insurmountable problem that Planning couldn’t fix in which would impact whether the Board should approve t= he variance.

Mr. Ouellette wanted to k= now the definition of a housing complex. Mr. Gowan said in zoning the senior projects were allowed to be any combination of what Mr. Zohdi was recommending. He said they couldn’t have m= ore than six units in one building. He said the proposed was in compliance of zoning.

Mr. Molloy felt Mr. Ouell= ette brought up a good point about the area being wet because till now, he hadn’t heard anything about it. He would like to walk the site.&nbs= p;

Mr. Zohdi said he had pro= vided the HISS soil mapping done by Jim Gove of Gove Environmental. He said Mr. Gove had been to the s= ite, classified the soil type and flagged the edge of wet. He said at the end of Heather Lee = Lane there were catch basins and most of the drainage went to lot -8-20-9. He said there was a drainage easem= ent on that lot that brought the road drainage away from the golf course to the wet area by the power line. He sa= id the area immediately adjacent to Heather Lee Lane was not wetland. Mr. Zohdi noted when the plan went= in front of the Planning Board they would sent it to an outside consultant to review the drainage design and system.&nbs= p; He said if there was a problem they would have to correct it.

Mr. O’Sullivan aske= d how many parking spaces were assigned to the complex as a whole. Mr. Zohdi said some of the units w= ould have a one car garage, some would have two car garages and each unit would = have an outside parking spot as well. He said the Planning Board may dictate additional parking.

PUBLIC INPUT

Attorney Thomas Quarles of Divine, Millimet and Branch handed the Board members a letter dated March 10, 2008.= He said his clients in the matter = were abutters John Mackey, Douglas Shawver and Deborah Croatti along with some of the oth= er residents on Heather Lee L= ane that were not abutters. He sa= id they were opposed to the variance application because the burden was entire= ly on the Heather Lee Lane neighborhood and the applicant had made zero showing that they had looked at any reasonable alternatives for access.&nb= sp; He didn’t feel the applicant had met the threshold variance standards because they haven’t shown any evidence that the public ben= efit outweighed their private interest. <= /span>He felt the variance standard should be reviewed. He heard that a traffic study and been conducted and submitted. He said his client, who reviewed the file, were not informed that su= ch a study had been filed. They wo= uld like the opportunity to review the study.&= nbsp; Attorney Quarles said at the end of his presentation he would request additional time to look at the fifth issue (diminution of property values) because they had less than ten days to ready for the hearing.

Attorney Quarles began hi= s review of the variance criteria as it pertained to the application. He said regardless of whether the = Board was studying a ‘use’ or ‘area’ variance it was necessary to analyze the application in light of the express purpose, which= in this case was a 40-unit elderly housing.&n= bsp; He said the complex was proposed to be built at the end of a 2000ft. cul-de-sac that was already 400ft. over the allowable length. He said the access would be increa= sed by approximately 1000ft. and even though it would be done via private driveway= (so cul-de-sac provisions strictly don’t apply), he felt the concept and spirit of the ordinance provisions for cul-de-sacs was still applicable. Attorney Quarles said it was their belief that the variance would be contrary to the public interest The chara= cter of Heather Lee Lane would be changed as well as the traffic load (by possib= ly adding 100 vehicles). They fe= lt the health, safety and welfare of the public would be affected. Attorney Quarles reiterated that t= he cul-de-sac limit would be effectively extended beyond the allowable limit of 2400ft. He said the increased traffic volumes will add to the congestion on the street and increase the r= isk of accidents involving young children who live on the existing Heather Lee Lane who, along with their parent are accustomed to a quiet neighborhood rather = than a lot of through traffic.

As for the second standar= d, unnecessary hardship, Attorney Quarles felt the applicant failed to make the showing that there were special conditions of the property. He was not aware of special condit= ions in the physical nature of the property that would call for the variance. He said the only notation in the application was the existence of the Pine Valley Golf Course. He said clearly the existence of t= he golf course was not a unique or special characteristic of the land that encumbered the proposed use of the parcel they wanted to split off and crea= te. He said there was no evidence that special conditions of the land require that access to the proposed be via <= st1:Street w:st=3D"on">Heather Lee Lane. He said it was evident (from the applicant’s plan) that access could be made from the golf course. He said since the conceptual heari= ng with the Planning Board (December 3, 2007) the issue was raised repeatedly if the applicant had looked at having access somewhere other than Heather Lee Lane. He said the response was always th= at doing so would be the death of the golf course.&= nbsp; He said the applicant should review the layout (i.e. topography) of = the golf course; it’s their burden to show the Board the special and uniq= ue conditions of the property.

Mr. Hennessey questioned = if Attorney Quarles was asserting that the applicant would need to show that t= here was no physical possibility of bringing a road through Old Gage Hill Road to the proposed project. He said and in the a= bsence of showing it was not physically possible, they haven’t met the burden. Attorney Quarles said= that was correct in general terms. He = said the applicant should show the Board the unique physical characteristics of = the remaining lot (golf course portion) that prevented access from being put in there. Mr. Hennessey noted th= at Attorney Quarles had mingled the ‘use’ and ‘area’ variance criteria. He asked i= f he would deny that under the Boccia criteria economic criteria could be used to establish their right to the variance; if they show that it’s not economically feasible to go through the golf course. Attorney Quarles said it was possi= ble, but pointed out that the applicant hadn’t presented any kind of engineering to let anyone assess the issue.

Attorney Quarles then rev= iewed the second portion of unnecessary hardship. He said that the applicant had not= shown that the benefit sought could not be achieved by some other method reasonab= ly feasible for them to pursue. = He said he had already discussed the fact that the applicant had not properly explored the feasibility of access via the existing golf course. He said it was extremely burdensom= e to his clients and the residents on Heather Lee Lane to have the access go through their r= oad and burden their neighborhood when another access had not been explored. Attorney Quarles reviewed the substantial justice criteria. He said the New Hampshire Supreme Court had stated perhaps the only guiding ru= le is that any loss to the individual that is not outweighed by gain to the general public is an injustice. He said the burden to his clients was great and the inconvenience/loss to any individual the applicant hadn’t quantified. He said the applicant hadn’t= taken adequate steps to show the loss to the individual.

Attorney Quarles addresse= d the diminution to surrounding properties. He said as of April 1, 2006, the assessments on Heather Lee Lane ranged from $463,000 to $843,000. He said they felt an elderly housi= ng complex would negatively impact the aesthetic and tranquil appeal of the existing neighborhood and in turn decrease the values of its properties. They also believed that the increa= sed traffic volume and the impact of increased population density would also decrease the value of the surrounding properties. Attorney Quarles said they were in= the process of obtaining a third party opinion regarding the diminution of value. Because of the tight timeframe they were not able to obtain such and requested that the Board ke= ep the record open until March 14, 2008.

Ms. Carolyn Law, who owne= d the property directly behind the development, wanted to make sure there was a 50-foot eg= ress at the other end of the development. She owned thirty acres that might eventually be developed. She didn’t want her property= to become landlocked. Ms. Law also didn’t want her property to become the sump for the whole area becaus= e in the past when work was done she got quite a bit of drainage.

Mr. John Mackey, 72 Heather Lee Lane said there had been talk about excess traffic and what the development migh= t do to increase the vehicles. He = said a big concern was that there were twenty-six children under the age of sixtee= n and currently two pregnancies. He= said they had a family friendly neighborhood and it was a huge safety concern if their street was the only entrance and exit to the development.

Mr. Jim Gonyeo, 43 Heathe= r Lee Lane wanted to go on record as agreeing with his fellow neighbors in opposi= tion to the proposed plan.

Mr. Zohdi informed when <= st1:Street w:st=3D"on">Heather Lee Lane was developed they left a 50-foot right-of-way to Ms. Law’s parcel. He said it still existed if she wa= nted to continue Heather Lee La= ne to her parcel. He said the ar= ea had been walked with the Planning Board and a member of Board of Selectmen at t= he time to make sure it was a feasible right-of-way. With regard to traffic, Mr. Zohdi = said they had done a traffic study and submitted such; if the Planning Department didn’t have it, they would resend it to them. In reference to the site plan, nor= mally the Board of Adjustment just wanted to deal with the portion of zoning that they sought relief for. He sa= id at this hearing they were seeking a variance for frontage. He thought the Board would leave t= he site plan, wetland etc. to the Planning Board and Conservation Commission.<= span style=3D'mso-spacerun:yes'> He believed the plan set was compl= ete enough for the Board to judge the variance.

Attorney Mason said there= had been enough engineering done on the site to determine how it was most feasibly/reasonably developed. He said it had been before the Planning Board for a conceptual discussion. He said purpose for the variance r= equest was due to a vagueness of the ordinance which talks about 50ft. for elderly housing versus another section of the ordinance that requires 200ft. With regard to a discussion of the project, Attorney Mason said it hadn’t = come up in the past ten days in terms of being before various boards, having extensive work done on the project and having the ability for the neighbors/abutters to comment regarding its development. He said he supported Mr. Zohdi in = that the proposed development off the end of Heather Lee Lane was the most reasonable/feasible way in order to do the development. He said he understood the concerns= of the abutters living on a street with a temporary cul-de-sac, which they probably hoped that the right to extend it would never be exercised. He said the abutting property owne= r also had his own property rights and wanted to exercise those in order for the extension. He felt some of the comments made earlier by counsel were Planning Board issues and would be exhausted there. Attorney Mas= on ended by asking the Board to consider their request and support such.

Mr. Ouellette asked how m= any feet was in between the cul-de-sac ending and lot 8-20-10. Mr. Zohdi showed how the frontage was measured and said there was ov= er 90ft.

Mr. Molloy wanted to know= if the traffic study would be reviewed by the Planning Board if the variance was approved. Mr. McNamara said t= he Planning Board initially requested the study when the applicant came for conceptual review. He said th= ey would review it.

Mr. Hennessey said in rev= iewing the criteria, there were points made, but the issue in front of the Board w= as a variance for frontage. He sai= d the project itself would be up to the Planning Board to decide. He was surprised at the abutter= 217;s opposition to the variance because the alternative, being an Administrative Decision, wouldn’t restrict the project to senior housing.

MOTION:

(McNamara/Molloy) If the variance is approved, the frontage and lot created would be used only for senior housing.

VOTE:

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

Mr. Hennessey outlined th= e testimony that was given and felt further discussion should occur with planning; he f= elt the burden for the frontage variance had been met. The Board also discussed the testi= mony that had been given. Mr. McNa= mara noted if the plan went in front of the Planning Board, all the drainage calculations or wetland problems would go directly to the engineering consulting firm for review. M= r. Hennessey said even though Mr. Ouellette wouldn’t be voting, he would allow him to make a motion for a site walk. Mr. Ouellette made a motion to con= duct a site walk, based on some of the argument from the abutters.

MOTION:

(Ouellette/Molloy) To c= onduct a site walk.

VOTE:

(2-3-0) The mot= ion failed. Mr. Hennessy, Ms. Paliy and Mr. O’Sullivan voted no. =

Mr. McNamara asked the ap= plicant to respond to the question about the feasibility of an alternate access into the property. He believed the= law says the Board could engage in an economic analysis of some sort. He said that the applicant would h= ave to show that an alternate road in would be economically difficult and hinder development. He said because = the specific type of development (being requested) was allowed in zoning, it was presumed to be a reasonable use. He said the second part of those criteria was that the request couldn’t = be achieved by another reasonably feasible method. Mr. Zohdi said if the variance was approved they would bring the plan to the Planning Board and show if there = was another access through Old= Gage Hill Road North then the golf course would hav= e to be subdivided. Mr. Hennessey = wanted a response to the question of why, economically, the applicant had not gott= en another means of getting frontage. Attorney Mason (who had walked the site) said the golf course was at= a lower elevation than the proposed project.= He said when he walked the land he found there was a certain ‘sponginess’ to it. In his own layman’s observation, going through poorly drained soils with= a roadway would disrupt the existing golf course and require a number of perm= its and crossings that would be far different from entering at the end of Heather Lee Lane. He said from a reasonable and fina= ncial point of view, it wouldn’t make sense. He understood that there may be so= me requirements for temporary emergency access by fire and police. But he felt to build a road throug= h the golf course would have serious environmental impacts as well as impacts with regard to whether the golf course would be able to continue as a golf cours= e. Mr. Hennessey reviewed the informa= tion submitted by Attorney Quarles which stated that the applicant had not shown that the benefit sought cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. He questioned why the proposed was= the most reasonably feasible way to achieve the applicant’s goal. Attorney Mason said what they were looking to extend a Town road via a private road to create an additional residential neighborhood that was elderly in nature and not conventional wi= th regard to the single-family house lots on Heather Lee Lane. He said in the planning that had b= een done to date, and the analysis of the land and the current conditions of the land, it had been determined that crafting a road through the golf course w= as not a reasonably feasible alternative.&nbs= p; He said a conceptual presentation was given to the Planning Board in terms of why the proposal, as currently being considered, was the most reasonable way both from an engineering and financial standpoint in order to develop the higher land that was owned by the applicant and abutted his golf course.

Mr. Hennessey asked Attor= ney Mason to finish his sentence of why it was not reasonable to build the road through the golf course. Atto= rney Mason said there would be major construction and wetland issues and there w= ould be major operational issues in regard to the balance of the golf course that didn’t make sense for the road to be constructed through. He said if the golf course was but= chered to put a private road through, the Town would probably still request a seco= nd access, or emergency access, which he guessed would be through Heather Lee Lane. He said it would be dif= ferent to have the entrance to the community through Heather Lee Lane and craft some sor= t of emergency access to satisfy fire, police and public safety through the golf course in a fashion that wouldn’t disrupt it’s utility as a golf course. Mr. Gowan noted that = a fire truck could go through the currently existing golf cart paths; there would = have to be some improvements made. He said during the conceptual hearing with the Planning Board they expressed t= he interest (at a minimum) to have emergency egress into and out of the proper= ty through the golf course. He believed = it would continue to be part of their discussion.

Mr. Molloy questioned if = the Board should request a more formalized study. Mr. Hennessey said the Board had t= o make the decision as to whether the criteria had been met. Mr. O’Sullivan believed that= the Board had reservations of one kind or another, but also realized that this = was the first of many steps the applicant would have to take. He said there were other boards th= at would have requirements on the applicant that weren’t in the Board’s purview. Mr. Go= wan said as Zoning Administrator, he struggled with the decision. He decided to come down on the sid= e of requiring the variance so that it would be ‘clean’ when it got = to the Planning Board. He though= t the project deserved a great deal of scrutiny before the Planning Board. He said he viewed it as an ‘area’ variance not a ‘use’ variance in any way, sh= ape or form; it was clearly an allowed use in the district. He said once the Planning Board to= ok jurisdiction on the plan it would be sent to the Highway Safety Committee.<= span style=3D'mso-spacerun:yes'> He said his personal view was that= the Board should review the elements of frontage and let the Planning Board do = its job on the rest.

Mr. Hennessey asked the B= oard to review the criteria and asked for comments regarding such if they would be voting no.

1)&n= bsp;      Contrary to the public interest. Mr. McNamara understood that the neighbors on Heather Lee Lane had concerns; however, in the broader scope he didn’t feel it rose to the level of being contrary to the pu= blic interest. He felt by granting= the variance with the attached condition that the lot only be used for elderly housing as well as the assurance that the Town would have the right of first refusal on the balance of the property that it dictated it would be benefic= ial to the public interest.

2)&n= bsp;      Unnecessary hardship. a) special conditions: Mr. McNamara said the proposed use was allowed.   b) benefit cannot be achieve= d by some other method: Mr. McNama= ra felt the applicant responded appropriately. He said in terms of further engine= ering studies it would impose a large amount of money on the applicant and to do = so for the Board and in this case might be an unreasonable request. He said Attorney Mason had stated specific reasons why the road couldn’t go through the golf course. He said in the context of the enti= re proposal, if a road were to go through the golf course and make it not usab= le it would mean development of the golf course.

3)&n= bsp;      Spirit of the ordinance. There was no comment by the Board members.

4)&n= bsp;      Substantial justice. Mr. McNamara said in trying to balance the rights of the property owner versus the rights of the Town as a whole and the right of the abutters, it seemed that getting the right of fi= rst refusal and building elderly housing were both things that were encouraged = by the ordinance.

5)&n= bsp;      Value of surrounding properties will not be diminished. Mr. Hennessey sai= d the attorney for the abutters said they didn’t have enough time to come u= p with the data, but asserted that the value of the properties would be diminished= . Mr. Paliy said at one point she re= ad on Pelham’s website that before buying a house on a cul-de-sac that peop= le should be aware that a cul-de-sac now, was not a cul-de-sac in the future.<= span style=3D'mso-spacerun:yes'> Mr. Hennessey said the question wa= s if the variance would place an undue diminishment of the value.

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 – with stipulation that it is used for elderly housing

VOTE:

Mr. O’Sullivan – Yes to all criteria=

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

AREA VARIANCE GRANTED

Case #2401 – ARISTA DEVELOPMENT, LLC - 151 Bridge Street -= Map 29 Lot 7-119 & 7-120 – Seeking a Variance to Articles = III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construct= ion of a retail pharmacy with setbacks of 77.8 feet and 76 feet where 105 feet = and 81 feet, respectively, are required. To allow site development on a lot with 27,400SF on contiguous dry upland where 35,000SF is required; also to permit the construction of a building and related lot improvements and alterations 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;

Attorney Paul DeCarolis of Gottesman & Hollis, representing the applicant, met with the Board to discuss the variance request. He said when the developer first came to him he was intrigued and saw the prop= osal as an opportunity to redevelop the site.&n= bsp; He said car lots and auto body facilities have the potential to pollution, particularly with flooding like the property was prone to. Attorney DeCarolis showed a plan depicting the existing site and where development would be limited to even though the parcel was larger. No building would occur in the Wetland Conservation District (‘WCD’= ;) area, but some of the retaining wall, parking lot and gas tanks would be in= the WCD. There was approximately 27,000SF of uplands that was dry and when complete, if the plan was approve= d, an area of 59,000SF would be reconstructed. Attorney DeCarolis said they would= also be applying for the setback variance. He said for the building they had to have a setback of three times t= he height of the building from the edge of the roadway; the (two-story) buildi= ng itself was 24feet and a 3foot parapet wall and a cupola which brought the height to a total of 35feet. = He said they needed 105ft and there was approximately 75ft. He said the shore along Beaver Bro= ok would be protected by construction of a retaining wall.

Attorney DeCarolis said o= ne of the application applied for was labeled as Section 307-40(B) which was actu= ally the criteria. He said the ord= inance itself, that they needed a variance for, was actually Section 307-39.

Attorney DeCarolis then r= eviewed the variance criteria as follows (as submitted):

1. The variance will not be contrary = to the public interest because: The varian= ce will not be contrary to public interest because the existing use of the property is an auto repair facility and used car lot that lies immediately adjacent to Beaver Brook. The existing use is grandfathered and pre-dates the Wetland Conservation Distri= ct ordinance. The proposed use i= s not contrary to the public interest because it is simply changing the use from = one allowed retail use to another type of retail use while reducing any potenti= al contamination to the neighboring wetlands and brooks. The proposed use does not alter the character of the neighborhood, but rather enhances it. The spirit of the ordinance is to = allow retail use on the property as it is allowed in the business zone. One of the other factors to consid= er in determining whether the use is in the public interest is whether the varian= ce threatens the public health, safety or welfare. The redevelopment improves the sit= e from an architectural viewpoint, a contiguous upland viewpoint and restores the = Shore Land Protection for the Beaver Brook. These impacts are significantly less than the existing use and will therefore not adversely affect any of the public health, safety or welfare.=

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 lot is in a unique setting as the lot is adjacent to Beaver Bro= ok, Route 38, Old Bridge Stree= t and a large wetland system. Additionally, the NHDOT has an unusually large right-of-way at the intersection restricting setbacks. The uniqueness of this redevelopment is to improve the high valued Beaver Brook by providing more vegetated buffer. This unique configuration restricts where the building can be situated on the lot and prohibits development on = most of the southerly portion of the property.&= nbsp;

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 alternative to the manner in which= the development is proposed is to fill significant areas of the wetland. Not only will this involve expense= to the applicant, but also permanently remove the wetland inventory thereby reducing its ability to store and filter runoff and flood waters. With the granting of the variances= , the redevelopment can be located within the buildable area of the lot that has = the least amount of disturbance to the Wetland Conservation District and perman= ently preserves other wetland areas including the shore land of the Beaver Brook. Additionally, all (3) = three variance requests are existing non-conformities that exist currently on the site. No site development or construction can occur without the granting of the variances.

3. The Variance is consis= tent with the spirit of the ordinance because: The spirit of the ordinance is to protect the wetlands as much as possible and = not adversely affect health, safety or welfare. The septic system is intended to be located under the pavement so as not to increase the disturbed areas. Drainage will be constructed also underneath the pavement using innovative underground treatment devices to minimize silt and sediment from flowing into the nearby wetlands, and a retailing wall will be constructed along the northerly and westerly portion= of the property in order to protect the shore of Beaver Brook. The spirit of the ordinance with r= espect to the height limitation is also preserved by the granting of this variance= in that the only portion of the property that exceeds the height limitation is= the proposed decorative tower and decorative architectural elements which will = be unoccupied.

4. Substantial justice is= done because: The granting of the varian= ces will result in the removal of the existing uses which would otherwise be permitted to remain indefinitely. These existing uses involve an automobile repair facility and used c= ar lot. The granting of the vari= ance will result in the development of the property in such a manner in order to minimize any disturbance to the wetlands, significantly reduce the possibil= ity of contaminates flowing into the nearby brook during flooding and will allow the property owner to dedicate the undeveloped portion of the property as conservation land. The retail structure will also add to the Town of Pelham’s commercial inventory. The pro= posed structure has been reduced from the traditional prototype by over 3000SF in= an effort to minimize the site’s footprint. There is no offsetting gain to the public that is lost by the granting of the variance. Construction of a smaller building, given the site improvements that will be necessary, is not feasible. <= /o:p>

5. The value of the surro= unding properties will not be diminished because: The property is located at Route 38 and Old Bridge Street. It is across the street from Pelham Plaza, Rite Aid Pharmacy and Citizens Bank. Given its location on a state high= way and at a signalized intersection, it is an ideal use for the proposed site = and is harmonious with the existing uses of the area. The proposed use will not diminish= the value of any surrounding properties but rather would enhance their value.

Attorney DeCarolis said t= hey would be meeting with the Conservation Commission on Wednesday. He told the Board that they had a = traffic consultant and the engineer present if there were any questions.

Mr. Hennessey said the Bo= ard had to review the site and urged the members to drive by the property.

A site walk was scheduled= for March 15, 2008 = at 9am.

Mr. McNamara asked for mo= re information on the new building. Attorney DeCarolis said it would not be on the same footprint. He said the building would move ba= ckward and be approximately 77ft. from the closest point. Mr. McNamara said he was concerned= that the back of the lot was water. Attorney DeCarolis believed the elevation would also be raised.

Ms. Deborah Brewster of T= FMoran reviewed the plan and showed the area that was currently developed. She provided an overview of the WCD disturbance areas and where they planned to mitigate and where they would provide an enhancement buffer. She discussed the topography and drainage flows.

The plan was date specifi= ed to the April 14, 20= 08 meeting.

Attorney DeCarolis asked = if the Board needed him to do anything regarding the amendment to the Section numb= er that they were requesting a variance (from 307-40,B to 307-39). Mr. Hennessey said the Board could= take it as a friendly amendment to the proposal. Mr. Gowan had no objection.

SITE WALK – March 15, 2008, 9am

Case #2401 – ARISTA= DEVELOPMENT, LLC - 151 Bridge Street -= Map 29 Lot 7-119 & 7-120 – Seeking a Variance to Articles = III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construct= ion of a retail pharmacy with setbacks of 77.8 feet and 76 feet where 105 feet = and 81 feet, respectively, are required. To allow site development on a lot with 27,400SF on contiguous dry upland where 35,000SF is required; also to permit the construction of a building and related lot improvements and alterations within the WCD

DATE SPECIFIED PLANS – April 14, 2008

Case #2399 - LUSSIER, Gerald & DOOLEY, Doug= las – Dracut Line - Map 39 Lot 1-62 – Seeking an ‘Area’ Variance to Article III, Section 307-13 (B) 1&2 to permit the subdivision of the parcel into residential lots without direct a= ccess to a street that is directly accessible to police, fire, medical emergency = and school transportation vehicles without these vehicles first having to leave= the corporate limits of the Town of Pelham.

Case #2401 – ARISTA DEVELOPMENT, LLC - 151 Bridge= Street -= Map 29 Lot 7-119 & 7-120 – Seeking a Variance to Articles = III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construct= ion of a retail pharmacy with setbacks of 77.8 feet and 76 feet where 105 feet = and 81 feet, respectively, are required. To allow site development on a lot with 27,400SF on contiguous dry upland where 35,000SF is required; also to permit the construction of a building and related lot improvements and alterations within the WCD

MINUTES

February 1= 1, 2008

MOTION:

(McNamara/O’Sulli= van) To approve the Fe= bruary 11, 2008 meeting minutes as written.

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 10:33pm.

           &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