BOA20080512

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 12, 2008

The Chairwoman Svetlana P= aliy called the meeting to order at approximately 7:00 pm.

The Secretary Kevin O’Sullivan called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Robert Molloy, Peter McNamara, David Hennessey, Kevin O’Sullivan, Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

Altern= ate Bill Kearney, Alternate Lance Ouellette

Mr. LaFrance was welcomed= to the Board.

CONTINUED

Case #2399 - LUSSI= ER, Gerald & DOOLEY, Douglas – Dracut Line&= nbsp; - Map 39 Lot 1-62 R= 11; Seeking an ‘Area’ Variance to Article III, Section 307-13 (B) 1&2 to permit the subdivision of the parcel into residential lots witho= ut direct access to a street that is directly accessible to police, fire, medi= cal emergency and school transportation vehicles without these vehicles first having to leave the corporate limits of the Town of Pelham.<= /b>

Mr. O’Sullivan read= aloud the letter received from the Highway Safety Committee (‘HSC’) d= ated April 18, 2008. It was difficult for the committee= to provide an opinion without first seeing on a plan what was being proposed.<= span style=3D'mso-spacerun:yes'> The best opinion they were able to provide (without seeing specifics) was their opposition to providing Town services across borders could be mitigated by an acceptable level of improvements to Town property that would offset the additional demand that = the project would bring. Mr. O’Sullivan then read aloud a letter submitted by Park & Recreatio= n Director Brian Johnson dated April 11, 2008 indicating the support of the project if an emergency egress were provided to Pelham Veteran’s Memorial Park (‘PVMP’) and water connections provided for a fire hydrant and = at locations within the park at a mutually agreed location for future facility use.

Attorney Jeffrey Zall, 221 Main Street, Nashua NH, representing the appl= icants, came forward to discuss the requested variance with the Board. He urged the Board to consider and= vote in favor of the area variance they were seeking. He felt the hardship was clear, in= that it was a land locked parcel with its access only through Dracut. He also felt the public interest was clear and was expressed by the letter of the HSC. He said with the project they woul= d be able to bring water in from Dr= acut and would make the water available to the buildings within PVMP; the cost w= ould be paid by the developer. He = said they would also provide a second means of access to PVMP. He said what they brought to the T= own would enhance the public interest of the application. He said they would be willing to h= ave the following items be conditions of granting a variance: 1) bringing Dracut public wate= r down to the park; 2) gated access way; and 3) private maintenance of the roadway= . He said they would set up an assoc= iation for the road maintenance.

There was no public input= .

Mr. McNamara asked if the= road in Dracut (coming from Mammoth Road), leading up to the pr= oject, had been accepted by Dracut. Attorney Zall said the road was pa= rt of a 57-lot subdivision in Dracut= that was not yet complete. He= said if the road took longer to get done, they may have to request an extension. Mr. Hennessey said= there was no lapse to a variance. H= e said the Planning Board approval would lapse.&n= bsp; Mr. McNamara asked if the 57-lot subdivision was being done by his client. Attorney Zall said it= was a different client of his.

Mr. Hennessey discussed t= he three conditions outlined by Attorney Zall. He asked for confirmation that there was no other way to access the parcel, other than through the subdivision. Attorney Zall said that was correct. Mr. Hennessey asked = if the variance should be conditioned upon the approval of the subdivision, with t= he concurrent road system, by the Dracut Planning Board. Attorney Zall said the Dracut Plan= ning Board had approved the subdivision, it was not constructed yet. He said the approval of their plan= , with the Pelham Planning Board, would be contingent on having access to it. Mr. Hennessey was concerned about emergency equipment accessing the site through Dracut if the subdivision wasn’t constructed. Attorney Zall sa= id a fourth condition to the variance approval could be that the roadway through= Dracut must be completed. Mr. Hennessey said= the Board needed to ensure that there was decent access to the parcel.

Mr. Molloy questioned if = the Board should find out if Dracu= t would go along with the proposed. Mr. Hennessey said he asked if the case was of regional importance a= nd was told that it was not.

Mr. Gowan said if the Boa= rd considered a variance, the Board of Selectmen had to approve any arrangement made between Towns in terms of supplying each other services. He believed that held true for both Pelham and Dracut. He suggested/required that notific= ation be made to Dracut regarding the matter when it went to the Pelham Planning Board. He said any decision by the Planni= ng Board would require Board of Selectmen approval.

Mr. McNamara believed Mr. Hennessey was correct with his focus on access. He was concerned that the Board was acting on a couple of assumptions as indicated in the HSC memo. He discussed some of the other hur= dles the applicant faced when going before the Planning Board.

Ms. Paliy agreed with Mr. McNamara’s concerns. She discussed the proposed cul-de-sac. She said most other applicants provided the Board with more information. Attorney Zall explained how the 57-lot subdivision was set up with common land both in Dracut and Pelham.= He said the subdivision had been approved by both Planning Boards and further, the plan was recorded at Midd= lesex North Registry as well as the Hillsborough Registry. He showed a copy of the approved p= lan to the Board and where the New H= ampshire lots were located.

Mr. Molloy asked what lia= bility the Town would take to drive on that road for emergency response. He said he had concerns/questions regarding emergency access. <= /p>

Ms. Paliy asked if the HS= C letter was so vague because they needed additional information. Mr. Gowan said the majority of HSC members felt they should comment on items shown on a plan rather than just theoretical discussions. He s= aid they were not excited on the prospect of having to leave Pelham in order to= service Pelham. He said there had been mutual aid agreements established between communities, but they were in flux. He said as communities = have budget issues, they tend to pull back from those types of agreements. He said Fire and Police response w= ould be different. Attorney Zall s= aid they understood they had hurdles to overcome. He said the issue in front of the = Board was if there was a hardship that justified the granting of an area variance= and if there was enough public interest to be gotten to support such.

Mr. Hennessey focused on hardship. He asked if the subdivision that would provide access to the project was owned by a differe= nt client. Attorney Zall said it= was owned by a different client. = He said his client originally developed the subdivision and then conveyed the = 57-lot subdivision to another client of his. Mr. Hennessey saw the financial hardship of getting access directly = into Pelham. Attorney Zall said ac= cess could not be done. Mr. Hennes= sey understood the financial criteria, but didn’t feel it was in the applicant’s control since they didn’t own the access from Dracut. Attorney Zall said there would be = direct access from Clement Road, which would be a public road once it was constructed. He said there was a contract betwe= en the developers which provided for access/frontage to Clement Road.

Mr. McNamara asked what l= ength the emergency access road would be. Attorney Zall said it would be approximately 300ft.-500ft. He said the application form conta= ined an aerial view of the area that showed the distance to PVMP.

Mr. Hennessey said in rev= iewing Boccia, it was clear that the hardship criteria was met, but was unsure that the public interest criteria was met.

Mr. O’Sullivan aske= d where emergency response would originate from based on the plan being reviewed. Mr. Gowan said unless there was so= me arrangement made between Towns, Pelham would be the respondent. Mr. O’Sullivan questioned who would maintain the road, such as plowing.&= nbsp; Mr. Gowan said Pelham would have nothing to do with private roads. He urged the Board to stipulate su= ch in any condition of approval.

Mr. Molloy asked if there= would be Police services, such as normal patrol through the neighborhood. Mr. Gowan felt the proposed would = be far less likely to be patrolled than roads within the Town boundaries. He said that decision would be up = to the Police Department. Mr. Molloy didn’t see how that would fit the public interest criteria.

Mr. McNamara asked what t= he applicant would require from the Board of Selectmen if the variance was approved. Attorney Zall said = they would request that the emergency services leave Pelham to provide access through Dracut to the proposed lots. Mr. McN= amara asked if the request was in front of the Board on a premature basis because if the Selectmen say no, the variance wouldn’t matter. Attorney Zall said they received t= he same problem when wanting to speak with the Selectmen, because it wasn̵= 7;t a permitted use under the ordinance. He said once they got by the zoning portion that addressed the issue= s, they could bring it to the next step. He said he saw the concern, but felt the request wasn’t that uncommon; there were many instances of projects that went over town lines.<= span style=3D'mso-spacerun:yes'> He believed the real issue was tha= t of hardship. He said public inte= rest was difficult to argue. He sa= id public interest was that a person who had a piece of land should be able to develop it to the same extent that a similar piece of land could be developed. He felt they had m= ore public interest in this case because of what they could provide to the Town= . Mr. McNamara said the client purch= ase the property with the knowledge that the land was locked. Attorney Zall said the ordinance t= hat prevented the development of it didn’t come into effect until March, 2007. He said at the time his client purchased the property and developed the land, the development was freely developable subject to Planning Board and Selectmen approvals.

The Board discussed Supre= me Court cases and how they compared to the criteria and the case being reviewed.

The Board then reviewed t= he conditions that had been discussed: 1) public water connection from Dracut through parcel into Pelham; 2) road access to be approved by all appropriate Dracut authorities; 3) road within parcel to be private road; 4) prior to g= oing to Pelham Planning Board, sufficient notification be given to the Town of Dracut; 5) emergency access to be provided through Pelham Veteran’s Memorial Park; 6) Pelham Board of Selectmen approval.

They also discussed addin= g the following: a) road to parcel be fully constructed and built prior to development; b) agreement between public safety entities and Dracut for mut= ual aid response. They decided ag= ainst adding those as conditions.

Mutual Aid was discussed.= Attorney Zall explained that Dracut would not agree to provide Police and Fire services in the first instance to the proposed development, He = said the agreements they had was if a town needed ‘additional’ help = they would respond. He said they wouldn’t provide primary response, it would still be Pelham. He said having a condition based on mutual aid between the towns wouldn’t work.

Mr. Gowan discussed the p= roposed access/gated access which would provide access to the Pelham property would have to be voted on by the Town. He said using the access for tactical response would be the decision of the emergency responder at the time of the call.

MOTION:

(Hennessey/McNamara) If approved, the variance would be conditioned upon: 1) public water connect= ion from Dracut through parcel into Pelham; 2) road access to be approved by = all appropriate Dracut authorities; 3) road within parcel to be private road;= 4) prior to going to Pelham Planning Board, sufficient notification be given= to the Town of Dracut; 5) emergency access to be provided through Pelham Veteran’s Memorial Park; 6) Pelham Board of Selectmen approval.

VOTE:

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

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – 1) N= o; 2) Yes; 3) Yes; 4) Yes; 5) Yes

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

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

(<= st1:date Year=3D"2000" Day=3D"2" Month=3D"3" w:st=3D"on">3-2-0) The mot= ion carried. Mr. Molloy and Mr. McNamara vote= d no.

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

The case was date specifi= ed to the June 9, 2008<= /st1:date> meeting.

Case #2402 PIESLAK, Steven & Julliette - South Shore Drive   /   Map 30 Lot 11-203 – Se= eking an “Area” Variance to Article III, Sections 307-7, 307-12 & 307-14 to permit the construction of a single family dwelling on a pre-exis= ting non-conforming lot of record that has 150ft. of frontage on South Shore Dri= ve, “A Private Road”, where 200ft. is required and has 18,450SF whe= re 43,560 SF is required.

Mr. Hennessey stepped dow= n. Ms. Paliy asked Mr. LaFrance if he= felt comfortable voting regarding the case.&nbs= p; Mr. LaFrance answered yes. Ms. Paliy appointed Mr. LaFrance to vote.

Ms. Paliy said the Board conducted a site walk. Mr. O’Sullivan read aloud the site walk minutes. He noted that he placed in the file several photos taken during the site walk.

PUBLIC INPUT

Mr. Richard Pieslak, fath= er of the applicant, indicated that the property had been in the family for many years with the intention of providing a portion to his children. He spoke in favor of the variance.=

Mr. Shane Gendron of Herb= ert Associates, representing the applicant, asked if the Board wanted a summary= of the plan.

Mr. McNamara asked if the= plans were the same as previously submitted.&nbs= p; Mr. Gendron said the plans were there same. He noted the only change the appli= cant would make, would be to have the garage access be on the side, rather than = in the front as shown. He said t= he house would meet all the setbacks.

Mr. McNamara believed the= site walk cleared up any concerns the Board may have had regarding sight distance and any obstructions. He said= it appeared to be an appropriate use for the property.

Mr. Molloy agreed with Mr. McNamara.

Ms. Paliy had reservation= s about developing more parcels in the area. She said two cars could not pass on the roadway and questioned if it= was the right thing for the public to develop the area. Mr. McNamara said the lot was undeveloped and it was in a rural setting.= He didn’t feel that one house with a 2-car garage would presen= t a hazard to the area. Mr. OR= 17;Sullivan agreed. He said the Board had= seen much more congested areas around water fronts in the Town.

BALLOT VOTE:

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=

Mr. LaFrance – Ye= s to all criteria

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

AREA VARIANCE GRANTED

Mr. Hennessey returned to= the Board.

HEARINGS

Case #2404 BOUMIL, Michael & Jennifer – 20 Pulpit Rock Road /= Map 41 Lot 6-140 – Seeking an “Area” Variance concerning Article III, Section 307-7 & 307-12 to permit construction o= f a building for a conforming use (industrial-commercial) on a lot that is undersized by current standards.

The case was date specifi= ed to the June 9, 2008. The applicant requested additional= time to work out issues that arose with an abutter.

DATE SPECIFIED PLANS – June 9, 2008

Case #2401 – ARISTA DEVELOPMENT, LLC - 151 Bridge Street - Map 29 Lot 7-119 & 7-120 ̵= 1; Seeking a Variance to Articles III & VII, Sections 307-12, 307-13 & 307-40 (B) to permit the construction 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 devel= opment 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

Case #2404 BOUMIL, Michael & Jennifer = 211; 20 Pulpit Rock Road /= Map 41 Lot 6-140 – Seeking an “Area” Variance concerning Article III, Section 307-7 & 307-12 to permit construction o= f a building for a conforming use (industrial-commercial) on a lot that is undersized by current standards.

MINUTES

March 10, = 2008 – The Board inadvertently didn’t take a motion to approve.

March 15, = 2008 (site walk)

MOTION:

(Hennessey/McNamara) To= approve the March 15, = 2008 site walk minutes as written.

VOTE:

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

April 14, = 2008

MOTION:

(O’Sullivan/Mollo= y) To approve the Ap= ril 14, 2008 minutes as written.

VOTE:

(4-0-= 0) The motion carried. Mr. Henness= ey was not present for the Pieslak case, therefore he did not vote.

ADJOURNMENT

MOTION:

(Hennessey/O’Sull= ivan) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:20pm.

           &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