BOA 1-12-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

January 12, 2009

The Chairman Svetlana Pal= iy called the meeting to order at approximately 7:00 pm.

The acting Secretary David Hennessey called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Peter McNamara, David Hennessey, Kevin O’Sullivan, Alternate Bill Kearney, Alternate Chris LaFrance, Alternate Lance Ouellette, Planni= ng Director/Zoning Administrator Jeff Gowan

Robert= Molloy

REQUEST FOR REHEARING

NEW CINGULAR WIRELESS PCS, LLC (AT&T) c/o Stephen D. Anderson / Owner – DETELLIS, Geoffrey= & Nora - 9 Rocky Hill Road - Map 7 Lot 4-185-2 – Seekin= g a “Use” Variance to Articles III, IV, V, X, XII Sections 307-7, 307-16(A), 307-18, 307-58(B)(3), 307-58(C)(2), 307-58(C)(3), and 30788A to permit a Personal Wireless Facility and Tower use on property situated in the Residential Zon= e, not in the Telecommunications Overlay Zone, and with Side Setbacks of less = than 175ft. and a Fall Zone of less than 100% of the height of the Tower includi= ng any antennas or other appurtenances.

Mr. Kearney was appointed= to vote in Mr. Molloy’s absence.

Mr. Gowan explained that = the request for rehearing was being brought forward by a resident that had concerns.

Mr. Richard Feola, 13 Countryside Drive briefly discussed why he felt the case should be reheard: 1) commercial tow= er does not belong in a Residential Zone; 2) loss of income of $200,000 to the Town; and 3) safety of RFI. <= /p>

Ms. Paliy asked if anythi= ng had changed from the time the Board heard the case. She wanted to know if the concerns= were new since they hadn’t heard the items listed when they previously discussed the case.

Mr. McNamara believed the= Board had to determine if Mr. Feola had standing to bring the appeal forward. He asked if Mr. Feola was an abutt= er to the project. Mr. Feola said h= e was not. He stated he was a resid= ent of the Town. Part of the reason = he came forward was because he was a HAM radio operator and in doing the proce= ss of coming before the Board for his tower, wanted to the Board to understand that he didn’t feel a commercial tower belonged in a residential zone. Mr. McNamara said before testimony was given, he wanted to determine whether Mr. Feola had standing = to make the (appeal) request. He discussed a recent court case (Goldstein v. Town of = Bedford) in which it stated even though= a person was a tax payer of the town, they didn’t have a right of appeal unless they qualified as a person of interest or an aggrieved person. He didn’t feel Mr. Feola had standing in the case if he was just coming forward to disagree with the decision. He said by law, the= Board couldn’t consider the appeal unless Mr. Feola had some special relationship with the case. <= /p>

Mr. Feola said from what = he heard of the meeting, there was no RF study presented. Mr. McNamara said as part of the Telecommunications Act, a local board is preempted from considering RF safe= ty as long as the FCC standard is met. He again reviewed the language from the court case and stated unless= Mr. Feola was an aggrieved abutter, or he had special interest, he didn’t have standing for an appeal. = Mr. Feola didn’t feel the Board fully understood what they got into with = the case. Mr. McNamara noted even= if Mr. Feola had a case, the information he presented was considered at the ti= me the Board conducted their hearing. He noted that Mr. Feola would have an opportunity to ask questions a= nd obtain information at the Planning Board site plan hearing. Mr. Feola said that would be after-the-fact and felt it was a hasty judgment to allow a commercial tower= on someone’s property.

Mr. Hennessey stated that= Mr. Feola didn’t have standing. He then addressed the concerns raised by Mr. Feola and stated that t= he point of the public hearing was to address the concerns that were raised. He said the Board reviewed the cri= teria and under state law the Board had no choice. He stated the loss of income issue should be brought up to the Board of Selectmen. Mr. Feola felt the Board was ‘opening up a can of worms’ by allowing a commercial tower in t= he residential zone. He said the effects on people were of concern. <= /span>

Mr. Ouellette stated that= the tower would be seen by more than the abutters and wanted to know if those people who would be impacted (and weren’t abutters) had a say in the matter. Mr. Hennessey said the immediate abutters had a say, but the Board had been loose in stretching th= at rather than being so strict. = He said Mr. Feola was asked how he would be affected, other than being a tax p= ayer and there was no response.

MOTION:

(McNamara/Hennessey) To= deny the request for rehearing based on lack of standing.

VOTE:

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

The Board voted in the affirmative to deny the request for rehearing.

CONTINUED

7:17pm

Case #2416 MAKO De= velopment LLC - [off] Old Gage Hill Roa= d - Map 25 Lot 12-33 – Seeking= an “Area” Variance to Article III Section 307-12, 307-13,B-1 & 307-14 to permit a residential subdivision of a parcel into (2) two lots, o= ne having 50.44’ and the other having 52.69’ of frontage on Old Ga= ge Hill Road, and the construction of houses on the two proposed lots.

Ms. Paliy appointed Mr. K= earney and Mr. LaFrance to vote. She= then stepped down (as she previously stepped down from hearing the case). A motion was made to have Mr. McNa= mara step up as Chairman.

MOTION:

(Hennessey/Kearney) To = have Mr. McNamara be the acting Chairman for the case.

VOTE:

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

Mr. McNamara opened the hearing. He stated that the B= oard conducted a site walk at which several abutters had been present.

Mr. Peter Zohdi of Herbert Associates and Attorney William Mason, representing the applicant, came for= ward to discuss the variance request.

Mr. McNamara asked if the information provided to the Board was the same information as previously pr= esented. Mr. Zohdi answered no; there were = small differences.

Mr. Zohdi said the only difference was that a turn-about had been made for each lot. He said it was up to the Board if = they wanted one or two turn-abouts.

Mr. McNamara questioned o= f the proposal called for one or two curb cuts onto Old Gage Hill. Mr. Zohdi stated there would be tw= o curb cuts next to each other (looking like one cut); each lot would have a fourt= een foot driveway. They would be separated by the lot line, unless the Board desired something different. Mr. Zohdi stated that at Gage Hill Road, he would rather have one cut. Mr. Gowan confirmed that it was a state road with the driveway permit being gra= nted by the state.

Mr. Hennessey stated that= an offer had been made to have no further subdivision and questioned if it wou= ld be part of the plan. Attorney Ma= son answered yes. Mr. Zohdi said = if the Board voted in the affirmative, his client would add a conservation easement indicating that there would be no further subdivision of the land. He said the proposal showed approx= imately 3.109 acres being deeded to the abutter, the remaining would be in the conservation easement presented to the Conservation Commission. He said there would be no further subdivision.

Mr. Ouellette questioned = if the second circle (shown on the far right of the plan) infringed on the property line and was unsure of the code requirement; he also was unsure what the bl= ue line indicated. Mr. Zohdi sta= ted that the blue line was the wetland and that they also showed the setback line. Mr. Ouellette asked if = the blue areas in between the two cul-de-sacs were outside the 50-foot radius.<= span style=3D'mso-spacerun:yes'> Mr. Zohdi said that wetland was le= ss than 2000SF and didn’t need a buffer. Mr. Zohdi stated that the informat= ion provided was accurate. Mr. Ouellette wanted to know if the pocket of wetland in between the cul-de-sacs was a runoff/overflow from the larger site. Mr. Gowan said in this type of case where the soils and analysis is done the engineer’s stamp and reputat= ion is on the line. He recommende= d the layout etc. would be better left for the Planning Board. Mr. Hennessey stated during the si= te walk they noted that the lots rose steeply beyond where the homes would be going in. He said the plan sh= owed wetlands versus prime wetlands that carried their own connotation. He said there was runoff and wetla= nds on the site and noted it was difficult to differentiate the two. He said he was wrestling with the thought of what could be built on the site.

Mr. Zohdi stated that the= y would work with the Planning Board regarding the site and would add a conservation easement indicating no further subdivision. He then explained that the indication of wetland on the plan didn’t mean that it was standing wa= ter, it could be that it was vegetation.

PUBLIC INPUT

Mr. Arthur LaCroix, 390 Old Gage Hill Road stated that his point of contention with the plan was that location was a b= ad spot for development. He felt= there had to be a better alternative. He said the applicant had been willing to work with the abutters. Mr. LaCroix informed the Board that currently there was approximately four inches of ice built up in the road j= ust beyond the driveway. Mr. Henn= essey said he drove by last weekend and saw the ice building up.

Ms. Lisa Slade, 383 Old Gage Hill Road resided across the street and discussed the difficulty with the ice in the road. She said it was a dange= rous spot and felt the proposed development was a bad idea. She also didn’t like the ide= a of having to look across the street and see two huge houses where a wooded area had been.

Mr. O’Sullivan didn= ’t believe he received notification for the site walk. Mr. Ouellette also didn’t re= call receiving the notice for the site walk.&nb= sp; Mr. O’Sullivan asked if there would be a safety study from a traffic perspective done. Mr. McNamara said typically for a two lot subdivision they didn’t do a traffic study. He said the Pl= anning Board’s engineers would to a verification of the sight lines. He said the Board knew the situati= on and that there was runoff. He com= mented about the view of the abutters and stated that there were no abutting right= s to keep a property clear.

Mr. Zohdi explained that = Old Gage Hill Road North= was a state road therefore they would need to have the plan reviewed by the state for a curb cut. He disc= ussed the fact that during pre- and post-development could not be increased and w= ould have to be controlled.

Mr. O’Sullivan ques= tioned if the development (given the information on drainage) would be beneficial = in terms of the overall impacts.

Mr. Hennessey said he was wrestling with the fact of further development up the hill. He said maybe the abutters would be better off with further development. In listening to Mr. Zohdi, he said he is obligated to make sure that drainage doesn’t get any worse (pre- and post-development). However, if six houses were going = to be put in, it would be appropriate for the Planning Board to request on and off site improvements. Mr. McNama= ra noted that the Planning Board had reviewed a conceptual design on the parcel (conservation subdivision) and had questioned Mr. Zohdi why it had not been pursued and was told it was a result of the (bad) economic times. Mr. Zohdi said he had previously submitted a copy of that conservation subdivision for the Board to review.<= span style=3D'mso-spacerun:yes'>

Mr. Ouellette’s con= cern was that the Board had granted variances in the past that were really close to wetlands and used Dr. Kodali’s office – = New England Medical= Center as an example. He said the impact t= he wetlands took in the aftermath of the project was horrific. His questioned with the proposed p= lan was what the future impact would be to the site.

Mr. McNamara stated that = he thought Mr. Ouellette was wrong in terms of wetland impact on Dr. Kodali’s site. He said = the site was carefully monitored and considered by the Board of Adjustment and = the Planning Board. He felt it wa= s one of the better projects that the Town had permitted. He said the Board couldn’t m= andate something that they weren’t allowed under the law; the law gives protection to wetlands, wetland conservation districts and prime wetlands.<= span style=3D'mso-spacerun:yes'> He discussed what the Board was al= lowed to review.

Mr. LaFrance felt the abu= tters had a lot to gain from the development because of the water situation. He believed Mr. Zohdi was willing = to work with the abutters to divert the water.

Mr. Ouellette wanted the = Planning Board to take the drainage flow into consideration because he didn’t = want the abutters to be impacted. =

Mr. Zohdi further explain= ed that the law states they can’t send more water down stream. He couldn’t recall the Plann= ing Board approving a plan without having some sort of resolution to the draina= ge flow. He believed the Planning Board will see to it that problems down stream would be resolved. He stated that they would be glad = to work with the Planning Board. In reference to the 2000SF wetland, Mr. Zohdi stated that they had a right to = get to the land. He stated furthe= r that they would be happy to work with Mr. Gowan, the Planning Board and the Town’s engineer to do resolve (all or part of) the downstream drainage.

Mr. Gowan stated that it = would be appropriate for the Planning Board to request comment from the Highway Safe= ty Committee; that comment would be shared with the state when they make their decision regarding the driveway.

Mr. McNamara reviewed the= back lot standards language contained in the subdivision regulations. Mr. Zohdi said they complied with = the regulation.

Mr. O’Sullivan disc= ussed his thoughts regarding the case. He believed there were attractive features on either side of the argument. He said there was a problem at the= site, and if it didn’t get built, the problem wouldn’t go away. He hadn’t yet made a decision regarding the case.

Mr. Kearney said he was a= gainst creating smaller frontages. However, the proposed lot contained seventeen acres of usable land t= hat would contain only two houses, which graduated the request to the next level given the density of the houses.

Mr. Hennessey believed th= e site would be tough to develop giving the economics of the market. He said if the Board turned the re= quest down at some time in the foreseeable future, there would be more than two houses on the lot.

Mr. McNamara reminded the= Board to base their decision on the criteria.&nb= sp;

The Board continued their discussion regarding the case. Attorney Mason told the Board that his client didn’t anticipate conveying a fee interest in the land but anticipated creating restrictions = on the land that dictated what could be done there. He said the Planning Board had rem= edies that they could impose as approval conditions. He stated that they weren’t conveying a portion of the lots to conservation or the Town, but rather, th= ey were willing to impose conservation type restrictions on portions of the lots.

Mr. Hennessey made the fo= llowing motion: As a condition of variance approval, the subdivision of the parcel = will be restricted, now and in the future, to just two properties (two single-fa= mily homes). He wanted a restricti= on recorded in the deed that no more than two single family homes will be buil= t on the parcel. Mr. Kearney secon= ded the motion. Mr. McNamara want= ed it understood that the land wouldn’t be conveyed away, but that restrict= ions would be placed on the use of the land by the Planning Board in conjunction with the Conservation Commission. The condition applied to the plan as presented to the Board for lots 12-33 and 12-33-1. It did not include the three acre parcel to be merged with Mr. Harris’ land.

MOTION:

(Hennessey/Kearney) As a condition of variance approval, the subdivision of the parcel will be restricted, now and in the future, to just two properties, having a restriction recorded in the deed that no more than two single-family homes are to be built on the parcel. The condition applies to the plan presented to the Board for lots 12-33 and 12-33-1 (and does not include the three-acre parcel being merged with Mr. Harris’ land).

VOTE:

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

Mr. Gowan further clarifi= ed the motion and confirmed that there would be a recorded restriction that no more than two single-family homes would be built on the subdivided lots 12-33 and 12-33-1. Attorney Mason and M= r. Zohdi agreed the clarification was correct.

Mr. McNamara informed the abutters that if the variance was approved, the plan would go to the Planni= ng Board for review and they would receive notice of that meeting.

BALLOT VOTE:

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

Mr. Kearney – Yes= to all criteria

Mr. LaFrance – Ye= s to all criteria

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

“AREA” VARIANCE GRANTED

Ms. Paliy returned to the= Board and resumed her position as Chairwoman.&nb= sp;

HEARINGS

Case #2419 HJORTH, Douglas & Lorrie - 31 Balcom Road - Map 15 Lot 8-64 – Seeking = an “Area” Variance to Article III Section 307-12 to permit the construction of an overhang of their front steps to prevent moisture and ice build up that creates safety hazards. The overhang replaces an existing overhang that was cantilevered to = the side of the house which rotted and was removed for safety reasons.

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

Mr. Gowan explained why t= he request came before the Board. He said the issue was that the area above the walkway was cantilevered. He stated that the Town’s re= gulations weren’t clear on what part of a home constitutes a face with regard t= o a setback. He approaches the qu= estion by reviewing what goes in the ground. He said in this case there wasn’t much of an encroachment and there was an issue with safety (such as keeping ice off the ground).

Mr. Douglas Hjorth came f= orward to discuss his variance request. He began by reading aloud the variance criteria (as submitted):

1. The variance will not be contrary = to the public interest because: The overha= ng replaces an existing overhang, but the new overhang will be more attractive. The overhang eliminates a safety hazard because of ice build-up on the front steps and landing. Thus there is a need= for the overhang.

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

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: The existing front steps, which were removed because they were fall= ing apart from frequent freezing and thawing, must be replaced to gain entrance= to our house. The overhang will prevent icing and help prevent falls that have previously occurred.

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 overhang is iatrical related to the front steps of our home; other methods to divert water from the front steps would not be nearly as effective. &nb= sp;

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance to waive the front setback requirement to replace existing steps and overhang.

4. Substantial justice is= done because: The use we are seeking will enable continued safe entry and exit from our existing home.

5. The value of the surro= unding properties will not be diminished because: The proposed steps and overhang will be aesthetically pleasing compared to what= is being replaced, and thus will have no adverse effect on surrounding propert= ies.

Mr. Hennessey questioned = how fast the project would be able to be done. Mr. Hjorth stated that he initially applied for a building permit to replace their front steps but due to the weather it was postponed. They intended to do construction a= s soon as weather permitted. They ha= d a contractor that was waiting to have the snow and ice go away.

Mr. Hennessey didn’t understand why the application wasn’t for an Appeal of Administrative Decision given that it was an iatrical part of the front steps, which would fall under the prior variance. He didn’t think a variance was called for.

Mr. Gowan said the iatric= al argument could be stretched in a lot of different ways. He noted that he had granted the p= ermit for the steps to be built because there had to be more than one access in a= nd out of the house.

Mr. McNamara felt the var= iance was properly before the Board and it didn’t do any harm to vote on it. Mr. O’Sullivan agre= ed that the vote should vote.

There was no public input= . There was no one present in the audience.

Ms. Paliy appointed Mr. L= aFrance to vote in Mr. Molloy’s absence.

BALLOT VOTE:

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

Mr. Kearney – Yes= to all criteria

Mr. LaFrance – Ye= s to all criteria

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

“AREA” VARIANCE GRANTED

MINUTES

November= 10, 2008 – deferred.

December= 8, 2008

MOTION:

(O’Sullivan/McNam= ara) To approve the De= cember 8, 2008 Board of Adjustment meeting minutes as amended.

VOTE:

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

ADJOURNMENT

MOTION:

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

VOTE:

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

The meeting was adjourned= at approximately 8:50 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