BOA 10-15-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 15, 2009

The Chairman called the m= eeting to order at approximately 7:00 = pm.

The Secretary Kevin O’Sullivan called roll:

PRESENT:

ABSENT:

Robert= Molloy, Kevin O’Sullivan, Peter McNamara, David Hennessey, Alternate Bill K= earney, Planning Director/Zoning Administrator Jeff Gowan

Svetla= na Paliy, Alternate Chris LaFrance, Alternate Lance Ouellette

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

HEARINGS

Case # 2399 LU= SSIER, 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 parcel 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. Applicant is seeking to amend conditions #1 (Public water connection from Dracut through parcel into Pelham) and = #5 (Emergency access to be provided through Pelham Veteran’s Memorial Pa= rk) of the Variance granted on May 12, 2008.

Mr. Molloy stated that he= was not present for the last meeting, but was familiar with the case because he was= a voting member at the hearing in May, 2008.= He noted that he had reviewed the minutes from the previous meeting = and felt comfortable voting. Ther= e were no objections.

Attorney Jeffrey Zall, representing the applicants, came forward to discuss the requested variance amendment. He requested that the Board amend the variance that had been granted in 2008.<= span style=3D'mso-spacerun:yes'> He explained that after receiving = the variance approval, and during the Planning Board stage, it was learned that= any improvements to Pelham Veteran’s Memorial Park (‘PVMP’) h= ad to be approve at Town meeting. When the Planning Board granted its approval, their condition for the phase two improvements to PVMP were reflected in paragraphs four and five of their approval. In summary, the dev= eloper would build the access road and would bring the water line down to a hydrant near the park’s building, at the developer’s cost. So the development wouldn’t = be delayed for a long period of time while it went through the Town approval process, Attorney Zall suggested that the developer could bond (cash or let= ter of credit) the cost of designing/building the improvements (to PVMP). He said if after three successive appearances on the ballot for Town Meeting the Town voted the improvements down, the Town could then use the money for some other project within the Town. The Planning Board reco= gnized that there was a difference between the approval conditions of the Zoning B= oard and the Planning Board and stated the following in their approval condition= #6: Fulfillment of all conditions of th= e May 12, 2008 decision of the Pelham Zoning Board (‘ZBA’) of Adjustm= ent in Case #2399-ML 39/1-62 with consideration of the Planning Board’s recommendation to the ZBA to amend conditions #1 and #5 of the ZBA’s decision to include the provisions listed in paragraph #4 and #5 (the bondi= ng provisions).

Attorney Zall said the re= quest of the Board was to amend the approval that was granted in the case to include= the conditions that were in paragraphs 4 and 5 of the Planning Board’s approval of July= 20, 2009. He said at the last meeting the ma= tter was tabled because the Board was concerned about whether or not the Town’s Highway Safety Committee (‘HSC’) was concerned abo= ut providing access through PVMP to the subdivision for safety purposes of the= subdivision. He said Mr. Gowan contacted the HS= C, who in turn submitted a letter which read that their recommendation was made entirely for the benefit of park safety. He noted that there were two means= of egress to the subdivision, through Clement Road and G Street.

The Highway Safety Commit= tee letter dated Oct= ober 5, 2009 was read aloud. It was the HSC’s consensus to reiterate that the recommended improvements of the gated emergency access road and fire hydrant are improvements needed to imp= rove the safety of residents using the Town beach and to better protect the Town owned structures located in the park area.= The recommendation was made entirely for the benefit of park safety.

Mr. Hennessey said at cla= sses he recently attended it was suggested in positions, such as the one before the= Board, that they make their variance contingent upon final Planning Board approval= and put a time limit on it. He said if the Planning Board didn’t approve = the project, the variance would still sit.&nbs= p; Attorney Zall stated that they had received final (conditional) appr= oval from the Planning Board. Mr. McNamara said the Planning Board’s approval was based upon fulfillmen= t of the conditions. Mr. Hennessey= said he would still condition a Zoning Board approval upon the Planning Board’s approval. Mr. McNamara said the case seemed to have a self-limiting portion built in. Mr. Gowan discussed the uniqueness= of the situation with the case. = He understood that Attorney Zall would work with the Selectmen on the wording = for the warrant article. He said = the plan couldn’t be recorded until the situation was satisfied and the b= ond was put in place. He said the= re were other time limits to begin the project. Mr. Hennessey commented that he was looking for something reasonable for the variance to extinguish if the proj= ect didn’t move forward and in the absence of final recording of the plan. He was comfortable with= a lengthy time, but wanted to have a limit.&= nbsp; Attorney Zall had no objections.&nb= sp;

Mr. McNamara didn’t= object to having a time limit. He was troubled by the fact that some of the main reasons by which the variance was granted would go away in the event the voters didn’t pass the warrant article. He understood there = would be money to be used in another portion of Town, but that money would be tra= ded for the access points and for the water to the particular subdivision, whic= h he believed swayed some of the Board members in the first place.

Mr. Kearney believed the = Town would benefit either way. The= Town would either have the hydrant and emergency road into the park, or would ha= ve money to use for other purposes.

Attorney Zall noted that = if the voters turned down the warrant article there would still be benefits to the Town (from the subdivision). = He said there would be an access easement of record would be on the plan. Mr. Gowan said he would expect the access road to be built from the project up to the stone wall boundary (at PVMP). He was unsure if a zon= ing board had the authority to establish a time limit on a variance. Mr. Hennessey said he learned thro= ugh a class that the Board did have the authority. Mr. Gowan said Town Counsel (John Ratigan) had advised him in the past that all Special Exceptions and Varian= ces ran in perpetuity. Mr. Hennes= sey said he learned through his class that the Board could grant a variance eit= her with a time limit, or subject to the recording of the final plans. His preference in this case was to= have a time limit of ten years for the building to occur. He said he would attach a conditio= n that the approval of the variance (the modification being discussed) would have a time limit of ten years or the completion of the project; if not, the entire variance would expire. Mr. Mc= Namara seconded the motion.

MOTION:

(Hennessey/McNamara) To= attach an approval condition on (the modification of) the variance to have a time limit of ten years, or the completion of the project; if not complete the variance will expire.

VOTE:

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

Mr. Gowan said that the l= anguage in the Notice of Decision would state that the variance was modified with t= he condition that the project would be completed in ten years.

There was no public input= .

Mr. Molloy asked that tho= se in favor of amending conditions #1 - Public wa= ter connection from Dracut through parcel into Pelham, and #5 Emergency access to be provi= ded through Pelham Veteran’s Memorial Park, for the Variance granted on M= ay 12, 2008 and based upon the conditions voted upon as set forth by Mr. Henne= ssey, to hereby signify by saying ‘AYE’.

VOICE VOTE:

Mr. Molloy – Aye<= /p>
Mr. O’Sullivan &#= 8211; Aye

Mr. McNamara – Ay= e

Mr. Hennessey – A= ye

Mr. Kearney - Aye

VOTE:

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

THE ‘AREA’ VARIANCE WAS AMENDED

HEARINGS

Case #2427 ST. PETER, John - 168 Bush Hill Road   - Map 12 Lot 3-148 – Seeking an “Area” Variance to Article III, Section 307-12 to permit an addition to an existing detached garage 5ft. from the right side property l= ine where 15ft. is required

Mr. O’Sullivan read the list of abutters aloud. There were no persons pre= sent who did not have their name read, or who had difficulty with notification.<= /p>

Mr. John St. Peter, 168 Bush H= ill Road came forward to request a variance to construct an addition to an existing garage.

1. The variance will not be contrary = to the public interest because: Unsightly storage tent will be removed.

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: Existing structure is not within the right side setback.

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: = Adding to existing structure.

3. The Variance is consis= tent with the spirit of the ordinance because: We are only requesting a variance to waive one of the zoning requirements and meet all other setbacks and codes.=

4. Substantial justice is= done because: The use being requested is consistent with uses of the surrounding lots and variance being granted will allow us to use our property in the same manner.

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

Mr. O’Sullivan aske= d if there was a temporary structure in place.&= nbsp; Mr. St. Peter stated there was an existing garage. He was requesting to construct an extension that would be the same shape as the existing. Mr. O’Sullivan asked if the existing garage would be demolished and rebuilt. Mr. St. Peter answered no, he woul= d be adding on/extending the existing structure.

Mr. Molloy asked for the dimensions of the existing garage. Mr. St. Peter said it was 28ft.x22ft. The addition would be the same. Mr. Molloy asked if Mr. St. Peter = was granted a variance for the existing garage. Mr. St. Peter answered yes.

Mr. McNamara asked for a description of the property line within the five foot buffer. Mr. St. Peter said there were old existing fence posts as well as a full row of Arbor Vitas along the length = of the property line. Mr. McNama= ra asked if there was a structure located on the adjoining lot and if so, he wanted to know its distance from the lot line. Mr. St. Peter said there was a str= ucture located approximately 40ft.-50ft. from the lot line and approximately 70ft. from the garage. Mr. McNamara= asked what would be kept in the garage. Mr. St. Peter stated they owned a boat and an automobile that would = be stored. He noted that their h= ouse had no basement (only a crawl space) so the garage would also be used for storage.

Mr. Hennessey asked if th= e Board had a copy of the Variance granted for the existing structure. Mr. Gowan believed it was located = in the file. Mr. St. Peter told the = Board that there was an existing garage when he purchased the home and the previo= us variance was for an addition of 14ft. to the front of it.

Mr. McNamara asked if the previous variance had any conditions. Mr. Gowan believed the file was with the Board’s information.<= span style=3D'mso-spacerun:yes'> He reviewed the information and di= dn’t see the file. He then went to= the Planning Office to get the file.

There was no public input= .

Mr. Kearney saw that Mr. = St. Peter had submitted a letter (dated September 12, 2009) indicating that the proposed add= ition would match the existing structure, including roof line, size and color. He confirmed this with the applicant. Mr. St. Peter said= the information in the letter was correct.&nbs= p; Mr. Molloy read the letter aloud for the record.

Mr. Hennessey was surpris= ed that the owner of the property to the right of the applicant’s property wasn’t present for the meeting and had not submitted a letter. He asked if their access was off <= st1:Street w:st=3D"on">Bush Hill Road or off Bowman. Mr. St. Peter sta= ted that his neighbor’s access was off Bush Hill Road; they had a long ext= ended driveway. Mr. Hennessey asked= if Mr. St. Peter had spoken to his neighbor regarding the proposal. Mr. St. Peter said he had spoken t= o his neighbor and they had no problem. Mr. Hennessey felt people should attend the meetings; he was concern= ed about notification. Mr. O’Sullivan stated there were no returned notifications. Mr. St. Peter said he had spoken t= o most of his neighbors, none of which had a problem with his proposal.

Mr. Gowan returned from t= he Planning Office with the file containing the previous variance. He read aloud the Notice of Decisi= on dated April 12, = 1999; the one condition was that the extension was not to exceed 18ft.x14ft. The then read aloud a portion of t= he minutes from the previous case (#2157) outlining the applicant’s requ= est for the garage extension.

MOTION:

(McNamara/Hennessey) If Variance granted, the new addition will match the existing structure including roof line, siding and color (as indicated by the applicant).

VOTE:

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

BALLOT VOTE:

Mr. Molloy – Yes = to all criteria

Mr. O’Sullivan &#= 8211; Yes to all criteria

Mr. McNamara – Ye= s to all criteria – with the conditions on the details submitted in the lett= er from

       &nbs= p; (the applicant) Mr. St. Peter.

Mr. Hennessey – Y= es to all criteria

Mr. Kearney – Yes= to all criteria

VOTE:

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

THE ‘AREA’ VARIANCE WAS GRANTED

Case #2428 BERGERON, Jean-Guy &a= mp; WANG, Gary – 88 Main Street -= Map 22 Lot 7-273 – Seeking = an Appeal from the Decision of the Planning Board rendered on September 10, 2009. Applicants allege the Planning Boa= rd misinterpreted and misapplied Article V, Section 307-19D of the Pelham Zoni= ng Ordinance.

Mr. O’Sullivan read the list of abutters aloud. There were no persons pre= sent who did not have their name read, or who had difficulty with notification.<= /p>

Attorney Tony Soltani, representing Jean-Guy Bergeron and Gary Wang, came forward to discuss the Appeal from the Decision of the Planning Board (rendered on September 10, 2009) that had been submitted. He stated= that the local rules allowed for twenty days for an appeal of interpretation, misapplication or misapprehension of the Zoning Ordinances and allowed for thirty days for an appeal of the issues that are discretionary to the Plann= ing Board. Attorney Soltani said there had be= en an error of law (by the Planning Board)and believed there could be a ‘colorable claim’ that after the twenty days, the Planning Board did not have jurisdiction to revisit the issue on legal grounds, but only on discretionary grounds. He sai= d they were acting on the best interest of the Town of Pelham to not allow any cla= im that may arise out of the erroneous Planning Board decision, which had alre= ady been recognized as ‘in error’ and withdrawn. He said the opposition was that the twenty-day window was closed and the Zoning Board had the jurisdiction to v= isit the propriety of the application of the Zoning Ordinance. Attorney Soltani said the Planning= Board stopped short on the analysis they provided and only decided upon the first issue, which was where they allowed the use is not within the area of the permitted use for that garage/dealership under Section 307-19,D. He said if the Zoning Board agreed= with the Planning Board on that issue, then they need not go further, the Planni= ng Board’s decision would be reversed.&= nbsp;

Mr. Gowan stated in anticipation that the Zoning Board would need guidance from Town Counsel, he sought commentary, which had been received. He believed legal’s comments coincided with Attorney Soltani’s comments and felt it may be appropr= iate to read into the record.

Mr. O’Sullivan read aloud the comments received from Attorney Ratigan (da= ted October 15, 2009). He advised that the Zoning Board s= hould act on the appeal now, to protect against the possible event that the Plann= ing Board’s decision is overturned.

Attorney Soltani stated that he had also been in touch with Attorney Ratigan to make= it clear that they were trying to approach the Planning Board, Selectmen and Zoning Board as friends. He t= old the Board that he had written to Attorney Ratigan on October 8, 2009 inform= ing that his clients had filed an appeal with the Zoning Board from the Septemb= er 10, 2009 Planning Board decision. As of Oct= ober 5, 2009 the Planning Board had vacated their decision based on the theory that they maintained jurisdiction to correct their error for thirty days. Attorney Soltani wrote that he agr= eed with this in principle, however, since the rules only allow twenty days to appeal to the Zoning Board on interpretation or application of the Ordinanc= es and thirty days on discretionary functions of the Planning Board, he believ= ed there could be a colorable claim on the part of the applicant that the subsequent application at the Planning Board was predicated on legal interpretation and application of the Ordinances and not discretionary function. Attorney Soltani fe= lt they should proceed with the appeal and have the Zoning Board reverse (the decision). He received a resp= onse from Attorney Ratigan stating that his approach made sense.

Mr. McNamara understood Attorney Soltani’s position. He commented that the Planning Boa= rd reconsidered its decision specifically because they found that its initial decision was not based upon a complete review of the Town’s Zoning Ordinance. He said it then ca= me to light (after review) that the use (that was approved) was a non-conforming = use in that area and the Planning Board at that point had no jurisdiction. This fact was not brought up durin= g the initial hearing the Planning Board’s decision was made based on other grounds. Mr. McNamara said at= the next Planning Board meeting the issue was brought to their attention, they agreed to reconsider the approval and then they agreed to vacate the approval. Mr. Gowan believed = the Planning Board’s decision was to vacate their decision and give the applicant ninety days to seek appropriate zoning relief; otherwise the application would be considered denied.&nb= sp; Mr. McNamara said the = New Hampshire courts had given land use boards explic= it approval to reconsider their decision before it became final in the event t= here is newly discovered information or if the initial approval was based on fau= lty information or misleading information.&nbs= p; Mr. McNamara understood the applicant’s position and believed = they had preserved their rights by filing the appeal, but was unsure if it was t= he correct decision to act upon it now.

Mr. Gowan said while he didn’t support all of the elements of the attorney’s claim, he had withdrawn his Administrative Decision based = on an error he discovered and the Planning Board took the approach of reconsidering their decision. He said he had no objection, and encouraged the Board to proceed (with the appeal).

Attorney Soltani stated that he reviewed the questions and comments raised during the Planning Board reconsideration and found them to be on point. He said it didn’t make sense= to act on a decision that had been withdrawn, but on the other hand, the withdrawal of the action must be legal.&nb= sp; He said in Pelham there were windows of appeal (20-day and 30-day) f= or different grounds. He reitera= ted that there was a twenty day window for the finality of the Planning Board’s decision on appeals to the Zoning Board on interpretation of = Ordinances, or application of the Ordinances. There is a thirty day window for discretionary functions. Attorney Soltani stated that the a= ction of the Planning Board occurred on the twenty-fifth day. He discussed the different argumen= ts that could be brought forward. He said to make the situation simple, the is= sue was in front of the Zoning Board, regardless of what the Planning Board had done.

Mr. McNamara asked if Attorney Soltani was asking the Zoning Board to ratify/confirm the Planning Board’s decision to vacate based on the f= act that the Planning Board had no jurisdiction. Attorney Soltani stated he was not asking the Board to make that decision.&nb= sp; He was asking the Board to reverse the original decision of the Plan= ning Board on the misinterpretation of the law, as if the vacated decision had n= ot occurred. The issue was if the interpretation of the Ordinance allowed the use to occur. Attorney Soltani said if the Zoning Board reversed on that basis, there would be no reason to go to the other basis’s enumerated. Mr. McNamara understood. He said = the process would stop and the board would have no jurisdiction to go further; = the applicant would then be left to appeal either by way of an Appeal of the (amended) Administrative Decision, or to seek a variance.

PUBLIC INPUT

Mr. Michael Dexter (original applicant who had gone to the Planning Board) was unsure what the Board was deciding upon.&n= bsp; He understood from the Planning Board meeting that he had ninety day= s to go in front of the variance board. <= /span>

Mr. McNamara told the Board that at the second hearing of the Planning Board wh= ere they had vacated their decision agreed to give the applicant ninety days to either contest Mr. Gowan’s Administrative Decision or to file for a variance request to the Zoning Board.

Mr. Hennessey commented that the only thing currently in front of the Zoning Bo= ard was the original decision by Mr. Gowan, which was an error admitted on his part. He said the Board was confirming that it was an error, per the request of Attorney Soltani. He said that was all the Board was doing.

The Board discussed how their motion would read. The motion was to vacate the initi= al decision of the Planning Board on the basis that it was erroneously applied because the property was not within the proper area that allows the use that was requested.

Mr. Hennessey said (with the motion) the Board would be agreeing that there was= an error on the part of the Planning Director because it applied his Administr= ative Decision in error because the property was not in the correct zone. Mr. McNamara said the Planning Boa= rd therefore lacked the authority to approve.=

The Recording Secretary played back the motion made by the Board.

MOTION:

(McNamara/Hennessey) T= o vacate the initial decision of the Planning Board on the basis that it was erroneously applied because the property was not within the proper area t= hat allows the use that was requested.

VOTE:

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

Mr. Gowan asked for clarification of the Board’s motion. Mr. Hennessey said the Board overt= urned Mr. Gowan’s decision based upon it being applied erroneously because = the property was not in the zone that allowed the requested use. Mr. Gowan confirmed that the motio= n was in regard to his original decision, not the amended decision. Mr. Hennessey said it was to the original decision. Mr. Gowan = read back the language that would be in the Notice of Decision – To vacate Zoning Administrator’s (insert date) decision.

APPEAL FROM THE DECISION OF THE PLA= NNING BOARD (rendered on September 10, 2009) GRANTED

MINUTES

Septembe= r 14, 2009

MOTION:

(Hennessey/O’Sull= ivan) To approve the Se= ptember 14, 2009 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/Hennessey) To= adjourn the meeting. <= /b>

VOTE:

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

The meeting was adjourned= at approximately 8:15 pm.

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

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

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