BOA 4-13-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 13, 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, Robert Molloy, Alternate Bill Kea= rney, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zo= ning Administrator Jeff Gowan

Kevin O’Sullivan

ELECTION OF OFFICERS

Given that not all Board = members were present, the Election of Officers was postponed until the next meeting= .

MOTION:

(McNamara/Molloy) To po= stpone the Election of Officers to the next meeting.

VOTE:

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

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

Case #2420 COLEMAN, William & SCIRE, Connie -= 51 Bearhill Road - Map 20 Lot 3-133 – Seeking= an “Area” Variance to Article III, Sections 307-12, 307-13 (B.I) a= nd 307-14 to permit the creation of two (2) lots with 25.80 feet of frontage on lot 3-133 and 25.81 feet of frontage on lot

3-133-1 on Bear= hill Road and the construction of a house on lot 3-133-1.

Mr. Hennessey read the li= st 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;

There was no one present = to represent the Case. The Board postponed the hearing to later in the meeting.

(See below for further ac= tion)

Case #2421 DEPRIZI= O, David - 27 Goldfinch Drive - Map 21 Lot 3-102-44 – Seek= ing a Special Exception to Article XII, Section 307-74 to permit the conversion o= f an existing duplex to a single family with an accessory dwelling

Mr. Gowan explained to th= e Board that the applicant currently had what legally qualified to be a duplex, although it was built to an in-law standard. The owner did not want to have a d= uplex and was using the second unit as an in-law apartment. The Planning staff advised the own= er that he could come before the Board and request relief. The owner shared with Mr. Gowan th= at he was seeking a Special Exception for Assessment issues; a single family with= an in-law was assessed at a different rate than a duplex. Mr. Gowan decided to request legal opinion and was informed by Attorney Ratigan that he didn’t believe t= he request was properly before the Board because the applicant had the right to have in-laws occupy the duplex because of its size and location on the lot. Attorney Ratigan wrote t= hat it was akin to someone asking for a variance to allow residential use in a residential zone. One the iss= ue of whether a Special Exception ran with the land or is somehow personal to the applicant or expired as soon as the Special Exception use ceased or the property changed hands, Attorney Ratigan wrote that in New Hampshire a Spec= ial Exception ran with the land in perpetuity.= He also wrote if the Board was concerned that there wasn’t a c= lear record at the Registry of Deeds of the variances and special exceptions that had been granted it was possible to record a notice of the variance or spec= ial exception at the Registry. Mr. Gowan told the Board that Attorney Ratigan suggested that the owner record a restriction on the use of the property as a single-family with an in-law (assuming Assessing would accept the restriction; Mr. Gowan believed they s= hould).

Mr. McNamara said the app= licant would be able to get relief through a mechanism other than through the Board. Mr. Gowan said that was correct. He said owners could record restrictions for the use of their own property. Mr. McNamara said the use was lega= l and didn’t see why the Board would proceed further with the case.

Mr. Molloy asked how the = use would be restricted. Mr. Gowa= n said the owner would need to record a document at the Registry (working with an attorney) restricting the use of the property as an in-law and not as a duplex. Mr. Molloy questioned= what would happen when the owner sold the property. Mr. Gowan understood that the owner could record another document rendering the first document null and void.

Ms. Paliy asked if the ap= plicant was withdrawing the case. Mr.= Gowan noted that the applicant was seated with the public and had nodded his head= yes (to withdrawing). He said he = would refund the modest application fee to the applicant given they were told to = come before the Board.

Mr. Hennessey said as a r= eal estate broker, he disagreed with the interpretation about being able to rev= ert the house back into a legal two-family once the deed restriction was placed upon it. He believed the owner needed legal council/advice. = He suggested that once the applicant spoke to an attorney that he withdraw the application (before the Board) without prejudice.

The owner/applicant David Diprizio came forward and explained that the purpose of the request was with the bank/appraiser. He said t= hey were trying to refinance to get to a lower rate, but because the house was listed as a duplex the value was diminished. He said the banks wouldn’t refinance the house as a duplex. He wanted to work with an attorney and make a description of the house as Mr. Gowan described.

Mr. Gowan believed Mr. Hennessey’s recommendation to withdraw the application was good.

Mr. Diprizio withdrew his application without prejudice.

Case #2422 Applica= nt: NEW CINGULAR WIRELESS PCS, LLC (AT&T)&= nbsp; c/o Douglas H. Wilkins - Owner: ZOLKOS, Charles & Janice - 1 Bush Hill Road - Map 27 Lot 2-81 – Seeking “Use” Variances to Articles II, III, IV, V, X, XIII –Sect= ions 307-6, 307-7, 307-12, 307-16(A), 307-18, 307-58(B)(3) of the Zoning Ordinan= ce to permit a Personal Wireless Service Facility and Tower use on property situated in the Residential Zone,= not in the Telecommunications Overlay Zone, and with access from a Class VI hig= hway known as Gumpas Hill Road

Mr. Hennessey read the li= st 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 Doug Wilkins of = Anderson Kreiger, Attorney for AT&T along with Site Acquisition Specialist Peter Marchand came before the Board to discuss the variance request. Attorney Wilkins told the Board th= is was the second of two sites that they planned to cover the significant coverage= gap on Mammoth Road. He stated they would like to opera= te under the same procedure as used with the Rocky Hill site which would invol= ve a site visit coordinated with the Planning Board and at the same time doing a balloon test. Also, they woul= d have an independent Radio Frequency Analysis done as they did with Rocky Hill. Attorney Wilkins reviewed the plan= set for the Board. He stated on A= pril 9, 2009 the Radio Frequency report and Radiation Safety report had been submitted. The reports compar= e the anticipated radio frequency emissions from the proposed site against the federal safety regulations. A= ttorney Wilkins then reviewed the information/studies submitted to the Board. He also reviewed the variance crit= eria.

Mr. Hennessey questioned = how the Board could grant a variance if there was currently zero frontage. He felt the Board needed legal opinion. His understanding wa= s that a Class VI road closed to gates and bars was not a public right-of-way and = the Board would not be able to issue a variance. Attorney Wilkins said he would sub= mit information regarding that. He didn’t feel the Board lacked the power to grant a variance down to zero. He said the variance co= uld be treated as a ‘use’ variance they would be happy to do so, so the property could be used without frontage.&n= bsp; They would have access through the access road because they would be building it up.

Mr. Gowan believed if the applicant wanted to improve a certain distance beyond the gates and bars it would require certain questions to be answered by Town Council, such as does the Board have the authority to grant a variance subject to Selectmen permission and Planning Board approval.

Mr. Hennessey stated that= he may have to step down from the case because he had written extensively that his opinion was if a road was closed to gates and bars by Town Meeting, the only way for it to be opened was by vote at Town Meeting; the Selectmen didnR= 17;t have the authority to open the road. He felt strongly about his position. Mr. Wilkins stated that they were = not trying to open the road, they were trying to improve the road to 12ft. wide= for access. He said they would wa= ive Town liability.

Ms. Paliy said the Board = would have to decide whether they wanted to vote prior to the applicant meeting w= ith the Selectmen. Mr. Hennessey = said he had a problem with the request because the Ordinance called for frontage= to be on a public right-of-way and there was no public right-of-way. He was looking for advice from the= Town attorney telling the Board that they could grant permission to build on a property that had zero frontage.

Mr. Wilkins said they wer= e not proposing to build the road to the point of providing legal frontage. They were proposing to keep the To= wn where it was with respect to liability.&nb= sp; They wanted to improve it to the point of making access work. Mr. Gowan said he would request le= gal opinion of what the applicant would need to do.

Mr. McNamara asked how la= rge the parcel was. Mr. Wilkins said = the parcel was approximately sixty-four acres.= Mr. McNamara wanted to know if the variance was granted and the road= was upgraded if it would open the parcel up for development. Mr. Wilkins said it wouldn’t= open it up for development if the road was left at Class VI. Mr. McNamara noticed that much of = the road grade was more than 11% grade which went well beyond the regulation requirements. Attorney Wilkin= s said they would maintain the road as gravel to maintain the drainage as much as possible.

Mr. Gowan questioned the = number of carriers (in total) that would be on the tower. He said the spirit and intent of t= he Communications Ordinance was to encourage co-location. He believed both the Waterhouse and Rocky Hill towers allowed five carriers in total.   Mr. Wilkins stated they had no objection. Mr. Gowan asked if= the Board wanted to have Mark Hutchins review the radio frequency figures as he= had done for Rocky Hill. He also = wanted to make sure there was more notice of the site walk for this application th= an there was for Rocky Hill.

Ms. Paliy questioned if t= he project was due to the population growth or if it was due to Raytheon and AT&T working on microwave technology.&= nbsp; Attorney Wilkins said the tower was designed to cover the service ga= p on Mammoth Road= . Ms. Paliy confirmed that the tower= would be available for use and for other carriers. Attorney Wilkins stated that it would. Ms. Paliy wondered abo= ut the research going on in the area and the need for the towers. She wanted to know that the towers= would bring other carriers in and it wasn’t just needed for and AT&T project. Attorney Wilkins sai= d they weren’t privy to the other carriers build plans; the goal for them wa= s to fill their gap.

Mr. Hennessey said the Bo= ard understood that the 1996 Telecommunications Act somewhat superceded the loc= al zoning. Ms. Paliy said she wa= s just wondering about the applicant’s motive. Mr. Hennessey said if there is a g= ap in service, it limited the Board’s restrictions on the applicant.

Mr. Molloy asked if the information showing the coverage gap was prepared by AT&T. Attorney Wilkins said the informat= ion was prepared by AT&T’s radio frequency expert. Mr. Hennessy commented that the Bo= ard had an advisor that they could have verify the information.

PUBLIC INPUT

Attorney Paul DeCarolis of Gottesman & Hollis, a resident of Bush Hill Road and representing Mr. James Fisher a direct abutter to the property came forward to discuss the variance request. He stated that they believed Mr. Fisher would be impacted.&nbs= p; They also believed there would be a detrimental impact to the site considering the pristine area and rural surroundings. Attorney DeCarolis st= ated that they were very interested in the Class VI road improvements. He said they were looking for some= sort of trade off if Mr. Fisher would be financially impacted. He felt it would be appropriate fo= r the applicant to improve the section of the Class VI road. Attorney DeCarolis asked the Board= to insist on an independent analysis regarding the coverage. Being a resident of the area, he t= old the Board that he used Verizon for both his cell phone and wireless access = with no problems, however the map submitted to the Board showed that he had no coverage. He ended by saying = that the road improvements would be the big issue and was told that there was no willingness to do anything more than just the 12ft. wide section.

Ms. Lisa O’Rourke, = 132 Mammoth Road asked if the Board of Health had been notified and wanted to know their concerns. She had the followi= ng questions/concerns: 1) how the conservation and wetlands would be impacted; 2) if the radio frequency would increase by having multiple carriers; 3) if there would be any health conce= rns for humans and animals with having the tower in the area; 4) if the road wo= uld be adequate for fire truck access; and 5) if there would be further development.

Attorney Wilkins said a r= eport had been done regarding the emission. He noted that the Telecommunication= s Act limited what local boards could consider because the FCC establishes health= and safety regulations. He addres= sed the environmental impact concern and commented that their plans didn’t show wetlands in the area that they were planning to work on. He said they were planning to use = gravel on the access road to avoid runoff issues.=

Mr. Hennessey said locati= on was in a Class C flood plain and questioned if a wetland vegetation survey had = been done for the area around the tower location. Attorney Wilkins didn’t beli= eve that they had and noted it was high elevation at the location. He said he would ask his engineer = if there was a flood plain.

Mr. Ouellette asked Ms. O’Rourke if she had any problem with cell phone coverage. Ms. O’Rourke stated she had = no problems with cell phone coverage. <= /span>

Ms. O’Rourke asked = if the Board of Health had been notified and if they had concerns. Attorney Wilkins said they hadn= 217;t specifically notified the Board of Health and believed the FCC regulations = took care of the question. He said= he would be happy to provide Ms. O’Rourke copies of the information submitted to Board. Mr. McNam= ara explained that as long as the applicant could certify that they’ve met the FCC requirement for radio frequency emissions, the Board was precluded = from questioning health effects. M= r. Molloy asked if the Board could have an independent study done. Mr. McNamara answered yes, just as= the Board did for the Rocky Hill application.&= nbsp; Attorney Wilkins said they would be willing to fund the study.

Ms. O’Rourke asked = how property values would be affected. She also questioned if the Town would receive any money from the tower. Attorney Wilkins said = they submitted a number of property value reports which concluded there would no= t be an impact on property values. He commented that the site was not Town owned, so the = Town would not receive money from the tower.&nb= sp; He ended by stating that the long-term health effects for this purpo= se were resolved by the FCC.

Mr. Paul Calistro, 68 Burns Road asked if the abutters could get a copy of the reports submitted for radiation and property value. He also wante= d to know who would be liable in the event of injuries. Mr. Hennessey said the discussion = about radiation was off limits because it was handled by the FCC. He was sure that the information submitted would contain an appraiser’s remark that the abutter’s property wouldn’t be affected. Mr. Calistro wanted to know what would stop future development given that the access road would be improved.&nb= sp; Mr. McNamara noted that it was a long stretch of road with an 11% gr= ade making it extremely difficult to not only do the work, but to get it passed= . He noted that the road was closed = to gates and bars. Mr. Calistro = asked if the Fire Department had been asked if they could gain access. Mr. McNamara said the facility wasn’t going to be manned, but assumed that at the Planning BoardR= 17;s request, the Fire Department would want to review the road.

Mr. Gowan commented that = the Town had regulations that a driveway couldn’t exceed 10% grade. He said the way the Ordinance was = set up, the Fire Chief had the final say. He said there was some discussion regarding rights to improve roads = and stated any applicant could build a road where there was no road as long as = they owned the land and it was to Town regulations. He said he would seek input for the Board’s review regarding that aspect. He commented that any information submitted was a matter of public record for anyone to review.

Mr. Hennessey reviewed RS= A 231:22 and 231:22a which brought up questions regarding Class VI roads and access. He said there was als= o an interesting discussion in the RSA’s about a town’s ability to a= ssess betterment charges for opening a Class VI road that he would like to addres= s at some point.

After a brief discussion regarding how to proceed, the Board decided to continue the case to May 11, 2009.

MOTION:

(Molloy/Hennessey) To c= ontinue the case to the May 11, 2009 meeting.

VOTE:

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

Case #2423 CONCORD= IA HOMES, INC. - 6 Matthew Drive= - Map 24 Lot 12-43-21 – Seek= ing an “Area” Variance to Article III, Section 307-14 to permit the construction of a single family dwelling on a lot with less than 200ft. of = road frontage

Mr. Hennessey read the li= st 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. Thomas Piekarski, Con= cordia Homes came forward to discuss the variance request. He read aloud a letter explaining = the reason for the request. In su= mmary, Concordia Homes, Inc purchased a lot in November 2002 from Stonepost Village, LLC who had a subdivision approved October 21, 2001.&n= bsp; At the time of the approval, the plan showed one driveway for one si= ngle family home, however when Mr. Piekarski applied for a building permit he was told to seek a variance because the Planning Board didn’t have the authority to approve a lot containing insufficient frontage. Mr. Piekarski stated that he purch= ased the lot in good faith and had been paying full property taxes for a buildable lot.

Mr. Piekarski then read t= he variance criteria aloud (as submitted):

1. The variance will not be contrary = to the public interest because: Area will = not change appearance. Only a dri= veway will be built and all other requirements will be met. No negative impact to neighborhood properties.

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

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: Lot was approved with 50ft. of frontage with clear intention for a driveway and not a paper road to be constructed; refer to signed plan.

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: = Building extension of road would requi= re adding one more lot but would not meet the desired environmental results designed at the time of approval.

3. The Variance is consis= tent with the spirit of the ordinance because: This large lot served by a driveway would have far less impact to character of neighborhood and wildlife than building a road.

4. Substantial justice is= done because: variance allows building on property that has been taxed as a buildable lot as a condition of variance. I will agree to no further subdivision of lot.

5. The value of the surro= unding properties will not be diminished because: Only one home will be built on three acres of land.

Mr. Piekarski reviewed the Planning Board approved plan showing the driveway and proposed house location.

Mr. Gowan said there were= no meeting minutes from the meeting when the plan was approved. He recalled discussions about cons= erving wildlife area. He didn’t believe it was the Planning Board’s intention to do something not in compliance. He said the cul-d= e-sac that was built appeared to be permanent and felt it was reasonable way to resolve the problem.

Mr. McNamara wanted to kn= ow the lot topography. Mr. Piekarski showed the topographic plan to the Board.&= nbsp; There was further discussion regarding the plan. Mr. McNamara commented that the Pl= anning Board didn’t have the authority to approve a lot with less than 200ft. Mr. Gowan said the pla= n was approved with the paper street. He said the question was whether it was appropriate to build it.

Mr. Hennessey said the Bo= ard had similar cases and had always requested Planning Board recommendations. He didn’t want to delay the applicant, but wanted to hear from the Planning Board.

Ms. Paliy questioned if t= he Planning Board or Selectmen should determine the type of relief that should= be sought regarding taxes. Mr. G= owan commented that the Selectmen didn’t have authority, it was his depart= ment that advised the applicant to seek relief from the Board of Adjustment.

The Board discussed how t= hey should continue. Mr. Gowan didn’t see the request as any different from a variance request. He felt the arguments for the vari= ance request were clearly articulated. He didn’t see a lot of value going back to the Planning Board = for comment.

PUBLIC INPUT

Mr. Raymond Brunelle, 3 Matthew Drive stated that he was an alternate of the Planning Board at the time the plan = came before the Planning Board. He recalled the due diligence by Concordia Homes to minimize the impact to the wetlands, which was the goal at the time.&= nbsp;

Mr. Piekarski told the Bo= ard that he had been saving the lot for a rainy day and now was the time.

Mr. Hennessey stated if t= he Board looked at the lot in front of them and spoke about economics, he didn’= ;t see any way the Board could deny the request (forgetting the history). Mr. McNamara recalled the project = and said looking at the proximity of the conservation area it seemed like the proposal in front of the Board was logical.

Mr. Gowan said the Board = may want to consider conditioning an approval with having no further subdivision of = the lot. Mr. Piekarski was fine w= ith the condition.

MOTION:

(Hennessey/Molloy) Vari= ance approval is conditioned upon no further subdivision.

VOTE:

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

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria

Mr. Hennessey – Y= es to all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. LaFrance – Ye= s to all criteria

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

“AREA” VARIANCE GRANTED

Case #2420 COLEMAN, William & SCIRE, Connie -= 51 Bearhill Road - Map 20 Lot 3-133 – Seeking= an “Area” Variance to Article III, Sections 307-12, 307-13 (B.I) a= nd 307-14 to permit the creation of two (2) lots with 25.80 feet of frontage on lot 3-133 and 25.81 feet of frontage on lot

3-133-1 on Bear= hill Road and the construction of a house on lot 3-133-1.

Mr. Gowan told the Board = that there had been a defect in notification.&n= bsp; The applicant had to re-notify abutters. He expected the case to be brought= back to the Board.

MINUTES

November= 10, 2008

MOTION:

(McNamara/Hennessey) To= approve the November = 10, 2008 meeting minutes. <= /u>

VOTE:

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

December= 8, 2008 – approved at the January 12 , 2009 meeting.

January = 12, 2009

MOTION:

(Hennessey/McNamara) To= approve the January 12= , 2009 meeting minutes as amended. <= o:p>

VOTE:

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

ADJOURNMENT

MOTION:

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

VOTE:

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

The meeting was adjourned= at approximately 8:56pm.

           &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