12-12-10

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 13, 2010

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, Svetlana Paliy, Robert Molloy, Peter McNamara, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrat= or Jeff Gowan

Kevin O’Sullivan, Alternate= Bill Kearney

Ms. Paliy explained that = she was an abutter to Mr. Jean-Guy Bergeron and was unsure if it would be a good id= ea for her to hear Case #2449. S= he decided to step down so there wouldn’t be the appearance of a conflict.

REQUEST FOR REHEARING

Case #2449   BERGERON, Jean-Guy - 74-76 Dutton Road /= Maps 30 & 36 Lots = 10-364, 10-365 & 10-366 – Seeking and Appeal from the Decision of the Boa= rd of Selectmen rendered on August 24, 2010 to allow a prohibited use or an expansion of an existing pre-existing non-conforming use in accordance with= RSA 674:33. (NOTE: This will be a hearing only to dec= ide to grant or deny the request. No testimony will be taken.)

Mr. Hennessey explained t= he background of the Case and stated that Mr. Bergeron’s attorney had provided a lengthy brief as to some of the reasons why the Board was previo= usly in error. He asked Mr. Berger= on if he wanted to add anything to the brief that had been submitted on the appeal.

Mr. Molloy pointed out th= at there were three sitting members and questioned if alternates would be appointed = to vote. Mr. Hennessey appointed= Mr. Ouellette and Mr. LaFrance to vote regarding the proceedings.

Mr. Gowan wanted it to be= clear to the Board that technically Mr. Bergeron’s case was not in front of= the Board on an appeal, but to request a rehearing.

Mr. Jean-Guy Bergeron came forward because Mr. Hennessey asked if he had something to say. He noted that the agenda read ‘no testimony would be takenR= 17; . He said it was for that rea= son that his attorney was not present. Mr. Hennessey said he asked as a courtesy if Mr. Bergeron had anythi= ng to add beyond the paperwork in front of the Board. He said it was not required, nor w= ould it be part of the proceedings. Mr. Bergeron said had the agenda not been listed as it was (no testimony), there probably would have been additional things to say.

Mr. Hennessey asked if th= e Board had read the paperwork attached to the case and wanted to know if they had = any questions/comments.

Mr. McNamara said the Boa= rd had the opportunity, if they felt they made an error in their prior decision, to reconsider that decision and bring it back for another hearing. He acknowledged the brief provided= by Mr. Bergeron’s attorney that outlined the reasons for the request. He didn’t see anything in the papers that was either new, or that could have been raised at the prior meeting. He didn’t think there was anything substantially new before them. Mr. McNamara disagreed with some o= f the issues that were raised. He s= aid what it came down to was that the Board believed the applicant lacked stand= ing and didn’t get to the core argument because of that decision. He felt the Board made the right decision and saw nothing in the brief that convinced him otherwise.

Mr. Hennessey wanted a co= uple things put on record. He focu= sed on page two of the memorandum regarding violation of due process. He felt the wording used by Mr. Bergeron’s attorney was deliberatively provocative and inappropriate. He quoted some= of the language used. Mr. Hennes= sey said every time the Board had a case in front of them ‘standing’ was part in parcel of deciding whether to hear the appeal from the administrative decision. He s= aid discussion of standing was not unusual and was astonished that it was terme= d an ambush by the applicant’s attorney.&= nbsp; He was offended that it was insinuated that the only reason the Board brought up standing was because their attorney brought it up; he took the Board’s duties seriously and informed he had attended a class the nig= ht before the meeting where there was a discussion regarding standing. He said standing had been discussed numerous times by the Board while hearing cases. He felt the applicant’s atto= rney should have been aware of standing and prepared for such.

Mr. McNamara believed the applicant’s attorney was aware of standing. He said the attorney made a very impressive argument and correctly identified the standards to be used and reviewed the criteria. The at= torney also had the opportunity to rebut. <= /span>Mr. McNamara believed there had been a full and fair hearing and didn’t s= ee a due process claim.

Mr. Hennessey stated he f= ound some of the language submitted by the applicant’s attorney was offens= ive and provided examples of such. He said the question before the Board was simply if Mr. Bergeron had standing = or not; was the Board correct, or incorrect in disallowing his appeal of the Administrative Decision of the Board of Selectmen.

VOICE VOTE:

To grant Jean-Guy Bergeron another hearing.

VOTE:

(0-5-0) The motion failed.

The Board did not grant a= nother hearing.

HEARINGS

Case #2452 - STUPA= CK, Gregory - 9 Berthel Street -<= span style=3D'mso-spacerun:yes'> Map 31 Lot 11-302 – Seeking a Variance to Article III, Section 307-12 to permit the removal and replaceme= nt of a non-conforming carport and 2 sheds.&n= bsp; New structures will improve a present steep and unfavorable situatio= n.

Mr. Molloy read the list = of abutters aloud. There were no persons present who did not have their name r= ead, or who had difficulty with notification.&n= bsp;

Mr. Gregory Stupack of 9 Berthel Street came forward to discuss the requested Variance for relief of front and side setbacks. He said in the past= he had applied for and been approved (by the Town and state) the ability to upgrade and install an environmentally sound septic system. He provided a copy of an approved Department of Environmental Services Shore Land Protection Permit. Mr. Stupack said he resided on a non-conforming property that was only 50-feet wide and approximately 140-long. He said it would be impossible for him to replace the structure and abide with the front and si= de setbacks. He noted that the p= resent structure was non-conforming and went over the line to 7 Berthel Street. The new structure would not be abl= e to meet the setbacks, but would improve the present non-conformity. Mr. Stupack reviewed the Variance criteria as submitted.

Mr. Hennessey asked if the applicant was also requesting an Equitable Waiver. Mr. Gowan told the Board to ignore= that section of the applicant because it was filled out in error.

Mr. Stupack stated that he reviewed the plans with his immediate abutters and notified all others. He was confident that the immediate abutters had no issues.

Mr. McNamara confirmed th= at Mr. Stupack was seeking to replace the existing carport with a garage. Mr. Stupack said that was correct.= Mr. McNamara asked if the existing= shed would be replaced with a proposed hut.&nbs= p; Mr. Stupack answered yes. Mr. McNamara wanted to know if the hut met all applicable setbacks. Mr. Stupack said it did; the roof = line would be extended to cover the walkway.&nb= sp; Mr. McNamara wanted to know how much larger of an area the proposed carport would cover as opposed to the existing garage. Mr. Stupack said the carport and s= hed (as listed on his taxes) totaled 45SF. He noted the proposed structure was designed to be as close to those structures as possible. Mr. Hennessey noted that the Shore Line Protection application contained condit= ions for impervious surface and lot coverage.&n= bsp;

Mr. McNamara confirmed th= at the current garage steps would be replaced by a ramp. Mr. Stupack stated that was correct. Mr. McNamara asked i= f the garage would be one story. Mr. Stupack answered yes.

Mr. Molloy questioned how= many feet over the property line the existing carport was. Mr. Stupack said it was approximat= ely 3.5 feet over the property line. The proposed plan showed it as being entirely in Mr. Stupack’s boundary lines. Mr. Molloy as= ked for the height of the proposed garage.&nbs= p; Mr. Stupack said the garage would be approximately 15-feet (from the foot) as measured on the topographical map; it would be set back (farther d= own) but a little bit higher with the pitched roof.

Mr. McNamara asked if the= garage would block any abutter’s view of the lake. Mr. Stupack answered no. He told the Board that he spoke wi= th the abutter across the street and there were no issues.

Mr. Gowan told the Board = the applicant and one of his neighbors purchased the lot in between them which allowed them to have the septic appear to go over the property line.

PUBLIC INPUT

Mr. Robert Roy of 13 Berthel Street said the proposed carport would be better than the existing structure. He said it would make the property= line issues squared away at a later date.

There was no one in oppos= ition to the proposal.

Mr. Ouellette asked for clarification of the location of the lot purchased between the applicant= 217;s lot and the neighbor. He aske= d if there was enough vacant land to have the proposal conform without a varianc= e. Mr. Stupack answered no because un= less the dimension was reduced making it too narrow, it would still require a variance.

Mr. McNamara questioned i= f the conditions of the Shore Land Impact permit should be included with the vari= ance even though they would survive independently. Mr. Gowan recommended that the Boa= rd not include the Shore Land permit and to = keep it separate from the variance.

Mr. Hennessey suggested t= here be a height restriction. There w= as a brief discussion. The followi= ng motion was made.

MOTION:

(McNamara/Molloy) The g= arage to be no higher than 16ft. from finished grade to highest point on roof line= .

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria, with height restriction

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Molloy – Yes = to all criteria

Mr. Ouellette – Y= es to all criteria

VOTE:

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

VARIANCE APPROVED

Case #2453 - DALTO= N, Eric & SIMPSON, Paul - 9 Leonard Drive - Map 35 Lot 6-= 52 – Seeking a Special Exception to Article XII, Section 73 & 74 to permit an accessory dwelling unit attached to their existing house in the Residential district.

Mr. Molloy read the list = of abutters aloud. There were no persons present who did not have their name r= ead, or who had difficulty with notification.&n= bsp;

Mr. Shane Gendron of Herb= ert Associates came forward to discuss the requested Special Exception to add an in-law apartment. He said the= y had put a new septic design together and checked the loading of the lot. They met with the Town’s Hea= lth Inspector Paul Zarnowski and had done some test pits and put the design together. The lot met all loa= ding requirements per the Department of Environmental Services. The design was signed (by the Town= ) and approved (by the state) for 4.5 bedrooms.&= nbsp; Mr. Gendron reviewed the packet of information provided to the Board. The floor plan had been updated and submitted for review.

Mr. McNamara asked for clarification of the deck location and dimension because the plan indicated they were to be determined. M= r. Gendron said the owner was looking to connect a deck for access onto the gr= ound for the unit. Mr. McNamara as= ked if the three-season porch would remain. Mr. Gendron answered yes. Mr. McNamara questioned if there were any problems with setbacks or closeness to the Wetland Conservation District (‘WCD’). Mr. Gendron said they didn’t= feel there was a WCD on the lot seeing that it was a pre-existing lot of record. The lot was plotted b= y Bob Thorndike in 1959, prior to the Town’s Zoning Ordinance for WCD. Mr. McNamara said he had a discuss= ion with Peter Zohdi of Herbert Associates at the last Planning Board meeting regarding his question. He sa= id he would like to know how close any new structure would be to either WCD or wetland,= if there were any on the property. Mr. Gendron stated that the closest point of the proposed structure to the wetl= and flagged by Gove Environmental would be 39feet. Mr. McNamara asked Mr. Gowan to comment.

Mr. Gowan said he receive= d a legal opinion from Town Counsel that lots of record were bound by a WCD ove= rlay district; however the Planning Board was not willing to make changes to cla= rify the Ordinance. He said he had= not written an Administrative Decision and was left in a difficult position giv= en the ambiguous nature of the WCD wording as it presently existed. Mr. Gowan said another aspect was = even though it was a lot of record, the use of the yard (as it currently was) wo= uld be a difficult judgment call. He said everything else comports with the Regulations; if the Board were to gr= ant the Special Exception they could perhaps deal with the application (or non-= application) of the WCD separately. Mr. Mc= Namara asked if because the Planning Board refused to clarify the language that was approved by Town Counsel that any existing lots of record or violations of = WCD would not be addressed. Mr. G= owan said he did not (would not) say that. He stated that the ambiguity of the language left him in a quandary. He was inclined to clarify the Ordinance to indicate lots of record that existed prior to 1991 would not be pulled into the Ordinance.&nb= sp; Mr. Gowan told the Board he would take ease case one by one and figu= re out which would be problems; this is the best he could do until the language was clarified.

Mr. Hennessey stated the = WCD was an overlay district and it was the Zoning Board that interpreted the langua= ge in the absence of a court decision. He said it was one thing for the Zoning Administrator to make an administrative decision as to whether to enforce, or not to enforce, but a whole other item for the Zoning Board to have an application before them th= at through their normal course of approval would be in violation of the existi= ng Zoning. Mr. Hennessey asked i= f by approving the accessory dwelling it would cause a violation of the WCD that didn’t exist right now. Mr. Gendron answered no because they were only requesting a Special Exception.<= span style=3D'mso-spacerun:yes'> Mr. Hennessey commented that the B= oard couldn’t place conditions upon a Special Exception. Mr. Gowan said if the Board made a decision based on what was before it, when a building application was submitted, he would confer with Town Counsel as to whether or not the permit could be granted. He said usi= ng the same design, they may be able to move things around to avoid the 50-foot setback. He wanted to look at= the specific situation with Counsel. &nbs= p;

Ms. Paliy suggested that = the Board walk the site to better understand the situation. Mr. Hennessey said the suggestion = would be fine if the application was for a Variance, but what was in front of the Board was an accessory unit, that by testimony of the representative, viola= ted the WCD. He said the Board ma= y not have enough information. Mr. Hennessey suggested that the applicant, prior to the Board making a decisio= n, consult with the Planning Department and possibly come back with a variance accompanied with a request for Special Exception. Mr. Gowan questioned (as a point of order) if the Board was asking the applicant to withdraw without prejudice. Mr. Hennessey wouldn’t go any further than to say it might be in their best interest.

Mr. Ouellette questioned = if the Conservation Commission should be asked for their opinion. Mr. Hennessey commented that the B= oard couldn’t ask for Conservation’s opinion in this case because a Special Exception either met the criteria or didn’t.

There was discussion by t= he Board and the applicant as to how to proceed.&nb= sp; Mr. Gendron believed a continuance made sense; they would work with = Town staff to move things on the plan and possibly request a variance for a litt= le relief from the WCD. The Board’s concern was the W= CD and not if the criteria for Special Exception had been met.

The Board unanimously gra= nted a continuance of the hearing to the January 10, 2011 meeting.

MINUTES

MOTION:

(McNamara/Molloy) To ap= prove the November 8= , 2010 meeting minutes as written.

VOTE:

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

ADJOURNMENT

MOTION:

(McNamara/Paliy)To adjo= urn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 8:03 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