APPROVED
TOWN OF
ZONING BOARD OF ADJUSTMENT MEETING
The Chairman Robert Molloy called the meeting to order=
at
approximately
The Secretary Kevin O’Sullivan called roll:
|
PRESENT: ABSENT: |
Robert Molloy, Svetlana P= aliy, Peter McNamara, David Hennessey, Kevin O’Sullivan, Alternate Bill Kearney= , Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan Alternate Lance Ouellette= |
HEARINGS
Case #2430
- PATEL PLAZA, LLC -=
59 Bridge Street Map 41 Lot 6-118 -=
Site Plan Review of Proposed New Gas Station/Convenience Store with 8
Filling Locations & Offices for Commercial Use and Seeking an
“Area” Variance to Articles III & VII, Sections 307-12, 307=
-39
& 307-41 (B) to permit the proposed building to be located 15ft. from
Pulpit Rock Road rather than the required 60ft. and the canopy above the
proposed gas pumps to be 20.6 feet from Bridge Street rather than the requi=
red
60ft. Also to permit a portio=
n of
the proposed building, a reta=
ining
wall, grading for access and parking, a portion of underground storage tank=
s, a
concrete pad and propane tanks to be located within the Wetland Conservation
District.
Mr. Peter Zohdi of Herbert Associates and Attorney Bill Mason came forward, representing the applicant= , to discuss the request for variance. Mr. Zohdi stated that the last meeting had been a joint meeting with the Planni= ng Board at which time they presented their case and reviewed the variance criteria. Since that time, a = site walk had been conducted and they were now asking the Board if they would endorse the variance. Mr. Zoh= di provided a summary of the site and the proposed plan.
Mr. Molloy believed the B= oard was aware of the plan and the associated issues. He asked if Mr. Zohdi had any furt= her information. Mr. Zohdi said he received a report from the Town’s engineer Keach Nordstrom that they = were working on; most of the items in the report were associated with Planning B= oard issues. He said they didnR= 17;t want to spend any more money until they knew how the Board felt about the project.
Mr. McNamara asked Mr. Go= wan if he had reviewed Keach Nordstrom’s initial report of the project and if there were any items that would impact the Board’s job. Mr. Gowan stated that he reviewed = the report and believed the only item relevant to the Zoning Board was that the Conservation Commission had advised that porous pavement be used in a porti= on of the parking lot. He said b= oth he and Mr. Steve Keach of Keach Nordstrom felt it would not be a good idea for this application. He said Mr.= Keach also had the idea to have monitoring wells rather than ‘vaulting̵= 7; the (double wall) gas tank. T= he state may require the tank to be vaulted.&= nbsp;
Attorney Mason stated tha= t a representative of Keach Nordstrom attended the site walk and had viewed the proposal.
Mr. Zohdi commented that = Mr. Hennessey was concerned about the aquifer.= He said new plans had been submitted to the Planning Department indicating that there would be no disturbance within the aquifer. He said the aquifer was located at= the back of the site. Mr. Henness= ey said that the Board had received testimony from Jim Gove stating that the proposal was on top of an aquifer. <= /span>Mr. Gowan went to the Planning office to retrieve the map of the aquifer.
Mr. McNamara confirmed th= at the plans had not changed in any material detail. Mr. Zohdi answered no. Mr. McNamara said there had been s= ome discussion at the site walk about angling the gas pumps to improve traffic flow. He questioned if it had= been done. Mr. Zohdi answered no.<= span style=3D'mso-spacerun:yes'> He said they were asking for appro= val of the plan that had been presented. He said angling the pumps would not change the variance. Mr. McNamara questioned if angling= the pumps would change the 60ft. canopy distance. Mr. Zohdi said he was working with= Mr. Gowan and Mr. Keach regarding the pump angle because it wouldn’t be g= ood to have them move closer to Route 38. He asked to show the Board a plan in which they had taken the aquifer map and implanted it onto their plan.
Mr. Molloy asked if the g= as storage tanks would be set above the aquifer. Mr. Zohdi answered no. Mr. Zohdi showed the Board members= the information contained on the aquifer map.&= nbsp; Mr. Hennessey said the aquifer district map was not concerning him, = it was the testimony (from Mr. Gove) indicating that that aquifer was undernea= th the proposal area.
Mr. Gowan returned to the=
meeting
with the aquifer map. The Boa=
rd
members reviewed the map in correlation to the proposal site. Mr. Hennessey said looking at the =
map he
still couldn’t tell where the aquifer was located; the right side cor=
ner
of the lot didn’t appear to be over the aquifer, but the center part =
of
the site was over it. He said=
one
of his problems was that there were two variances one of which was for the
setback from
Mr. Gowan stated that the= re was no question that the facility was close (to the aquifer) and it was a locat= ion that warranted some protection, which would go to the Planning Board’s engineer for advice.
Mr. Molloy asked to revie=
w the
meeting minutes from the joint Planning Board/Zoning Board of Adjustment
hearing. He wanted to know the
exact testimony as to where the tanks would be placed and if they were in f=
act
going to be on the aquifer. M=
r.
Gowan went to the Planning Department to retrieve a copy of the minutes.
Mr. Zohdi commented that = he had a meeting in the state house last week in connection with a different gas station. He said if the gas s= tation were approved by the state, everything (tank etc.) would need to be placed within a concrete system (underground).&nb= sp; The concrete wall would be designed by a structural engineer who knew about handling gas. The wall = would have access for monitoring purposes.
Mr. Hennessey said the pr=
oblem he
had was that the request was not a ‘use’ variance. He said the Board was not reviewin=
g a
variance request for a gas station; they were reviewing an ‘area̵=
7;
variance. He believed the app=
licant
made a great case for the improvement to the property. He said in reviewing the variance
criteria for the access off
Attorney Mason stated tha=
t the
discussion about the measures taken to protect the aquifer had nothing to do
with the canopy. He said the =
canopy
was a usual, customary structure that every gas station (constructed in this
day and age) had to provide shelter over the people dispensing the product =
into
their car. He reiterated that=
the
canopy was not the focal challenge to how the aquifer would be protected.
Mr. Hennessey acknowledge=
d that
the applicant had proven the case to have the building as a retail source, =
he
asked for a reason to have the canopy.&nbs=
p;
Mr. Zohdi said if a gas station was constructed without a canopy, he
didn’t feel people would stop to purchase gas. Mr. Hennessey wanted the reason he
should grant a setback variance for the canopy. Mr. Zohdi said if they didn’=
t have
the variance granted, he didn’t think the gas station could be at the
location. He didn’t feel
economically that a gas station would be successful without the canopy. Mr. Hennessey commented that the r=
equest
was not for a gas station, it was for the setbacks from
Mr. McNamara reviewed the= Boccia criteria. Mr. Hennessey said he hadn’t= heard an economic argument for the gas station.&= nbsp; Attorney Mason believed he spoke to the ability to get a branded nam= e at the location as well as the gallon volume being a critical factor. In order to get that type of clien= tele, there would have to be a volume of gasoline business to draw customers. Mr. Hennessey wanted the applicant= to state on the record how a gas station would allow them to afford doing the project. Attorney Mason state= d that a volume of traffic was needed, not only to purchase the petroleum products, but also to purchase the accessory products that were displayed in the conv= enience store. Mr. Hennessey said tho= se reasons constituted an economic argument.
Mr. Gowan provided the Bo=
ard with
a copy of the meeting minutes from the joint Planning Board/Zoning Board of
Adjustment of
The following excerpts we= re read into the record:
line 73-=
80
“Mr. Jim Gove of Gove Environ=
mental
conducted a study of the parcel. He
said he had done a functional assessment of what the wetlands were doing, w=
hich
included a site specific soil map report.&=
nbsp;
He discussed the history of the site, wetlands and current drainage
flow. He then discussed the w=
etland
and its functions. He said the
storm water was effectively being treated and was infiltrating because of t=
he
sands and gravels. He said fr=
om a
standpoint of flood control potential, it was very good. Mr. Gove said because the soil had=
sands
and gravels, the ground water use potential was high. He stated there was not much run o=
ff
going through the existing culvert area.&n=
bsp;
He commented that the development would enhance the wetland system
mainly due to the fact that the storm water management would be improved.&#=
8221;;
=
;line
221-228: “ Mr. Hennessey addressed cri=
teria
#5, with which he was concerned because of the notation of the hours of
operation being twenty four hours.
He suggested that a 24-hour operation may have some impact on
surrounding properties values being diminished. Mr. Hennessey in reviewing the
Town’s Master Plan, it looked like the site was on top of one of the
Town’s aquifers. Mr. Go=
ve
answered yes. He said the maj=
ority
of the area around the site was deep sand and gravel deposits. He said the wetland provided a lot=
of
infiltration. Mr. Hennessey
questioned if there should be pervious surfaces underneath a gas station ov=
er a
Town aquifer. Mr. Gove stated=
that
the area under and directly around the pumps should not be. He reviewed the site and the propo=
sed
runoff and drainage.”;
=
;line
310-315: “Mr. Gove stated bec=
ause
of the treatment taking place, there would be a reduction in the pollution
discharged to the surface and ground water=
He said there would be flood protection by slowing the flow down.
Mr. Hennessy stated that = he was struggling with having a gas station over an aquifer. He said if the gas station wasn= 217;t needed to make the project economically viable, he would have voted against it. He acknowledged that the = Board had received testimony stating that the gas station was necessary to make t= he project economically viable. = He also acknowledged that there was testimony from Mr. Gove saying as long as there were impervious surfaces (along with the other safety items being add= ed) the proposal would be an improvement to the area. He said given that criteria, it wo= uld be hard to vote against the request. He was surprised that the Conservation Commission didn’t discu= ss the aquifer while doing their review of the project. He was also surprised that the Conservation Commission didn’t insist on the pervious surfaces and ho= ped that the Planning Board would consider it.=
Mr. McNamara noted that t= he Conservation Commission had recommended eight conditions and questioned if = the Board wanted to address them in their decision. He said most of them involved the = Planning Board. He commented that at the site walk, Mr. Keach informed that the tanks would have redundancy features built in and didn’t seem to have a pro= blem with the tank location. Mr. McNamara asked how deep the aquifer was in the area. Mr. Zohdi didn’t have an ans= wer, but would find out for the Planning Board.=
Mr. Hennessey said there = had been a discussion regarding the soil acting as filtration and by cleaning up the= run off the aquifer would be improved. <= /span>
Mr. O’Sullivan aske= d if there had been a question about a partially blocked culvert. Mr. Zohdi stated supposedly there = was a cross culvert on Route 38 that they were unable to locate because of the wi= nter season. He said if there was a cross culvert they would clean it up at the time of construction; however in general it was the NH Department of Transportation’s (‘DOT̵= 7;)job to clean the culverts.
Mr. Gowan shared with the= Board that the Conservation Commission had spent a lot of time with the application. He believed they= had provided an in depth analysis that would be beneficial to the Planning Board. Mr. Hennessey said he = would be happier if there had been some comment regarding the aquifer.
PUBLIC INPUT
Mr. Edward Lynch told the=
Board
that there were forty-eight apartments in close proximity to the proposed
project. He explained that the
apartments were serviced by a well, and in the event that well failed, the
proposed new well would be closer to the applicant’s parcel. He was concerned about this fact.<=
span
style=3D'mso-spacerun:yes'> Mr. Lynch acknowledged that the
applicant appeared to be taking precautions to protect the ground water.
Mr. Gowan told the Board = that he would contact District 5 and speak with the DOT engineers, who would have a= ny culvert on their maps.
|
BALLOT VOTE: |
Mr. Molloy – Yes = to all criteria Ms. Paliy – Yes t= o all criteria Mr. McNamara – Ye= s to all criteria Mr. O’Sullivan &#= 8211; Yes to all criteria Mr. Hennessey – Y= es to all criteria |
|
|
VOTE: |
(5= -0-0) The motion carried. |
|
“AREA” VARIANCE APPROVED
Case #2429 – FICHERA, Frank Jr. & CROOKER, Constance – 52 Dutton Road - Map 36 Lot 10-358 – Seeking = an “Area” Variance to Article III, Section 307-12 to permit the subdivision of land to allow two lots without 200 feet of frontage.=
Mr. Molloy stated that th=
e case
would be continued to the
Case #2432 - VERHO=
FSTAD,
Joost – 1 Wood Road -
Attorney Paul DeCarolis of Gottesman & Hollis, representing the applicant, came forward to discuss= the proposed plan. Also present w= ere Joe Maynard of Benchmark Engineering and the applicant Mr. Joost Verhofstad= . Attorney DeCarolis provided the Bo= ard with an estimate from a contractor indicating that the construction cost for the home would be between $100 - $125 per foot. Prior to the meeting the Board was provided information comparing lots within the neighborhood they were also given a copy of an appraisal as well as an opinion letter. Attorney DeCarolis reviewed the pl= an and discussed the amendments that had been made since it was first presented. T= he square footage of the building and height had been reduced. The basement level was eliminated;= the home would now have slab construction.&nbs= p; The total space for the house was approximately 1800SF.
Attorney DeCarolis addres=
sed the
concerns raised by abutters at the previous meeting, the first being the vi=
ew
to the lake. To determine whe=
ther
the proposed project would cause diminution of value to Mr. Perron’s
property, photographs showing the existing view (to the lake) from Mr.
Perron’s property were displayed.&nb=
sp;
Another photograph was presented that showed the view along with a
drawing to scale of the proposed home.&nbs=
p;
Although the home may have some impact on the view, it would be very
minor to the overall scale.
Photographs of Mr. Perron’s home from last May (2009) were
presented. They showed that t=
he
vegetation blocked more of the view than the proposed home would. It was noted that some of the trees
would need to be taken down for the development, which would improve Mr.
Perron’s view. Attorney
DeCarolis stated Mr. Perron’s counsel argued that the applicant had n=
ot
shown the Board that the property was unique. He disagreed with the argument say=
ing
that they had shown the site to be very unique given the size of the existi=
ng
building compared to the neighboring properties, but also no other lot is
burdened such as the applicant’s site. The site is burdened by the court =
order
as far as the beach access; there was litigation between the prior owner (of
the lot) and members of the association as to what interest there was to the
lot. The court ultimately rul=
ed
that it was a common beach for the members of the association, which the
applicant fully acknowledged. They
were not asking the Board to interfere with the court order in any way and
there was a note indicating such on the plan. It was noted that there was also a=
boat
ramp for the association located on the applicant’s property that was=
a
burden; the applicant would be improving it for the association’s
benefit. The property was also
burdened by an existing right-of-way which lead from
With respect to the finan= cial criteria, Attorney DeCarolis stated that they had argued that the larger ho= me (previously proposed) with the two car garage would not economically be feasible to build small because of the extensive site work that would need = to be done to the property. The estimates for site work were introduced; one for $64,000, and another for $74,000. Also, that the purch= ase price for the lot was $115,000 and engineering was at $12,000 and would continue to increase. Attorney DeCarolis stated that the Board could reasonably conclude that no person wo= uld spend that kind of money to maintain a 576SF home; it would not be economic= ally feasible. He said they had introduced an opinion from an appraiser that the site, with the restrictions/easements, and the finished home would have a value of approximately $350,000. Attor= ney DeCarolis believed that figure was less than the cost of building the home given that the site work was estimated at $200,000, the construction costs would between $100-$125; the total cost would come in at $380,000 or higher. In the appraisal, the= cost analysis/method showed $427,000. The point made was that the cost was less than the value. Attorney DeCarolis believed it was= not economically feasible and an unfair burden to demand that the applicant keep the existing home with all the site work that needed to be done.
Attorney DeCarolis review= ed a brief section of the Supreme Court case for Malachy Glen regarding economic hardship. He believed it was a subjective test, but that the court had been clear that the Board could draw upon their own experiences and could consider the appraisals, cost estimates and weren’t bound by any expert’s opinion. He reiterated the costs for the pr= oposed 1800SF modest home that did not have a basement or attic and stated they fe= lt they met the criteria under the economic feasibility. Attorney DeCarolis said they tried= to address as many of the concerns of the neighbors as they could. He told the Board that Mr. Maynard= had met with several of the neighbors, prior to meeting with the Board, who indicated their approval for the site.&nbs= p; He said they tried to address the concerns, such as fixing up the drainage, the boat ramp, preventing washouts of the boat ramp that were currently happening, fixing the road, and removing the boulders and the berm. He stated that the appl= icant had made considerable concessions to the neighbors to try to make the proje= ct as less of an impact as they possibly could. He believed the project would be a= great improvement to the neighborhood because it would modernize the site (as far= as septic and drainage), preventing wash outs, constructing a new home and mak= ing an improvement to the neighborhood.
Attorney DeCarolis stated= that they appreciated Mr. Perron’s concern regarding the view. He said unfortunately Mr. Perron h= ad not purchased a view easement from the prior owner. The applicant didn’t feel th= ey were significantly impacting his view; it would be slightly improved by the proposal.
Attorney DeCarolis wanted= to address the other concerns raised by abutters, such as the proposed height. One question was if t= he foundation elevation would be raised even though the overall building was being reduce= d; the applicant’s intent was to reduce the height from the first versio= n of the plan that was presented. = He said they could consider having a maximum elevation above sea level for a reference point, but it was clearly their intent to significantly reduce the height.
Mr. Maynard told the Boar= d after they left the last meeting they considered the concerns discussed and had whittled the house down to what they felt was the bare minimum for a two bedroom house. There would be= no basement with the structure, so utilities (i.e. heating system, water tank) need to be placed within the footprint.&nb= sp; As they revisited the footprint they accommodated small areas for the purpose of storage. Mr. Mayna= rd addressed the elevation. He s= aid the first floor of the existing cottage was approximately elevation 150.5.<= span style=3D'mso-spacerun:yes'> He said upon revisiting the design= to try and reduce the height, they went with a slab design and graded off the = area to a driveway grade. The sept= ic system was changed from a gravity system to a pump system which allowed the= m to lower the house to the maximum allowable, which got them to elevation 151.5= .
Mr. Molloy asked if they = would still use a Clean Solutions System. Mr. Maynard answered yes, it would be a pump elevation instead of gravity fed.
Mr. Verhofstad stated tha= t he had conducted an analysis of the assessor’s records of the lots in the ar= ea covering the homes within a 500ft. circle as well as covering the homes wit= hin a 1000ft. circle. There were = twenty six properties within 500ft. and a total of forty seven properties (includi= ng the twenty six) that were reviewed. He reviewed the total footprint of the houses and separate sheds, garages, porches and decks. Approximately one quarter of the houses had decks. Also reviewed was the total percen= tage of the lots that were covered by those structures. Mr. Verhofstad said the average pr= operties within five hundred feet took up 14.9% of their acreage with structures; wi= thin one thousand feet the average properties took up 13.4%. The proposed home including a shed= would take up 9.16% of the acreage. Mr. Verhofstad continued to review the in depth information that had been colle= cted and discussed specific lots abutting his property. He said that he had made a real ef= fort to fit into the neighborhood and felt the numbers in the analysis showed it.
Mr. Hennessey stated that= there had been testimony regarding the presence of E.coli and the question of whe= ther there was a spring or not on the site.&nbs= p; He didn’t understand the argument and asked if there was a spr= ing on the site. Mr. Verhofstad s= aid he had owned the property for a year and had never observed water coming out of the ground. He said the lot w= as low and the water sat, but he had not witnessed water bubbling up. He commented after the recent rain= s, the area around the cottage was soggy, but there was no standing water except in the area between the beach and the shed.&n= bsp; Mr. Maynard said he had been visiting the site for approximately one year and had not seen any signs of a spring. He spoke to the Town’s Deputy Health Officer and provided the Board with a letter indicating he didn̵= 7;t believe it was a spring, but rather an isolated low land collecting water. Prior to Mr. Verhofstad owning the= lot there had been reports of E. coli. <= /span>Mr. Maynard told the Board that Mr. Zarnowski stated there had been a 4in. pipe that went from the low lands to the lake and the septic system on the prope= rty sat within that area. He comm= ented that the E. coli could be coming from anywhere or any of the septics up hil= l of the property. He stated that = the proposed new septic system would be above and beyond anything that was necessary and would provide the best possible treatment of effluent. It was also noted that Pelham had = rules that superceded the state with regard to the field portion.
PUBLIC INPUT
Attorney Stephen Whitley = of Baldwin & Callen, representing Mr. Roland Perron, Jr., stated that materials had been submitted to the Board for review. He took a moment to submit additio= nal materials that consisted of a complete appraisal which unequivocally stated= the project, as proposed, would decrease his client’s property value. Materials referencing the Continen= tal Paving Supreme Court case were provided to the Board. In addition to the comments made i= n the letter submitted to the Board (during the past week), Attorney Whitley stat= ed he would raise two points at the present meeting.
Attorney Whitley reviewed=
the
appraisal and paraphrased the information contained therein. Typically a view of water raised
property value 10%, the appraiser determined that the subject’s (Mr.
Perron) current view contributed 10% of its land value therefore the water =
view
contributed $10,000 in value. After
construction of the proposed home was built, Mr. Perron’s property wo=
uld
lose more than half of its water view; the estimated value loss is $7500.
Attorney Whitley addresse= d the point that he felt the (applicant’s) property was no unique. He didn’t feel that the appl= icant had shown the special conditions on the property to make it unique in its surroundings. The burden the applicant felt was the same burden felt by all of the neighbors. Attorney Whitley addressed the poi= nts regarding the applicant’s property being burdened by the court order = and the easement on the beach. He= e didn’t feel were necessarily relevant because without the court order= the comprehensive Shore Land Protection Act would prevent the applicant from building on that portion of the beach.&nbs= p; The boat access and right of way were brought up by the applicant as burdens to which Attorney Whitley stated even without the right-of-way, the= lot was still undersized like all the others around it. He believed the applicant could configure the lot so the right-of-way was not an impediment to what they wa= nted to do. With regard to lot siz= e, there were a number of lots in the area were undersized and didn’t me= et the minimum Zoning requirements. Attorney Whitley discussed the drainage and argued that there were numerous properti= es around the pond that were lower lying and also received the drainage from higher elevation properties. = In closing, he questioned if the Shore Land Protection Act were taken into acc= ount when the applicant calculated the lot size and percentage of lot coverage.<= span style=3D'mso-spacerun:yes'> If so, Attorney Whitley believed it would eliminate approximately 4000SF of coverage (from 16,552ft. down to 12,552ft.); with the proposed building, the lot coverage would increase fro= m 9% to approximately 12%.
Attorney Whitley told the= Board that his client didn’t need a view easement for the variance to be denied. The question was whet= her the view would be obstructed, and if so, would the property value be decrea= sed. He believed the submitted appraisal established that point.
Mr. McNamara asked if the
appraiser took into account that there might be a new home on what was now a
run down lot. Attorney Whitley
answered yes. Mr. McNamara co=
mmented
that a lot of Attorney Whitley’s argument pertained to the loss of the
view. He stated that Mr. Perr=
on had
no legal right to the view; he had enjoyed the view because the property had
not been improved. He said he
didn’t have an easement and had not purchased a right (to the view).<=
span
style=3D'mso-spacerun:yes'> He asked how it related to the
criteria. He questioned how t=
here
could be a loss of something that was never owned. Attorney Whitley didn’t feel=
that
an easement was needed for the variance criteria to be applicable. He felt that the Board should cons=
ider
if there would be a diminution of surrounding property values in the event =
the
variance was granted. In this=
case,
the abutter (Mr. Perron) enjoyed a view and if the view was gone the
property’s value would be diminished. Mr. McNamara questioned if Mr. Per=
ron
had a means of recourse to ask the Town for a reduction in property tax.
Ms. Paliy asked for a sum= mary of what was being compared in the appraiser’s report given to the Board. She was familiar with = some of the properties and didn’t see a similarity in them. Attorney Whitley prefaced his comm= ents with the fact that he was not an appraiser or real estate expert. He said based on his review, the appraiser had to make some adjustments because it was difficult to find pro= perties that were exact matches. Ms. = Paliy wanted to know what was being stated with the appraisal because she wasn’t finding a commonality between the houses listed. Attorney Whitley said they were tr= ying to show that the project, as proposed, would have a tangible negative impac= t on his client’s property value. Ms. Paliy questioned why the properties where chosen. Attorney Whitley said the appraiser chose the properties. Ms. Pal= iy discussed the properties (contained in the appraisal) and the differences between them. Attorney Whitley commented in the appraiser’s report, they explained why the properties were selected.
Mr. Hennessey understood = what Ms. Paliy was saying, but felt the thrust of the argument was that Mr. Perron w= ould lose value in his property because there would be a building in front of him. He focused on the appraiser’s summery, which he felt was in conflict from what the Board heard in testimony by the applicant. In a matched pair analysis, the appraiser determined that the subjec= t’s current view contributed 10% of its land value; therefore its current view contributes $10,620 to the total value.&nb= sp; Mr. Hennessey commented that there was nothing in the appraiser̵= 7;s report adding the value of the increased comp across the street after the proposed construction. He not= ed that the report also indicated that the owner (Mr. Perron) would lose more = than half of the water view. He sa= id the Board received testimony that, at best, Mr. Perron would have 1/8 of the lo= ss of his view.
Mr. Roland Perron wanted = to know who took the photographs provided to the Board and what part of his property they were taken from. He disp= uted the photos and stated that they weren’t taken from any of his picture windows within his house. Mr. Hennessey questioned if he would lose half his view. Mr. Perron said he absolutely would. Mr. Hennessey noted th= at the appraiser indicated over 75% of the view would be lost. Mr. Perron agreed and told the Boa= rd that the appraiser took photographs from inside his home. Mr. Hennessey confirmed that the testimony was that over three quarters of the view would be lost, with no corresponding value because of the increased value of the building across t= he street. Mr. Perron said he wasn’t making any testimony as to what the applicant was doing. Mr. Hennessey wanted to be clear r= egarding the statements being made. Ms. Paliy didn’t feel that the appraiser report was clear. She felt the appraiser showed no diminution of property based on the properties that were chosen.
Mr. Perron provided the B=
oard
with a written statement (dated
It was Mr. Hennessey̵=
7;s
understanding that the proposal was subject to variances under Shore Land
Protection. Mr. Maynard said =
it was
subject to a variance from the Shore Land Protection but it dealt with the
percentage of points within the fifty by fifty grids. He said they maintained in one of =
the
grids that they met the fifty points; in the second grid, the grid is
encumbered by the beach and the road for a large percentage. They met the percentage of points
required for the remaining area outside of those grids. Mr. Hennessey stated that
Mr. Hennessey understood = Attorney Whitley’s argument. He = noted that the applicant had made an economic argument and wanted a response from Attorney Whitley. Attorney Wh= itley had no further comment to the economic argument, other than what had previo= usly been submitted to the Board in his letter.=
Mr. Paul McDonagh,
Mr. Charlie Panagiotakis, Professor at UMASS (consultant for Mr. Perron) who dealt with environmental issues, came forward to address some of the issues that dealt with the hydrology on the property. He didn’t believe there was an argument that the area was a low spot whe= re most of the runoff from the area focused.&= nbsp; He said there was a public beach which could be affected by any manipulations of the subsurface water supply, which was the source of every= one’s well water in the area. He be= lieved the issues regarding the subsurface water should be considered. Mr. Hennessey asked if Mr. Panagio= takis was familiar with the septic system proposed for the site. Mr. Panagiotakis was familiar with septics of that nature and had no question about the fact that it was state= of the art. He said it didn̵= 7;t change the fact that hydrologically the ground water flow would be increase= d; there was no system that would diminish the amount of water going into the system. Mr. Hennessey asked i= f he was familiar with the site. M= r. Panagiotakis said he was a little familiar with the site (reviewed more than once), but not intimately. Mr. Hennessey questioned if there was a spring on site. Mr. Panagiotakis didn’t know= . He discussed how a spring acted. <= span style=3D'mso-spacerun:yes'> He said he had seen water iss= uing from the side of the hill, but didn’t know if it was a spring by definition. Mr. Hennessey read aloud a portion of a written statement that had been submitted to the Board that indicated there was a seasonal spring and that serious health issues w= ere raised based on the proposal. He asked Mr. Panagiotakis if he agreed with the statement. Mr. Panagiotakis discussed the difference between a seasonal versus perennial spring. He said the proposed raised a heal= th issue, but was unsure if the term ‘serious’ applied. He said any increase in the loading would probably affect well water quality.&= nbsp; Mr. Hennessey wanted to know if, in hydrological terms, it would be a ‘plus’ to allow the variance.&= nbsp; Mr. Panagiotakis answered no. He believed the property status was seasonal and questioned if the variance would allow it to become a year-round residence. Mr. Hennessey said that was correct. Mr. Panagiotakis sta= ted that the Board should consider that fact because the load would be increased over twelve months of the year.
Mr. Frank Soars,
Attorney DeCarolis agreed= that it was not the jurisdiction of the Board to discuss the various ownership rights. He said he reviewed t= he Superior Court order and believed some of the neighbors argued that they ha= d a right to his client’s property. He said the Superior Court ruled against them (the neighbors), but r= uled they (the neighbors) had a right to the beach area.
Mr. Hennessey addressed t= he point of the lot going from seasonal to year-round. He stated that was not in Pelham&#= 8217;s zoning laws. He said the plac= e to address that issue was during an Article K hearing with the Board of Select= men acting as the Board of Health. Mr. Gowan believed the project had already been to the Board of Selectmen (acti= ng as the Board of Health). Atto= rney DeCarolis indicated that the Article K wavier had been approved in October, 2009. He commented that the p= lan had also been before numerous other boards, such as the state, Board of Selectmen, Conservation Commission and had gone through review of the Town Health Officer.
Attorney DeCarolis rebutt= ed some of the arguments. He began wi= th value and stated that the Supreme Court had spoken about giving weight to experts. He appreciated the argument that the proposal could not cause diminution to surrounding proper= ty value and stated that the Board had to consider if the proposal would inter= fere with one half of the view. He reviewed the photographs that showed the view from Mr. Perron’s home = and pointed out that there would still be a significant view toward the northeast. He also showed pho= tos of Mr. Perron’s home through the woods from Mr. Verhofstad’s property. He referenced the information provided by Mr. Perron’s appraiser and showed photographs= of the view that would remain. H= e said it would be a very slight impact on (Mr. Perron’s) view. Attorney DeCarolis said comments w= ere made to his uniqueness argument. He stated it was true that everyone else (along the beach) was subject to the Shore Land Protection Act, but the point was that no other lot was subject = to a quasi-public beach; a beach in the front yard that benefited the neighbors. He noted that some= of the impact would apply even without the variance. They were entitled to use the prop= erty and to have a septic system on it, which would be an improvement with the modernization of that septic.
Mr. Maynard noted that fo= r an Article K conversion from seasonal to year round, no waivers could be obtained. He said when the st= ate adopted the new subsurface disposal rules (in 2008), in order to raze the e= xisting structure and build a new home, all their regulations and guidelines had to= be met. Some of the Town’s= rules superceded the states rules. = Mr. Maynard said they had gone to great lengths to meet the septic requirements, not to mention meeting the Shore Line Protection requirements.
Ms. Mary Horne,
Mr. Tim Doherty, stated h= e was on the fifth (version of the) plan. He had been in favor of plan one, and the plan being review was plan five. He stated that the Conservation Commission had not seen the (present) plan. He said the plan had a water disch= arge going down to the beach, which was new to the plan and had not been mention= ed during the meeting. He questi= oned why Mr. Gowan had not gotten the original development folder and shown it to the applicant because it was marked ‘bog’ across the (applicant= ’s) lot. He believed reviewing th= e file would clear up the water issues. In regard to diminution of values, Mr. Doherty felt it would be easy to constr= uct a one story house and not diminish anyone’s property value. He didn’t feel it was necess= ary to block abutter’s views. = Mr. Gowan said if the point was brought up prior to the meeting, the folder wou= ld have been provided.
Mr. Maynard stated they h= ad reviewed how the site looked today. He said fifty years ago the site could have been a bog, but the lot = had been filled over the years and they were reviewing today’s situation. He wouldn’t consider the wetland on the site a bog, he considered it to be hydric B soil that didn’t contain standing water twelve months out of the year. Mr. Maynard commented that the pla= n had evolved, but the intent had remained the same and been to the Conservation Commission. He said the plan = had not gone back to the DES because of the zoning meetings and comments coming from them. He said typically = when he sent a plan to the state he copied the Conservation Commission and would comment that they had defined a swale.&nbs= p; He reiterated that the intent of the plan that they had gone to the Conservation Commission with had remained the same and if anything, the hou= se was now smaller that originally proposed.
Mr. Hennessey recalled th= at the ditch line had been brought up during the site walk. Mr. Maynard said there were two me= mbers of the Conservation Commission present at the site walk.
Mr. Perron discussed the photographs that had been presented and asked if the applicant could prove = that they were taken from his property. <= /span>
Attorney DeCarolis showed= the Board a photograph of Joan Sweeney standing on Mr. Perron’s property. He stated that the photographs presented were taken in the location Ms. Sweeney was standing.<= span style=3D'mso-spacerun:yes'> The photograph was submitted to the Board. Mr. McNamara asked whe= n the photograph was taken. Mr. Verhofstad said the photo was taken two or three weeks ago immediately with= in seconds of the other photos submitted.&nbs= p;
Mr. Hennessey asked if the applicant wanted to comment as to why a two story building was being propos= ed as opposed to a one story building. Attorney DeCarolis stated that they were very restrictive on the site and were trying to comply with all the setback requirements; if the home was lowered, it would increase the footprint causing setback violations. Mr. Maynard commented that to obta= in a Shore Line Protection Permit the cap was 30% for impervious coverage. In this case because of the burden= of the gravel driveway (12%-13%) and the applicant’s driveway and the ro= ad, they were at the 30% mark.
Mr. Molloy brought the di= scussion back to the Board. Mr. Hennes= sey described the procedure of when plans were submitted to the Board and asked that in the future comment not be reopened to the public.
Ms. Paliy went back to re= viewing the appraisal submitted by Mr. Perron and discussed the similarities and differences of the homes contained within as compared to the applicant̵= 7;s property. It was her view that the property contained in the appraisal was used to skew the information. She had a lot of problems with the appraisal.
Mr. Hennessey said regard= less of the flaws in the appraisal, he felt everyone could agree that a house with a view generally (with all things being equal) was more valuable than one without. He wrestled with the= 10% number that the appraiser came up with for the particular site. He didn’t dispute that part = of the view would be obstructed; given the testimony from both sides, it was a giv= en that some of the view would be affected. He felt the Board rece= ived a very good economic argument from the applicant who had successfully defended the size of the building. He = said the question was if the economic argument for the size of the building offs= et the abutter’s loss of his view. Mr. Molloy said the question was if the applicant needed a two story house. Mr. Hennessey was conv= inced that a two story house was needed because of the physical nature of the site.
Mr. McNamara suggested th= at the Board had received conflicting expert testimony on Mr. Perron’s prope= rty. As for the other abutters, the Boa= rd had not received photographs or appraisals for their properties. Based on the photographs received = (Mr. Perron’s view/property), Mr. McNamara felt an argument could be made = that there wasn’t a significant loss (of the view). He noted that Mr. Perron’s appraisal didn’t take into consideration that there would be a new/im= proved building, which he felt had to be considered as to whether there would be a diminution in property (value). He felt a house being proposed would add to the value of neighboring property. Mr. Hennessey agreed. Mr. Molloy said he ha= d the same concern.
Mr. McNamara felt the Boa= rd should review the criteria. H= e said he had gone through the prior hearings and composed a list of facts that he didn’t believe were in dispute by anybody and the Board could find to= be true. The list was as follows= :
Mr. Hennessey said under = Boccia (the cost prong) it would be harder now (since its after January 1st) and the criteria had changed. Mr. McNamara said in terms of uniqueness, the Board had received testimony that= the applicant’s property was burdened by the beach, the boat ramp and the existing right-of-way, which set it apart from its immediate neighbors. He said the small size of the lot = and the lack of 200ft. of frontage on any public road also set it apart from the general residency area of the Town.
The Board then reviewed t= he variance criteria. Public Int= erest – Mr. Hennessey said the applicant’s property would have the be= st septic in the whole area. He = said the proposal would be a significant upgrade to what was currently on site.<= span style=3D'mso-spacerun:yes'> Mr. McNamara commented that the applicant was spending a large amount of money to increase drainage and put= in a state of the art septic which would not be contrary to the public interest and would actually be in the public’s benefit. He went on to say he felt the Board addressed the two prong argument of hardship. He said the use was residential in= a residential zone and presumed to be reasonable. He felt given the special conditio= ns of the property, which had been identified (and described – the beach, b= oat ramp, tiny area the applicant was working with) – applicant testified= he couldn’t get any more property and given the Board fairly straight co= sts that justify two stories on the building.&= nbsp; A one story building wouldn’t be worth the cost. Mr. McNamara felt there was a good balancing act because there would be huge improvements that would also bene= fit the pond. Mr. Hennessey comme= nted that the applicant would also need to meet the state’s stringent requirements as well as the Town’s zoning. He believed the applicant was constrained with what size building could be constructed on the lot, where = it would be placed and what they could do with the site.
Regarding Substantial Jus=
tice,
Ms. Paliy commented that there was a question of who the substantial justice
was. She said if it’s t=
o the
applicant, it was done in terms that they managed to get a building with al=
l of
the costs required for the lot. If
it was for the abutters, she said they would get a safer property with a go=
od
flow and raise the neighborhood.
Mr. Molloy commented that the house would also be pulled back from t=
he
pond. Mr. Hennessey said he
struggled with substantial justice given the zoning and the size of the lot=
s in
the whole area. He said if it=
was
applied strictly, the Board could never grant variances for anything on mos=
t of
the lake front lots. He said =
it was
a balancing act, if the Board enforced it and said people couldn’t do
anything with the lots, there would be no expansion of the properties and no
upgrade because they wouldn’t have the money available (out of the va=
lue
of the property) to invest in the necessary repairs and work on the lots.
Mr. Hennessey wished the Town’s Zoning contained a clear definition of seasonal versus year-ro= und and not have it be with the Selectmen and Board of Health. He felt the Board was lacking that tool. There was further discu= ssion regarding seasonal versus year round. Mr. Hennessey said given the lack of the cost prong (Boccia) it woul= d be difficult to approve a year round residence off a seasonal.
Mr. Molloy addressed the = criteria regarding the value of surrounding properties. Mr. McNamara believed the Board initially addressed it. He sa= id the Board received photographs and conflicting expert appraisals; it would be a= matter of weighing them both. Mr. Hennessey didn’t believe it was clear cut and would be a judgment call. He felt the values of t= he surrounding would be increased because of the investment being put into the (applicant’s) parcel. I= n his opinion it was quite a bit because it demonstrated the viability of the neighborhood that the applicant was making over $400,000 investment into a parcel and substantiated the value for the abutters to use the comps. He also felt sympathy with a perso= n who couldn’t see as much of the lake as they used to. He said it as an even situation an= d not clear cut. Mr. Molloy felt th= at the improvement on the applicant’s house outweighed the (abutter’s) situation.
|
BALLOT VOTE: |
Mr. Molloy – Yes = to all criteria Ms. Paliy – Yes t= o all criteria (this vote was inadvertently not read aloud and was read into the record later in the meeting) Mr. McNamara – Ye= s to all criteria Mr. O’Sullivan &#= 8211; Yes to all criteria Mr. Hennessey – Y= es to all criteria |
|
|
VOTE: |
(5= -0-0) The motion carried. |
|
“AREA” VARIANCE APPROVED
HEARING(S)
Case #2434 MICHAUD,
Russell & Noelline - 2 Fi=
sher
Drive - Map 18 Lot 12-14 – Seeking a
Variance to Article III, Sections 307-14 & 307-13 (B1) to permit a
subdivision of a lot not having 200ft. of frontage on a State of NH maintai=
ned
highway or a Town of Pelham Class V or better street in the Residential
District. Also the lot will n=
ot
have a driveway directly accessible to emergency responders without those
vehicles first having to leave the corporate limits of the Town of
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.
Robert Balquist of Meisner Brem, representing the applicant, came forward to
discuss the requested variances for frontage and emergency responders trave=
ling
outside the corporate limits of Town.
He introduced photographs of the site. He explained that the property was=
land
locked and contained approximately twenty two acres with access on a private
paved driveway that was known unofficially as
Variance request from Article III, Section 307-14:
(A) For purposes of this subparagraph, “unnecessary hardship” means tha= t, owing to special conditions of the property that distinguish it from other properties in the area:
i. = &nb= sp; no fair and substantial relationship exists between= the general public purpose of the ordinance provision and the specific applicat= ion of that provision to the property because:= Subject parcel has always be= en and continues to be landlocked. Surrounding parcels have frontage on established public or private streets or ways. (see tax map drawing attached to application) (see HCRD Pl= an #11244 attached to application).
ii. = &nb= sp; the proposed use is a reasonable one because: The driveway to the site currently exi= sts and the new driveway will have the necessary area for vehicles to turn arou= nd. The land area is far greater than = the minimum required.
(B) If
the criteria in subparagraph (A) above are not established, an unnecessary
hardship will be deemed to exist if, and only if, owing to special conditio=
ns
of the property that distinguish it from other properties in the area, the
property cannot be reasonably used in strict conformance with the ordinance,
and a variance is therefore necessary to enable a reasonable use of it. Only
requesting subdivision of one new lot for the owner’s use. Will utilize existing
Variance request from Art= icle III, Section 307-13-B-1:
1. The variance will not be contrary to the pu=
blic
interest because: Applicant will be subdividing a 22 acre
parcel into two 11 acre parcels thereby increasing tax revenue to the Town.=
2. The spirit of the ordinance is observed
because: Applicant is not overcrowd=
ing
the area. Only adding one more
residence to a private way that already serves two residences. Parcel has been landlocked since b=
efore
adoption of ordinance (March, 2007)
3. Substantial justice is done because: The property could not be used without=
the
benefit of the variance. It i=
s not
the intent of the ordinance to landlock large parcels of land. It will allow use of land otherwis=
e left
idle.
(A) For purposes of this subparagraph, “unnecessary hardship” means that, owing to special conditions = of the property that distinguish it from other properties in the area:
i.) no fair and substantial relationship exists
between the general public purpose of the ordinance provision and the speci=
fic
application of that provision to the property because: The
parcel is landlocked and there is no other access to the parcel except via =
ii.)the proposed use is a reasonable one becau=
se: The existing road network in the area =
is
adequate to facilitate the safe provision of transportation and emergency
services to the site. (see at=
tached
route map in application).
=
(B) If
the criteria in subparagraph (A) above are not established, an unnecessary
hardship will be deemed to exist if, and only if, owing to special conditio=
ns
of the property that distinguish it from other properties in the area, the
property cannot be reasonably used in strict conformance with the ordinance,
and a variance is therefore necessary to enable a reasonable use of it. No
roads exist within the corporate limits of Pelham which can provide access =
to
this landlocked parcel. The o=
nly
road access must go through
Mr. Balquist said he met = with the Highway Safety Committee and discussed some of the stipulations that the Planning Board may have (provided the variance was granted); his client wou= ld be willing to agree to stipulation such as installing a dry hydrant, sprink= lers in the house, provide a turn around to accommodate the turning radius of fi= re truck and would sign a waiver of liability with the Town.
Mr. Molloy read aloud the=
letter
submitted by the Highway Safety Committee (“HSC”)(dated
Mr. Molloy was very concerned. He stated that he = had a problem with the Town resources leaving Pelham and traveling through another town to access properties.
Mr. McNamara questioned w=
hen the
current owners purchased the property.&nbs=
p;
Mr. Balquist believed they purchased the property one or two years a=
go. Mr. McNamara stated that the prope=
rty
had been purchased with the knowledge of the zoning restriction. Mr. Balquist didn’t know wha=
t the
applicant’s knowledge was of the zoning. Mr. McNamara said it was presumed =
that
they knew. He said the maps p=
rovided
to the Board looked to show a right-of-way off Indian Valley Road leading i=
nto
parcel 12-24 that abuts the parcel being proposed (by the applicant). He asked if any effort had been ma=
de to
purchase and easement or right-of-way from Pelham into that property. Mr. Balquist answered no. He said they would have to cross a=
very
wide wetland (100-year flood boundary) to do so. Mr. McNamara questioned the possib=
ility
of further subdivision of the proposed lots. Mr. Balquist said the owners would=
have
the same opportunity as the current applicant; it couldn’t be done
without the approval of a variance.
Mr. McNamara asked how many potential (additional) lots there were
between the two lots being proposed.
Mr. Balquist believed the two lots could possibly be turned into two
additional lots. Mr. McNamara=
asked
if the improvements to Golden Oaks Drive would be controlled solely within =
the
Town of Salem, NH. Mr. Balqui=
st
said it would be. Mr. McNamara
didn’t know why
have safe access to their properties.
Mr. McNamara discussed mu= tual aid. Mr. Gowan said in Pelham= , the Town’s Police or Fire Departments responded unless their equipment wa= s at some other crisis event; mutual aid would then be called. He said mutual aid would also be c= alled if an event required multiple departments to respond.
Mr. Hennessey asked if
Mr. McNamara said he woul= d like to see the property.
Mr. Balquist had no objec=
tion to
a continuance. He told the Bo=
ard
that he went to the
A site walk was scheduled=
for
The case was date specifi=
ed to
READING OF BALLOT VOTE – Cas=
e #2430
Ms. Paliy’s ballot vote was inadvertently not read aloud during the case hearing. Mr. O’Sullivan= read Ms. Paliy’s ballot aloud. (see Case #2430 for Ms. Paliy’s specific vote).
SITE WALK –
Case #2434 MICHAUD, Russell & Noelline
DATE SPECIFIED CASE –
Case #2429 – FICHER= A, Frank Jr. & CROOKER, Constance – 52 Dutton Road -= Map 36 Lot 10-358 – Seeking an “Area” Variance to Article III, Section 307-12 to permit the subdivision of land to allow two = lots without 200 feet of frontage.
Case #2434 MICHAUD, Russell & Noelline
MINUTES
|
MOTION: |
(Paliy/Hennessey) To ap=
prove
the |
|
VOTE: |
(4-0-=
1) The
motion carried. Mr. McNamara
abstained. |
ADJOURNMENT
|
MOTION: |
(McNamara/O’Sulli=
van) To adjourn the meeting. |
|
VOTE: |
(5-0-=
0) The
motion carried. |
The meeting was adjourned=
at approximately
&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
|
PAGE=
|
|
PAGE=
47 |
ZONING BOARD OF ADJUSTMEN= T/March 8, 2010 = &nb= sp; = &nb= sp; Page
&nbs= p; = &nb= sp; = &nb= sp; = &nb= sp; = &nb= sp; = &nb= sp; = Page 31