4-12-10

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 12, 2010

The Chairman Robert Mollo= y called the meeting to order at approximately 7:40 pm.

The acting Secretary Svet= lana Paliy called roll:

PRESENT:

ABSENT:

Robert= Molloy, Svetlana Paliy, Peter McNamara, David Hennessey, Alternate Lance Ouellett= e, Planning Director/Zoning Administrator Jeff Gowan

Kevin O’Sullivan Alternate Bill Kearney (was present for the meeting, but= had not been sworn in for his new term), Alternate Chris LaFrance

Mr. Molloy appointed Mr. Ouellette to be a voting member in Mr. O’Sullivan’s absence.

ELECTION OF OFFICERS

MOTION:

(McNamara/Ouellette) To appoint Dave Hennessey as Cha= irman.

VOTE:

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

MOTION:

(McNamara/Hennessey) To appoint Svetlana Paliy as Vice Chairwoman.

VOTE:

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

MOTION:

(McNamara/Hennessey) To appoint Robert Molloy as Secr= etary.

VOTE:

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

At this point, Mr. Hennes= sey stepped into the roll of Chairman.

CONTINUED HEARINGS

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. Hennessey noted that = the case had been postponed from two months ago; the Board now had additional information.

Attorney Paul DeCarolis, representing the applicants, came forward to discuss the variance request.<= span style=3D'mso-spacerun:yes'> He stated that the case had been p= ostponed and the applicant had since gone to the Selectmen to discuss the status of = the roadway. The Selectmen had ob= tained an opinion from Town Counsel. It was Attorney DeCarolis’ understanding that the Selectmen and Town Cou= nsel were of the opinion that there was a prescriptive easement in order to allow the development of the project over the 50-foot wide right-of-way that was established in the 1996 subdivision. He then reviewed the changes made since the last review of the plan. He said they were propo= sing to construct (to Town road standards) the first 268ft. of the roadway from Diamond Hill Road giving the neighbors the benefits of having a Class V road (being consistent with the 1996 Planning Board approval; beyond that point,= the road would drop down to a private drive used only by the current owners. They understood that there was sti= ll work to be done with the plan and they would need Planning Board approval a= nd review by the Highway Safety Committee and the Fire Chief.

Attorney DeCarolis said t= he applicant was seeking a variance to allow the two lots without 200ft. of frontage onto a Class V road, with the condition that the first 268ft. be b= uilt to Town standards and the remainder being subject to the approval of the Planning Board. An appraiser&= #8217;s opinion letter was submitted for review because the neighbors had concerns (with the original plan for common driveways) that there would be a diminut= ion of property values. It was understood that the neighbors felt their property values would be diminishe= d by being part of an association, which was why the plan had been altered. Attorney DeCarolis then addressed = the economic issue of the hardship prong specifically if it was economically feasible to construct the project without the variance. He said the only way to construct = the project without a variance would be to construct a road from Diamond Hill Road to the property l= ine (approximately 400ft.) and then construct a cul-de-sac to Town standards and per Subdivision Regulations. = Peter Zohdi of Herbert Associates submitted a letter stating in order to construct the road it would cost approximately $192,000 ($225 per foot). Attorney DeCarolis believed the Bo= ard could find that constructing the road for $192,000 for two lots would not be economically feasible. He sai= d the applicant would still have considerable expense to construct a portion of t= he road as well as the private drive and appropriate turn-around. He believed the proposed plan was = an ideal situation. Since the Bo= ard last saw the plan the Conservation Commission had reviewed the plan and was supportive of the proposal primarily because of the reduction in developmen= t of the property. He told the Boa= rd that the only variance being requested was for two lots with the 50ft. wide= right-of-way to allow two single-family homes. He stated there had been a question if the lot would be further subdivided or contain duplex lots; he represented to the Board that the applicant would accept, as a condition of approval, that the lots would not= be subdivided or developed or built as duplex lots. He said the intent was for two single-family homes.

Mr. McNamara questioned i= f the 854 ft. cited by Mr. Zohdi represented the length of the driveway from Diam= ond Hill, up to and including the cul-de-sac.&= nbsp; Attorney DeCarolis said the length was 400ft.+ from Diamond Hill Road to the property l= ine and then the additional footage was the calculation for the cul-de-sac.

There was additional disc= ussion and confirmation which lots would be developed. Attorney DeCarolis said the most l= ots envisioned for the parcel were four lots; there were two lots currently bei= ng proposed. He said if the vari= ance was not granted, another option would be to construct a through road from <= st1:Street w:st=3D"on">Diamond Hill Road to Dutton Road with a possibility of seven house lots.&nb= sp; There was also a possibility of an eight lot conservation subdivision.

PUBLIC INPUT

Mr. Dennis Habib, 37 Diamond Hill Drive said this was the first he had seen of the split road. He provided the Board with informa= tion and went on to review such. H= e said he was concerned that two of the five criteria weren’t being met. He wanted to know where the hardsh= ip for the land was. He believed the= two lot subdivision would create the hardship because the right-of-way was desi= gned to go from Diamond Hill Ro= ad through to Dutton Road. He said in 1996 the former Planning Director John Tucker recommended that the right-of-way be constructed for a road not a driveway. The whole design was for connectivity. = He said he was told this when he purchased his lot. Mr. Habib was concerned with the devaluation of his property; per a market value appraisal 9.63% may be lost from the value. He understood= that the current proposal was for the construction of a Town road for the length= of 268ft. to the property line. = He said the applicant didn’t own the land until 400ft and questioned who would maintain the 268ft.

Attorney DeCarolis said t= he abutters didn’t own the 50ft. right-of-way. He said everything that had been recorded indicated that the neighbors had an easement and the right to use = it, which would be preserved. He = stated that the 268ft. of road shown from Diamond Hill Road would be built to Town standards aft= er the appropriate approvals. On= ce it was built, the first 268ft. would be turned over (dedicated) to the Town of= Pelham; beyond tha= t point it would be the applicant’s sole obligation to maintain. The reason for going 268ft. was to= make sure that the Town road went beyond the abutter’s existing driveways = so they would tie into that road. The abutters have no obligation to maintain any portion of the road; once the r= oad was inspected and accepted by the Town it would be dedicated to the Town and maintained by the Town. Mr. Hennessey commented that the road being turned over to the Town would be subject to Town Meeting. He questioned who would be responsible for the road until the time the Town accepted it. Attorney DeCarol= is believed his clients would be obligated to be responsible for the road from= the 268ft. to the property line.

Mr. Habib wanted to know = if the first 268ft. of the road would be maintained by the applicant. Mr. McNamara clarified that during construction, the road would be maintained by the applicant, after it was accepted as a Town road, it would be the Town’s responsibility up to = the property line. Mr. Gowan disc= ussed the review and bonding process. He wanted it to be understood if the Planning Board were so inclined, variance= or not, the applicant would have to build a Town road all the way up to the property. He stated that the applicant would be responsible for the maintenance until the Town accepted = the road; however, if the Town didn’t accept the road, the applicant would remain responsible for the maintenance.&nb= sp; Mr. Habib questioned who he contacted if the road wasn’t maintained. Mr. Gowan said the owner of the road had the choice of contracting with the Town for winter maintenance or to have it done themselves.= He said the neighbors had the right to have access to their home and= the applicant was obligated to provide that access. Attorney DeCarolis said they weren’t proposing anything different from a traditional subdivision f= or the first 268ft. of road. He = noted all the questions/issues would be the same if the applicant was seeking a t= raditional subdivision. Mr. Habib wanted= to know how the neighbors would access their property as the road was being built. Mr. Gowan said the Town required (and he would manage) a pre-construction meeting to figure out how access would occur. Mr. Habib= said he understood how the process worked, he wanted to make sure others do. He referenced the 1996 Planning Bo= ard meeting that indicated the right-of-way would be constructed to Town road standards for connectivity, but it was not occurring.

Ms. Paliy wanted to know = what Mr. Habib would like to happen. M= r. Habib said it would have been nice to know the proposal prior to the meeting. He said he had allow= ed the development to go in behind him assuming the Town knew what they were doing, but in his opinion it was the biggest disaster in the world. He discussed the water problems th= at occurred since the development. Ms. Paliy asked which scenario Mr. Habib would prefer. Mr. Habib said he would like the development done correctly. H= e said the proposed scenario was better than the previous.

Mr. Ron Bavin, 29 Diamond Hill Road had submitted a letter to the Board prior to the meeting because he didn’t believe he would be in attendance. He st= ated that he had amended the letter after seeing the present proposal and went o= n to read it into the record. The = letter requested that the variance be denied but if it is approved, Mr. Bavin requested that the road be built as a Town road per the 1996 meeting. He discussed the problems he had w= ith water and urged the Board to walk the site. He was concerned with his home val= ue being decreased. He asked the= Board to consider his concerns, the Town rules and the 1996 Planning Board decisi= on when considering the variance.

Ms. Paliy asked Mr. Bavin= ’s view regarding the amended plan. Mr. Bavin said he hadn’t reviewed the plan. He said it sounded good, but would= want to speak with professionals about it. He said it was the first he heard about the applicant wanting to bui= ld the portion of the road with the remainder being a driveway. Mr. Ouellette asked if Mr. Bavin h= ad knowledge about the 50ft. right-of-way.&nb= sp; Mr. Bavin answered yes. He said it had been well maintained and he knew someday it could be a Town road and had no problem with it. <= /p>

Attorney DeCarolis stated= that there was nothing in front of the Zoning Board regarding drainage issues, t= hose items would need to be discussed at the Planning Board level.

The discussion was brough= t back to the Board for discussion. = Mr. Ouellette said he was a little concerned why the road wasn’t developed (in 1996) with two driveways coming off of it. He liked that the two abutting par= cels would have their driveways come off from the first 268ft. portion of the To= wn road. Mr. Hennessey said the discussion kept referencing the ‘Town’ road; but felt it should= be clear that the acceptance of the road was beyond the scope of the Zoning Bo= ard and Planning Board. He said t= he boards couldn’t say that it would be a Town road; it would be a road built to Town specifications.

Mr. McNamara said the pro= posed plan was submitted prior to January 1, 2010 and would be considered under Boccia with cost analysis. He reviewed the har= dship criteria and felt that a variance was needed for the applicant to access the property. Mr. Hennessey expla= ined how the Board would review the variance request and the fact that the application had come in prior to January 1, 2010 when the rules for reviewing variances had changed. Mr. McNamara commented that he fel= t the applicant had shown that building a road the entire width up (including the cul-de-sac) would be cost prohibitive relative to the cost of the two lots. He discussed the value = of surrounding properties and believed it was shown that having a public road = for access would increase the neighbor’s properties as opposed to the pre= sent situation. In terms of substa= ntial justice and spirit of the ordinance, Mr. McNamara didn’t feel the proposal deviated from the zoning. He said the Planning Board may have other requirements. He asked if the applicant had met = with the Conservation Commission. Attorney DeCarolis answered yes.&nb= sp; Mr. McNamara recalled that the Conservation Commission had not recommended connectivity due to some environmental/water concerns. Attorney DeCarolis said the Board = had a letter in their file that indicated the commission’s basic support of= the proposal primarily because the number of houses would be reduced in the development.

Ms. Paliy reviewed the re= al estate information and questioned if there really was a financial hardship. Mr. Hennessey said = the Board’s difficulty was that the abutters provided testimony that they were aware of the right-of-way. He understood that that real estate agent said there would be a decline in val= ue from having houses behind the neighbors, but the neighbors were aware of th= at fact when they purchased the property.&nbs= p; Ms. Paliy questioned the monetary value of building the full road to Town specifications. Her prob= lem was allowing a partial road to be constructed and the access for the houses= . Mr. Hennessey asked if the road fr= om Diamond Hill through to the cul-de-sac would be built to Town specifications. Attorney DeCa= rolis stated that the estimate was if the variance was not granted, it would be c= ost prohibitive to construct the project. He agreed that the two lots without a Town road may be worth less th= an if a Town road was built, but under the variance criteria it was the diminu= tion of surrounding property values and not the diminution of the applicant̵= 7;s property. Ms. Paliy commented= that the driveway would need access for emergency vehicles. Attorney DeCarolis stated that they weren’t requesting a variance from any of that. The variance request was to build a private drive from the point of 268ft. westerly, subject to the approval of= the Planning Board.

Mr. McNamara made a motio= n to restrict the development to two, single family homes and based on the applicant’s representation, if the variance is granted there will be = no further subdivision of the site. Attorney DeCarolis said if the Planning Board wanted a Town road to = be built, it would open the property to have 200ft. of frontage and the varian= ce wouldn’t be needed. The Zoning Board understood that the variance would be moot if the Planning Boa= rd required the entire road to be built to Town road standards. Mr. Molloy seconded Mr. McNamara&#= 8217;s motion. Mr. Gown suggested us= ing the words ‘perspective’ house lots because they currently didn’t exist.

MOTION:

(McNamara/Molloy) To restrict the development to t= wo (2) perspective single family homes (on the plan that was presented). Based on the applicant’s representation, if the variance is granted, there will be no further subdivision of the site.

VOTE:

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

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria – with the conditions as stated in motion.

Mr. Molloy – Yes = to all criteria

Mr. Ouellette – Y= es to all criteria

VOTE:

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

VARIANCE GRANTED

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 Pelham.

Mr. Hennessey stated that= the Board had conducted a site walk since the last meeting.

Mr. Robert Balquist of Me= isner Brem, representing the applicant, came forward to discuss the requested variances. He provided the Bo= ard with reference material. He r= ead aloud a follow up letter to concerns that were brought up at the March 8, 2010 he= aring and subsequent site walk March 20, 2010. Board m= embers had questioned if there was an alternative to the current proposal to lengt= hen Fisher Drive. Mr. Balquist said they felt there = was no reasonable alternate access to the Michaud’s property and referred the Board to the vicinity map. Th= ere had been concerns raised about emergency responders having to travel outsid= e of the corporate limits of Pelham in order to get to the site. A travel map showed the distance t= o Fisher Drive to be no different than the distance to Sherburne Road, which was within the corporate limits of= the Town. Mr. Balquist said durin= g the site walk he had pointed out the location of the new proposed single family dwelling and had looked at the neighborhood and saw that there was no reasonable access way for the applicant to acquire from any of the abutting lots. He went on to discuss t= he difficulties with the surrounding area.&nb= sp; He discussed how they determined emergency response times.

Mr. Hennessey asked if the variance application was received prior to January 1, 2010. Mr. Balquist said it was not and understood that an economic hardship was not an acceptable argument.

There was no public input= . There were questions raised regard= ing a right-of-way off Indian Ro= ck Road and if it was added to avoid land locking parcels, such as the one before t= he Board. Mr. Gowan said he couldn’t comment on its purpose, but felt it was a fair assumption. He said during his early years as a Planning Board member, some times rights-of-way were given without any spec= ific reason. Mr. Balquist referenc= ed a copy of the Indian Valley subdivision = plan (approved in 1972). To get to= the right-of-way, private property would need to be crossed. Mr. McNamara asked if any of the surrounding property owners had been contacted regarding access. Mr. Balquist answered no.

Ms. Paliy asked to review= the original subdivision plans to see if there was a right-of-way. Mr. Balquist showed Ms. Paliy a co= py of the plan and the location of the right-of-way as well as the area that would need to be crossed to access the applicant’s lot. Ms. Paliy asked if the right-of-wa= y was recorded on the deeds of the surrounding properties. Mr. Balquist stated that there was= no right-of-way. Mr. McNamara fo= und it troubling that the Board had first heard there was a right-of-way and now t= hey heard testimony that there wasn’t a right-of-way. Mr. Balquist discussed the vicinit= y map and explained that between Mr. Michaud’s property and the end of Indian Valley Road a small piece of right-of-way was left over. Mr. McNamara asked if it was locat= ed on a map. Mr. Balquist showed Mr. McNamara the location; there was a small rectangle piece of land extending = from the end of Indian Valley R= oad out to the property indicated as having wetlands (12-24 not owned by the ap= plicant). Mr. Gowan said the concept of right-of-ways was to lead to a connection and in this case it didn’t = seem practical even if the abutter was inclined to sell a portion of the wetland.

Mr. Molloy said his conce= rn was emergency response.

Ms. Paliy had issues with= how the proposal would work.

Mr. Ouellette said his co= ncern was that the applicant hadn’t approached any of the abutters to see if there was possibility of another access.&n= bsp;

Mr. McNamara had concerns regarding Police and Fire response. He referenced the Highway Safety Committee’s (‘HSC’= ;) letter and commented that there would need to be some changes to the access roads as they indicated. He strongly suggested that any motion to approve include the HSC’s conditions. He then discussed= the new criteria applied to unnecessary hardship. He said in essence if the Board we= re to deny the variance, it would deny the applicant’s use of the land. He discussed the land and commente= d that the parcel would be divided into two eleven acre lots and felt in all probability that an additional subdivision would come in to the Board in the next few years. He said it was noted during the si= te walk that there was two existing homes and the improvements to the property would increase their safety as well as the proposed lots.

Ms. Paliy was concerned a= bout the narrowness of Fisher Drive= and questioned if there was a way to widen it. Mr. Molloy agreed that something h= ad to be done with the driveway, but believed the other issues were under the pur= view of the Planning Board. Mr. Go= wan said if the variance was granted, the Planning Board would conduct their review. He said there would b= e substantial recommendations made for improvements to Fisher Drive including verifying th= at it could support the weight of a fire engine, that it had adequate turn around space. He said the Fire Chief= was adamant about locating a fire cistern at the location. The Fire Chief has the ultimate wo= rd over any driveway; Mr. Gowan said as part of the driveway review there woul= d be a pull-over aspect, turn around etc.

Mr. Hennessey said if the proposal was for three new lots coming off 1000ft. driveway the Board would= not let it happen. He appreciated= the urge to try and improve the health, safety and welfare of the existing lots= , he felt a nightmare would be created with the addition of a third house. He said the Board had to weigh the future property owner’s rights at the site. He said there was nothing preventi= ng additional lots and the Town didn’t have control over the subdivision because it lead out onto another Town’s road. Mr. Hennessey acknowled= ged the hardship of the land owner, but given the letter from the HSC, the narrowness of the road, and the type of road, he will vote against the variance.

Ms. Paliy asked if there = was a way to make the road wider. M= r. Gowan said the HSC would recommend to the Planning Board that the issues be dealt with. Mr. McNamara comm= ented that the widening of the ‘dog leg’ piece of land was not up to Pelham, it would be up to Sale= m. He asked the applicant if he owned= that portion of land. Mr. Michaud answered no; he stated that he had the right to access it.

Mr. Molloy asked if the P= lanning Board could require the driveway to be widened with it being the burden of = the applicant to figure out how. = Mr. McNamara answered yes.

Mr. Hennessey said his ma= in issue was the road never becoming a Town approved road because the access was int= o Salem. He saw no reason to exacerbate a b= ad situation.

There was further discuss= ion regarding the site and the problems surrounding the site’s access.   Mr. McNamara suggested the following motion: To strongly recommend that the Planning Board follow all = the guidelines outlined in the Highway Safety Committee’s letter of February 17, 2010.

MOTION:

(McNamara/Molloy) (Applicable to the variance for out-of-Town access) To strongly recommend that the Planning Board follow = all the guidelines outlined in the Highway Safety Committee’s letter of= February 17, 2010.

VOTE:

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

The Board took the follow= ing vote regarding the variance for frontage as follows:

BALLOT VOTE:

Mr. Hennessey – 1= ) No; 2) No; 3) No, 4) Yes; 5) No

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:

(<= st1:date Year=3D"2000" Day=3D"1" Month=3D"4" w:st=3D"on">4-1-0) The mot= ion carried.   Mr. Hennessey voted no.

The Board took the follow= ing vote regarding out-of-Town access as follows:

BALLOT VOTE:

Mr. Hennessey – 1= ) No; 2) No; 3) No; 4) Yes; 5) No

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Molloy – Yes = to all criteria – based on condition of the motion.

Mr. Ouellette – Y= es to all criteria – based upon motion as discussed and life safety requirements

VOTE:

(<= st1:date Year=3D"2000" Day=3D"1" Month=3D"4" w:st=3D"on">4-1-0) The mot= ion carried. Mr. Hennessey vote= d no.

VARIANCES APPROVED

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HEARINGS

Case #2435 LEEMILTS PETROLEUM INC. - 135 Bridge Street -= Map 29 Lot 7-117 – Seeking a Variance to Article III, Section 307-12 to permit the construction of a 24x36 area canopy and associated “Helios” logos over the existing fuel dispensers located within= the 40ft. minimum front yard as required in Table I of the Zoning Bylaws.<= /o:p>

Mr. Molloy read the list of abutters aloud. There were no persons present who d= id not have their name read, or who had difficulty with notification.

Mr. Lucien DiStefano of B= ohler Engineering, representing the applicant, came forward to discuss the varian= ce request. He told the Board th= at the property was owned by Leemilt Petroleum, Inc. and everything else was owned and maintained by Green Valley Oil who had recently acquired over three hundred Getty stations in the northeast. He said Green Valley was branding their gasoline= BP with the Helios logo. He stat= ed that the applicant was seeking to have a canopy on the site for protection = and lighting. Mr. DiStefano said = they were seeking a variance for the setback of a (24ft.x36ft.) canopy. There is a 40ft. requirement for w= ith they are requesting to have an 8.8ft. setback from the nearest point of the front property line.

Mr. DiStefano then read a= loud the variance criteria as submitted and contained within the application.

Mr. Molloy asked if the s= tation would change to self-service after the canopy was installed. Mr. DiStefano said they tried to k= eep the stations operating as they had been.&n= bsp; If they were to change, they would obtain the necessary permits to do so.

Mr. McNamara asked if the dimensions on the proposed plan depicted the Helios logo and contained the proposed dimensions. Mr. DiSt= efano answered yes. Mr. McNamara qu= estioned what material the canopy would be made of.= Mr. DiStefano said it was made of an aluminum composite material wit= h a three dimensional looking plastic wrap containing the Helios logo; it will = not have internal illumination. M= r. McNamara asked if any additional signage was being proposed other than what= was shown on the proposal. Mr. DiStefano said the location had already been re-imaged from Getty to BP. He stated that he worked through t= he issue regarding the color of the LED sign; the interpretation was because t= he sign didn’t flash or move, it doesn’t qualify as a sign that ha= d to be amber in color. Mr. Gowan = said he had made the zoning decisions. He explained how he came to make his decision regarding the signs.

Mr. Hennessey questioned = the purpose of the canopy. Mr. Di= Stefano said the canopy would protect the fueling area from the elements and added benefit was to provide better lighting for the fueling area. Mr. Hennessey said he was trying to understand the primary purpose of the canopy as signage/branding. He understood about lighting and protection, but felt like the canopy sounded an awful lot like a sign. He asked if the canopy was at a se= lf service station if it would have fire suppressant capabilities. Mr. DiStefano said it would if req= uired by the state or municipality. Mr. Hennessey said without the fire suppression it was hard for him to see the difference between the canopy and a sign.&= nbsp;

There was no public input= .

Mr. Ouellette disagreed w= ith the canopy just being a sign. He discussed the advantages of having a canopy to shelter the pump island, pat= rons and employees.

Mr. Molloy asked if the c= anopy would extend beyond the landscaping. Mr. DiStefano said the canopy would no overhang the landscaped area. Mr. Molloy questioned i= f the landscaped area was state property. Mr. Gowan said the leading edge of the ground signs almost invariably are placed at the state’s property line.

Mr. Ouellette asked if th= ere was a concern that the canopy would be close to the existing pylon sign. Mr. Gowan said it was close; if the applicant covered their own sign to northbound traffic, it would be their problem. There was no ordinan= ce covering the proximities of signs. <= /span>

Ms. Paliy questioned the = graphics that would be shown on the canopy. Mr. DiStefano explained how the standard image on the canopy would be laid out. Ms. Paliy asked if = the brand image was aesthetically the same at every location. Mr. DiStefano said the company lik= ed to maintain a standard image. Mr. Gowan said the applicant would be doing the same as the other BP station in Town, with the exception that the proposed canopy wouldn’t be illuminated. Ms. Paliy said t= he difference with the proposed canopy was that it would be located at a full-service station. Mr. Gow= an commented that the applicant had come to the Board regarding the setback for the canopy; the sprinkler issue may be better handled at the Planning Board. He said there were ver= y few gas stations without canopies. He also noted the importance of having a canopy for safety reasons, not only f= or the patrons, but also the employees.

Mr. Hennessey discussed t= he wetland in the proximity of the gas station. He also felt the canopy should hav= e fire suppression, but understood it wasn’t the purview of the zoning board= . Ms. Paliy asked if the case would = be reviewed by the Planning Board for them to require fire suppression. Mr. Gowan believed that the state ‘called the shots’ regarding licensing and approving gas stations. He was unsure if the Planning Board had the authority to require the foam sprayers. Ms. Paliy said she had a problem w= ith the fact that the station would have a giant sign for aesthetic purposes. She questioned if the canopy would= cause drainage issues that were not currently on site. Mr. Hennessey said testimony had b= een received that the canopy would improve the lighting, comfort and safety of = the patrons. He said the operation would be safer because snow and ice wouldn’t build up under the canopy area. Ms. Paliy was afraid th= at the Board was being asked to approve a canopy for aesthetic purposes. Mr. McNamara said the request was = not for a business starting up, the applicant was requesting the canopy for cosmetic, protection and branding. He noted that testimony had been provided by Mr. Gowan regarding his interpretation (as Zoning Administrator) of the signage. He didn’t feel that the appl= icant had the obligation to install the canopy and provide various improvements to the site; the business was existing and currently in compliance. He said the only thing the applica= nt was requesting was to add a canopy. Ms. Paliy explained her position that the canopy would change the water flow on= the site.

Mr. DiStefano said relati= ve to storm drainage on the site the drainage patterns would remain as is. He said the storm water generated = on the canopy was generally considered ‘clean runoff’, whereas storm w= ater falling on the pavement would typically need to be treated. He stated the runoff would be coll= ected in the canopy. There will be = drain lines that run down the columns of the canopy and discharge at grade adjace= nt to the dispensers and flow off site as it currently did.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

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 #2436 DEROSA, Michael – 7 Main Street - Map 22 Lot 8-117 – Seeking a Variance to Article V, Section 307-18 –= ; To permit a multi-family dwelling [ a three (3) family dwelling] in the Residential District (R District)

Mr. Molloy read the list of abutters aloud. There were no persons present who d= id not have their name read, or who had difficulty with notification.

Attorney Brad Westgate of= Winer & Bennett, representing the applicant, came forward to discuss the requested variance. The applicant’s father, Chris DeRosa was also present for the hearing and came forward with Attorney Westgate.

Attorney Westgate provide= d the Board with a brief history of the property. The applicant purchased the proper= ty in November, 2003. In July, 2003 a varianc= e was granted to the former owner Peter Milnes to allow professional office servi= ces at the building. There was a condition on the variance that the colonial exterior of the building was to= be retained. For twenty-five yea= rs prior to 2003 the property had always been used for residential use (and an insurance agency). Since the applicants owned the property there has always been a residential use; the second floor of the front portion of the building has been used as a dwelli= ng unit. Once the applicant purc= hased the property in late, 2003 plans were drawn up to do some renovation work; renovations were done in 2004 on the first floor of the main section of the building to house Chris DeRosa’s business, Innovative Realty. In October, 2004 the Zoning Board granted a clarification to the 2003 variance, which was to confirm that the rear section of the building (formerly the barn) could also be used for pro= fessional office uses that were identified in 2003.&= nbsp; In January, 2005 the Planning Board approved a site plan for the property which implemented the overall set of variances for professional use and approved the existing site plan, parking arrangements and access arrangements presently at the property.&nb= sp; Attorney Westgate stated that a lot of renovations had been done to = the property since the applicant purchased it (2004-2005) which include a new r= oof, new windows, 2/3 of the heating system was replaced, floors have been sanded and refinished, plumbing and piping was installed, air conditioning was installed and the parking and site work have been done. Innovative Realty operated in the building for approximately three years; Mr. DeRosa had other offices that h= ave since been consolidated and no longer operates at <= st1:address w:st=3D"on">7 Main Street.

Attorney Westgate indicat= ed that Mr. DeRosa had tried renting the building for a limited scope of profession= al offices and other business uses, but the tenants have not ‘come to ro= ost’. Rather than trying to keep guessin= g at what professional office uses might materialize, the determination had been made that a more viable use (compatible with the Town) would be a three-fam= ily dwelling. The property is contained within the Residential District where single-family and two-family dwellings are permitted uses. Behind the decision to request the variance, Mr. Gowan made an Administrative Decision that a variance would be needed from Section 307-18 of the Zoning Ordinance to allow the three-family dwelling. It was noted in the decision that parking was sufficient and no dimensional variances would be needed.

Attorney Westgate provide= d the Board with an overview of the dimensional layout of the building. The second floor in the main build= ing would remain a dwelling unit. The first floor of the main building (approximately 2000SF) would be converted = into one dwelling unit; the rear portion of the building (former barn – two stories) (approximately 1900SF) would become the third dwelling unit. There would be a number of renovat= ions needed to convert the office space into dwelling space. A civil engineer was hired to anal= yze the septic situation and determine with the Town’s Health Agent its characteristics. Information regarding the septic was provided to the Board. Mr. Zarnowski asked that a design = be done for a replacement septic system so in the event of failure, an approved septic system would be in place and could be installed. It was not anticipated that the sy= stem would fail, but the design could be used as a safe guard. Attorney Westgate said the applica= nt would agree to Mr. Zarnowski’s request to have an application prepared and submitted for a replacement septic system prior to a building permit be= ing issued for renovations, and that the system would be approved for construct= ion prior to Certificate of Occupancy issuance. The system need not be installed u= nless the existing system failed. A= erial photographs were provided to the Board so they could see the full scope of = the area.

Attorney Westgate then re= viewed the variance criteria as submitted and contained within the application to = the Board.

Mr. McNamara asked if the= plan submitted to the Board (dated January 12, 2005) accurately depicted the current condition of the property. Attorney Westgate answered yes and described the parking area. He believed the septic location wa= s also consistent with what was recently reviewed. Mr. McNamara discussed the locatio= n and was a little concerned about the possible noise from the dwelling units. He asked for the distance between = the Congregational Church and the building.&nb= sp; Attorney Westgate approximated the distance to be 125ft. to the prop= erty line. There was a greater dis= tance to the residential units behind the property; which also had a wooded area between the properties. Mr. McNamara asked if the plan would go to the Planning Board for a change-of-use. Mr. Gowan said= it was a change-of-use from its current use, however, it was a change-of-use b= ack to residential. He believed ‘change-of-use’ was mainly intended for commercial properties to manage their expansion. Mr. McNamara asked that the façade of the building remain the same given= the nature of the district.

Mr. Molloy asked if there= was a driveway egress at the back of the property for the Historical Society building. Mr. DeRosa said tha= t area had no current use and remained grassed.&n= bsp; At one point in the past he suggested using the area for another mea= ns of egress, but didn’t pursue it because of the parking lot and playgr= ound area behind the Congregational Church.&nbs= p;

Mr. McNamara asked if the= Fire Department would review the building. Mr. Gowan said the Fire Department will review the property (interio= r of the building) prior to a certificate of occupancy being issued; not for the existing apartment. He said he would discuss with Mr. McNamara if the application would need Planning Board review so he could advise the applicant.&n= bsp;

Ms. Paliy asked what the = livable square footage was. Attorney Westgate stated that the first floor was approximately 2000SF, the second f= loor was approximately 1400SF and the 2-story barn area was approximately 1900SF. Ms. Paliy recalled th= at the rear unit had been a barn or garage. She asked how many entrances would be added. Mr. DeRosa said they would add two entrances. Ms. Paliy asked wh= at part of the area behind the building was paved. Attorney Westgate reviewed the pla= n and the areas that were currently paved. Ms. Paliy asked if there any specific fire code requirement for sepa= rate dwellings. Mr. Gowan said the= Fire Department will conduct inspections as part of the certificate of occupancy process. Ms. Paliy asked for = the lot size. Attorney Westgate s= aid the lot was approximately 2/3 of an acre.&= nbsp; Ms. Paliy asked if there were any other multi-family houses on a sim= ilar sized lot in the area. Attorn= ey Westgate didn’t know. M= r. Gowan said there was a two-family house in the Town center; most other hous= es in the center were smaller. <= /p>

Mr. McNamara asked if the property met all other setbacks for a multi-family residence. Mr. Gowan said it was a pre-existi= ng non-conforming lot; the footprint would not change. Mr. McNamara asked if the Board wo= uld be creating a non-conforming use by approving the variance. Mr. Gowan said without a variance multi-family buildings were only allowed in the business zone. Mr. Hennessey said the underlying = use of the building was residential; they didn’t need anything to have it as= a single-family house. To grant= the variance as a three-family, the underlying use would be expanded. Mr. McNamara asked if the setback requirements would be violated needing further variance relief. Attorney Westgate said he had give= n that aspect thought prior to submitting the application for variance. He said when the 2003 and 2004 var= iances were granted, there were no dimensional variances granted. He said the existing footprint was= being modified and Mr. Gowan had confirmed that no dimensional variances were necessary. He believed the To= wn had a track record of recognizing the structure and its footprint and allowing a flexibility of uses (by variances) so long as they meet the variance criteria. The Board discussed= how they would proceed.

Mr. McNamara suggested th= at the plan have Planning Board review.

Mr. Hennessey asked where= the water supply was located for the building.= Attorney Westgate said there was an on-site well in front of the building. Mr. Hennessey state= d that he would request a full water test for the building given the fact that the= re had been water problems in the area. Mr. Gowan noted that the regulations specify there has to be a certa= in quantity of water but was not nearly as clear on certain contaminants. Mr. Hennessey said there was an is= sue in the area and out of safety for future tenants the Board should request to h= ave the water tested. Mr. Gowan questioned if there would be a standard that the applicant would need to meet. Mr. Hennessey asked tha= t a water test be performed prior to the issuance of an occupancy permit that m= eet all applicable state and federal standards, specifically FHA. Mr. DeRosa told the Board that he = had an extensive water filtration system already installed in the property. He questioned if it was inappropri= ate to have the water tested as a pre-condition since the water quality had been g= ood enough to service the employees of the building and the current tenant. He didn’t mind doing a water= test if there was a concern for the area, but felt it may be an unfair burden to single him out. Mr. Hennessey commented that he knew of water quality issues in the immediate vicinity and wasn’t trying to pick on the applicant. Mr. DeRosa understood if there were concerns, but felt an extra burden was being placed on him that he shouldn’t have to overcome. He felt it was inappropriate to place a pre-condition on anyone that= had a well in Town. Mr. Molloy sa= id he was more concerned that a water test should be done since the structure was being converted from a single-family to a multi-family. Mr. Hennessey said an alternative = was Pennichuck Water.

Mr. Hennessey stated that= he had made a condition the last time the property had come to the Board and would make the same condition to have no parking in front of the building. He said he wouldn’t ask the applicant to tear up pavement, but instead requested to not stripe the front. Attorney Westgate said= they understood. Ms. Paliy discuss= ed the parking and the fact that the library had been using the front for parking.

It was noted that the app= lication was for each unit to contain two bedrooms.= The septic design was done for each unit to have three bedrooms. Mr. Molloy asked if there were any requirements for sprinkler systems for three-bedroom homes. Mr. Hennessey said there was no st= ate requirement.

Ms. Paliy said she was le= aning to denying the variance mainly because what had happened during the prior variance. She said it had previously been told to the Board that there would be no increase of people. She believed there wa= s a stipulation that the back unit (barn) would not be a separate office and now the application was to create a dwelling unit in the back, which had not be= en the Board’s intention. = She didn’t feel the request was in line with what was already in the Town center because some of the other houses were as large and had the greenery = and lawn. She felt the back unit = should be turned back into a parking area, or a barn. Ms. Paliy believed the proposal wo= uld change the neighborhood and create low-income apartments. She believed it needed to fit into= the area better. Mr. Molloy disag= reed and felt the Board was making the building fit in by maintaining the façade. Ms. Paliy said= the Board had previously discussed businesses within the building, not residential. Mr. McNamara sai= d the Board was dealing with the present application. He said the whole area had been br= oken up (with mixed use) even though it was zoned residential. Ms. Paliy had an issue with having= a three-family building versus a two-family building.

Mr. Hennessey felt the ad= vantage of approving the application was to keep the form factor of the building maintained. He commended the applicant for keeping the form of the property which was considered one of = the anchor properties in the center. He felt the application was an opportunity to maintain it. Mr. Hennessey understood that ther= e was no economic prong to the hardship, but noted that the building had been vac= ant for a period of time and believed the owner had a legitimate gripe about tr= ying to get a return on an investment. He didn’t feel that could be done with a two-family and the third unit w= as necessary to get cash flow going.

Mr. Ouellette said he wou= ld like to see the building look more residential rather than like a business. He asked that the front parking be= taken out. He was concerned about t= he septic system. Mr. DeRosa add= ressed the septic and commented that when the original house was built it contained eight bedrooms; the proposal was for the building to have six bedrooms. Mr. Hennessey pointed out that the= Town would have a state approved septic system design on file in case of failure. Mr. Gowan stated tha= t he would defer to the Town Health Agent opinion.

Mr. Hennessey said he wou= ld entertain the following motions beginning with the proposals submitted by t= he applicant.

MOTION:

(Molloy/McNamara) Prior to the issuance of the bui= lding permit for the renovation of the second and third residential units, the applicant submits to the Town of Pelham Health Agent applications and pla= ns for a replacement septic system for the property.

VOTE:

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

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MOTION:

(Molloy/McNamara) Prior to the issuance of the Certificate of Occupancy for the second and third residential units the applicant receive final approvals to the Town of Pelham and the New Hamps= hire Department of Environmental Services for the replacement of the septic system.

VOTE:

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

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MOTION:

(McNamara/Molloy) The façade and exterior appearance of the building remain substantially the same (less commercial signage).

VOTE:

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

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The Board discussed the e= xisting parking spaces in the front of the building. The following motion was made and t= he Board discussed the surrounding buildings and the associated parking.

MOTION:

(Ouellette/Paliy) The two parking spaces in front = of the building, abutting the front grass area be removed, grass put in its place and the area is to be left as a walkway with existing pavement.

VOTE:

(2-3-0) The mot= ion failed. Mr. McNamara, Mr. Molloy and Mr. Hennessey voted no.

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MOTION:

(McNamara/Molloy) Prior to the Certificate of Occu= pancy being issued the applicant submit a water test by a certified lab showing that the water is potable and meets all applicable state and federal requirements.

VOTE:

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

There was no public input= .

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – 1) Ye= s; 2) No; 3) Yes; 4) Yes; 5) No

Mr. McNamara – Ye= s to all criteria

Mr. Molloy – Yes = to all criteria

Mr. Ouellette – Y= es to all criteria

VOTE:

(<= st1:date Year=3D"2000" Day=3D"1" Month=3D"4" w:st=3D"on">4-1-0) The mot= ion carried. Ms. Paliy voted no= .

VARIANCE APPROVED

MINUTES

March 8, 2= 010

MOTION:

(McNamara/Molloy) To ap= prove the March 8, 20= 10 meeting minutes as amended.

VOTE:

(4-0-= 1) The motion carried. Ms. Paliy abstained.

ADJOURNMENT

MOTION:

(Molloy/McNamara) To adjourn the meeting.

VOTE:

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

The meeting was adjourned= at approximately 11:23 pm.

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

           &n= bsp;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;         Charity A. Landry Willis

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