January 9, 2012



The Chairman David Hennessey called the meeting to order at approximately 7:00 pm.


The Secretary Robert Molloy called roll:







David Hennessey, Svetlana Paliy (arrived after the meeting commenced), Robert Molloy, Peter McNamara, Kevin O’Sullivan, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan




Mr. Ouellette was appointed to vote in Ms. Paliy’s absence.




Case #ZO2011-00029   GAGNE, Ryan  /  197 Marsh Road -  Map 39 Lot 6-185-1 – Seeking a Special Exception to Article III, Section 307-76 III to permit a general home occupation of a landscaping business


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


Mr. LaFrance stepped down.


Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the requested Special Exception for a general home occupation.  He provided the Board with an outline that addressed the special exception criteria along with photographs of the site.  He stated that the property currently contained a three-bedroom, single family dwelling with a detached garage (located roughly in the middle of the property).  The lot is approximately 1.5 acres in size, with 200ft. of frontage and approximately 307ft. deep.  There is an existing wetland to the rear of the property; none of the proposed work would be within that area.  Mr. Maynard discussed the history of the property, stating that there were a number of commercial uses in the past.  Recently, prior to Mr. Gagne purchasing the property, there was an auto body shop occupying the garage space.  Prior to that there was a cabinet shop utilizing the property.  Some of the surrounding uses were a plumbing store and a paving business.  Mr. Maynard stated that General Home Occupations were allowed, providing they meet certain criteria.  He reviewed the information provided to the Board. 

1)     The single family dwelling on this property is utilized for Mr. Gagne’s residence; the business is clearly subordinate to the residential home and is located behind the existing screen fence.  Being that this property previously had some commercial uses and the fencing exists now, there will be no change to this appearance.  An additional garage is proposed and all improvements are behind the screened fence or well screened from the surround residential neighbors;

2)     The existing home and garage have approx. 4,180SF gross floor area.  49% would 2048SF available for the General Home Occupation.  A future garage is to be constructed for the business, this garage will be approx. 2000SF which is less than the area allowed above;

3)     There are no on-site employees; the business is not a site oriented business.  The landscaping business is only parked here in the evening, employees do not work at this location;

4)     This is not a multi-family dwelling or duplex;

5)     The sign for the property will not be larger than what is allowed (3SF) and will not be illuminated;

6)     All outside storage and business activities are behind the screened fencing and will continue to be behind the fence.  Additional evergreens are proposed in the rear to supplement the vegetation in this area;

7)     We do no anticipate anything that may be objectionable, noxious or injurious by reason of emission of odor, dust, smoke, refuse, fumes, etc.  There will e no storage of hazardous materials or chemicals on site;

8)     There are no unregistered vehicles on-site, a garage is proposed in the future to place equipment inside and screened from neighboring views;

9)     This business does not typically require any deliveries that would not be consistent with any associated residential deliveries;

10)  There is typically no customer parking required with this business;

11)  There are no retail sales proposed.  The landscaping business is a service business and no retail sales are proposed with the application;

12)  Accessory garage proposed will have residential character and will be behind some screening;

13)  There is anticipated to be no increase in the amount of wastewater associated with this property.  Employees are offsite during the day and there is no additional loading proposed with this application;

14)  Board of Adjustment may impose additional conditions that may be necessary to protect the residential character of the neighborhood;

15)  We will submit site plan for approval with the planning board providing the special exception is granted.


Mr. McNamara asked if the garage was included in the calculations.  Mr. Maynard said the ordinance indicated that the gross residential living space was to be calculated.  He said the ordinance was unclear how to calculate.  Mr. McNamara asked if there were any bedrooms in the garage.  Mr. Maynard said it was simply a garage.  Mr. McNamara said it might be ambiguous and questioned the square footage of the garage.  Mr. Maynard said the existing garage was a little over 900SF.  Mr. McNamara asked if the calculations would still be under, if the 900SF was not used in the calculation.  If that was the case, Mr. Maynard said they would have to reduce the size of the garage by a few hundred square feet.  Mr. McNamara questioned how tall the proposed garage would be.  Mr. Maynard said it would be a single story structure with a peaked roof.  He referred to the submitted photographs, that showed there were large trees that provided a screened area (behind a pool) if a garage were to be constructed in that area.  Mr. McNamara asked how close the proposed location was to the nearest dwelling.  Mr. Maynard said it was at least a few hundred feet. 


Ms. Paliy arrived.  Mr. Hennessey informed that Ms. Paliy would work as an alternate for the present hearing; the Board was already in the process of hearing the applicant’s presentation. 


Mr. Molloy asked for the setback of the proposed garage from the property line.  Mr. Maynard replied according to the ordinance it would fall under the residential setbacks; in this case the garage was set at 25ft. setback.  Mr. Molloy questioned if parking spaces were shown on the plan.  Mr. Maynard said parking spaces had been delineated near the garage and in the back.  He noted that the applicant had a landscaping business and it made sense to have vehicles in a set location.  Mr. Molloy asked if the area would be paved.  Mr. Maynard said it wouldn’t be paved at this time, but possibly could be paved in the future.  He indicated a good portion of the land in the back that was in the wetland buffer that sat within a gravel surface.  As they go through the Planning Board process they will be proposing to loam and seed the gravel areas within the WCD therefore reducing the impervious coverage on the lot. 


Mr. Hennessey asked where the business was currently being conducted.  Mr. Maynard said the business was currently being conducted on the property and had been for approximately two years.  He believed at the time the applicant purchased the property there was an existing business at the location.  The applicant was not fully aware (of compliance), until receiving notification from the Town. 


Mr. Molloy asked how many vehicles would be parked on the lot.  Mr. Maynard said there were approximately five vehicles.  Mr. Hennessey asked how many vehicles were registered to the business.  The applicant, Mr. Gagne, was unsure.  Mr. Hennessey stated only one vehicle registered to the business was allowed to be kept in view.  Mr. Maynard noted that there was a fence on the property that screened any visibility to the area from the street; photographs were provided to the Board.  Mr. Ouellette believed the Board was seeking clarification regarding the total number of vehicles that would be on site at one time.  Mr. Gagne said he wasn’t proposing to add more to the lot.  Mr. Molloy noted that there was currently no garage and questioned what would be put in the garage.  Mr. Gagne said he would put equipment and vehicles in the garage; at this time he wasn’t sure if the garage would be constructed.  Mr. Maynard said they were being up front with the proposal; they understood as part of the Planning Board process they would have to show all the items. 


Mr. Ouellette reiterated his question of how many vehicles (company and employee) would be on the lot at any one time.  Mr. Gagne said there would be six. 




Mr. Chuck Greenwood, 199 Marsh Road (owner Green Acres) told the Board that Mr. Gagne had been a great neighbor and cleaned up the area. 


Mr. Hennessey said he drove by the property earlier in the day.  He saw that the plan indicated the approximate limits of poorly drained soils and questioned if a soil scientist had looked at what was and was not wetlands on the property.  Mr. Maynard, who had been studying to be a wetland scientist, stated he mapped the soils himself.  The parcel had not yet been field checked by his mentor, but it would be included as part of the Planning Board application.  He felt the location shown on the plan was correct. 


Mr. Hennessey felt a site walk was needed particularly because the business was already in operation. 



(McNamara/Molloy) To conduct a site walk. 




(5-0-0) The motion carried. 


After a brief discussion, a site walk was scheduled for January 21, 2012 at 9am.  The approximate location of the proposed garage will be staked. 


The case was date specified to the February 13, 2012 meeting. 


Mr. LaFrance returned to the Board.


Case #ZO2011-00030  BOUTWELL, Nathan G.  /  144 Windham Road  -  Map 15 Lot 8-201  -  Seeking a Variance to Article III, Sections 307-9, 307-12 and 307-13 of the Zoning Ordinance to permit up to 12 buildings for dwelling purposes (each single family dwellings) on one lot where such lot has an overall size of approximately 9.63 acres.  A Variance is also requested to Article VII, Sections 307-39 and 307-40 to permit a street, well(s), utility right-of-way easements, power lines and pipe lines (and related appurtenances) in the buffer portion of land within the Wetland Conservation District


Mr. Hennessey noted that Ms. Paliy would resume being a voting member.


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


Attorney Brad Westgate of Weiner and Bennet and Joseph Maynard of Benchmark Engineering came forward, representing the applicant, to discuss the requested variances.  The applicant, Nathan Boutwell also came forward. 


Attorney Westgate discussed the two components of the application: 1) seeking a variance from Section 307-9 coupled with sections 307-12 and 307-13 of the Zoning Ordinance to permit up to 12 single family dwelling units on 9.63 acres.  These variances relate to the provisions in the ordinance which permit only one building for dwelling purposes on a lot and also the density and non-wetland area sections of the ordinance.  He stated that the Zoning Administrator determined as an underlying component of the application that not only would a variance be needed for multiple dwelling units, but also a variance would be needed for the provisions of the one acre/non-wetland requirements.  2) Wetland Conservation District (‘WCD’) buffer – property is proposed to be serviced by a private road and utilities, which would have to cross the WCD buffer in order to be viable.  The frontage of the property is essentially entirely blanketed by the WCD. 


Mr. Maynard reviewed the proposed plan.  The parcel contains approximately 9.6 acres and is situated on the easterly sideline of Windham Road.  The lot line dimensions were provided.  There is a large ponded area sitting along the north easterly property line; this wetland exerts itself a WCD of 50ft. which encompasses the existing driveway and a good portion of an existing detached garage.  There are a couple minor forested areas that exist within the property.  Mr. Maynard noted that the wetlands were mapped on site by Gove Environmental Services when they did a substantial amount of work on the property for a potential high school; they also did a site specific soils map identifying that the soils (within the site) were predominately a Windsor Loamy Sand, or a Hinckley Loamy Sand.  Both types of soils are excessively well drained with rapid permeability.  Test pits that were conducted on the site indicate that there was no water table within approximately 9ft. of the surface.  The site is currently serviced by a single family log cabin style dwelling with a detached garage and on-site well and septic.  The lot contains approximately 262ft. of frontage from Windham Road; the problem is the majority is hindered by either wetlands or WCD buffer therefore any access to the site has to cross that WCD buffer.  Mr. Maynard showed a color coded tax map highlighting the surrounding uses (undeveloped, multi-family use, in-home uses, commercial uses and the Town’s Transfer Station). 


Mr. Maynard stated they were looking to develop the land into twelve single-family detached (condominium type) buildings.  The property would be serviced by an internal road system with a reduced pavement width of 18ft.(where 24ft. is required by the Town).  The private road system would be approximately 700ft. in length.  Access would be along the existing driveway entering from Windham Road, minimizing disturbances to the WCD buffer.  Each site would be serviced by an individual on-site septic.  The applicant would seek to share (a couple) wells between the twelve homes on the lot.  All utilities would be underground.  The existing garage (associated with the lot cabin) that would have to be relocated.  Mr. Maynard discussed the soils and stated based upon the soil conditions that exist on the property, the piece of land, excluding any wetlands areas or areas within a protective well radius, would be capable of supporting seventy-four bedrooms.  It could support a higher yield than would typically be seen from many of the other types of soils in the community. 


Mr. Maynard commented when looking at the property from a grid subdivision standpoint (conventional subdivision), given the lot shape and wetlands, the Town’s regulations would require a road be constructed 330 into the site before any house lots could be created.  He showed a plan that laid out (the difficulties) how a conventional subdivision would have to be done.  There would be a few hundred thousand in road costs just to obtain the (700ft.+ road) to construct a three lot (plus the existing) subdivision.  There would still be a WCD and wetland impact associated with the construction of an internal road system.  Mr. Maynard reviewed the conservation subdivision regulations and noted the proposed lot contained 9.6 acres, where 10 acres were required.  Conservation Subdivisions need to create a yield plan and allowed a density offset not to exceed 20%.  He said even if the lot was able to achieve every available density offset, they would only be allowed a 4.8 lot subdivision.  He discussed the review process when approaching a property to develop and ended by saying their request was to create twelve single-family condominium type units.

Attorney Westgate stated that they request for variance was for two basic purposes: 1) provisions that require only one building per lot for dwelling; and 2) density provisions.  He summarized the Administrative Decision made by Jeff Gowan that indicated he determined single family dwellings were permitted in the ´R’ District where the property was located, therefore a variance was not necessary to permit the dwellings, but more than one building on the lot would require a variance from Section 307-9 and also a variance for density.  There was no variance needed for the frontage requirements; the building setbacks along the perimeter will need to be honored.  The Administrative Decision also determined that either a variance was necessary from the WCD buffer requirements allowing the private road to service the community and utilities, or a Special Permit would be needed. 

Mr. Hennessey discussed the review process of the Board.  He noted that the ‘type of ownership’ was not before the Board for review; it was not covered in the Pelham Zoning Ordinance.  It was the ‘use of the land’ that was before the Board. 

Attorney Westgate then addressed the five Variance criteria as submitted with their application.  He added that the proposed project would only utilize about one third of the actual septic yield that the property could contemplate (this was calculated without the wetland in the calculation).  He believed in contrasting the proposed development with a grid development it could be seen that the applicant was proposing a yield that was appropriate for the size of the land and given the location.  It minimized a sprawl effect because if the parcel was developed in a grid fashion, the lots would be over an acre in size without the same density that the proposal was providing.  This type of situation always occurs when there is developable land set back from a road that couldn’t have yield off the road until being into the property.  Attorney Westgate then reviewed the ‘unnecessary hardship’ criteria starting with a focus on the special conditions of the property and then analyzing whether the public purposes of the ordinance provisions and their application require the granting of the variance.  In summary, they believed the two criteria in the Simplex hardship standard had been met.  The old hardship test was briefly addressed in the application; effectively concluding the same conditions of the property rendered it so unique that the proposal was reasonable. 

Mr. Molloy asked how much of the 9.63 acres was taken up by the WCD area.  As contained in the conceptual plan notes, wetlands were 2.6 acres (including the pond and forested wetlands, but not the WCD buffer).  The remaining acreage is where the proposed homes would be located.  Mr. Molloy confirmed the location of the existing house.  Mr. Maynard described the location of the existing house and the detached garage.  Mr. Molloy questioned if there was currently a road going through the property.  Mr. Maynard said the driveway (gravel surface) currently ended at the existing detached garage.

Mr. McNamara noted when the wet area was subtracted from the calculation there was 7.27 dry acres that remained for the twelve units.  Mr. Maynard commented that the loading calculation does not include wetland areas nor any area within a protective well radius.  He noted they could have counted the forested wetlands toward additional sewer loading, but chose not to.  Mr. McNamara questioned if the 7.27 acres was inclusive of the WCD buffer.  Mr. Maynard answered yes.  Mr. McNamara asked for the square footage of the buffer.  Mr. Maynard said they didn’t calculate it, but believed it to be approximately 2/3 to 3/4 of an acre. 

Mr. Ouellette questioned if there was a proposed size for the homes.   Mr. Maynard said the proposed homes would be roughly 1600SF-1800SF, containing two bedrooms.  They would be detached units with a condominium-style ownership. 

Mr. Hennessey asked if any hazardous material had been detected on the site.  Mr. Maynard answered no.  He noted there had been a Stage 1 environmental conducted on the property (when the high school was done); they saw nothing in that initial report.  Mr. Hennessey questioned the wells.  Mr. Maynard stated there would be two wells servicing the units; six units per well.  Mr. Hennessey asked if there was access to Pennichuck water on the site.  Mr. Maynard said Pennichuck stopped at the senior housing development approximately 2500ft. from the applicant’s property. 

Mr. Hennessey anticipated a motion for a site walk, but due to the amount of people present continued with the public hearing and opened the discussion for public input.  He discussed the process of how the Board would proceed. 


Ms. Brenda Hobbs, 108 Windham Road said when she received the (abutter notification) letter, the thing that stood out was that Richard Sutton didn’t own the amount of land specified.  She said according to the Town records, he owned 8.70 acres; Mr. Gowan cited approximately 9.8 acres and in the abutter notification it was written as 9.63 acres.  She said determination of the actual acres of the property would be of importance to her.  Ms. Hobbs said even if they started with 9.63 acres, subtracted the wetlands, well radius and 2/3-3/4 of an acre for WCD, the calculation would be reduced to 4.53 acres for twelve residences.  She commented that the ‘road’, was currently a very small gravel driveway, not a road.  She believed mention was made that the road would be access for the Atwood heir land, and hoped that the road wouldn’t be used for further expansion.  Ms. Hobbs reiterated her main concern of the acreage not being correct. 

Mr. Hennessey told the applicant they didn’t have to respond at this time, the discussion could be resumed after the site walk.  Attorney Westgate replied they would give the abutters and interested parties time to comment.  They would take those comments under advisement and put together a concise and comprehensive response. 

Mr. Don Paquin, 128 Windham Road didn’t understand the hardship and how an ‘L’ shaped lot could be deemed a hardship.  He said there were probably hundred of lots in Town with the same constraints against them.  He asked that the Board take that point into consideration.  Mr. Paquin noted that even with a condominium community, they would need Town services (fire, police, school etc).  He was curious if there was a similar development in Town.  Mr. Hennessey said generally projects went to the Planning Board, the Board was addressing this project (zoning aspects) at this time.  He discussed the hardship criteria and said the attorney addressed it as the legislature and courts had set up the hardship requirements.  It was a legal framework.  Mr. Paquin stated that the one-acre requirement was in place for a reason; it was in place to prevent developments such as the one being proposed.  He believed (if allowed) the development would set a serious precedent. 

Mr. Daniel Frost, 134 Windham Road discussed the comment about the driveway being a road.  He said it was a very narrow gravel driveway.  His major concern was that his well abutted the property where the driveway was located.  He wanted to know if there would be sidewalks on either side of the road.  He pointed out the location of his well for the Board and the applicant.    

A letter was submitted to the Board from Ed Rosamilio of ReMax Prestige of Pelham (dated January 6, 2012) who made some analysis and conclusions regarding the project’s potential impact on surrounding property values and concluded it would not diminish surrounding property values.     



(Molloy/O’Sullivan) To conduct a site walk.




(5-0-0) The motion carried. 


A joint site walk with the Planning Board and Conservation Commission was scheduled for January 21, 2012 at 10am.  The site walk is a public hearing; minutes will be held.  Any questions are to be directed to the Chairman. 

The case was date specified to the February 13, 2012 meeting.


Case #ZO2011-00031  GAGNON, Shawn & Lori  /  7 Ballard Road – Map 24 Lot 12-192-8 – Seeking a Special Exception to Article XII, Sections 307-73 and 307-74 of the Zoning Ordinance to permit an Accessory Dwelling


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


Mr. Dave Martin, representing the applicant, came forward to discuss the requested Special Exception. 


Mr. Hennessey noted for the public that the Board had little to no choice in cases for special exception; as long as the criteria is met under the Zoning Code the Board has to grant the special exception.  He asked the applicant to verify that they met the requirements under the Zoning Code in order to qualify for the special exception.  Mr. Martin replied that he read the requirements and felt that they met those requirements.   


Mr. McNamara asked for the proposed square footage.  Mr. Martin said the proposed square footage was just under the requirement at approximately 746SF-748SF.  Mr. McNamara questioned if the common wall requirement was met.  Mr. Martin answered yes. 


Mr. Hennessey asked if the septic design had been approved by the state for an additional bedroom and a half beyond what was currently on the lot.  Mr. Martin stated they had a certified plan for that requirement.  Mr. Hennessey said ordinarily the Board would look to the Planning Director Jeff Gowan and ask if the plans met the criteria.  In Mr. Gowan’s absence, Mr. Hennessey asked that an approval be contingent upon verification by the Planning Department that the plans met all criteria.  Ms. Lori Gagnon told the Board that she submitted the plans to Building Inspector Roland Soucy prior to the meeting and asked to be contacted if there were any issues.  She was told by Planning Office Manager Jen Hovey that Mr. Soucy received the plans and had no issues. 


Mr. McNamara told the applicant that this type of special exception could not be used for rental purposes if the family member decided to go elsewhere.


In looking at the plan, Mr. Ouellette said it appeared there were wetland areas.  He asked if there would be any asphalt brought in to tie into the new garage.  Mr. Martin replied there was a ‘pie shaped’ piece that would extend out for the one garage bay.  There was currently hot top in the area Mr. Ouellette pointed out.  Mr. Martin showed where the additional hot top would be located.  Mr. Ouellette confirmed there wouldn’t be any additional disturbance from the location where construction would occur.  Mr. Martin answered no.  He said an architect and engineering firm had been hired to draw the plan so it would appropriately fit within the neighborhood.  He said his client was extremely particular about the house itself to ensure it fit the neighborhood and how the proposed addition would appear from the street. 



(McNamara/Molloy)  A Special Exception approval would need to meet with the approval of the Town’s Regulations as reviewed by Planning Director Jeff Gowan.




(5-0-0) The motion carried. 


There was no public input.


Mr. O’Sullivan asked if all of the additional accessory space was located on the second floor.  Ms. Gagnon answered yes.  Mr. Martin noted that the garage structure was already in existence so they tried to utilize it to provide the least amount of impact to the neighborhood.  He said there was a lot of care and time taken to ensure the exterior blended with the home. 


Mr. LaFrance asked if the applicant was being required to change the existing septic system, or if the plan was on file for the future.  Mr. Martin said the plan was on file for the future.



To grant the Special Exception, subject to Planning Director Jeff Gowan approving the plans as meeting the Town’s Regulations.  




(5-0-0) The motion carried. 




SITE WALK – January 21, 2012

9:00am - Case #ZO2011-00029   GAGNE, Ryan  /  197 Marsh Road -  Map 39 Lot 6-185-1

10:00am - Case #ZO2011-00030  BOUTWELL, Nathan G.  /  144 Windham Road  -  Map 15 Lot 8-201 


DATE SPECIFIED HEARING(S) – February 13, 2012

Case #ZO2011-00029   GAGNE, Ryan  /  197 Marsh Road -  Map 39 Lot 6-185-1

Case #ZO2011-00030  BOUTWELL, Nathan G.  /  144 Windham Road  -  Map 15 Lot 8-201 





To approve the November 14, 2011 meeting minutes as written. 




(5-0-0) The motion carried. 





(Molloy/O’Sullivan) To adjourn the meeting.




(5-0-0) The motion carried. 


The meeting was adjourned at approximately 8:35 pm.

Respectfully submitted,

                                                                                          Charity A. Landry            

                                                                                          Recording Secretary