APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

October 15, 2012

 

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

 

The Secretary Robert Molloy called roll:

 

PRESENT:

 

 

 

ABSENT:

David Hennessey, Robert Molloy, Kevin O’Sullivan, Peter McNamara, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan

 

Svetlana Paliy

 

 

CONTINUED HEARING(S)

 

Case #ZO2012-00018  CROTEAU, Jay & LAFRANCE, Christopher  - Kennedy Drive /  Map 17 Lot 12-253-1 seeking a Variance to Article III, Sections 307-7, 307-8, 307-12 (Table 1) & 307-14 to permit the existing 6 acre lot to be subdivided into two duplex lots each with approximately 40 +/- of frontage along Kennedy Drive

 

Mr. LaFrance stepped down.  Mr. Ouellette was appointed to vote regarding the case. 

 

Mr. Hennessey said he was unable to attend the site walk due to illness, but had made a point to visit the site prior to the meeting.  He stated that the abutter’s list and Variance criteria had previously been read into the record. 

 

The public hearing for the case was reconvened. 

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicants, came forward to discuss the Variance request.  He said the property contained approximately six acres and had approximately 90ft. of frontage on Kennedy Drive.  He provided a brief history regarding the property and told the Board it had an approved three-lot subdivision with 1000ft. of Town built road (up to a cul-de-sac servicing the lots) that dated back to 1997.  This plan is recorded at the Registry of Deeds.  Mr. Maynard indicated with the lot sizing and a minor lot line adjustment they could end up with two lots, each greater than two acres and the required 200ft. of frontage and still retain a single-family residence lot.  He stated they were looking to eliminate the need to build a new road and reduce the total build-out of the property to two duplex lots.  The duplex lots would be approximately three acres in size and share a driveway.

 

PUBLIC INPUT

 

Mr. Phil Lantagne, Kennedy Drive discussed the original project, which was for three single homes on a Town road.  He said there wasn’t discussion about duplexes.  He said in the way the plan was drawn, only one lot met the requirements for size and frontage.  With regard to public interest, Mr. Lantagne felt having rental property in an established neighborhood would drive home values down, which were already diminished due to the recession.  He commented that dirt driveways would also have a negative impact on the area homes.  He said the traffic increase would be 33% going from three families to four families.  He noted that the plan for three families required a Town road, and the request for four families was proposed to be on a dirt driveway.  Mr. Lantagne believed there were possible drainage issues due to having no oversight of the driveway maintenance during seasonal high water flows.  For the Substantial Justice criterion, Mr. Lantagne said there were no other duplex or rental properties in the area.  He reiterated that building a rental property in an established neighborhood would have a negative impact on surrounding homes.  Regarding hardship, he felt the property could be developed as approved, which had little/no opposition.  He noted that an alternative land use was suggested by applicant Jason Croteau during the site walk.  Mr. Hennessey asked what was suggested.  Mr. Lantagne preferred to have Mr. Croteau elaborate. 

 

Mr. Frank Tredeau, 12 Kennedy Drive, stated he was in opposition to the issuing of the Variance.  He read aloud a petition that had been circulated throughout the neighborhood as well as to abutters outside of the neighborhood.  The petition was then submitted to the Board for the record.  The petition reviewed the criteria and provided rebuttals to each of the points. 

 

Mr. Ouellette asked if they were stating there might be a change in the wetlands from 1997 when the three-lot subdivision was done to present.  Mr. Tredeau said only that there would be recourse for a Town road if it weren’t properly maintained.  People living on a driveway not properly maintained wouldn’t have recourse in the event that it affected the wetlands.  He said they wouldn’t be able to go to a Town official to submit a complaint to have the road fixed.  Mr. Ouellette said the map indicated there were some wetlands and he wanted to know if the area had stayed about the same, or if it seemed to get worse.  Mr. Tredeau said the wetlands were directly behind his house.  He had encountered some flooding during seasonal storms just about every year.  He felt that a Town maintained road wouldn’t make the situation worse, and a privately maintained driveway wouldn’t be able to be counted on to keep the wetlands secure.  There was seasonal flooding with just about every storm, the neighbors wanted to make sure the drainage was maintained. 

 

Mr. Robert Spaulding, 66 Old Gage Hill Road told the Board that his property abutted the wetlands and ran along the wall where the proposed driveway would be located.  He said he got water on his property and his foundation held it back, but it leaked through his foundation.  The two duplexes were proposed to be located exactly behind his house.  He noted that there were boulders on the property that were holding water back.  He was concerned if they were removed, along with tree stumps, that water would find the least resistant path.  He questioned if he could be assured that he wouldn’t have water in his cellar after the project was done.  Mr. Spaulding said the residents on Kennedy Drive wouldn’t be affected by the water like he would be, but he wanted the Board to understand that (some of) those residents had been in the neighborhood for over thirty years.  He said no one wanted duplexes in that area.  He believed the applicants would be there in the beginning, but would not stay there in the future.  This will lead to housing problems and rental problems.  He felt it would affect the value.  Mr. Spaulding reiterated his concern with the water coming into his property given the close proximity of the proposed driveway (being within 5ft of his property) and the duplexes.  

 

Mr. Hennessey questioned Mr. Spaulding if he felt three single family homes would be more or less of potential danger than two structures (two duplexes).  Mr. Spaulding said he would feel better with single family homes, because what he had heard/seen, the applicants were just going in the area to put the duplexes.  He’d feel more comfortable if it was a builder doing three houses to make sure they didn’t run into problems.  He didn’t think it was the right area to have duplexes and commented that the law was in place for a reason and questioned why they would change it for the future. 

 

Mr. Maynard told the Board that they consulted with a real estate professional for an opinion on property values and if they would be affected by the project.   Mr. Hennessey read the letter aloud that was composed by Kerry Nicholls of Remax Prestige.  He stated he was a real estate broker, but wouldn’t comment on values.  He felt there was a misunderstanding about ownership; the Board didn’t get into ownership, they discuss land use.  He said there were quite a few rentals in Town and no guarantee that a single-family home wouldn’t be rented out.  He commented that the ownership, tenant versus owner, was not an issue in front of the Board.  He said the matter in front of the Board was the use of the property and the type of the property it would go in via the zoning. 

 

Mr. Maynard believed Mr. Lantagne’s comment about Mr. Croteau, was that Mr. Croteau’s family owned land directly behind the property.  If that (family) land was ever incorporated with the proposed parcel there would be a potential to extend the road that was previously approved and give the ability to create ore lots.  Whereas, if they did the project as proposed, there would be no ability (or intention) in the future to extend a road system into that additional acreage owned by the Croteau family.  

 

Mr. Maynard spoke about the proposal.  He said they would probably pave the apron to the gravel driveway that would lead to the houses.  He said it might not be gravel forever.  From a drainage perspective, anything they did would need Planning Board review.  He discussed with the applicants some options that were passive in nature to help reduce the runoff coming from the property which wouldn’t need a lot of maintenance.  Mr. Maynard discussed the regulations regarding lots and contended if the lot lines were worked, the parcel could contain two duplexes and a single-family home on the proposed road.  He said overall the way the road was designed up through the hill would be a huge impact on the neighborhood; there would be clear cutting (lot line to lot line) along the right-of-way.  Whereas if the applicant’s proposal was approved the impact would be half of that with the driveway.  He commented that Zoning was non-specific regarding duplex lots.  From a density perspective the lot had enough area to be two duplexes and a single-family.  Mr. Maynard said the manner that zoning was written, duplexes weren’t inconsistent with the neighboring single-family homes.  He spoke about the traffic and contended with two duplexes the traffic would be less than with two duplexes and a single-family home.  He covered economic hardship and noted to build the road would be a huge undertaking; there would be no money in the project based on the cost of the road compared to the value of the lots.  He also noted the road would be a burden on the Town if it were to be constructed the three houses would never pay enough money in taxes to pay for the maintenance (or snow removal) of the road over its lifespan.   Regarding the wetlands, Mr. Maynard didn’t feel they had changed across the site.  There’s a dredge and fill permit in place that had been renewed (in the last couple years) with the State for an additional five years.  Any Wetland Conservation District (‘WCD’) impact would be about half of what was originally approved because the driveway would be a lot narrower from that approval. 

 

Mr. Ouellette said the Board heard several comments from abutters who were opposed to the project.  He asked what Mr. Maynard felt needed to be done regarding the driveway and drainage to remedy the situation.  Mr. Maynard said he reviewed what was originally done with the road, but hadn’t evaluated the whole situation.  He said it didn’t appear to him that the original proposal was detaining any drainage; it was a number game.  He believed they were trying to have the flow run off the property faster (by sizing the pipes bigger) before the upstream peaks hit the culvert it would balance out the numbers.  When reviewing the lot from a house perspective, he would look for something to create detention and storage in the areas where the houses would be created so water would dissipate at a slower pace. 

 

Based on the 1997 rendering with the small cul-de-sac (1000ft of impervious road with a circle) offered,  it was Mr. Ouellette’s understanding the proposed situation might be better because it was leaching surface.   Mr. Gowan said anytime the amount of impervious surface could be reduced, it reduced the impact of runoff from a road.  He said all the drainage associated with Town road designs dealt with runoff created by the impervious surface.  He noted that the Planning Board would make the decision about how much pavement the apron would have.    Mr. Gowan noted that the Planning Board could reduce the width of the roadway and the narrowest he could recall them allowing was 20ft.  He spoke about the expense for constructing a road, which would include bonding a certain amount that would be tied up for a couple years. 

 

Mr. Molloy asked for the length of roadway from Kennedy Drive to where the two roadways would break off.  Mr. Maynard said that length would be just over 400ft. 

 

Mr. Hennessey understood members of the Conservation Commission attended the site walk.  He questioned if they had forwarded a report back to the Board.  Mr. Gowan wasn’t aware of the Conservation Commission submitting comments; he went to the Planning Office to see if anything had been submitted (see further in the meeting for additional comments).

 

Mr. Frank Tredeau, 12 Kennedy Drive came forward again.  He commented regarding the letter received from the real estate professional and statement that multi-family dwellings and duplexes wouldn’t have a detrimental effect on the value of the properties.  He didn’t see how a duplex would improve the value of the properties and believed it would decrease the value.  He would find a mixed neighborhood less desirable to move into versus a neighborhood that contained all single-family houses.  Mr. Tredeau discussed the driveway and didn’t doubt the original road would be very good regarding drainage and handling runoff.  The point of contention was the proposed driveway wouldn’t be maintained by the Town.  There was no guarantee or recourse for people in the neighborhood if the driveway were to be ill maintained.  The abutters were concerned about erosion and deterioration of a non-paved driveway that would have a negative effect on wetlands and drainage. 

 

Mr. Jack Tirrell, spoke on behalf of his wife, the recorded owner of 52 Old Gage Hill Road.  He was asked to present a condition of approval that there shall be no access or right-of-way granted from Tax Map 17 Lot 12-253-1 and/or Tax Map 17 Lot 12-253-2 to Tax Map 17 Lot 2-33 for any purpose.  Should there be consideration for any change in this requirement, the accepted shared gravel driveway shall be upgraded for compliance to meet the standards for public roads in the Town of Pelham.  Mr. Tirrell explained if the Board approved a change in zoning to enable the proposed to occur, because of the proximity of the applicant and the adjoining property, there was concern of creating access to that for future development.  He said if that were to occur, the request was that any access from Kennedy Drive all the way to the proposed expansion would meet the Town’s codes and requirements. 

 

Mr. Hennessey said the Board would consider the proposed condition. 

 

Mr. Maynard had no issue with extension of the driveway for residential purposes, but was aware of a ski mobile trail that went along the back of the property.   He noted that would be for recreational, not residential purposes.  Mr. Hennessey suggested he work on an amendment if desired. 

 

Mr. Ouellette noted one person gave testimony that the applicant made a comment during the site walk about an  ‘alternative use’ for the parcel.  Mr. Maynard said he touched on that comment and believed it related to Mr. Croteau commented that the property could be merged with the property his father owned and then additional lots could be created.  Mr. Ouellette wanted Mr. Croteau an opportunity to speak to the comment.   Mr. Hennessey invited Mr. Croteau forward to speak. 

 

One of the applicants, Mr. Jason Croteau, 98 Dutton Road came forward to address the comment.  He explained that the developers who previously owned the parcel approached his father to purchase (abutting)  land so they could build an open space subdivision.  He contacted the other applicant, Mr. Chris LaFrance to purchase the property so there would be less of a change on the parcel.  He said by subdividing the land and having a private driveway versus a road, it could no longer be subdivided further to the abutting property.  He said allowing the proposal would protect the abutters from future development. 

 

Mr. Gowan returned from the Planning Office and told the Board that he had unapproved meeting minutes of the Conservation Commission’s site walk.  They had cancelled their October 10th meeting at which those minutes would have been approved.  Mr. Hennessey stated the minutes were available to review.  He said there were comments that pertained to the Planning Board, but was unsure if there was anything that needed to come in front of the Zoning Board. 

 

Mr. Ouellette commented that he wasn’t present at the last meeting, but noted he had walked the site on his own.  He asked if the Board had requested that the Conservation Commission submit a letter.  Mr. Hennessey replied that the Board asked the committee to attend the site walk. Should the Zoning Board approve the Variance, the committee made comments (regarding the wetlands crossing and mitigation) at their meeting about items that would need to be heard by the Planning Board.

 

Mr. O’Sullivan discussed his thought process when reviewing cases.  He said the present case was difficult. 

 

Mr. McNamara got from the testimony that a lot of the abutter’s concerns stemmed from the nature of the building being duplexes.  He said that issue was not what the Board was to speak about or consider.  As presented, there was sufficient land and allowable under Zoning. Mr. Hennessey answered yes; if the road were to go in to provide sufficient frontage.  The reason for the variance was the lack of sufficient frontage.  One reason for the frontage requirement is to allow for sufficient spacing between properties.  In the present case, the two lots are approximately three acres each. 

 

Mr. McNamara said testimony was given that a 1000ft. driveway would require less clear cutting than the previously approved road and would be much less expensive.  He asked if there had ever been a situation of a private road extending into another parcel.  He believed if that were to occur, the Planning Board and/or Fire Department would require that private roadway to be brought up to Town standards, turning it into a road.  Mr. Gowan agreed with Mr. McNamara, but at the same time couldn’t recall a specific example of such.  He said except in the cases of severe slope, or wetlands that would prevent that road from continuing, no cul-de-sac is permitted, which is a rule he keeps in his mind, although many people thought they were.  Mr. Gowan explained cul-de-sacs were typically built in such a way that there is a right-of-way that extends from them to a back parcel.  In the case of a private driveway possibly being extended into other properties, such as presently being discussed, it would be an issue that the Planning Board would have to look at.  In that scenario, his concern would be the private road getting longer and longer with more and more homes.  He said although there was no guarantee that a road wouldn’t be pushed through (to another parcel) , it would have Planning Board review at a minimum. 

 

Mr. McNamara commented that an abutter brought forward the concern regarding the degradation of a private driveway; in this case 1000ft is proposed.  This brings forward the question about emergency responders and their ability to access the property.  He asked if there were any guarantees that a private driveway be periodically inspected to ensure it would be safe for public safety vehicles.  Mr. Gowan said it would depend on the conditions placed on it by the Planning Board.  He guaranteed that the Fire Department would have to approve the private driveway in the context of fire prevention.  He said they would want to ensure and be satisfied that the driveway could support the weight of a fire truck. 

 

Mr. Ouellette believed abutters were concerned that a duplex would diminish surrounding property values.  He had a hard time with that because recently the Board had allowed a couple duplexes, most recently one on Route 38 across from the church, where (by looks) it was difficult to determine if it was a duplex.  He spoke about other duplexes in Town that he felt had been done beautifully.  He didn’t feel that the applicants would construct a duplex that wouldn’t fit with the Planning Board or the Town of Pelham.  Mr. McNamara asked Mr. Hennessey’s opinion given he was a real estate expert.  Mr. Hennessey responded that value is determined based on what people thought.  He said currently foreclosures and empty single family houses were depressing values.  He said duplexes (either rentals or condexes) have very few vacant units; they were being sold and transferred and maintained values strongly.  Mr. Molloy reiterated that each of the proposed lots would contain three acres and the structures would be set back approximately 400ft. from the road. 

 

The Board reviewed the five Variance criteria.  Mr. McNamara believed the argument could be made because a Town road would not be built it would benefit the Town as a whole by not having to pave or maintain the road.  The proviso would be that the proposed driveway would be properly maintained.  Mr. Hennessey believed another modest benefit, given the sensitive nature of the parcel to water runoff, was that the concurrent driveways would be a non-paved surface.  Mr. McNamara stated if the Variance was approved, the plan would have to go to the Planning Board and have the plan reviewed by the board’s engineer.  He further informed that the flow of water off a property had to be the same pre- and post-construction.  A developer didn’t have an obligation to improve the water flow, but at the same time they couldn’t exacerbate it.  Mr. Gowan said it was really about velocity pre- and post-development rather than total water.  He concurred that the Planning Board’s review firm would need to look at the plan and make recommendations that could be ensconced in their approval. 

 

 

Mr. Hennessey commented that duplexes were allowed everywhere in Town.  He said if the applicant had the frontage, they wouldn’t need to come before the Board because they have a lot size sufficient to be approved as a duplex.  He said the plan was in front of the Board because of the private road and understood the concern about it deteriorating in the future.  Mr. McNamara believed the Planning Board could attach approval conditions.  Mr. Gowan believed he and the Planning Board’s engineer could address the lion share of the abutter’s concerns.  He said if the proposal were allowed, there would be no continued right-of-way to the back portion of the property. 

 

The Board discussed Substantial Justice.  Mr. Hennessey said he had the most trouble with this criteria.  He said the subdivision had been through ‘modern’ vetting and approval; abutters came to the hearing and didn’t have a huge outcry.  He struggled with understanding why substantial justice would be done only with a variance when there was an approved subdivision in hand.  Mr. Ouellette felt it was obvious; there would be less land impact, two buildings would be constructed versus three, one access driveway would be put in rather than a road with a cul-de-sac splitting into three driveways.  He said there would be one less roofing system with sheathing.  He reiterated the decrease in land impacts with only two homes instead of three.  He noted that the Planning Board would make sure that the surrounding neighbors had justice. 

 

Mr. Hennessey’s question was how the current subdivision was not fair to the point that the Board should approve the requested change.  Mr. Ouellette said the cost of installing the road would be approximately $300,000.   He said it wasn’t just cost, there would be an increase to the total impact of the land having three structures versus the two that were proposed. 

 

Mr. O’Sullivan believed the issue wasn’t about conservation anymore, but rather it was about duplexes.  Mr. Hennessey said he told the public the subject in front of the Board was not the type of owners, the matter being discussed was the type of property.

 

The value of surrounding properties was a decision the members would have to determine on their own.  Mr. Hennessey said there were people who thought the duplexes would diminish their values.  In his personal opinion, he didn’t feel it would happen. 

 

As to special conditions of the property, Mr. Hennessey felt the Board should discuss what made the property different from others.  He said the items that made the lot different in his view was a wetlands issue,  currently there was potential for easier development to the back of the parcel and there were currently three structures plus an impermeable road surface.   Mr. Ouellette noted the current plan dated back to 1997.  He said that plan probably fit in 1997, but Pelham had been changing.  There weren’t a lot of duplexes in 1997. He believed the special conditions were the surface conditions, the decreased impact to the area of having two structures instead of three.  He believed the proposed plan would have less impact that the plan from 1997.  He felt it would help the neighborhood out. 

 

The Board reviewed the wording for the proposed condition of approval.  Mr. Ouellette questioned if it was ethical for the Board to add a stipulation given the parcel behind the property being discussed was owned by one of the applicant’s family.  Mr. Hennessey said it was fairly standard for the Board to have some sort of limitation for further development.  He said he was looking for that type of stipulation in this case as well given the testimony the Board received that abutters were concerned about further development.  Mr. Ouellette commented that the applicant Mr. Croteau and the representative Mr. Maynard accepted the Board including a stipulation if the Board were to grant an approval. 

 

The Board asked Mr. Tirrell to provide the Board with his proposed approval condition.  Mr. McNamara read aloud the proposed verbiage.  Mr. Hennessey entertained public comment regarding the proposed condition of approval. 

 

Mr. Tredeau came forward and asked that Lot 12-231 be added to the list of lots read aloud.  He referenced the lot’s location for the Board.  Mr. Hennessey asked if there were any objections.  Mr. Maynard said they had no objection.  He clarified that it was Map 17 Lot 12-231. 

 

Mr. Croteau told the Board the reason they were doing the proposed plan was so no further subdivision could be done.  

 

Mr. Gowan noted that the lot numbers, except for the parent parcel, weren’t official until they were assigned by Assessing.  He then offered the Board a modification as follows:  The subject parcel, or any subdivided lot thereof, shall not provide access to any other parcel without the access being brought up to Town road standards from Kennedy Drive with Planning Board approval. 

 

MOTION:

(McNamara/O’Sullivan)  Variance condition of approval is as follows: The subject parcel, or any subdivided lot thereof, shall not provide access to any other parcel without the access being brought up to Town road standards from Kennedy Drive with Planning Board approval. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria, with conditions in motion

Mr. Molloy – Yes to all criteria, with approved motion

Mr. O’Sullivan – Yes to all criteria

Mr. Ouellette – Yes to all criteria, including accepted amendment

 

VOTE:

 

(5-0-0) The motion carried.

 

 

 

VARIANCE GRANTED

 

 

HEARING

 

Case #ZO2012-00021  WUNDERLICH, Richard & Kathleen  -  501 Bridge Street //  Map 22 Lot 8-109-2 – Seeking a Variance to Article III, Section 307-12 (Table 1) to permit additions to the existing commercial building with the westerly addition to be no closer than 20 feet to the closest lot line with 30 feet required and no closer than 12 feet to the easterly lot line with 30 feet required.

 

Mr. LaFrance returned to the Board. 

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the Variance request.  He said they had come in front of the Board approximately two months ago for a building and received approval.  They subsequently took that approval through the Planning Board review process and received a conditional approval from them for the proposed building and addition to the structure.  Prior to having the plan signed the structural engineer dug test pits to verify site conditions; a stump dump was found underneath a majority of the building approximately seven feet beneath the course sand layer.  At this point in time it isn’t feasible to construct the building over the stump dump.  The applicant was now back in front of the Board requesting a different variance for expansion to the property without contending with removal of the stumps or having supports for a building 

 

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. Maynard told the Board that they had done exploratory excavation around the property and believed the most suited location for a building was adjacent to the existing building.  They were seeking to do two separate additions to the structure; one to the northerly side of the building and one to the southerly side of the building.  The proposed 42ftx50ft southerly addition would be approximately 12ft. off the common lot line with the property owned by JayMor that has a similar use.  It was noted that the previous variance allowed for 15ft. from that lot line.  The second addition would be 22ft.x50ft. to the northerly side of the existing building, which was an already disturbed area with a gravel drive going around the building.  This portion of the addition was approximately 20ft. to one of the abutters and 27ft. to the other lot line.  Mr. Maynard said the proposed additions would have garage doors facing toward Bridge Street; any disturbance associated with the doors would be away from any residential properties and the commercial property sitting beside the applicant’s parcel.  The only door at the back of the building is the fire access door.  The structure will be a metal building, similar to the existing.  The ridge height of the proposed building will be nine inches lower than the existing building so the new roof line will adjoin underneath the current roof.  He discussed the proposed building size and the purpose of such to provide structural cross bracing. 

 

Mr. Maynard read aloud the Variance criteria as submitted with the application.  He said the proposed addition was smaller than the previous building.  He understood they would need to bring the new proposal back to the Planning Board.   

 

Mr. McNamara discussed the plans that had previously come in front of the Board.  Mr. Gowan commented that variances ran with the land, in perpetuity.  He said it appeared the applicant was essentially undoing the previous variance and was not relying on any part of it for the current variance request.  Mr. Maynard said that was correct.  Mr. Gowan said in the context of granting a variance, questioned if the Board were able to condition that the new variance would negate, in its entirety, the previously granted variance.  Mr. Maynard told the Board if the new variance were approved, he was willing to put a letter in the Planning Department’s file indicating they would extinguish the previous variance.  The Board discussed how to handle the situation of having an already approved variance for the property.  Mr. Gowan said he would consider the applicant’s request a modification of a variance.  Mr. Hennessey said zoning boards could modify previous variances.  He was more comfortable modifying versus granting a whole new variance, because he didn’t feel that the Board could extinguish the previous one.  He noted that the Board had been asked in the past to modify variances that were already approved.  Mr. Gowan said the Board could modify the variance, or condition a new approval based on the parking area being moved to where the previous variance had a building. 

 

After further discussion, Mr. Hennessey believed the Board could take the application as given to them, and preface it by indicating the Board considered the new request as being a modification to the prior zoning.  Mr. Gowan suggested referencing the modification as being to the Variance granted on May 14, 2012

 

MOTION:

(O’Sullivan/Molloy) The Board considered the current variance request (Case #ZO2012-00021) to be a modification to the previously approved Variance (Case #ZO2012-00008) granted on May 14, 2012.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Hennessey said if the Board voted in the affirmative for the current variance request it would constitute a modification to the previous variance (granted May 14, 2012).  Mr. McNamara confirmed that the building shown on the previous plan could no longer be built if the Board approved the present variance request.  Mr. Hennessey said the building would not be able to be built.  He asked that the Town Attorney verify the actions.  Mr. Gowan said they had modified variances in the past. 

 

Mr. Molloy felt the request was more than just a modification.  Mr. Hennessey disagreed; he believed the reasons for the variance were virtually identical to the previous variance.  Mr. Maynard commented that the majority of the language he left and had simply added to it. 

 

Mr. Ouellette was uneasy with the Board granting a modification.  He said when a variance is approved it runs with the land and questioned if the Board had the legal right to change that.  He wanted a legal opinion.  Mr. Gowan felt the distinction in this case was the Board wasn’t placing a condition on the applicant that they didn’t agree with.  But rather, the applicant had come to the Board requesting to modify their plan.  He said it was a modification in the sense that it was less of a building.  He felt it would have been more problematic if the applicant was requesting a separate building in another location versus their request to have two additions to an existing building.

 

Mr. Molloy had difficulty deciphering the plan submitted to the Board.  Mr. Ouellette commented that the case in front of the Board was #ZO2012-00021, which was a different (separate) request from the variance in May, 2012.  He said if the applicant came in front of a Board with a modification request to the case heard in May (case #ZO2012-00008),  he would be fine with it.  Mr. Hennessey said he was uneasy approving the present request with the previous variance in place.  There seemed to be an agreement of the Board members that they didn’t want to leave the existing variance in place.  Mr. Gowan said it was the same owner and the same piece of property.  He said it would be confusing to have the same case number with two different requests.  He believed the present case could modify the previous variance.  Mr. Ouellette was concerned with modifying an existing variance using a different case number and request.  Mr. Hennessey said if the previous variance was not modified or some way extinguished, he wouldn’t vote for the present request.  Mr. Ouellette wanted legal opinion regarding the Board’s ability to modify a previous variance.  Mr. Hennessey said the Board had done modifications.  He felt it made sense to do so because there was a situation where the applicant couldn’t do what the Board had granted under current technology and cost.  He believed the Board could grant the current variance request with a condition that the previous variance is extinguished; however, he wanted to have that situation approved by legal. 

 

Mr. Gowan suggested the following motion:  The Board is voting to modify the zoning variance granted on May 14, 2012 to place parking on the new building location as depicted in that May 14, 2012 variance and adding additions to the existing building at the north portion of the property.  Mr. McNamara disagreed.  He said unless it was explicit or nullified in some way, the previous variance would survive.  Mr. Hennessey agreed.  Mr. Ouellette didn’t want to delay the applicant, but felt there was a lot of ‘grey’ area on the site.  He was not comfortable with the request and that the Board request legal opinion.  He made a motion to obtain legal counsel’s opinion prior to the Board making a decision.  If passed, the motion would delay the case for to the next meeting to allow for legal opinion.  He felt it would be in the best interest of the Board and beneficial for the future.  Mr. Molloy seconded the motion.  Mr. Hennessey said he would oppose the motion because he was comfortable with the power of the Board to modify. 

 

MOTION:

(Ouellette/Molloy) To obtain legal counsel’s opinion prior to the Board making a decision.

 

VOTE:

 

The motion carried with the majority of the Board voting in the affirmative.  (Mr. Ouellette, Mr. McNamara and Mr. Molloy voted yes)

 

Mr. Hennessey stated the Board would continue the case until the next Zoning Board meeting, Thursday November 15, 2012. 

 

 

DATE SPECIFIED HEARINGS – Thursday, November 15, 2012

Case #ZO2012-00021  WUNDERLICH, Richard & Kathleen  -  501 Bridge Street //  Map 22 Lot 8-109-2

 

 

MINUTES REVIEW

 

September 6, 2012

MOTION:

(O’Sullivan/McNamara) To approve the September 6, 2012 (joint board) meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

September 10, 2012

MOTION:

(Molloy/O’Sullivan) To approve the September 10, 2012  meeting minutes as amended.

 

VOTE:

 

(5-0-0) The motion carried. 

 

ADJOURNMENT

 

MOTION:

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

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 8:50  pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary