APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 19, 2012

 

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

 

The acting Secretary Svetlana Paliy called roll:

 

PRESENT:

 

 

ABSENT:

David Hennessey, Svetlana Paliy, Peter McNamara, Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

 

Robert Molloy, Kevin O’Sullivan, Alternate Lance Ouellette

 

CONTINUED

Mr. Hennessey explained that with four seated Board members an approval would require three votes in the affirmative.  He asked the applicant if they would like to proceed with the hearing or continue the hearing to another date. 

 

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 was appointed to be a voting member. 

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward.  He told the Board that he indicated to his client that he would try to resolve the variance.  He said he would proceed with the hearing. 

 

Mr. Hennessey spoke about the case.  He said there had been considerable discussion at the last hearing because there was a variance in place.  The question was what would happen to that variance if a new variance was granted.  It was his understanding that they had received advice from Town counsel.  Mr. Hennessey said it was indicated that the applicant could waive, or relinquish the previous variance.  Mr. Maynard replied that he spoke to the applicant who would be willing to relinquish the previous variance, pending an approval of the present variance being granted.  Mr. Hennessey said there had been some discussion regarding how that would be accomplished.  Mr. Gowan said if the Board was inclined to grant a new variance for zoning relief, he would write up a Notice of Decision indicating (as a point of information) that the applicant relinquished the previous variance granted on XXX date.  This will ensure that it was on the record and reflected on the plan to be brought to the Planning Board and recorded.  Mr. Maynard  was satisfied with the procedure. 

 

Mr. McNamara questioned why relinquishing the previous variance wouldn’t be a condition for granting the present variance.  Mr. Gowan explained that the Board couldn’t stipulate that they would only grant a new variance if the old one was given up.   He felt the record would be clear reflecting the variance being relinquished in the fashion suggested.  Mr. McNamara wanted to make sure the plan would be recorded as suggested by Mr. Gowan (with the notation). 

 

Mr. Hennessey commented that the five variance criteria had been reviewed.  He asked if the applicant had any additional comments.  Mr. Maynard believed everything had been covered at the last meeting as to the request and that they would give up the old variance in order to proceed forward. 

 

There was no public input. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. LaFrance – Yes to all criteria

 

VOTE:

 

(4-0-0) The motion carried.

 

 

 

VARIANCE GRANTED - Case #ZO2012-00021

 

 

Case #ZO2012-00022  SPAULDING, David – 429 Mammoth Road //  Map 27 Lot 2-45-1 – Seeking a Variance to Articles III & XII, Sections 307-7, 307-9, 307-74 B, E, F, G & J to permit a 449SF accessory dwelling unit above a detached garage on a 1.66 acre lot with primary dwelling containing a 624 SF footprint.

 

The abutter list was read during the Board’s meeting of November 15, 2012.

 

Mr. Hennessey explained to the applicant that there were four voting Board members; an approval would require three votes in the affirmative.  He said ordinarily the Board had five voting members present.  He said the Board was willing to wait to hear the case, or could proceed at the present meeting.  He asked the applicant which direction they preferred. 

 

Mr. Gowan spoke up and told the Board that the case was unusual and suggested the Board consider conducting a site walk. 

 

Mr. Hennessey asked that the applicant present the information and explain why they were seeking a variance.  He said the Board could then decide whether a site walk would be conducted. 

 

Mr. David Spaulding came forward to discuss the variance request.  He explained the variance would be for an in-law/accessory dwelling within a detached garage.  Mr. Hennessey stated that the Zoning Ordinance requires them to be connected.  Mr. Gowan said the manner the Board handled them in the past was to first request a variance.  Mr. Hennessey understood they would seek the variance first to waive the portion of  Zoning that say they have to attach  the unit, and then request a Special Exception for the accessory apartment. 

 

Mr. Hennessey asked the applicant why they wanted the accessory unit.  Mr. Spaulding said the unit was for a family member that had a disability.  He was not seeking to open a business or home occupation; he would like to keep his property in line with the neighborhood which consisted of in-law units and duplexes.  He then read the variance criteria into the record, as submitted with the application. 

 

Ms. Paliy asked that the applicant review the photographs included with the application.  Mr. Spaulding said he included the photographs to show there were in-law units and two-family units allowed by the Town.  He also included photographs of his own home.   In looking at the site plan, Ms. Paliy wanted to know if the entire garage would be converted because in the depiction it appeared to be larger than the house.  Mr. Spaulding said the property was strange because the garage was twice the size of the house.  He was looking to put the in-law in the back of the garage where there was a pre-existing office space.  Mr. Gowan noted that the applicant requested that the accessory dwelling unit be 624SF, which was less than the 750SF maximum  in the ordinance, and would be subordinate to the primary residential structure.  It was noted that the variance request was because the unit wasn’t connected to the main part of the house. 

 

Mr. Spaulding reviewed the photographs of his home and garage structure where the accessory unit would be located.  Mr. Hennessey asked if there was a sketch showing how the building would look after the unit was done.  Mr. Spaulding believed a floor plan included in the application package.  He said the engineer that drew up the plot included the dimensions of the proposed in-law apartment. 

 

There was no public input.

 

Mr. McNamara stated he had serious reservations about the proposal, the way it was being presented and the manner it blended into the Special Exception.  He said his comments were not against the applicant and believed that in-law units served a valuable purpose in the community.  He commented that the way the request was written and the number of items being requested to be waived would essentially eviscerate the Special Exception.   He commented that the Board received legal advice indicating certain items could be waived, but he understood that the essential nature of the Special Exception (the five necessary items) could not be waived.  He said the two items were separate and distinct; a Special Exception was specific to something that was allowed in Zoning if certain conditions were met and if those conditions were met the Board had to grant the Special Exception.  He said a Variance was to allow the use of a building or property for something that was prohibited by the statute.  Mr. McNamara said the request was blending the two and essentially rendering the Special Exception meaningless. 

 

Mr. Hennessey felt the answers to the five criteria were especially well written in this case because it got to the crux of the issue.  In the response the applicant spoke about if they moved toward meeting the letter of the Special Exception the density of the property would be increased by the size of the existing home being increased.  He said by taking a portion of the existing garage the outside appearances wouldn’t change.  He agreed that the request called for special scrutiny and noted that the Board had done it before.  Mr. McNamara said the Board had done it, but not on such a wide spread basis.  He said if relief was granted they would end up having two living units on one lot; and someone else could do the same thing.  Mr. Hennessey said the consideration was the applicant had a small house on a large lot and an existing garage that would have no change in the outside appearance.  He said the conservative approach would be to leave the appearance in place so the neighbors don’t feel a further burden.  Mr. McNamara understood that might be the right thing to do, but it wasn’t what the Zoning Ordinance says.  Mr. Hennessey believed the purpose of the Zoning Ordinance was addressed in reviewing the five criteria.  He said it should be reviewed skeptically and a site walk should be conducted. 

 

Ms. Paliy said in the photographs, the garage appears to basically be attached (to the house). After further discussion the Board felt a site walk would be helpful.  Mr. Hennessey noted that the Board granted a similar variance a few years ago for a second floor garage on a similar basis; they didn’t want to impose more changes to the site in order to meet the letter of the rules.  The idea at that time was to keep the general appearance the way it was rather than cause more construction and increased density.  Mr. Hennessey agreed it couldn’t be a regular occurrence and would not like seeing a person put up a garage just to have an approval. 

 

Mr. Gowan commented that he had obtained legal opinion that indicated the Board could do what was being requested.  However, he agreed it was not something that should become routine because it would undermine the whole purpose of zoning.  It was Mr. McNamara’s understanding that legal counsel said although there were things that could be varied, the essential conditions of the Special Exception could not be varied and had to be complied with.  Prior to the next hearing Mr. Gowan will find the legal opinion and provide a copy to the Board. 

 

Mr. Spaulding stated that the structures on the lot were built in the 1940’s; if he were to build a garage in the present day, it would be attached to the house. 

 

The Board scheduled a site walk for December 1, 2012 at 9am.  The public was encouraged to attend and speak for the record. 

 

The case was date specified to December 10, 2012.

 

Case #ZO2012-00023 SPAULDING, David – 429 Mammoth Road // Map 27 Lot 2-45-1 – Seeking a Special Exception to Article XII, Section 307-74 to permit a 449SF accessory dwelling unit.

 

A site walk was scheduled for December 1, 2012  9am.  The case was date specified to December 10, 2012.

 

 

Case #ZO2012-00024  FARRIS, Joseph – 15 Jones Road // Map 39 Lot 1-73 – Seeking a Variance to Article III, Sections 307-7, 307-8 & 307-12 to permit a garage on a lot that is under an acre

 

The abutter list was read during the November 15, 2012 meeting.  Mr. Hennessey asked the applicant if they would like to continue their hearing, or proceed at the present meeting. 

 

The applicant, Mr. Joseph Farris told the Board he preferred to have his case reviewed at the December 10, 2012 meeting. 

 

Case #ZO2012-00025  CARRISON, Chris – 15 McGrath Road  //  Map 39 Lot 1-77 – Seeking a Variance to Articles VII & VIII, Sections 307-7, 307-8, 307-1, Table 1, 307-37 & 307-39 to permit a garage on a lot with 106ft. of frontage where 200ft. is required and is partially within the Wetland Conservation District.  

 

The abutter list was read during the November 15, 2012 meeting.  Mr. Hennessey asked the applicant if they would like to continue their hearing, or proceed at the present meeting. 

 

The applicant, Mr. Chris Carrison told the Board he preferred to have his case reviewed at the December 10, 2012 meeting. 

 

SITE WALK – December 1, 2012  9am

Case #ZO2012-00022  SPAULDING, David – 429 Mammoth Road //  Map 27 Lot 2-45-1

 

DATE SPECIFIED HEARINGS – December 10, 2012

Case #ZO2012-00022  SPAULDING, David – 429 Mammoth Road //  Map 27 Lot 2-45-1

Case #ZO2012-00023 SPAULDING, David – 429 Mammoth Road // Map 27 Lot 2-45-1

Case #ZO2012-00024  FARRIS, Joseph – 15 Jones Road // Map 39 Lot 1-73

Case #ZO2012-00025  CARRISON, Chris – 15 McGrath Road  //  Map 39 Lot 1-77

 

MINUTES REVIEW

 

October 11, 2012- deferred.

October 15, 2012- deferred.

 

ADJOURNMENT

 

MOTION:

(McNamara/Paliy) To adjourn the meeting.

 

VOTE:

 

(4-0-0) The motion carried. 

 

The meeting was adjourned at approximately 7:42 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary