APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

December 10, 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, Svetlana Paliy, Robert Molloy, Peter McNamara, Kevin O’Sullivan, Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

 

Alternate Lance Ouellette

 

CONTINUED:

 

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.

 

Mr. Gowan informed the Board that the Case had been withdrawn without prejudice. 

 

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.

 

Mr. Gowan informed the Board that the Case had been withdrawn without prejudice. 

 

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

 

Mr. Hennessey confirmed that the abutter’s listed had been read into the record at the previous hearing. 

 

Mr. Joseph Farris came forward to discuss the requested Variance.  He said he had an undersized lot (approx.. ¾ acre) on which he would like to construct a separated garage.  He then read aloud the Variance criteria as submitted with his application.  He provided photographs ( from Google Earth) of other properties in the neighborhood that had larger separated garages. 

 

Mr. McNamara asked for the size of the existing home.  Mr. Farris said the square footage was approximately 2800SF.  He currently has an attached garage that’s approximately the same size the proposed garage will be separated approximately 100ft.  The purpose for the garage is for personal recreational purpose/storage. 

 

There was no public input. 

 

Mr. McNamara asked how close the garage would be to the neighbors.  Mr. Farris said it would be within fifteen feet of the property.  He spoke to the neighbors about the plan; the closest is one is his brother who doesn’t object. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria – with stipulations

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. Molloy – Yes to all criteria

Mr. O’Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

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.  

 

Neither the applicant nor their representative was present for the meeting.   Mr. Hennessey said the Board could deny the request, but given that the Board didn’t have a meeting last month he felt it fair to move the Case to the January meeting.  He was reluctant to deprive the applicant of coming in front of the Board. 

 

The Case was date specified to the January 14, 2013 meeting.

 

HEARINGS:

 

Case #ZO2012-00026  FONTAINE, Beniot  -  14-18 Mercury Lane //  Map 3 Lot 5-37-1 & 5-37-2  -  Seeking a Variance to Article III, Sections 307-7, 307-8, 307-15 & 307-18 – to permit a minor expansion of a grandfathered, non-conforming use, construction contractor with storage yard, to include a logging/wood processing operation.  No activity within wetland buffer.

 

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. Richard Maynard of Maynard & Paquette, representing the applicant, came forward to discuss the Variance request.  He explained that the total property area (of the two parcels) was approximately 7.5 acres; these properties are zoned Residential that permits one and two-family dwellings as well as agricultural uses.  Wetlands were recently mapped by Wetland Scientist Gary Flaherty.  The soil map shows the Wetland buffer and 100-year flood plain, located at/adjacent to the driveway.  The subdivision was approved in the late 1970’s.  The applicant purchased the property and established his contracting business and contractor’s yard on site in 1983/1984. The legal dual use of the properties for duplexes and on-site constructing contracting business and contractor’s yard was confirmed by the Zoning Board on a 5-0 vote on April 11, 2005.  The construction business includes construction equipment, back hoes, construction vehicles, construction staging, storage of masonry and wood products and other associated materials.  Mr. Maynard said the matter before the Board was the addition of a logging and fire wood operation in a small section of the property.   He read aloud a letter from Charles Boissoneault, who rents a piece of property from the applicant and operates the fire wood operation.  He indicated it was his impression that the property was allowed to operate a construction business and provided  a description of the wood processing he would conduct.  Less than 100 cords of fire wood would be processed annually (approximately 15-20 days per year).  Two to Three loads of logs were hauled each month.  Construction equipment is stored on site between jobs.  Mr. Boissoneault would like to construct a bin made up of concrete blocks to store fire wood that was cut and split to keep it out of the weather.  An engineer would survey the property and assist designing the storage bin.  There was a list of 21signatures (most were abutters/residents of the neighborhood) who signed expressing they had no objection to the applicant’s proposal. 

 

Mr. Maynard stated that the Zoning Administrator considered the proposed as an expansion of an existing contractor and construction use.  The applicant suggested if it was an expansion of a currently legal, non-conforming use, then the expansion was minor.  Construction equipment etc. were already part of the existing construction and contracting business.  The cutting of logs and wood into fire wood was a minor part-time operation.  Mr. Maynard then stated that case law favored that legal non-conforming uses be allowed minor expansions and that the part-time fire wood operation (contained on 7.5 acres) in his opinion appeared to be a very minor operation.  He noted that the Zoning Ordinance allowed for agricultural uses in the zone, however there didn’t appear to be any definitions of agricultural uses in the Ordinance.  He noted that the New Hampshire RSA 21:34, Chapter 672:1 and Chapter 674:32 define forestry and forestry products as agricultural activities, which includes logging and fire wood production.  He said the RSA indicates that forestry activities, including the transport of forestry products shall not be unreasonably limited by municipal planning and zoning powers.  Mr. Maynard then reviewed the Variance criteria as submitted with the application. 

 

Mr. Hennessey noted that the applicant has asserted (in their variance criteria) that the request was basically an expansion of an existing non-conforming lot.  Mr. Maynard said expansion of ‘use’.  Mr. Hennessey said in the Spring when the Mr. Gowan of the Town Planning Department ruled that it was more than a regular expansion of a non-conforming use, the applicant didn’t appeal that decision to the Board.  In Mr. Hennessey’s opinion the applicant forfeited the right to assert that now; the Board was dealing with a (de novo) Zoning Variance. He felt the fact of an expansion of a non-conforming use now moot given that the applicant didn’t appeal the Administrative action.  Mr. Maynard said it was a gray point whether the proposed was part of the existing operation or an expansion; the applicant chose to go to the minor expansion part of a non-conforming use which required a variance. 

 

Mr. Gowan clarified his position.  He stated that his comments shouldn’t be mistaken as having any problem with the application in front of the Board.  He said the structure being built at the time was fairly significant and being done without a permit.  He said the initial reason why they went out to look was following a complaint that was submitted.   The construction equipment on site was new construction equipment, not associated with the former construction business, which in his opinion was an expansion of the formerly approved business.  He said there was nothing wrong with the relief being sought, and the applicant was taking the appropriate steps.  He told the Board that the applicant instantly cooperated with the concern about the structure being constructed and took it down.  He said any plan that allowed for a structure to be constructed would also potentially require Planning Board review, under minor site plan review.  He noted that he had explained to the applicant their ability to appeal the decision, which they chose not to do. 

 

Mr. Hennessey wanted everyone to be clear that the Case in front of the Board was a Zoning Variance.  He said the reference to minor expansion implied something other than a full Variance request, which was not the case.  Mr. Maynard noted it was a small section (approximately .5 acres) located on 7.5 acres.  He said it was also considered limited in scope based on the size of the contractor’s yard.  He said the word ‘minor’ was meant to reference that it was small, limited on the parcel. 

 

Mr. Gowan believed the mention that the fire operation was agricultural was a bit of a stretch.  He said if the wood were coming from(grown on) the land the argument would change.  However, the wood was being trucked in.  Mr. Hennessey said the question was moot since the Board wasn’t dealing with the Administrative Decision. 

 

Ms. Paliy asked for clarification of the construction equipment.  Mr. Maynard replied that Mr. Fontaine was a builder/contractor and his site was judged to be grandfathered; it was a legally non-conforming use because it pre-dated many parts of the Ordinance.  He legally had construction equipment already on the site.  Ms. Paliy understood that the applicant was speaking of having a separate use/business.  Mr. Maynard answered yes; they were in front of the Board for the business of cutting logs into fire wood.  Ms. Paliy asked if they were also speaking about sales from the property, which would be commercial.  Mr. Maynard  stated there were no direct sales from the property.  The business was all by telephone and deliveries; there was no traffic from the general public there was only Mr. Boissoneault and his one helper. 

 

Mr. McNamara asked for an explanation of what was meant by ‘wood processing and logging’ operation.  Mr. Maynard said that’s the wording Mr. Gowan characterized it.  He said  he would call it logging and cutting up fire wood.  He said logs would be brought in and cut into fire wood, which would be brought off property and delivered.  Mr. McNamara asked what the building would be used for.  Mr. Maynard said it wasn’t truly a building, it was actually large concrete blocks that formed bins (with a roof over) to keep the wood out of the weather; because of this it became a building under code.  Mr. McNamara asked if the operation would run year round.  Mr. Maynard said it was a fill-in when the construction business wasn’t being operated.  Mr. McNamara confirmed that the logs were trucked in.  He asked what type of saw was used to cut the wood.  Mr. Maynard said they used a chain saw and wood splitter.  Mr. McNamara asked for the hours of operation.  Mr. Maynard said it would be done during daylight. 

 

PUBLIC INPUT

 

Mr. Hennessey noted that the letter signed by the residents would be put into the record.

 

Mr. Charlie Sharpe, 7 Mercury Lane told the Board he resided probably 2.5 houses away and didn’t hear the trucks and hadn’t heard the saws start up.  He said the trucks would have to go by his house and he hadn’t heard them. 

 

Mr. McNamara asked if the business had been conducted.  Mr. Maynard said it had been conducted for approximately one year. 

 

Mr. Norman Oak, 18B Mercury Lane explained to the Board that he uses the driveway that the applicant used.  He hasn’t had any issues or problems.  He welcomed the business and commented that it was ‘off the beaten path’.  He said there hadn’t been any problems and didn’t feel there would be in the future.

 

Mr. Hennessey read aloud a letter received by the Board from Gary Smith of 41 Tallant Road, who was unable to attend the meeting.  Mr. Smith objected to the proposal.  This letter was entered into the record.  The concerns listed were 1) noise; 2) increase in truck traffic; 3) air pollution (from emissions and airborne particles); 4) risk of importation of Asian Longhorn Beetles and Emerald Ash Borer Beetles creating an infestation; 5) loss of property value; and 6) probable affects to Beaver Brook. 

 

Mr. John Salottich, 41 Tallant Road discussed noise associated with the wood operation.  He said when the wood chipper operated the noise was approximately 80-90 decibels at the property line.  He also said that the smoke fumes from the wood chipper came across the brook and backed up on his property.  He said in the summer months all they saw were huge plumes of smoke (from the chipper).  He said the residents on Mercury may not hear the noise being that the road curved and was at a slightly higher elevation; however,  he was located immediately adjacent to the property and the noise was very loud from the chain saw, wood chipper and trucks.  This was not conducive for a residential neighborhood.  Mr. McNamara asked how often the trucks were present to unload.  Mr. Salottich said lately they hadn’t been present as often.  When present the trucks idled for approximately 45minutes to unload.  He stated that many trees had fallen in the brook during the past few years, he could physically see the operation taking place.  Mr. McNamara asked how often he was affected by smoke.  Mr. Salottich said approximately once or twice per week, until recently. 

 

Mr. Maynard pointed out there were abutters at 40, 32, 38 & 39 Tallant Road who has signed the letter indicating they had no objection to the operation and therefore questioned the comments made by Mr. Salottich at 41 Tallant Road.  He noted it was a logging operation.  There was no chipper used on site.  The only noise would be from the truck and a small chain saw.  Mr. Hennessey asked if the branches from the trees were chipped.  Mr. Maynard said the wood came as logs, not trees.  There was no chipping occurring. 

 

Mr. O’Sullivan was having a difficult time attributing 100 cords of wood to annual activity.  Mr. Maynard said it calculated out to approximately 2 cords per week; it was not a full-time business.

 

Mr. Charlie Boissoneault, the operator of the fire wood operation came forward and explained they did approximately 6 cords in a day (cut and split), which calculated out to cutting fire wood approximately 20 days per year.  The remaining logs came in, were sorted and hauled off on trucks.  He said not everything that came into the yard was processed, it was approximately 25% of the wood was cut into fire wood.  He said he usually left the yard at approximately 6:30am-7am with the truck and came back at night.  Mr. Boissoneault explained one of his trucks had a Cat diesel, which were noted to smoke when they were cold.  He said in the morning when he started the truck it smoked a little, but once the truck was warm it didn’t smoke at all.  He stated he didn’t run his wood chipper on site; it was brought to jobs to chip brush on the job site. 

 

Mr. Hennessey asked if there were any other employees.  Mr. Boissoneault said his daughter helped him by running the wood splitter. 

 

Mr. James Laliberty, 1060 Mammoth Road,  reviewed the tax map and believed the property itself was well within the 100-year flood line.  He questioned why the proposed plan didn’t include this line.  Mr. Maynard stated there was no buffer to the 100-year flood plain.  He said that flood plain was based on elevations, which they took on site based on the latest flood plain map from FEMA.  He said the line shown on the tax map was not accurate.   Mr. Hennessey said for the purpose of the record asked if the parcel contained any wetlands.  Mr. Maynard answered yes; on the other side of the parcel.  Mr. Hennessey questioned if there were any wetlands in the area of the operation being discussed.  Mr. Maynard said there were no wetlands.  He said there was a small piece of the 50ft. buffer that extended over the existing driveway, however the firewood operation was outside that buffer. 

 

Mr. Hennessey explained the process.  He said Mr. Gowan commented it would be appropriate for a site plan review, if the variance was granted.  Mr. Laliberty requested that a site walk be conducted.  Mr. Hennessey said the Board would consider doing so.  Mr. Maynard understood site walks to be for Town officials only, not the public.  Mr. Hennessey stated site walks were considered public hearings open to the public.  Mr. Laliberty asked the elevation level of the normal elevation of the Brook and the operation where the logs would be split.  Mr. Hennessey believed the question to be beyond the scope of the Board.  Mr. Maynard said it was above the flood plain. 

 

Mr. Gowan commented that he met with the applicant and their engineer who were aware that a minor site plan review would be needed in the event the Variance was granted.  Mr. Maynard felt it to be a reasonable request and had no objection. 

 

Ms. Paliy disagreed with the stand the Town takes on agricultural and logging use.  She began to discuss activities on Route 38.  Mr. Hennessey called a stop to the discussion because the applicant was not in front of the Board for an administrative appeal.   He said it would be germane if the applicant had chosen to appeal the administrative decision.  He believed Ms. Paliy’s comments to be irrelevant to the discussion.  Ms. Paliy felt the point was relevant because the discussion dealt with the expansion of use of a business; she questioned if it was allowed or not allowed.  Mr. Hennessey repeated that the topic was irrelevant to what was currently in front of the Board.  Mr. McNamara stated the Board was reviewing a Variance request.  He believed Ms. Paliy’s point was based on previous discussions at the time Mr. Gowan made his determination.  He also stated Ms. Paliy’s point was no relevant to what the Board was currently reviewing.  Mr. McNamara believed the proposed use was different in kind from the construction use under the New London case criteria.  He requested that the Board conduct a site walk. 

 

MOTION:

(Molloy/McNamara) To conduct a site walk.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The Board scheduled a site walk December 15, 2012 at 9am.   Mr. Hennessey stated the site walk was a public hearing and conducted as such.

 

The Case was date specified to the January 14, 2013 Board meeting.

 

 

Case #ZO2012-00027  DESJARDINS REALTY TRUST – 80 Dutton Road // Map 36 Lot 10-367 – Seeking a Variance to Article III, Sections 307-7, 307-8, 307-12, Table 1 & 307-14 – to permit the existing 10 acre +/- lot to be subdivided into two duplex lots one with 126ft. +/- of frontage and 3.5 acres with the other having 116 +/- of frontage with 6.7 acres.

 

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. Hennessey commented that his wife’s cousin owned the parcel across the street from the property being discussed.  He stated neither he nor his wife had any part of the parcel.  He didn’t feel there was a conflict.  There were no objections to having Mr. Hennessey remain a seated member of the Board. 

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, stated he had no issues with Mr. Hennessey remaining seated.  He then reviewed the variance application.  He said his client purchased the property a couple months ago with the intention of renovating the existing single family structure and making that existing home a duplex.  The property contains over ten acres.  The limiting factor was to either build a road, or obtain a variance.  Mr. Maynard stated a variance was requested in 2003.  That request was different because the applicant at that time was seeking to subdivide the lot into two parcels, maintaining 200ft. of frontage with the existing home and leaving a 42ft. strip of land to access the rear portion of the lot.  Mr. Maynard said the applicant’s request was to build two duplexes but maintain all the development to the front of the parcel (in front of the wetlands etc.).  In doing so, they felt they could protect the back end and would be willing to put a conservation restriction on the back portion of the lot, therefore preventing development of the property.  In summary the applicant would like to subdivide the parcel into two lots, with less than the required frontage.  The unique characteristics were the lot contained 10 acres with approximately 242ft. of frontage.  Because of the limited frontage, the lot was extremely deep (approx.. 1900ft).  For the first 500ft. the lot was roughly 200ft-250ft. wide.  There are a couple poorly drained wetlands that bisect the lot; any development toward the rear of the property would require a dredge and fill.  When the neighboring subdivision was constructed it eliminated the ability to purchase land for additional frontage.   The lot to the north of the parcel was a junk yard in existence for a considerable amount of time; therefore limiting potential subdivision value the property would have if it had a road constructed into it.  As to the development potential, a road (approx.. 550ft) plus a cul-de-sac could be developed into the lot to achieve 3-4 lots.  The cost of the road construction would far outweigh the possible additional lots. 

 

Mr. Maynard read aloud the variance criteria as submitted with the application. 

 

Mr. McNamara asked if the wetlands were mapped.  Mr. Maynard said the wetlands were mapped with an original plan presented to the Board  (2001) they conducted a field investigation and believed they were smaller than what was shown in 2001.  Mr. McNamara asked what percentage of the 10-acre lot was covered by wetland or Wetland Conservation District (‘WCD’).  Mr. Maynard said there were 5.5 acres of dry upland outside of the power line easement.  Mr. McNamara asked what they predicted to be density if a road were to be built.  Mr. Maynard said he would want to complete the wetlands to today’s standards, but would be looking at four lots.  He looked at the parcel from a duplex standard and viewed two duplexes and a single-family lot.   Mr. McNamara referred to the 2003 meeting minutes and believed a factor in the Board’s decision to deny was that a road would have to cross a significant part of the wetland.  He asked if they were currently constructing a duplex on a legal lot.  Mr. Maynard answered yes.  Mr. McNamara believed the applicant was asking the Board to create two non-conforming lots.  Mr. McNamara said in the past the Board has been less than eager to do so.  Mr. Maynard answered yes.  Mr. McNamara confirmed that the applicant’s had purchased the property several months ago.  Mr. Maynard answered yes.  Mr. McNamara commented that they purchased with knowledge of the limitations of the property. 

 

Mr. Maynard pointed out that the wetlands on site were not a ‘high value’ type of wetland.  It was poorly drained considered hydric B soils.  To get a crossing permit would be minor in nature. 

 

Mr. Hennessey reviewed the plan and questioned the sideline setback.  Mr. Maynard said the existing structure was approximately 12ft. from the side line. He said it was a pre-existing non-conforming structure. 

 

PUBLIC INPUT

 

Mr. Harry Betty, 10 Brandy Lane stated he hired Attorney Edward Richards to represent him.  Attorney Edward Richards came forward and told the Board he had been retained by Mr. Betty, who was one of the abutters on Brandy Lane who was impacted by the proposal.  He provided an outline of opposition points they were making to the proposal.  He said the plans being shown were done by Edward N. Herbert in 2003 that proposed a subdivision of the parcel into two separate single-family house lots.  He went on to review the plan and discuss what was previously presented and denied by the Board.  He showed the Board the wetland area and the associated buffer.  He noted that there was a significant loss of use to the property due to the power easement.  He said the suggestion of providing a conservation easement could be answered with it was land the applicant couldn’t use because of that power easement.  The density of the property (for two single families) was turned down in 2003; the proposal increased that density by a factor of two (by having four residential units).  Attorney Richards noted when the application was filed November 9, 2012, it reflected the property as being a single-family home and didn’t see that a two-family had been approved yet.  He noted seeing that a two-family septic system had been approved.  He wondered when the structure was a non-conforming use with a side yard clearance whether or not they would have needed a variance to convert the property into a two-family.  He also noted there would need to be 5500contiguous feet of non-wetland area that would be part of the square feet required for a duplex lot.  He said it doesn’t appear (using the line dividing the land) that they would be able to get much more square feet, other than for the existing house lot.  He believed a variance was needed for the new use and the required contiguous square feet. 

 

Attorney Richards commented when Brandy Lane was approved there were serious concerns with the sight line along Dutton Road.  He said the proposal would require a second driveway along Dutton Road and didn’t feel it took into consideration that sight line.  He noted the wetlands would need to be crossed to construct a road to the back portion of the property.  He said it appeared that the only practical/financial proposal was the one being made, but there was inadequate land to do so for area and frontage.  On behalf of his client, Mr. Betty, he asked that the Board deny the variance request. 

 

Mr. Hennessey saw that the proposed use was a single-family, but saw the construction of a duplex, which would be an expansion of a non-conforming use based on the side line being 12ft.  Mr. Gowan said assuming he had approved the work on the duplex, in his view he would have assigned it based on the frontage and parcel size.  He said it would have been a reasonable expansion of the non-conforming dwelling.  This would be a duplex on the entire lot of land; the duplex standards are simple.  Mr. Hennessey understood that Mr. Gowan was saying that the duplex would have a been a normal expansion of a non-conforming use. 

 

Town Building Inspector Roland Soucy came forward and clarified that the applicant currently had a permit to rehab a single-family home.  He said they contacted him because the breezeway to the garage was totally rotted and falling apart and would be knocking it down and rebuilding the breezeway and garage; this additional permit or amendment to their permit was is in the process of being submitted.  He said currently they had a single-family house and didn’t have a permit for a duplex.  Mr. Hennessey commented to the public that the applicant was entitled to make the single family into a two family because of the size of the lot, as long as they met frontage requirements without coming in front of the Board.  They were in front of the Board to make it two duplexes. 

 

Ms. Gail Nickerson, 4 Brandy Lane stated she was the closest abutter.  She had built and subdivided Brandy Lane in the 1990’s.  She stated that the sight to the corner was a very big impact to the Town.  She was concerned with property value and would like to maintain values in the area.  She felt creating duplexes would create hardships to the neighbors.  She was very concerned with the traffic on the corner of Dutton Road. 

 

Mr. Maynard discussed the area in the front portion of the parcel and stated it was approximately 4 acres of continuous upland area.  There was more than enough area to satisfy the Town’s requirement for duplex use; not including the additional land in the rear that could also be developed.  Regarding the use, the applicant was seeking duplex use.  He said the property was impacted from the salvage yard being on the other side of the parcel.  He had no issue establishing what there was for sight distance if it were to become a concern.  He felt cleanup of the area could be beneficial. 

 

Attorney Richards provided photographs of the property showing the property from Dutton Road and looking down Brandy Lane.  He asked if the testimony was that the area to the front of the property to the wetland was two acres containing the appropriate contiguous land.  Mr. Maynard highlighted the area he spoke of.  Attorney Richards didn’t feel there would be two acres of contiguous land once the land was subdivided.  Mr. Maynard believed he could achieve the required square footage if the lot line was adjusted. 

 

Mr. Hennessey said he didn’t need a site walk because he resided in close proximity.  He left the decision to the Board if they wanted a site walk.  Mr. Molloy said he was familiar with the area. 

 

In reference to the applicant being in front of the Board having had a variance denied in the past,  Mr. McNamara reference an October, 2011 court case in which a change in the legal criteria.  He said the applicant had the right to be in front of the Board.  He confirmed with Mr. Gowan if the variance were approved that a plan would go in front of the Planning Board.  Mr. Gowan answered yes; if the applicant was seeking a variance.  Mr. McNamara further noted that sight distance would be reviewed during that time.  Mr. Hennessey said regardless of sight distance, the curvature in the road posed issues. 

 

Mr. Hennessey discussed the Board’s review of variances in the past regarding duplexes.  He felt there were two principals for review; 1) the Board tries not to turn over previous decisions without overwhelming reason to do so, and 2) the Board has avoided as much as possible from creating two non-conforming lots where there were none to begin.  In this case the lot was non-conforming by a little on the side line.  He understood the ruling to make the existing house into a duplex.  However, there was a request to create two more non-conforming lots.  He said the reason for the denial in 2003 was the creation of non-conforming lots.  In his opinion the creation of two non-conforming lots where there was one would fly in the face of the principals of zoning and against the spirit of the ordinance.  There was further discussion regarding the request.  Mr. McNamara reviewed the criteria and how the reluctance to create two lots fit into the criteria.  It was suggested that the request was not in the spirit of the ordinance and creating two non-conforming lots went against the public interest. 

 

BALLOT VOTE:

 

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

Ms. Paliy – 1) Yes; 2) No; 3) No; 4) Yes; 5a) Yes; 5b) No

Mr. McNamara – 1) Yes; 2) No; 3) No; 4) Yes; 5a) No; 5b) No

Mr. Molloy – Yes to all criteria

Mr. O’Sullivan – 1) Yes; 2) No; 3) No; 4) Yes; 5) No

 

VOTE:

 

(1-4-0) The motion denied.

 

 

VARIANCE DENIED

 

Case #ZO2-12-00028  BUATTI, Mark – 73 Simpson Mill Road // Map 9 Lot 9-3 – seeking a Special Exception to Article XII, Section 307-74 to permit an accessory dwelling unity in the basement.

 

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.

 

The applicant Mr. Mark Buatti  came forward to discuss the requested Special Exception to allow an accessory dwelling unit.  He said there was currently an accessory unit in the basement when he purchased the home in 1985.  He requested that the Town recognize the in-law unit given it had been used as such since he had known of the property.  He reviewed the rules for a Special Exception.  He noted upon approval of the Board the required septic use would be done. 

 

Mr. Hennessey commented that in the case of Special Exception the question was whether the applicant met the criteria or not. 

 

Mr. McNamara asked if all the requirements for Special Exception were met.  Mr. Gowan answered yes.  He said the Building Inspector conducts a review and in this case was familiar with the property.  As to the question of the applicant not residing in the home, Mr. Gowan said as long as the person residing in the home had a family relationship with the secondary resident he didn’t see any objection in the zoning perspective.  Mr. McNamara asked if the application would be better served by an equitable waiver.  Mr. Hennessey said that would be a dimensional topic.  Mr. Gowan said the preference of the applicant was to come forth with the in-law, versus a duplex.   There was a brief discussion regarding the applicant’s intention to sell the home; the applicant was aware that a buyer would need to be informed of the restrictions for the in-law. 

 

There was no public input.

 

MOTION:

(McNamara/O’Sullivan)  If Special Exception approved, the septic design is to be approved by the State for the extra bedroom and a half. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

Any prospective buyer is to be informed that the in-law unit cannot be rented out separately on the market.

 

BALLOT VOTE:

 

Mr. Hennessey – Yes

Ms. Paliy – Yes

Mr. McNamara – Yes

Mr. Molloy – Yes

Mr. O’Sullivan – Yes

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCEPTION GRANTED

 

 

SITE WALK – December 15, 2012  at 9am

Case #ZO2012-00026  FONTAINE, Beniot  -  14-18 Mercury Lane //  Map 3 Lot 5-37-1 & 5-37-2

 

DATE SPECIFIED HEARINGS – January 14, 2013

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

Case #ZO2012-00026  FONTAINE, Beniot  -  14-18 Mercury Lane //  Map 3 Lot 5-37-1 & 5-37-2

 

MINUTES REVIEW

 

October 11, 2012

MOTION:

(McNamara/Molloy) To approve the October 11, 2012 meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

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October 15, 2012

MOTION:

(McNamara/Molloy ) To approve the October 11, 2012 meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

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November 15, 2012

MOTION:

(Hennessey/McNamara) To approve the October 11, 2012 meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

----------------------------------------------------

 

November 19, 2012

 

MOTION:

(McNamara/O’Sullivan) To approve the October 11, 2012 meeting minutes as written.

 

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 9:15 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary