APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 14, 2013

 

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

 

The Secretary Chris LaFrance called roll:

 

PRESENT:

 

 

 

ABSENT:

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

 

Alternate Lance Ouellette, Alternate Kevin O’Sullivan, Alternate Darlene Culbert

 

 

CONTINUED:

 

Case #ZO2013-00027 

CLARK, Blake & CHEN, Sabina  -  23 Yellow Wood Drive  -  Map 7 Lot 4-182  -  Seeking a Variance concerning Article XV, Section 307-100 to permit a Conservation Subdivision where (i) the size of the parcel is under 10 acres (being approximately 8.2 acres) and (ii) the frontage of the parcel where access may be provided is less than 100 feet (such frontage which may provide access being approximately 90 feet), while the parcel’s overall frontage is well over 250 feet.

 

Attorney Brad Westgate of Winer & Bennett, LLP. , representing the applicants Mr. Blake Clark and Sabina Chen,  came forward to discuss the Variance request for the lot size and frontage requirements.  Mr. Blake Clark also came forward for the discussion.  Attorney Westgate provided the Board with small scaled copies of plans that were displayed on the pin board.  He described the location of the lot as being on the westerly side of Mammoth Road across from Lane Road.  He called the Board’s attention to the Hillsborough County Registry of Deeds plan #10721.  The shape of the property resembled an arrow head; it was the remaining parcel of a 1977 subdivision that carved out three frontage lots along Mammoth Road.  He pointed to the location of the applicant’s house, which is approximately 36 year old containing 2160SF.  The property is approximately 8.2 acres and rises in elevation from Mammoth Road to the tip of the triangle.  That tip has more ledge than the front portion.  Attorney Westgate said the property was wooded, as was the general area.  The application package included a GIS mapping of the general area to give the Board an understanding of the location.  There are very little wetlands on the property that didn’t factor into the prospective development. 

 

Attorney Westgate stated Meridian Land Services (of Amherst, NH) had been hired by the applicants to do some test pits so they could get a sense if the property could yield a certain number of lots and also to determine if a conservation subdivision would be viable.  He said two plans were provided for review that gave good detail about the property.  The first plan was a conceptual yield plan showing 6 lots could be laid out in a conventional subdivision approach.  Based on the information, they felt confident based on the test pits that were done that there septic capability for those six lots.  Given the nature of the property and the unique conditions about the property, the applicant felt a conservation subdivision approach made more sense than a conventional subdivision.  The primary component of the variance application was 10 acres were required and the parcel contained 8.2 acres. 

 

With regard to frontage, the Town’s Regulation requires 100ft. of frontage at  the access area; however, the property had two areas of frontage; 90ft. along an opening referred to Yellow Wood Drive and another 200ft. further down on Mammoth Road.  It was determined by the Planning Director that a variance was needed for frontage. 

 

Attorney Westgate highlighted a proposed conservation subdivision containing six lots that were set back from Mammoth Road.  Open space areas remained near Mammoth Road as well as in the triangular portion of the lot.  They felt the proposal was a superior approach to the property than a conventional/grid subdivision would employ.   He noted that the proposed open space area in the conservation plan provided a buffer to at least seven abutters, which would not occur in a conventional setting.  Also the conservation subdivision allowed for a shorter cul-de-sac road length, which goes to the purpose of the Ordinance of reducing impervious surface, conserving natural resources, have less impact on hydro-geological conditions and smaller impact for the proposal.  The open space also conserves the impact on wildlife. 

 

If the variance is approved, the applicant understood they would next have to go to the Planning Board and prove that a conservation subdivision works and meets the design criteria of the ordinance.   Attorney Westgate said if the variance wasn’t approved, they would be left with other alternatives .  He said the applicant’s idea was to take the project beyond just a conservation subdivision and land layout perspective and to embody that idea into the houses as well.  Ideally, if the market was receptive, the applicant envisioned a type of energy neutral  (net zero) home.  The houses would have geothermal heating, solar panels and minimization of water resources.  The project would be a true conservation subdivision both from the land use and house perspective. 

 

Mr. Kearney joined the meeting. 

 

The applicant, Mr. Clark addressed the Board regarding the proposal.  He said he and his wife moved to New Hampshire four years ago and went on to discuss his experiences owning a home.  He explained his working background and how he was designing a geothermal heating system and looking to have it come to fruition within a development.  He had contacted as many abutters as possible to discuss his idea for the development, and the general response was if the woods were going to be developed, the abutters wanted it done in a responsible way.  Basically, they didn’t want to see a house out their back window.  Mr. Clark commented that the plans, designs and target market for the type of dwelling he was planning dictate that they go ‘all out’.   He told the Board should the variance fail, they would not be likely to come back with a conventional plan, but rather would consider possibly doing duplex lots and going through private channels to put land in permanent easement for conservation.   Mr. Clark said in speaking to neighbors they preferred to have woods based on the presence of wildlife crossing through the property.

 

Attorney Westgate reviewed the Variance criteria as submitted (and contained in the case file) with the application package.   

 

Mr. Gowan discussed the conservation subdivision ordinance and told the Board that he 10 acre threshold was a somewhat arbitrary; the committee at the time had to establish a basis.  He noted if the parcel was half wet, or had wetlands over several of the acres, the applicant could still proceed with the conservation subdivision request with the Planning Board.  He said the quality of the land is a factor when reviewing conservation subdivision.  Mr. Gowan stated when the ordinance language was being reviewed by Counsel,   they suggested, in the context of additional density, having one of the criteria make a project ‘green’.  He said the proposal had captured his imagination of ‘green’.  He believed there would be other parcels under ten acres coming forward and the Board should consider the quality of land when making their decision. 

 

Conceptually, Mr. McNamara believed the property would be much better developed as a conservation subdivision than conventionally.  He asked if the applicant considered putting in a road on lot 4-182-8; the acreage that met the criteria.  Mr. Clark said they had considered doing so, and found from the  yield plan perspective they would lose the lot.  He said at this point the layout of the conservation subdivision was their best guess; and before he put more time and money into the plan, he wanted to get past the zoning meeting.  He noted that the existing driveway was the abutter’s access to their lots and if he used the other area, he would essentially have two roadways into the development.  Mr. McNamara asked if Yellow Wood Drive was a Town accepted road.  Mr. Gowan said it was a private driveway.  Mr. Hennessey wanted to know if it had a State approved curb cut.  Mr. Clark told the Board he had the approval if the Board wanted to enter it into the record.  Mr. McNamara said the area was dangerous and there had been a fatality.  He commented there was very little sight distance and traffic moved quickly.   He questioned if the applicant determined if they would need any waivers from the Planning Board Sight Distance requirements.  Attorney Westgate was unsure if Meridian (the engineering company) had analyzed that information as yet.  Mr. Clark said the only background work he could convey was that the State Department of Transportation (‘DOT’) indicated they would not have granted the driveway permit in 1977 had all the sight criteria not been met.  Attorney Westgate assumed the DOT may need to review the issuance of the driveway permit at the location because there would be more use.  Mr. McNamara reiterated that he felt the proposed conservation proposal was a good as opposed to a conventional subdivision.  He said for purposes of the variance criteria and safety, there was concern regarding the location of the present drive versus access being where they had frontage.  Mr. Clark commented that the records from the original 1977 subdivision (Planning Board meeting) discuss that the intent of the driveway was to be a future road into a 17 acre parcel. 

 

Mr. Hennessey didn’t believe the applicant would need to be before the Board if the proposal was a conceptual conventional subdivision .  Mr. Clark believed that was correct.  A conventional subdivision would go straight to the Planning Board.   Mr. Gowan confirmed that to be correct.  Mr. Hennessey asked if it would be the same number of property and same number of houses.   Should they proceed, Mr. Clark said the yield plan would be their starting basis presented the Planning Board.  He said the reason it was labeled conceptual  was basically due to the technical standpoint; the measurements were created (by Meridian) by using the data from 1977 .  In working the calculations, Mr. Hennessey said they proposal seemed correct.  He said it also appeared there was a possibility to put three duplexes on the parcel. 

 

Mr. Gowan said any granting of a variance wouldn’t tie the Planning Board’s hands.  If sight distance isn’t met from either driveway location they wouldn’t be bound to approve a plan.  Mr. Clark indicated he understood. 

 

Mr. Hennessey recalled the 10-acre requirement being put in place because of the concern of well radiuses to septics.  He said as that acreage is reduced it creates issues.  He asked if there was a Pennichuck  water line that came up Mammoth at the location.   Mr. Gowan didn’t believe there was water on the site.  He noted in a conservation subdivision it was not required to have a well on each lot.  As a design note, Mr. Clark said the current design plans utilized the wells as the heat exchanger for the geothermal heat pumps.  They will be boring holes whether or not the potable water comes from another location. 

 

For the record, Attorney Westgate provided a copy of the deed from 1855 that contains the triangular description of the property. 

 

Mr. Hennessey opened the discussion to the public.   No one came forward in opposition, in favor or to ask questions of the Board. 

 

Mr. Kearney felt the proposed was a good plan.  He believed the biggest challenge appeared to be the driveway and the additional traffic that would be generated. 

 

Ms. Paliy understood conservation subdivisions, but didn’t like the idea of approving .5 acre lots.  She said the parcel could be developed with the same amount of houses with bigger lots.  She was concerned what would happen if the wells went dry and felt it would be different if they had public utilities. She believed the proposal would set a precedent of very tiny lots, which to her was a big issue. 

 

Mr. McNamara said proposed lot size was specifically allowed within the conservation subdivision ordinance and provided significant buffering to the abutting properties, which would not occur if a road were put in with lots having 200ft. of frontage.  He echoed Mr. Kearney’s public safety concern, which was more of a Planning Board concern.  He said the parcel itself was uniquely shaped and lended itself more toward a conservation subdivision. 

 

Mr. Hennessey understood the submission relied on information gathered in the past.  He questioned if visually there was any indication of wetlands on the parcel.  Attorney Westgate pointed the areas out that were based on Meridian’s mapping.  He showed areas on lots 4-182-5 and 4-182-6; there was a third area, but was very small and was lost on the conceptual.    Mr. Hennessey questioned if the wetland setbacks were sufficient.  Mr. Gowan responded that a wetland had to be 1,000SF to enjoy Wetland Conservation District (‘WCD’) protection;  the areas shown were significantly under that area.   This information will be vetted with more detail information with the Planning Board.  He said they appear to be under the threshold to have WCD protection.  Mr. Hennessey took Ms. Paliy’s comments into consideration.  He reiterated his feeling that the 10acre requirement wasn’t arbitrary and was done for well radius, septic and a political decision.  Mr. McNamara added for economic purposes, the committee didn’t think anything smaller would be able to be developed.   Mr. Hennessey recalled there was a great deal of discussion with the committee, at the Planning Board  and during the Deliberative Session about whether allowing that type of development in Pelham would open the door for small lots and small  (cheap) houses.  He said the subdivision being described wouldn’t result in ‘cheap’ houses, which he believed people were afraid of when debating the ordinance. 

 

Attorney Westgate told the Board he had thought of the concern of setting a precedent, which is always a concern when requesting a variance of an acreage minimum.   He said all cases were unique; no one case sets a precedent for others.  More importantly, he said the property was unique in its location, shape, nominal wetland and ability to have functional and well placed open space.  He said it was a distinct piece of  property. 

 

Mr. Hennessey said he asked about the wetlands because there weren’t a lot of projects, conventional or otherwise, in front of the Board that were similar in size that didn’t have larger wetlands.  He said he had to concede that the applicant had made its case that the parcel was unique given the dimensional layout, the buffers to the neighbors and the fact there weren’t a lot of wetlands and it was located on one of the busiest roads in Town. 

 

Ms. Guay wanted to know if the proposed conventional  plan met all the zoning requirements.  Mr. Gowan believed, from what he’d seen, that would be the case.  He said to build lot frontage 50ft. was needed.  Mr. Hennessey said a conservation subdivision required a larger frontage.  He explained that one of the requirements for a conservation subdivision was to show how the lot would look if done in a conventional layout.  In this case, the conservation subdivision requirements were not met because it was short of the 10acres and lacked the required frontage. 

 

Ms. Paliy didn’t see how the lot could be thought of as unique given the applicant could do a standard subdivision.  She said there were no extensive wetlands or reason a conventional development couldn’t be done.  She felt it was one of the best lots the Board had seen for a standard subdivision.  Other lots that have come in front of the Board had wetlands, wetland crossings etc.  She said those instances were special because the Board wanted to save the space and the wetland.  Mr. Hennessey understood Ms. Paliy as saying qualitatively the standard one house on one acre is on its face superior to the conservation land that preserved the woods, wildlife etc.  Ms. Paliy answered they couldn’t guarantee what people would do with their land.  She said the conservation proposal opened the land to half acre lots, overcrowding, and a different type of development.  She felt the conventional plan would give people the ability to have one acre lots, which she didn’t feel people clear of the trees because there would be no reason to do so and it would be expensive.  She said people usually clear small lots.  She didn’t want to look to the future based on a ‘maybe’ situation of what people might do.  Ms. Paliy reiterated her opinion that based on face value it was one of the best standard lots that had come to the Board with no covering of the wetland, or issues for a standard subdivision.   Mr. Hennessey stated the purpose of the conservation subdivision was to encourage the type of development being proposed, not the one house on one acre.  From his point of view the proposed conservation subdivision was far superior to the conventional plan shown.  He recognized for the Board to grant relief from the requirements  they had to make the decision as to whether the lot was unique or not.  On its face he felt it was a unique lot. 

 

Mr. Hennessey said the question in front of the Board was not if they liked a conservation subdivision, but rather if the request being made met the variance criteria. 

 

Mr. McNamara noticed that some of the documents the Board received had a date of October 17, 2013, although the present date was November 14, 2013.  Mr. Hennessey replied that the case was a continuance. 

 

BALLOT VOTE

#ZO2013-00027:

 

Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria

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

Mr. LaFrance -  Yes to all criteria

Mr. Kearney – Yes to all criteria

 

VOTE:

 

 

(4-1-0) The motion carried.

 

 

VARIANCE GRANTED

 

 

Case #ZO2013-00026

HANLON, A. RICHARD  -  13 & 16 West Shore Drive  -  Map 30 Lots 11-111 & 11-142  -  Seeking a Variance concerning Article VII, Section 307-39 to permit a gazebo within the WCD setbacks.  Also to allow a pre-existing non-conforming residential building to remain within the WCD setbacks.  The current residential building is nine (9) feet over the WCD buffer/setbacks to Little Island Pond.

 

Ms. Paliy stepped down for the case.  Mr. Hennessey asked Ms. Guay if she would sit in for the case.  Ms. Guay indicated she didn’t feel comfortable being appointed to vote given that she was absent for the previous meeting and didn’t hear all the testimony.  She also was not present for the site walk.  Mr. Hennessey suggested Ms. Guay remain seated for the case, hear testimony and ask questions.  He told her if she then chose to abstain, she could do so.  He said he would like her to remain seated for the case and felt it would be a fairly clear-cut case.  Ms. Guay agreed. 

 

Mr. Hennessey told the public that the case had been continued in October to a site walk occurring October 26, 2013.   Mr. McNamara made a motion to approve the October 26, 2013 site walk minutes .  Mr. Kearney seconded.  Mr. Hennessey read the list of those in attendance aloud.  Mr. Gowan then provided the Board with letters received from abutters. 

 

MOTION:

(McNamara/Kearney) To approve the October 26, 2013 site walk minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Hennessey read aloud the letters submitted by the abutters.   He asked the applicant if they had anything to add to their previous testimony.  The applicant stated they had nothing to add.   Mr. Hennessey then opened the discussion to the public for input.  No one came forward.

 

Mr. Hennessey commented there were two variances in the case: 1) placement of the gazebo within the Wetland Conservation District (‘WCD’) setback; 2) to allow a pre-existing, non-conforming  residential building to remain within the WCD setbacks.   He suggested that the Board handle them as two separate matters.   He said the Board would discuss the pre-existing residential building first.  He said the current building was 9ft. over the WCD buffer setbacks to Little Island Pond.  This was in front of the Board because there was a substantial improvement being made to the property.  He said the five criteria had been previously read into the record and a site walk was conducted.  

 

Mr. McNamara said the applicant wasn’t expanding the footprint  and it was a pre-existing, non-conforming use.  He said the roof line was being extended to the pond end of the property with no increase in height.  He said there would be curbside appeal with the exterior improvement and felt surrounding property value would also be improved by the proposed plan.  The number of bedrooms wasn’t being expanded and the property would remain seasonal.   He recalled testimony at the site walk that water was leaking through the existing roof.  He felt the residential structure met the variance criteria. 

 

Mr. Gown suggested that the photographs of the property (submitted at the previous meeting) be shared with Ms. Guay for review.

 

Mr. Kearney commented that the dwelling was lower (in elevation grade) and would therefore not impede anyone’s view of the pond. 

 

Mr. Hennessey felt the proposed was one of the easier properties on the lake that had come before them.  He saw no issue. 

 

BALLOT VOTE

#ZO2013-00026-A:

(pre-existing dwelling)

Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. Kearney – Yes to all criteria

Ms. Guay – Yes to all criteria – meeting minutes and site walk minutes were      

                     read by member Guay.

 

VOTE:

 

(5-0-0) The motion carried.

 

 

 

 

 

VARIANCE GRANTED (for pre-existing non-conforming residential building to remain in WCD setbacks)

 

The Board then took up the variance request pertaining to the gazebo with the WCD setbacks. 

 

Ms. Guay wanted to know where the gazebo was located on the map.  Mr. McNamara showed her the location.  He said the issue was not as easy as initially thought when it came in front of the Board.  He stated it was in violation of the Ordinance and sat directly on the water line; although raised slightly.  He noted it had been moved to that location within the last 4-5 years.  Mr. McNamara noted there was no plumbing or electricity and it was sitting above the water line.  He said properties around the neighborhood had structures in addition to grass going down to the lake.  He was unsure how he would vote.

 

Mr. Kearney felt the gazebo visually looked in character with that side of the pond, but it sat virtually on the water.   He said although there were others that had things close to the water, he had difficulty saying yes to the gazebo because of its location with the WCD.

 

Mr. LaFrance said prior to the site walk it appeared people were upset about the location of the gazebo; however, during the site walk there seemed to be more discussion about the camp than the gazebo.  He questioned what would happen to the concrete pad the gazebo was sitting on if the variance was denied.  

 

Mr. Jim O’Neil, land surveyor for the project, told the Board that the gazebo was situated on concrete blocks, not a concrete pad.   Mr. LaFrance said he was still uncertain of how he would vote. 

 

Ms. Guay questioned if the WCD ordinance was enacted prior to the gazebo being located where it was.  Mr. Hennessey answered yes;  it was placed in the location well after the ordinance was established.  Mr. O’Neil explained that the gazebo had previously been on a neighbor’s property for at least five years prior to being moved to its current location.  It was also as far back from the water on that lot as it was today on the applicant’s lot.  Mr. Gowan added that the WCD ordinance was approved by the voters in 1991. 

 

It was Mr. Hennessey’s opinion that no one had deliberately looked to flout the law.  He felt the lack of zoning laws and WCD around the pond was almost universal.   He said the applicant was being singled out in the midst of a lot of people who had done more to violate the WCD.  He said the Board didn’t deal with precedent, they dealt with what was in front of them;  the Board wasn’t the Town enforcers.  He would like to see more concern for the pond as he saw all kinds of damaging things occurring around the pond. 

 

Mr. O’Neil questioned if the Board would be more receptive to the variance if the applicant was willing to move the gazebo further from the shore.  Mr. Hennessey said the Board could only approve or deny a variance request.  He said the applicant could discuss with the Town’s department where to move it.   Mr. Gowan said he had seen the Board allow an applicant to amend their application; if the Board allowed that to occur the applicant would need to do so with some specificity. 

 

Mr. Hennessey asked the applicant if they would like to amend their variance request.   Mr. O’Neil said he would like to amend the application that the gazebo, currently located within the WCD, to be moved  to a site parallel to the front of the building (as facing the pond to the right).  Mr. Hennessey said it would make the gazebo no more non-conforming than the two structures that were currently there.  Mr. Guay questioned if the proposed amendment would take the gazebo out of the WCD.  Mr. Hennessey answered no; there were two non-conforming uses on either side.  He suggested the Board might be more favorably inclined to grant the gazebo if it were no more non-conforming than the two properties it was between.  Mr. O’Neil agreed to amend the variance request to move the gazebo approximately 15ft. , but more importantly be parallel with the extension of the front of the camp at #16.  

 

Mr. Gowan stated it was important for the record to show the proposed location on the plan  and circulate that plan for the Board to review.  That plan would become part of the record for an amended application.

 

Although Mr. LaFrance didn’t feel this type of scenario should become common practice, on occasion he believed it could be done. 

 

Mr. O’Neil indicated a proposed location on a plan for the existing gazebo to be relocated.  That plan was provided to the Board for review.  By scale the gazebo would be moved approximately 15ft.  He said he would be able to provide a firm number to Mr. Gowan.   Mr. McNamara, Ms. Guay, Mr. LaFrance and Mr. Kearney reviewed the plan  submitted by Mr. O’Neil with the proposed new location of the gazebo. 

 

Mr. Hennessey invited members of the public to come forward to review the amended plan with the proposed relocation of the gazebo.  The plan was shown on the television screen for the public not in attendance of the meeting.

 

If possible, Mr. LaFrance wanted the record to indicate a solid distance from lake.  Mr. Hennessey replied the line was drawn on the plan submitted.  Mr. McNamara said it was an equitable result; however the gazebo would still be in violation.  Mr. Hennessey said the motion was in regard to amending the application, not a vote regarding the variance. 

 

MOTION:

(McNamara/LaFrance ) To accept the amended  application for the variance pertaining to the gazebo for a site as determined on the plan  (submitted by Mr. O’Neil) just viewed by the Board. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

The Board then voted with regard to the newly amended application for variance pertaining to the gazebo.  Mr. Hennessey suggested setting a deadline.  Mr. O’Neil said the applicant would be comfortable with six months given the approaching  winter months.  Mr. Hennessey amended the motion; if variance is approved, the gazebo is to be moved by June 1, 2014. 

 

MOTION:

(LaFrance/McNamara ) If the variance is approved, the gazebo shall be moved by June 1, 2014.

 

VOTE:

 

(5-0-0) The motion carried. 

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

 

BALLOT VOTE

#ZO2013-00026-G:

(gazebo)

Mr. Hennessey – Yes to all criteria – as amended.

Mr. McNamara – Yes to all criteria- vote is on the amended variance       

                             request

Mr. LaFrance -  Yes to all criteria

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

Ms. Guay – Abstained from voting

 

VOTE:

 

(3-1-1) The motion carried.

 

 

 

 

 

VARIANCE GRANTED (amended application for gazebo)

 

 

 

HEARING(S):

 

Ms. Paliy returned to the Board. 

 

Case #ZO2013-00029

LUZ, Leonard Jr.  -  319 Windham Road  -  Map 8 Lot 9-100  -  Seeking a Variance concerning Article III, Section 307-7 to permit the existing 8+/- acre lot to be subdivided into three building lots one with 200ft. of frontage (with the existing single family home) and the other lots each with approximately 3 acres and approximately 40ft. +/- of frontage with each of the new lots.

 

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

 

Mr. Joseph Maynard of Benchmark Engineering, representing the application, came forward to discuss the variance request.  He said there was an existing single-family house on the lot.  The Luz family had owned the property since the 1960’s  and it was now for sale; there is an interested buyer who is looking at the possibility of developing the land.  In looking at the property along with the Town’s zoning, Mr. Maynard said the lot size (using the deed restriction) was just under the required 10 acres for a conservation subdivision. The shape of the lot had a dog-leg to the right when entering the property.  The soils are somewhat shallow to ledge; Mr. Maynard felt the lot could accommodate six conventional lots (5 new and 1 existing) and platted those lots out for the Board to review how that type of development would appear.  An access road to get into the property would be approximately 750ft.  to where a cul-de-sac would sit and an additional 200ft. around.  Given current road costs, construction of the road would be over $300,000.  Taking the road cost and the value of land in Town; it would take three lots simply to construct that roadway.  When looking at the property, Mr. Maynard said he reviewed the reasonable use and reasonable build-out of land .  The proposal is for three single-family lots, the first would maintain 200ft. of frontage and be roughly 2-3 acres in size and contain the existing house.  The remaining two lots would each have approximately 40ft. of frontage and contain (at least) 3 acres.  The area where the driveway would go for the proposed lots is in the best position for sight distance and believed to be able to meet the Town’s requirements.  There are a couple smaller wetlands on site, but were not expected to impact development.  Mr. Maynard said given the shallow soils, he anticipated little to no blasting to put a driveway in, but if it was to be platted as a road he was sure they would have a substantial amount of blasting. 

 

Mr. Gowan wanted it clear for the record that the applicant was proposing to create two new lots and keep the existing lot; thereby having three lots in total.  He noted this so in the future there would be clear direction on the fact that duplexes couldn’t be located even though the lots were approximately three acres in size.   Mr. Maynard told the Board he would be fine with that condition for the two new lots, but the existing house lot would meet the Town’s requirement for a duplex.  He wasn’t saying that he wanted to make it a duplex, but didn’t want to place that restriction on an existing structure that met the Ordinance. 

 

Mr. Hennessey asked where the property was located in relation to Dale Avenue.  Mr. Maynard described the location at being at the crest of the hill near Hayden. 

 

Mr. Kearney asked how far back into the lot the houses would have to be built.  Mr. Maynard believed a reasonable assumption would be approximately 300ft-400ft. back from the road.  He explained that the areas they were looking to create opened up at approximately 200ft. back. 

 

Mr. LaFrance wanted to know if the intention was to have a shared driveway, or two separate driveways .  Mr. Maynard  said the property wasn’t divided after 1971, so it could have three curb cuts or be shared. 

 

Mr. McNamara confirmed there would be no further subdivision of the lots.  Mr. Maynard was fine adding that stipulation. 

 

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

 

Mr. McNamara asked Mr. Maynard if he had looked at the property in terms of becoming a conservation subdivision.   Mr. Maynard said the difficulty of having a conservation subdivision was the need to build almost as much road as a conventional development.  Mr. Hennessey asked how deep the driveway had to go into the lot before they proposed new lots would have sufficient sidelines around the structure.  Mr. Maynard said the lines would be considered side setbacks with a 15ft. requirement based on how the house was situated.  He said the driveway could potentially be 300ft.   Mr. McNamara asked for information regarding the wetland.  Mr. Maynard said he walked the site and noticed two small wetland pockets.  One wetland was at the very rear of the site and one was located off the jog of the site near the corner of the existing house.

 

Mr. LaFrance asked for the rough size of the proposed lots B & C.  Mr. Maynard said they would be at least three acres each. 

 

Ms. Guay questioned where the existing driveway was located for the existing house.  Mr. Maynard sketched the location of the existing driveway on the displayed plan.  Ms. Guay wanted to know if the proposed driveways would face the driveway on the opposite side of the street.  Mr. Maynard believed they would fall to the right of that driveway. 

 

Mr. Hennessey opened the discussion for public input.

 

PUBLIC INPUT

 

Mr. Peter Hone,  295 Windham Road  was concerned he could lose his well when blasting occurred.  He told the Board that the whole area was ledge from  Hayden Road  (toward the Town center) to the power lines.  He showed the Board where his lot was located .  He then told the Board there were several wet areas in the spring and questioned where the runoff would go if those areas were to be filled in.  Mr. Maynard  believed the Town had a blasting ordinance; any blasting that occurred would have to follow both the Town and State guidelines.  Mr. McNamara noted it was administered by the Fire Department.  He said the Town’s ordinance was much more rigorous than most; it was put in place during development on Spaulding Hill Road.  Mr. Hone said a situation had occurred at 261 Windham Road .  Mr. Gowan said the blasting ordinance had been revised; he explained some of the requirements that had been included.  Mr. Hone asked if there was a guarantee people wouldn’t lose their wells if blasting occurred.  Mr. Gowan replied there was never a guarantee.  He said for people located within a certain distance of the blasting, a pre-blast survey is done to create a baseline.  Mr. Hone said Windham Road had a problem a couple years ago when blasting occurred and people lost their wells.  Mr. Hennessey reiterated that the Town had a blasting ordinance; a copy of which could be obtained from the Planning Department.  With regard to wetlands, he said the property had not yet been surveyed for wetlands.  From a development standpoint Mr. Maynard said he was avoiding wetlands.  It would be analyzed better during the Planning Board review.  Mr. Hennessey believed Mr. Hone’s concern was with water being displaced onto his property.  Mr. Maynard said they would review and  analyze the information at the Planning Board level and create a small drainage report to show they wouldn’t be impacting any of the neighbors.  He said if there was an area of concern they could look at mitigating it as part of the Planning Board process.  Mr. Hone asked if that was guaranteed.  Mr. Hennessey said nothing was guaranteed.  Mr. Maynard reiterated they would analyze the situation and mitigate any issues they know of as they go through the Planning Board process. 

 

Mr. Hennessey explained that zoning reviews the layout of the land.  The concerns being discussed could be addressed at the Planning Board because it would be a subdivision of existing property.  He said the rule was there should not be a displacement of water onto abutting property.  He suggested if the variance was granted, that Mr. Hone attend any Planning Board meeting that reviewed a development.   Mr. Hone wanted to know how a situation would be handled if something were to happen after buildings were constructed.   Mr. Hennessey said situations happen. 

 

Mr. Robert Rogers, 305 Windham Road  (direct abutter to the property), said he had the same concerns as  Mr. Hone.  He wanted to know if development would eliminate the tree line in between the two properties.  Mr. Hennessey said the property was owned. 

 

Mr. Mr. Shawn Wholey, 331 Windham Road  disagreed that there was good sight distance at the location because of the crest in the road.  He also shared Mr. Hone’s concerns.  He noted in the spring there was a tremendous amount of water in the area; there was an active stream (on both sides of Windham Road) that runs into a pond.  Mr. Hennessey said they would have to be mapped. 

 

Mr. Maynard said they would follow the blasting ordinance.  They would also flag  and analyze the wetlands as they went through the planning process.  He said he spent some time reviewing sight distance and because the property was located on the crest of the road he felt they would have good visibility. 

 

Mr. McNamara wanted to know if the driveways could be constructed to maintain buffers to neighboring properties.  Mr. Maynard  said they could leave a buffer of approximately 25ft. along the southerly edge.  The area of the existing house would remain.  He didn’t have an issue maintaining 25ft-40ft along the rear line. 

 

Mr. Gowan added that Windham Road was a State road, therefore the State would have to issue the driveway permit.  He said they may want a single driveway; the Planning Board would review sight distance and safety concerns. 

 

Mr. LaFrance said setting aside the planning aspect and focusing on zoning, given the size of the lots and the configuration , he understood going along with the proposed versus having an approved road.  He also believed the neighbors would be much happier with the proposed rather than having a road. 

 

Mr. Kearney concurred with Mr. LaFrance, except the 200ft. frontage requirement would possibly be reduced twice.  He understood the cost of doing a conventional subdivision being prohibitive, but had a difficult time reducing that frontage and still having 200ft-300ft of driveway to construct to get to a buildable area. 

 

Mr. McNamara didn’t like having two 40ft. accesses next to each other.  He felt given the shape of the lot, the proposal made the development less intrusive because the house wouldn’t be located next to the roadway.  The shape of the lot also made it difficult to do anything else with the property.   He reiterated having a road and six lots developed would be a lot more intrusive to the neighbors, not just from the blasting to install the road, but also having less density from the properties. 

 

Ms. Guay agreed with the concern of having successive driveways in a small area.  She said it might be a Planning Board issue to determine if an 80ft. wide driveway would be better. 

 

Mr. LaFrance said when a development, such as the proposed, come forward he views it as how the Town would be impacted.  By reviewing the proposal, he felt the Town’s impact would be limited versus having a full subdivision in the future. 

 

Mr. Hennessey said he had a problem with the fifth criteria.  He felt there was a case to be made for the variance of having smaller frontage from another lot.  He said it had been a practice of the Board to avoid creating two non-conforming lots when none existed before.  He didn’t see granting a variance for two additional lots when there was already an existing conforming lot.  

 

Ms. Paliy said the lots were pretty large.  She suggested that the applicant could possibly do a conservation subdivision and have one access, a shorter road and smaller lots.  She said there were plenty of back lots done in Pelham.  She said the 40ft. driveway wasn’t overcrowding anything; a road would look considerably different.  She said having the smaller driveways would allow development to be further back and not have a need for blasting. 

 

Mr. Hennessey didn’t feel the application met the five variance criteria, but more specifically the hardship criteria, for two new lots.   Mr. LaFrance questioned if the hardship was the size of the lot versus the frontage.  He believed the lot was unique because of the size, the lack of frontage and the depth of the lot.  Mr. Hennessey called attention to criteria three, substantial justice, which went to the land owner and didn’t speak to the fact that the lot couldn’t be used as currently zoned.  He didn’t feel substantial justice was done by creating three lots where only one existed before.  Ms. Paliy questioned if he would prefer if the driveway was to cut in half and the lots reduced for a conservation subdivision.  Mr. Hennessey responded that the voters had approved the conservation subdivision with criteria.  He noted that the lot wouldn’t meet the 100ft frontage criteria and would still require a variance. 

 

Mr. McNamara noted  there were some representations made by the applicant regarding no further subdivision of the properties and the new lots would contain only single-family homes.  The existing lot would not have that stipulation. 

 

MOTION:

(McNamara/Kearney/) If the variance is granted it will be on condition that there be no duplexes for lots B and C; there will only be single family homes  and that the lots will not be further subdivided. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

BALLOT VOTE

#ZO2013-00029:

 

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

Ms. Paliy – Yes to all criteria

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

Mr. LaFrance -  Yes to all criteria – with conditions in the motion.

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

 

VOTE:

 

(2-3-0) The motion carried.

 

 

 

 

 

VARIANCE DENIED

 

 

 

MINUTES REVIEW

 

October 17, 2013:

MOTION:

(McNamara/LaFrance) To approve the October 17, 2013 meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

 

ADJOURNMENT

 

MOTION:

(Kearney/McNamara) To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 9:45 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary