December 9, 2013


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


The Secretary Chris LaFrance called roll:







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




Case #ZO2013-00028

Map 14 Lot 3-81  -  NASHUA ROAD LANDHOLDINGS, LLC  -  61A Nashua Road – seeking a Variance concerning Article IX, Sections 307-53-2 C (3) & (8) to permit single unit buildings with a minimum of 20 feet separation, instead of a minimum of 30 feet separation; and to omit sidewalks. (NOTE: This BOA case will be limited to the request for rehearing only. If the request for rehearing is granted a hearing date will be specified and all abutters will be notified via certified mail.)


Mr. Hennessey confirmed that the Board members had the opportunity to read the request for rehearing.  All responses were in the affirmative.  He then asked for comments. 


Mr. McNamara felt there was a full and fair discussion of the case, and the Board’s decision was correct.  However, he believed the appeal brought up some issues that should result in a rehearing.  He reiterated his belief the Board was clear as to what they were talking about, specifically relating to the word ‘density’.   He thought the word was used in such a fashion as to gender a little doubt.  Without taking a position on the other points made in the request, he said he would vote in favor for a rehearing. 


Mr. Hennessey commented he voted in favor of granting the variance, but didn’t see the grounds for granting a rehearing.  He believed the Board members were clear as to the discussion regarding density and the single units were covering a wider area of the lot but not necessarily increasing the number of units in the parcel.   Mr. McNamara said if it was written on a voting slip to deny because of density it raised the question if they meant the legal definition (in the Zoning Ordinance) or as it was discussed during the hearing.  He felt it left some room for confusion because the applicant had clearly shown they could get the proposed number of units.  Mr. McNamara said he was erring on the side of caution. 


Mr. Kearney believed through all of the discussion he was clear and thought everybody’s mind was also clear as to what was being discussed in reference to the word ‘density’ and what density they were speaking about.  He didn’t disagree that the Board used the word in relation to the amount of people and the amount of land use, but felt the discussion was frank enough and the Board was clear. 


Mr. LaFrance agreed with the comments being made by the Board.  He felt everyone knew the situation and their own views regarding the application.  From a legal aspect, he felt if a rehearing would help the situation, then the Board should conduct a rehearing. 


Mr. Hennessey said for the Board to rehear the case they had agreed that an error was made either by perception or what was done.  Mr. McNamara pointed out that the applicant indicated that there was no ill intent; it was an inadvertent use of the language. 


Ms. Paliy was not present at the hearing being discussed,  but had reviewed the information from such.  She felt if someone believed if a Board member believed they made a mistake, the Board should take another look for the applicant’s sake. 


Ms. Guay commented that her reference to ‘density’ was in looking at the property.  She didn’t see there was any hardship to put a lesser number of units on the lot than putting more units.  Her interpretation of density was that the property could allow for lesser units and meet the requirements of the Zoning Ordinance to have 30ft. between each building.  This would still allow the reasonable use of the property.  Mr. Hennessey didn’t feel anyone disagreed, or was saying Ms. Guay did anything wrong.  He said there was a perception that the word density was misused in the case.  He personally didn’t think so, but if there is a perception it was valid for the Board to discuss. 


Mr. McNamara said the memorandum mentioned the diminution of value, which would also be grounds for an appeal.  Mr. Hennessey said a letter was contained in the information provided to the Board that referred to the fact that the proposal wouldn’t harm other areas.  He noted there was no testimony or statement of credentials along with the letter.  This was cited during the vote, but not articulated during the discussion.  Mr. Hennessey stated no one was saying the Board made a mistake, it was the perception of how they arrived at the decision.  Mr. McNamara felt the Board should have another hearing. 


Ms. Guay called attention to the one-page letter from a realtor.  She said it was a one-sentence statement on plain paper, not letter head, saying there would be no diminution in the values of surrounding properties.  She didn’t feel it was a very professional manner to provide expert opinion.  Although Mr. Hennessey understood why Ms. Guay voted as she did.  He said she had two very good points that would have been better for the Board to discuss prior to voting.    



(McNamara/LaFrance) To grant the request for rehearing of the case.




(4-1-0) The motion carried.  Mr. Kearney voted no.


Mr. Hennessey informed that the rehearing was granted.  He said any submission would be considered a brand new hearing. The process would need to start from the beginning with the appropriate postings and notifications etc.  The materials previously submitted could be used with the new submission. 


REHEARING GRANTED – Case #ZO2013-00028





Case #ZO2013-00030

Map 8 Lot 9-100  -  LUZ, Jr.,   Leonard  -  319 Windham Road – Seeking a Variance concerning Article III, Sections 307-7, 307-8, 307-12, Table I & 307-14 to permit the existing 8(+/-) acre lot to be subdivided into two building lots.  The existing home will remain 2 acres of land with 200ft. of frontage; the new lot will have the remainder of the area (approximately 6+ acres) and have the remaining frontage (80ft. +/-).  The new lot is proposed as a duplex lot.


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 applicant, came forward to discuss the variance request.  He said an application had come in front of the Board for a three-lot subdivision; two lots with 40ft. of frontage.  That application was denied.  He said the biggest thing he heard during that hearing was the Board not being comfortable with the remaining frontage of the parcel.  With that in mind, Mr. Maynard filled out an application for a two-lot subdivision.  The existing lot would retain 200ft. of frontage and two acres of land.  The remaining parcel would have approximately 90ft. of frontage and approximately 6-6.5 acres.  He asked that the Board consider the new lot as a duplex lot, given it will have more than ample building area associated with it.  The driveway location remained essentially the same from the last plan submission (from the main road), and will have ample sight distance.  Mr. Maynard said they would like the Board to consider a two-lot subdivision in lieu of the property’s potential to be a six-lot subdivision. 


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


Mr. McNamara said during the previous hearing testimony was given; to that point he questioned if there were wetlands on the property.  Mr. Maynard replied there were two small wetland areas.  One area was behind the existing house, and another located at the rear of the property (near the property line).   Mr. McNamara held up a plan that was submitted to the Board and confirmed it was a legitimate conceptual plan.  Mr. Maynard told the Board the plan submitted was a legitimate conceptual subdivision based upon available information.  He noted he had spent some time doing a site walk of the property establishing the criteria.  Mr. McNamara understood that the proposed duplex would be approximately 200ft. back from the road.  Mr. Maynard answered yes; they had given the lot with the existing house a ‘jog’ so it would maintain a somewhat square/rectangular shape.  At approximately 220ft. back, the lot line would turn so the home would sit behind that area.  Mr. McNamara saw there was a home on the adjacent lot 9-101.  Mr. Maynard believed that house sat close to 75ft-80ft. back from the existing road.  Mr. McNamara wanted an estimation of the area between the proposed duplex and the existing building on lot 9-101.  Mr. Maynard said there were a couple hundred feet.  Mr. McNamara questioned if the lot line was wooded.  Mr. Maynard said the area was all wooded now; they would limit the cutting for the driveway to try to maintain a buffer. 


Mr. McNamara asked if the applicant was indicating that the property was unique in terms of the surrounding properties because of the acreage.   Mr. Maynard said in looking at the surrounding lots taken from the frontage, they were all square/rectangular and pretty uniform in shape, whereas the applicant’s lot was left with approximately 290ft. of frontage.  The shape of the lot started off with a rectangular shape, but then had a dog leg that made it more unique to the other lots with a uniform shape along Windham Road. 


Mr. Hennessey asked if the existing house was a single family home.  Mr. Maynard answered that the home was a single family residence built in the 1960’s.  Mr. Hennessey asked if the intent was to keep the existing home as a single family home.  Mr. Maynard said the intent was not to do much to the home and resell the dwelling as a single family dwelling.  He couldn’t speak to the future.  Mr. Hennessey said the Town had all kinds of strange looking lots within the Town.  He believed the proposal for the lot would be one of the stranger looking lots and as a duplex would be extraordinarily strange.  Mr. Maynard said he would be willing to reduce the existing home lot area so it would remain a single family dwelling.  He would like to keep the new lot as a duplex lot, given the size and available area. 


Assuming a variance is granted, Mr. Gowan noted in order for the engineer to demonstrate a duplex lot they would need to meet the 55,000SF contiguous non-wetland soils and two acres.  In the context of what the applicant was offering, if they made the parent parcel anything less than two acres a building permit could not be signed for a duplex without the owner coming back to the Board for a Variance.


Mr. McNamara wanted to know the distance separation between the existing and proposed driveway.  Mr. Maynard didn’t have the exact distance, but offered a guess of over 100ft. 


Mr. Hennessey opened the discussion to the public for input.




Mr. Peter Hone  295 Windham Road, was concerned about his well during blasting for foundations and/or driveways.  He was interested in how the spring runoff would be handled; given there was a historical route for it to travel into the pond.   Mr. Maynard replied although it was a frontage subdivision, drainage would be reviewed at the Planning Board level.  He was more than happy for Mr. Hone to show him the location of the spring that came down through the area.  He said they would mitigate any impact occurring due to the proposal.  Mr. Hennessey noted if the Variance was approved, the Planning Board would review the layout and where properties would be located.  They would also review items such as drainage.  He informed the Town had a blasting ordinance.  Mr. Hone said the previous variance was denied because of frontage.  He didn’t see a difference in that frontage.  Mr. Hennessey said the current proposal was for two lots instead of three (as contained in the previous application).  He said the Board had a great amount of trouble (in the previous application) with the proposed creation of two non-conforming lots.  In the proposed configuration there would be one non-conforming lot. 


Mr. Hone asked what the minimum frontage was for a lot.  Mr. Hennessey replied 200ft.  He said the applicant was asking for relief from that requirement for one lot. 


Mr. Hennessey asked Mr. Maynard if he had anything to add to the testimony.  Mr. Maynard said during the previous hearing his client was agreeable to stipulating no further subdivision.  However, under the new application with the revised configuration the applicant didn’t want that restriction attached.  He noted with maintaining the existing lot at two acres it would take land away from the other lot therefore making subdivision potential less of a possibility in the future.  Mr. Kearney asked if the proposed placement of the duplex would make it prohibitive for further development.  Mr. Maynard said that wasn’t necessarily true. 


Mr. McNamara expressed concern for future development.  Mr. Maynard said with the cost of road construction and the value of what the lots in Town were going for it would be a stretch to build six lots on the parcel and make it a viable subdivision.  He couldn’t answer for if it could be a viable option in the future.  However, leaving the front lot at two acres and having the other lot be a duplex lot the potential to making the parcel into a subdivision has virtually been stripped away.  Mr. McNamara felt one of the reasons the subdivision qualified for the variance was because of size of the duplex lot being in excess of Zoning.  He said now if the variance is granted and the duplex is constructed, they would be at risk of having the lot further developed.  Mr. Maynard couldn’t say if someone would come in and have something that meet the Zoning requirements.  He commented he’d rather be up front with the Board as to what he saw with the proposal. 


Mr. Hennessey said the way the lot looked was a compelling argument.  He said it was also compelling to see the potential for subdivision.  He said they were weighing what was best for the Town.  But with the non-conforming lot having the potential to become a wide driveway out to a back subdivision, the benefit to the community was uncertain. 


Mr. Gowan told the Board that the applicant requested a consultation with the engineer.  Mr. Hennessey stated for the record that the Board was not asking for changes; they were asking for clarification of what was in front of them.  The Board recessed for approximately five minutes. 


When the Board returned, Mr. Hennessey reiterated that they Board was not engaging in ‘horse trading’, they were clarifying the information in front of them. 


Mr. Maynard said he spoke to his client regarding a stipulation for no further subdivision.  He wanted to leave the two acre lot with the existing home available without stipulation.  Mr. Hennessey commented that the two acre lot (with the existing house) contained 200ft. of frontage and was eligible under Zoning to have a duplex.  He was reluctant to impose a change on a conforming lot, although the shape looked strange. 



(McNamara/Kearney) If the Variance is approved,  it will be approved on condition that there will be no further subdivision of the duplex lot as marked on the concept plan (submitted to the Board) as Proposed Lot B.




(5-0-0) The motion carried. 


Mr. Maynard added he felt the proposed request was reasonable and with the no further subdivision stipulation it was beneficial to both the Town and the applicant.  Mr. Hennessey pointed out that the shape of Lot A looked like a candy cane. 





Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria – with conditions of no further subdivision of Lot B

Ms. Paliy –Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. Kearney – Yes to all criteria





(5-0-0) The motion carried.



VARIANCE GRANTED (with condition)


Case #ZO2013-00031

Map 41 Lot 10-270  -  POTVIN, Jeffrey & Lauren  -  15 Jericho Road  -  Seeking a Variance concerning Article III, Sections 307-7 & 307-8C to permit the expansion of a pre-existing non-conforming dwelling to accommodate a small mud-room. 


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.


The applicants came forward and described their request.  Ms. Potvin said they would like to add a 10ft.x12ft mudroom onto their home.  Currently they enter the home through the kitchen that has a tile floor; they would like to have a room to shed their shoes and outer wear prior to entering the home.  The request was brought to the Board because of being a non-conforming use on a lot that was slightly less than one acre. 


Ms. Potvin read aloud the variance criteria submitted with the application. 


Mr. McNamara confirmed that the side setback would be met.  Mr. Gowan answered yes.  Mr. McNamara confirmed that the outside appearance of the addition would be the same as the existing home.  Ms. Potvin stated they recently had vinyl siding done on their home and had additional siding for the addition to match. 


Mr. LaFrance commented that the applicant had provided photographs of their home for the Board to review. 


Mr. Hennessey opened the hearing to public input.  No one came forward to offer comment. 


Mr. Kearney believed the request was reasonable and the relief sought was minor. 





Mr. Hennessey – Yes to all criteria

Mr. McNamara – Yes to all criteria

Ms. Paliy –Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. Kearney – Yes to all criteria





(5-0-0) The motion carried.








November 14, 2013:


(Kearney/McNamara) To approve the November 14, 2013 meeting minutes as written.




(5-0-0) The motion carried. 



November 18, 2013:


(Kearney/McNamara) To approve the November 18, 2013 meeting minutes as written.




(5-0-0) The motion carried. 





(Kearney/LaFrance) To adjourn the meeting.




(5-0-0) The motion carried. 


The meeting was adjourned at approximately  8pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary