APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 11, 2013

 

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, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrator Jeff Gowan

 

Kevin O’Sullivan, Alternate Pauline Guay

 

Mr. LaFrance was appointed to vote in Mr. O’Sullivan’s absence.

 

HEARING(S):

 

Case #ZO2013-00004

RODRIGUES, Joseph  -  18 West Shore Drive  -  Map 30 Lot 11-140 – Seeking an Appeal concerning Article III, Sections 307-7, 307-8C & 307-12 relating to the interpretation and enforcement of the provisions of the zoning ordinance.  Decision of the Planning Director to be reviewed:  With regard to the requirement by the Planning Director the applicant must apply for a variance to a deck construction by the applicant on their property.  The applicant maintains that they were replacing a deck that previously existed on their property.

 

Mr. Ouellette stepped down.

 

Mr. Hennessey didn’t feel he had a conflict, but wanted it known that his wife’s cousin owned a cottage on West Shore Drive.  He wasn’t sure of the actual distance from the applicant’s location.  He described where the cottage was located.  He stated neither he nor his wife had any financial interest in his wife’s cousin’s property.  There were no objections to Mr. Hennessey remaining seated. 

 

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.

 

Attorney William Mason, representing the applicant, came forward to discuss the proposal.  He stated  Mr. Rodrigues was the individual he had been dealing with during the request process.  He said he had done some work on the case and shared his efforts with Mr. Gowan.  Those efforts, while incomplete, coupled with the inability of Mr. Rodrigues to be present due to medical circumstances (recent surgery) prompted the applicant’s request for a continuance.  Attorney Mason said the reason the continuance was requested the prior Thursday was due to Mr. Rodrigues’ surgery being postponed .  He therefore asked the Board to continue the case to their next meeting in April.  He noted that the abutter’s attorney may prefer that the continuation be set for the Board’s May meeting. 

 

Mr. Hennessey asked if anyone had comments or objections. 

 

Attorney Sumner Kalman of Plaistow, representing the abutter  Richard Hanlon (Map 30 Lot 11-111), came forward to comment.  He said the issue in front of the Board was not for a variance, it was an issue of whether or not the Administrative Official made an error in requiring Mr. & Mrs. Rodrigues to come to the Board seeking a variance.  He said it was an issue concerning the building of a deck and whether or not the application was accurate after the deck was built.  Attorney Kalman believed it was a simple issue as to whether the Administrative Official made an error or not.  He didn’t feel it was a complicated situation and told the Board he would appreciate going forward with the issue.  It was his belief that the Administrative Official made the correct decision and felt it was appropriate to proceed.  He said if the Board decided to continue the case the April meeting would hold. 

 

Mr. Hennessey asked Attorney Mason if the fact was narrow and if the Board could hear the Administrative Appeal.  Attorney Mason believed the issue they would run into folded in to civil matters.  He said the property owners of the properties (and the owners before them) were under the impression that a lot line existed in a certain location based on pins in the ground that had been in place well over twenty years.  He knew the civil matter needed to be addressed and cleared up so they would know whether the Administrative ruling was what should have been handed down.  He said it wasn’t as simple as turning it down and then coming in for a variance, because the variance would be under circumstances that raise the location of the boundary line between each of the properties.  The parties have retained engineers who have done surveying work, but there were also historical references such as usage of property over extended periods of time and where each party believed where the boundary line was.  Attorney Mason stated Mr. Rodriguez had done a fair amount of homework on the issue and wanted to be present to share information with the Board.  Postponing would be a courtesy to Mr. Rodrigues.  He didn’t feel waiting two or three weeks would be problematic for any of the parties.  He asked the Board to continue the case to their April hearing. 

 

Mr. McNamara didn’t have a problem continuing the case given that Attorney Mason had been dealing primarily with Mr. Rodrigues and because Mr. Rodrigues was not present through no fault of his own.  There were no objections to continuing the case.

 

MOTION:

(McNamara/Molloy) To continue the case to April 8, 2013 (to be listed first on the agenda)

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Ouellette returned to the Board.

 

Case #ZO2013-00003

HABEEB, Judith  -  36 Woekel Circle  -  Map 31, Lot 11-279 – Seeking a Variance concerning Article III, Section 307-12, 307-13 & 307-14 to permit an existing non-conforming 2-bedroom year round house on Little Island Pond on a lot with 80 feet of road frontage on Woekel Circle and an area of 7,794 SF (+/-) to be removed and replaced with a new larger house but slightly smaller building footprint.  The new house is to be 24.5 feet back from Woekel Circle, 15.6 feet back from Little Island Pond, 12.6 feet from the left lot line and 23 feet from the right lot line (stairs 19.5 feet).

 

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. Wes Aspinwall of Herbert Associates, representing the applicant, came forward to discuss the requested variance.  He read aloud the letter of intent submitted with the application package.  In summary, the applicant owns a 2-bedroom home with an attached garage on Little Island Pond. The house dates back to 1937, contains one level and has a crawl space underneath.  The septic system was constructed in 1967 and still functions, however it doesn’t meet  current standards and is located 35ft from the lake and 45ft from a neighboring well.  The existing home doesn’t meet the current and future needs of the owner.  The owner is requesting to remove the existing house and build a home with a smaller footprint and different configuration.  The new house would be moved 3ft. further back from the shore to allow additional ground space for a new Clean Solutions septic system.  The new septic system would be located 75ft. (+/-) from all neighboring wells.  The owner has obtained all State and Town approvals for the proposed septic system and has obtained a State Shoreland Permit.  Mr. Aspinwall displayed/reviewed an existing conditions plan and further explained where the new house, septic system and well would be located.  The new house is proposed to be 15.6ft. back from the shoreline.  He also displayed  building architect renditions of the proposed new house.  He then read aloud the variance criteria submitted with the application.  It was their belief that the requested variances were necessary for the reasonable use of the property. 

 

Mr. Molloy asked how many bedrooms the existing home had.  Mr. Aspinwall said the existing house contained two bedrooms; the proposed house would also contain two bedrooms.  Mr. Molloy asked for the current height of the house.  Mr. Aspinwall didn’t have an exact house, and indicated it was a single-floor home.   Photographs were included in the application package.  Mr. Molloy asked for the height of the proposed home.  Mr. Aspinwall said the architect’s plan specified the information; it would basically be three floors (a basement, main floor and second floor) approximately 24ft plus an additional 12ft. to the peak.  Mr. Hennessey asked Mr. Aspinwall to review the information because the Board was very interested in the height of properties (from road grade) along the lake. 

 

Mr. McNamara asked for the square footage of the present home.  Mr. Aspinwall believed it to be 1891SF (house and garage); the proposed home would be 1882SF.  He commented that the existing home had a crawl space and they were proposing to be at ground grade (elevation 148).  Mr. McNamara was surprised at the proposed SF based on the plans and architectural rendering appear to have a big disparity in size. 

 

Mr. LaFrance pointed out that the proposed plan showed the new home to be approximately 29ft. to the ridge.  Mr. Aspinwall described the lot which sloped uphill to the garage.  There would be more height on the lake side.  Mr. LaFrance said the height would be approximately 29ft. from the slab, but it appeared the height would increase on the lake side.  Mr. Hennessey said it appeared the height would be somewhere between 29ft. – 31ft. 

 

Mr. Aspinwall clarified the SF figures discussed.  He said  the footprint would be 1882SF, but the proposed house would contain more square footage than the existing. 

 

PUBLIC INPUT        

 

Ms. Ethel Walker, who resided approximately two-three homes from the applicant, told the Board she felt the proposed would be a benefit for everyone in the entire neighborhood.  It was her understanding that the existing home had numerous problems with the heating and water coming into the basement.  She said building a new structure would be safer for the applicant. 

 

Mr. McNamara said the Board liked to see people improve their properties in this area, however he was concerned regarding the height of the building and increase in square footage.  He said the proposed height seemed rather high.  Mr. Aspinwall said an issue to the height is that the existing home essentially blocked out more of the view than the proposed would.  He discussed the topography of the neighboring area; the neighbor’s view was to one side or the other of the existing home, but the proposed home would be a narrower structure. 

 

Mr. Hennessey said the Board had tried to impose a height restriction to homes around the lake.   He said it wasn’t just view, but also the sensitivity of the future of the lake.   They didn’t have hard and fast rules on the Board.  He asked for a motion to conduct a site walk and that the applicant mark the proposed height with a balloon or such. 

 

MOTION:

(McNamara/Molloy) To conduct a site walk on the property.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Gowan believed it would also benefit the Board to have the applicant stake, wherever possible, the new footprint of the home. 

 

The site walk was scheduled for March 16, 2013 at 9am.  Mr. Hennessey explained to the public that site walks were considered public hearings and conducted similar to a meeting.

 

The case was date specified to the April 8, 2013.

 

Case #ZO2013-00005

BURCH, Ronald & Karen  -  13 Gordon Avenue  -  Map 8, Lot 9-144-26 – Seeking a Variance concerning Article III, Sections 307-12 Table 1, 307-13B & 307-14 to permit the existing 2.2 acre lot to be subdivided to create one new lot 9-144-29 and build a house with road frontage on Gordon Avenue with 134.24 feet rather than the required 200 feet.

 

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. Shayne Gendron of Herbert Associates, representing the applicant came forward to discuss the requested variance.  They were seeking to subdivide the applicant’s 2.2 acre lot into two building lots, one would contain the existing home and have the required frontage.  The new lot would contain 134.24ft of frontage, which is the purpose for the variance request.  Mr. Gendron explained that the applicant had resided in Town for over 30 years and were looking to subdivide the lot to build a new home for them  and also provide a home for their son (on the other lot).  He reviewed the proposed plan/aerial photograph.  There is a drainage easement containing a wet area (and Wetlands Conservation District) that was flagged by Gove Environmental Services.  He showed how the proposed lot would be composed; a Special Permit would be required if the variance is approved.    He showed the locations of the abutting homes to show the separation from them.  Beyond the frontage variance, there were no other variances being requested.  State Subdivision has been applied for and had no anticipated problems. 

 

Mr. Gendron reviewed and read aloud the variance criteria as submitted with the application. 

 

Mr. Hennessey asked for an explanation of the special conditions of the lot that effects the variance.  Mr. Gendron felt the way the lot existed it made it hard to set up the lot in the manner of a traditional lot.  He said they had gone to lengths to design the driveway to meet the Subdivision Regulations, but it was difficult due the drainage easement and everything else.  Based on the variance criteria, Mr. Hennessey questioned what characteristics the lot had that made it special and cause the Board to grant a variance, unlike the other lots on the street that were the same size.  Mr. Gendron believed the applicant’s lot contained a greater acreage than others in the subdivision. He noted the lot was short on frontage, but met all other requirements in Zoning.  He said the owner was looking for more use out of the property to be able to hand it down to their son for use as well.  He said it was difficult for people starting out to afford a home.   Mr. Burch reiterated that the motivation behind the variance was as stated.  He said his son was a struggling teacher who had shown interest in the historical perspective of the ownership and legacy on the property.  Given there was another full acre, they felt it would fit their family needs and were seeking the variance for that reason. 

 

PUBLIC INPUT

 

Mr. Kevin Correa, William Drive, asked for a perspective of where homes were currently located in relation to where the proposed home would be constructed.  Mr. Gendron outlined the parcel showing the drainage easement, existing home and where the proposed home would be located.  The setback from the property line was approximately 180ft. to the front line of the house.  The proposed driveway was profiled out at 200ft. from the edge of the road to the garage door. 

 

Mr. Donald Peirce, 10 William Drive, questioned if the builder of the whole development couldn’t put a house on the lot, why should someone do it now.  He commented that the land behind the parcel was treed and beautiful.  If those trees are cut down, they would lose their view where they currently have privacy. 

 

Ms. Michelle Gallagher, 17 Gordon (a direct abutter) was concerned  about the land, view and privacy based on the trees.  She indicated her lot also contained 2.2 acres.  She said the proposed driveway would be located between the lots which would require tree cutting and possibly eliminate privacy.  She also would like to know the timeline as to when the project would happen. 

 

Mr. Hennessey explained the process from when a variance is granted and if Planning Board review was necessary.  Ms. Gallagher was interested in knowing when construction/demolition would occur .  She reiterated privacy was her concern and noted the selling feature of her home as being the land and the privacy. 

 

Ms. Caroline Peirce, 10 William Drive, was also concerned with privacy.   She said that was the nice part about her lot and the reason for purchasing such.  She said she also had two struggling sons that just graduated college and questioned if she would be allowed to subdivide her land  to help them;  although she didn’t believed they had  enough land.  She understood  wanting family to be on the same lot.  But was concerned with privacy.  Ms. Peirce told the Board that there was currently a bit of a water issue running down the hill and believed it would increase with the removal of trees. 

 

Mr. Gendron said in the area behind the existing and proposed home there was a lot line created that would go with the existing home.  The applicant had no problem stipulating a no-cut (of approximately 25ft-30ft) in that area.  This would allow for the proposed home and the abutters to maintain privacy.  He stated they didn’t have a problem studying the lot in preparation for Planning Board and providing drainage numbers.  He also didn’t have a problem stipulating that the house would have gutters/downspouts to put the water back into the ground.  He discussed the Wetland Conservation District (‘WCD’) and explained  when they went through that WCD they would take as little of the area as possible; beyond that small area they wouldn’t be cutting trees along the left side of the lot. 

 

Mr. Molloy asked for the frontage of the newly created lot.  Mr. Gendron said it would be 134.24ft.  and the existing home would have 200ft. of frontage. 

 

Mr. McNamara believed everyone was sensitive and appreciative to what the applicant was trying to do, but he said the problem was the request to create a non-conforming lot that was odd shaped and consisted primarily of water or WCD.  He said the purposes of having an acre minimum and 200ft. frontage was so people could enjoy typical activities outside their home.  He didn’t feel creating the proposed lot would achieve that goal.  He said it appeared the 6 surrounding properties had approximately the same acreage as the applicant’s lot.  Mr. McNamara addressed the privacy concern and stated it was nice to enjoy  it, but unless (additional land) purchased,  they didn’t have control over it. 

 

Mr. Hennessey said if an applicant comes forward with an offer, his feeling was the Board should institutionalize it with a motion.  In this case, the applicant offered a 25ft-30ft buffer to protect the existing character of the lot.

 

MOTION:

(McNamara/LaFrance) To establish a 30ft no cut zone as described by the applicant.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Ms. Paliy asked for the septic area to be pointed out.  Mr. Gendron said the State requires a 4KSF area for septic.  He was confident about the area they would put the system and highlighted that location on the plan. 

 

Mr. Molloy looked at the neighborhood said the testimony was  that the abutters purchased their land based on the size of the lots.  He didn’t want to speculate about the future, but believed if the lots were carved into non-conforming lots it would change the density of the neighborhood.  He didn’t see that as being in anyone’s favor.   He was having serious trouble with the application. 

 

Ms. Paliy said this was the type of application that a duplex may make more sense than a subdivision.  Mr. Burch said they had given a considerable amount of thought and discussion with Town officials about putting a duplex on the lot.  They didn’t feel it was in the spirit of the neighborhood because duplexes tend to eventually become rental units.  Mr. Burch felt dividing the lot made more sense to maintain the integrity of the neighborhood. 

 

Mr. Hennessey’s concern was the shape of the lot and creating a non-conforming lot from a conforming lot.  He said the issue he couldn’t get past was critera 5; he didn’t see anything that made the lot unique.  Mr. McNamara noted that the property was being used in conformance with the Ordinance.  He didn’t see where 5b applied.  Mr. Hennessey reiterated he didn’t see what made the lot different.  He didn’t see special conditions. 

 

Ms. Paliy said if the construction took place the well would be within the WCD.  She felt if the Board considered passing the variance they should walk the lot.  She said duplexes were voted by the citizens and contained in the By-Laws, the proposed was not. 

 

BALLOT VOTE:

 

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

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

Mr. McNamara – No to all criteria

Mr. Molloy – No to all criteria

LaFrance -  1)  Yes, 2) Yes,  3) Yes,  4) Yes,  5a) Yes, 5b) No

 

VOTE:

 

(1-4-0) The motion failed.

 

 

VARIANCE DENIED

 

Case #ZO2013-00006

NIVISON, Margo  -  21 Willow Street  -  Map 35 Lot 6-23  -  Seeking a Variance to permit an accessory apartment to be created within the existing dwelling and to allow a second driveway to be constructed from Willow Street to allow handicap access to the proposed accessory apartment within the home located at 21 Willow Street

 

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 said the Board had some discussion regarding Special Exceptions and  received legal opinion indicating that the criteria for such could not be varied.  He was counseled on Mr. Gowan about the case and understood that the Board that could grant a variance to any part of Zoning.  He said the Board was not being asked to change the Special Exception, the case in front of the Board was a variance request.  He suggested that the Board keep the special exception in mind and perhaps issuing conditions might be appropriate to keep as close to a special exception as possible.  He believed the applicant was aware of the facts.  In summary the application in front of the Board couldn’t meet the special exception, but the applicant essentially wanted what is described by special exception. 

 

Mr. Gowan  commented prior to obtaining legal option, he used to send applicants to the Board for a variance to the criteria they couldn’t meet in a special exception, then follow the application up with a special exception.  He said by coming in for a variance, the criteria was stricter. 

 

Mr. Hennessey stated the request is for a variance in which the criteria must be met.  There was a brief discussion how a similar situation should be heard in the future.  Mr. McNamara felt it was logically inconsistent to do both a special exception and variance.  Ms. Paliy questioned if special exceptions could be approved by the Planning Department since it was a matter of yes or no if the criteria is met.  Mr. McNamara said Legislature gave the Board the authority to approve special exceptions.  Mr. Hennessey reiterated that the request in front of the Board was for variance in which the five criteria must be met. 

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the variance request.  He said he was well aware of the past in which applicants would come forward with different requests.  He said in speaking with the applicant it became apparent that they met all the criteria for special exception except one; they were hoping to add a second driveway.  He said they were more than willing to impose the accessory apartment regulations  and the only portion seeking a waiver was a second driveway onto Willow Street.  Mr. Maynard reviewed the plan and explained that a second driveway was necessary based on the manner the house was laid out and the location of the accessory apartment that would be located within.  The accessory apartment was for the applicant’s parents, one of whom required wheelchair access.  The grade of the lot necessitated the apartment to be on the portion of the lot with a gentle slope for the wheelchair ramp to be constructed.  It was pointed out in the general area a home had a loop driveway and other homes had multiple curb cuts.

 

Ms. Paliy confirmed there was adequate room for a vehicle turn around in the new driveway.  Mr. Maynard answered yes; they included a small turn around to the 12ft. driveway. 

 

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

 

Mr. Gowan felt it was important for the Board to review Section 674:33 that gave the Board their power.  He read a portion aloud that addressed granting a variance without finding hardship arising from a condition of a premises when reasonable accommodations are necessary to a person/persons with recognized physical disability to reside in or regularly use a premises provided that any variance granted shall be in harmony with the general purpose of the Ordinance and the Board may make any findings included in the variance only so long as the person has a continuing need to use premises. 

 

Ms. Paliy asked for the process of getting the second driveway and if it had already been started.  Mr. Maynard explained the process which would go through the Town.  Ms. Paliy asked if the applicant was guaranteed a second driveway if the variance was granted.  Mr. Gowan said the Highway Road Agent would most likely bring it in front of the Highway Safety Committee for discussion and review and to ensure proper addressing for emergency response.  Ms. Paliy was familiar with the home and noted that the accessory apartment would be within the existing home.  She felt the second driveway with the turnaround would be a safer condition than having a shared driveway. 

 

There was no public input offered by those present at the hearing. 

 

Mr. Hennessey was concerned with placing a condition on the variance that the handicap driveway would be eliminated if the handicap person no longer resided at the premises.   Mr. Gowan didn’t suggest that the Board take that position.  Mr. Hennessey felt it added to the safety of the location to have the second driveway.  He suggested that the Board adopt the requirements of special exception. 

 

Mr. McNamara made a motion that other than a second driveway, all other requirements as delineated in Special Exception be satisfied.  Mr. Molloy seconded the motion. The applicant was commended for their honesty in including the second driveway on the plan. 

 

MOTION:

(McNamara/Molloy) To take the conditions on a Special Exception for an accessory apartment, with the exception of the driveway.

 

VOTE:

 

(5-0-0) The motion carried. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy –  Yes to all criteria

Mr. McNamara – Yes to all criteria – with conditions as stated.

Mr. Molloy – Yes to all criteria – with stated motion.

LaFrance – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion  carried.

 

 

VARIANCE GRANTED

 

 

SITE WALK – March 16, 2013 beginning at 9am

Case #ZO2013-00003 - HABEEB, Judith  -  36 Woekel Circle  -  Map 31, Lot 11-279

 

DATE SPECIFIED PLAN(S) April 8, 2013:

Case #ZO2013-00003 - HABEEB, Judith  -  36 Woekel Circle  -  Map 31, Lot 11-279

 

MINUTES REVIEW

 

MOTION:

(Molloy/LaFrance) To approve the minutes of February 4, 2013 as written.

 

VOTE:

 

(5-0-0) The motion carried. 

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

 

MOTION:

(LaFrance/Molloy) To approve the minutes of February 11, 2013 as written.

 

VOTE:

 

(5-0-0) The motion carried. 

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

 

MOTION:

(Molloy/LaFrance) To approve the minutes of December 15, 2012 and January 14, 2013 as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

ADJOURNMENT

 

MOTION:

(Molloy/LaFrance) To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately   9:00 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary