APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

April 8, 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, Peter McNamara, Chris LaFrance, Alternate Lance Ouellette, Alternate Kevin O’Sullivan, Alternate Pauline Guay, Planning Director/Zoning Administrator Jeff Gowan

 

Robert Molloy

 

ELECTION OF OFFICERS:

 

Mr. Ouellette was appointed to vote.

 

MOTION:

(McNamara/Paliy) To re-appoint David Hennessey as Chairman.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

MOTION:

(McNamara/LaFrance) To re-appoint Svetlana Paliy as Vice Chairperson.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

MOTION:

(McNamara/LaFrance) To re-appoint Robert Molloy as Secretary.

 

VOTE:

 

(5-0-0) The motion carried. 

 

REQUEST FOR REHEARING:

 

Case #ZO2013-00002

Request made by Paul DeCarolis regarding RAYTHEON COMPANY  -  50 Bush Hill Road  -  Map 20 Lot 3-137 – seeking a Variance concerning Article III Section 307-8 (C) of the Zoning Ordinance to permit the construction of a new mechanical & electric buildings, new retaining wall, new concrete pads at grade, additional underground power service. Associated scope of work shall include new bituminous pavement driveway, temporary crushed stone construction access road installation of new equipment trailers and electrical power wiring for equipment units under test (UUT’s); all per the accompanying plans c1.0 and c1.1. (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. Ouellette was appointed to vote in Mr. Molloy’s absence.

 

Mr. Hennessey confirmed that all the members had read the appeal of the case.  He explained to the public that the request in front of the Board was to rehear the case based on information provided by Paul DeCarolis. 

 

Mr. McNamara believed the Board had full and fair hearings regarding the case.  He didn’t see anything new contained in Mr. DeCarolis’ memo.  He said it was up to the Board to schedule a rehearing if they felt they somehow made a mistake or needed clarification.  He said there were a lot of things discussed during the meetings, but doesn’t necessarily mean the Board improperly considered them.  He said in the end, the Board based their judgment on the criteria. 

 

Mr. Hennessey felt it had been an extraordinarily difficult case and was false that the Board didn’t respectfully entertain all the arguments.  He understood Mr. DeCarolis’ position, but believed the Board gave a full and fair hearing fully discussing the five criteria.  He stood by the Board’s decision.

 

MOTION:

(McNamara/LaFrance) To not reconsider the case. 

 

VOTE:

 

(5-0-0) The motion carried.  (The Board voted in the affirmative to Not hear the case)

 

 

CONTINUED:

 

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. Hennessey said the Board conducted a site walk and during which had discussion and listened to a number of abutters. 

 

The applicant, Ms. Judith Habeeb, told the Board that the property had been in her family for approximately 72 years and had watched the neighborhood evolve from small camps to be half/half year-round homes.  She said they would like to move into their cottage full time.  It was currently a year-round residence, but was not big enough to do so comfortably.   Ms. Habeeb told the Board that they had invited all the neighbors into her home and showed them pictures of  the plans.  She showed the Board photographs  to help them come to a decision. 

 

Mr. Wes Aspinwall of Herbert Associates came forward to discuss the variance.  He said he spoke with everyone at the site walk.  He said there was some concern regarding the height of the building.  He said the proposed was not unique to the neighborhood; and posted photographs of those for the Board’s review.  The proposed house would have a 6 / 12 roof line with the gable end  (one peak) that the neighbors would view.  The lot was small, therefore the footprint would also need to remain small; a second floor was needed for the owners to have more space.  He discussed the benefits of having the roof line as was proposed, for drainage, snow load and appearance for potential resale value.  The house would remain as a two-bedroom home with the remaining area being living space.  Mr. Aspinwall said the proposed use was for the owner and they believed it was a reasonable situation given that a denial wouldn’t create a public benefit and not in relation to the value that would be lost if the variance wasn’t approved. 

 

Mr. McNamara asked for the height of the proposed home.  Mr. Jim Baird of Innovative Homes (Claremont, NH) said the proposed home would be 28ft. from the silt plate to the peak; from grade the height would be approximately 30ft. to the first peak and approximately 35ft. to the second peak.  Mr. McNamara then asked for the square footage of the proposed house.  Mr. Baird said it would be 2392SF. 

 

Mr. Ouellette said during the last meeting there were two elevations questioned, one being the road side and the second being the water side.  He calculated the height using the elevations on the map, which showed the height as being approximately 36ft.  Mr. Baird commented that the proposed home would have a gravity feed septic system, and the top of the wall height was set to have the proper gravity.  He said the foundation was cut as low as they could and were able to just barely get enough pitch out of the house for the septic system.  There was further discussion regarding the elevations and height of the proposed home.  Mr. Ouellette wanted to be sure about the proposed height, which seemed to calculate out higher than what the Board typically granted. 

 

Mr. Hennessey said there was lengthy discussion at the site walk about the height.  He said the reason the Board emphasized the height on the ponds/lakes was because in effect there was no height restriction on a single-family home in Pelham.  Height has been used to minimize the impact of new construction around the pond. 

 

Mr. Baird reviewed the proposed building plan and noted from the top of the foundation (which was 6ft.8n) to the ridge was 28ft.  Mr. Aspinwall said the grade on the lake side was 148; the high peak goes 35.2ft. from the ground on that lake side,  and the ridge line was lower by a couple feet.  He said the elevation from the garage side was 150.  Mr. Hennessey said the purpose of the discussion was not to determine an exact number, but rather to minimize the impact to the neighbors with the height.  He said Mr. Aspinwall correctly discussed the two aspects of new construction; the aesthetics and the necessary.  He said the height of the foundation was necessary because of the septic system.  He said there was discussion regarding the roof pitch and asked if it was determined based on construction terms, or aesthetics.  Mr. Baird said they try not to keep anything less than a 6 /12 normally because of the snow load as well as aesthetics.  He said they might have to alter the floor plan of the open concept design (with a different roof) as well as determine snow loads.  Mr. Hennessey asked what could safely be the lowest pitch put on the proposed house.  Mr. Baird said he wouldn’t want to go much lower than four pitch; the current proposal was a six pitch.  To go from a six pitch to a four pitch would lower the height approximately 20inches.  Mr. Aspinwall reviewed the photographs displayed of similar homes in the area.  He said the proposed was not out of place in the neighborhood. 

 

There was no public input. 

 

Mr. McNamara questioned if the plan would go to the Planning Board if a variance was approved.  Mr. Gowan answered no.   Mr. McNamara asked if the drainage calculations would be reviewed since testimony was given that water currently had a tendency to pool on the street.   Mr. Gowan said the Zoning Board could, as a condition for approval, require the plan to go to the Planning Board for Site Plan and drainage review.  Absent that requirement from the Zoning Board, the plan would not go to the Planning Board. 

 

Mr. Aspinwall commented that they looked at the road before they got into the property and found several issues.  There was a swale done by the Highway Department that essentially directed water toward the front of the applicant’s property that was created as a solution to ponding on the other side of the road.  He had been at the property during a heavy rain storm and because the lot was flat, there was ponding.  He said there was provision for drainage to run off to the left portion of the lot and flow into the existing ditch.  He said no matter how much the drainage was studied, there really wasn’t a good opportunity to do much with it unless the road was raised.  Mr. Hennessey asked if the new construction would fundamentally change the drainage to be worse.  Mr. Aspinwall said the grade would be raised at the garage (and driveway coming down) and some of the yard would be filled; in a heavy flow the ponding would be more limited to the swales along the road way.  He said they weren’t increasing the drainage because the roof area, size of the building and footprint were pretty much  the same as the existing.  In the course of the construction and grading the swale would be maintained.  The flow would be similar to what it currently was. 

 

Mr. LaFrance didn’t believe the work on the lot would affect the neighbors any more than they already were.  He viewed it as a situation that the applicant couldn’t control, therefore the Board shouldn’t enforce them to. 

 

Ms. Paliy noted that the area had some of the largest houses around the lake and the Board should give consideration to that fact when making a decision.  She didn’t feel the house height should be lowered.  She commented that she had always disagreed with forcing people to lower roof pitches. 

 

Mr. McNamara remained troubled by the height and believed the proposed home would be significantly higher than those in the immediate vicinity. 

 

Mr. Hennessey asked if the permeable surface would be affected if the Board required the pitch to be lowered.  Mr. Aspinwall believed it would be negligible in terms of drainage, but couldn’t answer further than that. 

 

Mr. Ouellette said he didn’t have difficulty with the layout of the house, just with the overall height based on past recommendations and approvals that had been given.  He believed the house could be lowered, but didn’t want to impose that hardship.  He said the Board had applicants come to them with revised plans for wall height.  Mr. Hennessey said the Zoning Board couldn’t make trades with applicants.  He said they could make a motion to limit the pitch of the entire height or roof pitch.  Mr. O’Sullivan noticed that heights had crept up over the last few years. 

 

Mr. Gowan understood that the footprint for the proposed was actually smaller than the footprint of the original house and therefore shouldn’t have a drainage impact.  He said only in a case where a drainage treatment is being shown would he recommend it to go to the Planning Board for review. 

 

Mr. Hennessey asked the Board if they wanted to make a motion regarding the pitch of roof or height.  He was persuaded by the lack of opposition by abutters and by physically walking the site.  He was reluctant to lower the structure approximately 20inches , which would change the load bearing walls and possibly cause a structural issue. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – No to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. Ouellette – Yes to all criteria

 

VOTE:

 

(4-1-0) The motion carried.

 

 

VARIANCE APPROVED

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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. O’Sullivan was appointed to vote.

 

Attorney Bill Mason, representing the applicant, came forward.  He said they were seeking an Appeal to an Administrative Decision that revoked a previously issued building permit for construction for construction that was completed on  the applicant’s home at 18 West Shore Drive.  He said by way of history and the Town’s building file the applicants purchased the home in the Fall, 2011.  The applicants got requisite permits and began to make improvements to the home which was very dated and in disrepair.  They wanted to reconstruct a deck that at some point in time existed on the front of the house.  To pursue this matter, the applicants filed for a Shore Line permit, obtained a building permit and commenced construction on their deck.  At some point in time an unauthorized  note appeared in the file that said there was never a deck there before.  Attorney Mason said the contractor that did the work on the property is a local contractor.  In doing the work the contractor wanted to make sure everything was done in accordance with how the Building Inspector wanted it done.  Three ‘sono tubes’ structures were identified across the front (8ft. out) along with metal flashing along the front of the house where the deck area was going to extend.  The Building Inspector told the contractor to remove the old sono tubes and replace them with new ones (not going beyond what had been there) and add one to carry the 24ft. span.  Over the years (prior to the applicant’s ownership) had gone from a single story lake cottage, which was then raised and had a basement floor added.  Attorney Mason said the applicant was in front of the Board because they received notice from Mr. Gowan saying that they provided false information with regard to their application for a building permit and that he was persuaded that there was never a deck there in the past.   Attorney Mason told the Board he had pictures of what the decking looked like if they wanted to see it.   He said the applicant’s son-in-law was present and could tell the Board that the deck was in terrible disrepair and possibly not used for years; the walkway portion to get into the home was in very bad shape.  He reiterated that he had photograph that could be shown to the Board of the situation.

 

Mr. Hennessey discussed the matter in front of the Board, which was an Appeal of an Administrative Decision of Mr. Gowan.  Attorney Mason said the building permit was rescinded based on the belief that the application was incorrect or was false.  Mr. Hennessey asked Mr. Gowan if that was the reason why the application was pulled.  Mr. Gowan didn’t agree.  He said he never claimed that the information provided in the building permit was false, which would imply that it was intentionally misleading; he didn’t believe that was the case.  He believed it was simply mistaken.  He said the reason he reached his opinion was that the abutter provided a certified plot plan showing that the deck actually extended over onto their property.  He thought maybe the abutter’s certified plot plan didn’t agree with the applicant’s certified plan.  He spoke on the phone with the engineer who had done the abutter’s plot plan that showed the encroachment.  Mr. Gowan said both surveyors had spoken and were in agreement, which means there is an encroachment.   He said he didn’t have the authority to issue a permit for an encroachment.  Mr. Hennessey wanted to define the situation, but believed there was agreement that Mr. Gowan pulled back the building permit.  Attorney Mason said that was correct; alleging the information was incorrect.  He said the bigger of the issues was the person the applicants purchased the property from, and through conversation with the immediate abutter (that a survey today reflects) always believed (and was represented to the applicant)  and shown a pin where the boundary line was located.  He said there were civil issues.  They had attempted to resolve the situation, but had been unsuccessful in that regard.  Mr. Hennessey said he was hearing that the reason the building permit was pulled was because the applicant didn’t own the land  the structure was put on.  He asked Attorney Mason if he agreed with that statement.  Attorney Mason said he hadn’t viewed what Mr. Gowan was looking at.  He said he spoke with the applicant’s surveyor and commented if there was a difference in the current survey by the applicant’s surveyor and in the abutter’s survey, it would be inches.  He said the encroachment would be 4in-5inches.  Mr. Hennessey asked if the applicant owned the land that the addition was put on.  Attorney Mason said they believed they did; that’s the civil part of the problem. 

 

Mr. Gowan had a certified plot plan in front of him which showed  .8 feet.  He said typically when two neighbors had surveys that were in disagreement there would be a third survey that would go out and try to settle a situation.  It was his understanding that the two surveyors in this case agreed to the proper line.  He said he couldn’t let a building permit remain that had an encroachment.  Mr. Hennessey said it appeared that the survey was the issue in this case. 

 

Attorney Mason noted that the lots around the pond were small.  He said there have also been  issues on the other side of the abutter’s property line regarding the boundary.  He noted there had been a historical use of the property different from what is reflected on the survey.   Attorney Mason told the Board that the applicant was assessed for a concrete platform at water’s edge, which the Town says is part of their property and the abutter’s survey says it isn’t.  He said they didn’t want to be faced with an order to tear down a deck for four inches.  He pointed out there was a walkway (36inches in width) that came from a side door to the front of the deck.  Under the Building Code that walkway was  as narrow as it could be made.

 

Mr. Hennessy said the case being heard was an Appeal to an Administrative Decision based upon existing plot plans.  He said Attorney Mason didn't disagree with what the Board had before them showing where the deck was located.  Attorney Mason couldn’t answer.  He said possibly Mr. Gowan came upon a good way to resolve the situation by having a third surveyor come in and sort the situation out.  He was agreeable to having the Board suspend their decision until he took care of the boundary issue.  He didn’t want the Board to say Mr. Gowan was correct and having fine letters issued to the applicant, who had done nothing but improve the property.  Attorney Mason said if the situation had to be done civilly, he was willing to do so, but didn’t want the applicant fined while the process was ongoing.  He said the current status of inches in the near term wouldn’t materially affect either party, however, if the Board pulled the permit and the deck had to be torn down it would materially affect the applicant.  He wanted the opportunity to work the situation out with the abutter (Mr. Hanlon and his representation). 

 

Mr. Gowan said since it was his Administrative Decision being challenged, he requested that it be read into the record so everyone could understand exactly what that decision was.  Mr. Hennessey asked that the decision be read.  Mr. Gowan read aloud his Administrative Decision.  He said the purpose of the letter was to call attention that the applicant was only a few inches over the line and a variance would be a path to resolution that would take the Town out of it.  Mr. Hennessey heard from the testimony that the situation was an encroachment and the Board couldn’t grant a variance to it.  Mr. Gowan wasn’t suggesting that and explained that the Board could consider a variance to the 15foot side setback requirement so the parties could resolve the encroachment.  He told the Board when the application came in from the applicant he saw in the photographs there was a door on the second floor that worried him from a safety standpoint.  He said if there had been a deck there it would make sense to put one back.  Mr. Gowan said he didn’t have any specific dimensions from the original deck, it was his opinion from a safety perspective, if there was a deck there previously it should be put back.   He believed the Board would hear compelling evidence a deck wasn’t there and it was actually a stoop when it was a nearly ground floor door.  It was Mr. Gowan’s position that it was a mistake that should be brought to the Board through seeking a variance.  The applicant chose the option of seeking an appeal. 

 

Attorney Mason told the Board that prior to the building being raised, the side door exited out to a landing.  He didn’t find anything in the building file regarding the house being raised, but didn’t feel it would have been done without the Town’s approval.  He said after house was raised, the door couldn’t exit onto a landing because it was 6ft-7ft. higher than what it was so it exits out to a walkway.  He said it was a situation that should be resolvable. 

 

Mr. Hennessey confirmed that the applicant was in front of the Board to overturn the Administrative Decision and needed more time.  He noted that Mr. Gowan indicated the applicant should come before the Board for a variance.  It was understood by the applicant that the Board couldn’t grant a variance for an encroachment.  Attorney Mason discussed the applicant’s options.  Mr. Hennessey understood with an appeal that the Board could either uphold that decision or turn it over; they couldn’t change it or make conditions.   He didn’t believe they had an option to put it on hold. 

 

Attorney Mason said they believed, based upon physical evidence found by the contractor and told by neighbors about the status of the deck. 

 

Mr. Hennessey stated he had previously made a disclosure and reiterated such.  He said he was not an abutter and had no interest in the party; however, his wife’s cousin owned the land two doors down from the applicant.  He was very familiar with the site. 

 

Attorney Mason said they would like the Board to rescind Planning Director’s decision regarding the construction of the deck.  He said if the deck was constructed in a place or a different state from what was supplied to the Town, that would be one thing, but the applicant did what they were granted permission to do.  He said if there is a boundary line problem they would have to straighten it out with the neighbor.  In summary, Attorney Mason said the applicant’s ability to build a deck based on the physical evidence of what was on site and information conveyed to the Building Inspector was in place. 

 

Mr. Gowan wanted it understood that he knew enough that the Board couldn’t grant a variance for an encroachment.  He didn’t want to specify an amount for a variance because that would be up to the applicant.  He felt the Board should know originally on the permit it was noted new replacement deck must be located in exactly the footprint of the former deck.  He said the Board will hear testimony that there wasn’t a deck there, in that exact spot.  It was also noted that the deck replacement was not an expansion of a non-conforming use.  He wanted it to be clear that the applicants had done wonderful work on the property.  He said with the encroachment across the property, he had no choice but to pull back the building permit.  He believed the parties each had photographic evidence and information for the Board.  He said he had a copy of the abutter’s survey and would be interested to see if the applicant’s survey in fact matches it.  He was told it did, but had not yet seen the applicant’s survey.  Mr. Hennessey thought there was agreement that the survey Mr. Gowan referenced represented the correct lines.  Attorney Mason said that survey was the abutter’s (Mr. Hanlon’s) survey.  He said he didn’t have an opportunity to look at the survey, but trusted Mr. Gowan’s representation that the survey reflected the latest information. 

 

Mr. Hennessey didn’t understand what the argument was about given the fact there was agreement that there was a plot plan showing an encroachment.  Mr. LaFrance didn’t know why the case was in front of the Board.  He said clearly each neighbor had a similar problem.  He felt the matter was beyond the Board.  Mr. McNamara said the hearing was to decide if the Board would uphold the decision or not.  He said there was a plot plan that showed an encroachment of eight inches and when it was realized, he said Mr. Gowan had no choice but to rescind his permit.  Mr. Hennessey urged the parties to settle the situation.

 

 

MOTION:

(LaFrance/O’Sullivan) To uphold the decision of the Administrator. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Ouellette returned to the Board.

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HEARING(S):

 

Case #ZO2013-00007

MERRIMACK VALLEY HOMES, INC.     -  16-18 Greenmeadow Drive  -  Map 33 Lot 1-161 - Seeking a Variance concerning Article III, Section 307-14 to permit the creation of a lot with less than 200 feet of contiguous frontage.

 

Mr. O’Sullivan stepped down.

 

Mr. Ouellette was appointed to vote. 

 

Mr. McNamara 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. Jim Herrick, representing Merrimack Valley Homes, came forward to discuss the requested variance.  The applicant currently owns a parcel of land on Greenmeadow Drive containing approximately 39.5 acres.  Their plan was to subdivide the property into two residential lots with approximately two acres each and have the remaining 34.5 acres to be sold the Town as conservation land.  The property has 460ft. of frontage on Greenmeadow Drive.  The two residential lots will have the required 200ft. frontage.  The being proposed to be sold to the Town for conservation land would have a 60ft. frontage. 

 

Mr. Hennessey confirmed that the proposed conservation lot (with 60ft. frontage) would have no construction done on it and would be under the control of the Conservation Commission.   Mr. Herrick answered yes. 

 

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

 

PUBLIC INPUT

 

Speaking on behalf of the Conservation Commission, Paul Gagnon showed the Board the Town land in the area of the proposed parcel, which he said was critical for creating connectivity of conservation land from Sherburne Road to Gumpas Pond. 

 

Mr. McNamara asked if there was an agreement in place to purchase the property.  Mr. Gagnon said they had a purchase and sale agreement and the Selectmen were aware of such.  He said the Conservation Commission held a public hearing and voted in favor of the acquisition.  The Selectmen would have to hold two public hearings and vote before the parcel could be purchased.  He said they would also have to go to the Planning Board for the two residential lots.  Mr. McNamara confirmed there would be no further subdivision of the two (residential) lots.  Mr. Herrick said they were two building lots, nothing more.  Mr. McNamara confirmed there would be no further subdivision of the conservation land.  Mr. Gagnon answered no. 

 

The applicant had no further information to add. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. Ouellette – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE APPROVED

 

Mr. O’Sullivan returned to the Board. 

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Case #ZO2013-00008

CARVALHO, John  - 15 Goldfinch Drive  - Map 21 Lot 3-102-42  - Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory dwelling unit in existing basement area.

 

Mr. Hennessey explained the criteria for Special Exception was listed in the zoning code and an applicant either met it or they didn’t.

 

Ms. Guay was appointed to vote.

 

Mr. McNamara 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. John Carvalho said he was seeking an exception to build an accessory apartment in his basement.  He understood two acres was required, he had 1.97acres.  Mr. Hennessey said an applicant had a right to do what was requested if they could show they met the items in the zoning law; there was no requirement for two acres.  He confirmed that Mr. Carvalho was asking for an accessory apartment for a family member, not for rental.  Mr. Carvalho answered yes. 

 

Mr. Carvalho said he would like to put in an accessory apartment for he and his wife in the basement; the upstairs would be used by his daughter.

 

Mr. Hennessey asked Mr. Gowan if the request met the criteria.  Mr. Gowan believed it did meet the criteria.  He said it was a modest request for 440SF, which was under 310ft. from the maximum.  He also noted the request was unique in that the family member would be in the larger part of the house and the applicant would use the in-law apartment. 

 

There was no public input.

 

Mr. LaFrance said normally when the Board reviewed in-laws there would be a septic plan on file.  He asked if it was required in this case.  Mr. Gowan didn’t believe that the applicant had the septic design done yet.  He said the approval would have to be subject to the septic.  Mr. Carvalho noted he currently had two bedrooms and the septic was designed for four bedrooms.  

 

MOTION:

(LaFrance/Guay) To require the applicant to provide evidence to Mr. Gowan that there is a plan on record sufficient to meet the criteria for a Special Exception. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes

Ms. Paliy – Yes

Mr. McNamara – Yes

Mr. LaFrance -  Yes

Ms. Guay – Yes

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCEPTION APPROVED

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Case #ZO2013-00009

HOWE, Kevin - 10 Woodbury Avenue - Map 22 Lot 7-254  - Seeking a Variance concerning Article III, Sections 307-7 & 307-8 (C) to permit a 12x10 deck off of the family area at the left side rear of the house.

 

Mr. Ouellette stepped down.

 

Mr. O’Sullivan was appointed to vote

 

Mr. McNamara 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. Kevin Howe told the Board that he recently purchased his property and was seeking a variance for a permit to construct a 12ftx10ft. deck off the family area on the left rear of the house.  The variance was needed because his lot was too small.  Mr. Howe read aloud the variance criteria as submitted with his application.  He submitted a photograph of his property.  He said the property was in deplorable condition and was doing extensive work to improve it. 

 

Mr. Gowan said he sent the applicant to the Board for an expansion of a non-conforming use because the lot contained .16 acres.  He was unsure if the drawing contained in the member packets was quite to scale.  He wanted to be sure that the applicant would be able to meet the 15ft. side and rear setback.  Mr. Howe believed he could.  He noted that the lot line extended 8ft. past the fence in the rear of the property and felt he also had more than enough clearance on the left side of the property. 

 

PUBLIC INPUT

 

Mr. Lance Ouellette, speaking as a member of the public, came forward to speak in favor of the proposed.  He said he known Mr. Howe (who was a Pelham resident) for about five years.  He said the photograph submitted was essentially a door to nowhere; the request was essentially to create a usable deck.  Other homes in the area had decks.   Mr. Ouellette felt the variance would be allowed. 

 

Mr. O’Sullivan said it appears there may have been something in that location in the past and questioned if any evidence, such as footings, had been located.  Mr. Howe answered no; it was a door to nowhere. 

 

Mr. Gowan felt it was important to note there were other structures on the property that didn’t meet the setbacks, but it was a long existing property and suspected those structures predated zoning.  He was not suggesting any relief was needed for those other structures. 

 

BALLOT VOTE:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Mr. O’Sullivan – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE APPROVED

 

Mr. Ouellette returned to the Board.

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Case #ZO2013-00010

COSTA, William & Cecile  - 108 Dutton Road  - Map 36 Lot 10-372 - Seeking a Variance concerning Article XII, Sections 307-74 & 307-74 (H) to permit an accessory apartment to be created attached to the existing dwelling and to allow a second driveway to be constructed from Dutton Road to the proposed accessory apartment at 108 Dutton Road.

 

Mr. Hennessey commented that this case was attached to another item on the agenda.  He said if the variance was granted the Special Exception (Case #ZO2013-00011) would become moot and the Board would not hear it.  However, if the variance is rejected, the Special Exception would be heard as a separate case. 

 

Mr. Ouellette was appointed to vote. 

 

Mr. McNamara 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. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the variance.  He explained that the applicant would like to put an accessory dwelling attached to the existing home.  He said all the accessory apartment criteria are met except for the requirement there could only be one driveway with the structure.  With the layout of the existing home in relation to the accessory dwelling, it would require the existing driveway to split requiring a paved driveway across the front of the lot and make a sharp turn into another garage.  The existing home sits approximately 40ft. of the right-of-way line limits the space to be able to make a proper turn and require the front of the house to be paved.  Mr. Maynard reiterated they met all the other accessory apartment criteria except for wanting a second driveway associated with the new apartment.  He then read aloud the variance criteria as submitted with the application.  Mr. Maynard didn’t feet that the second driveway would look out of character with the area given the amount of frontage and the location of the lot. 

 

Ms. Paliy asked if road was owned by the Town or State.  Mr. Maynard said Dutton Road was a Town road. 

 

There was no public input. 

 

Mr. McNamara said he would be voting against the variance and discussed his reasons for doing so based on procedure.  He felt it flies in the face of the spirit and intent of the Ordinance.  He said it was clear that the Board couldn’t vary the Special Exception criteria.  He said the request was to go around the Special Exception in the form of a Variance where they were granting everything except one item.  He said in all intents and forms it was a Special Exception and should be handled as such.  He said it went to the root differences between variances and special exceptions.  He read aloud information contained (page 10) in the Board of Adjustment Handbook of the Office of Energy and Planning pertaining to special exceptions and variances.  Mr. McNamara said in Zoning the Town had set out certain specified uses of property that are to be guided by Special Exception, not only in-law apartment, but also home occupations.  He felt the Board was placing their judgment over the variance regarding special exceptions.  He said the voters set up the conditions so they would be applied uniformly so they wouldn’t be varied.  He said by using a variance, the Board was essentially gutting the special exception criteria and wouldn’t be able to pull it back in the future.  Mr. McNamara said if some of the Special Exception criteria needed to be changed because of being too onerous that would be a separate discussion.  He reiterated that Special Exception and Variance were separate forms of relief and should be treated as such. 

 

Ms. Paliy asked how many years the Special Exception regarding driveways had been on the books.   She said she had lived in Town for approximately 12 years, but believed the increase in vehicles per household over the last 20 years had greatly increased.  She felt the Board should look at the changing times; one or two cars are not the norm.  She said when another living facility is being added to a house it set up a potentially dangerous situation of a car backing up onto a roadway that’s experienced increased traffic.  She said the situation had crept up on the Board and was starting to make itself known. 

 

Mr. LaFrance said in theory, if the Board was to grant the Special Exception normally, nothing would prevent the owner from pulling a driveway permit from the Town in the future.  He said the Highway Department would determine a safe location for the driveway placement. 

 

Mr. Gowan said another aspect was the E911 guidelines that the Highway Safety Committee had to consider.  He said having multiple driveways for a single structure could be a problem.  He noted that the concept of an in-law apartment was that it would be invisible.  If it had its own special driveway there was a potential for address differences.  Mr. Gowan said they didn’t have a clear legal opinion on the issue.  He called Counsel in advance of the meeting, but had not yet received a written opinion.  He suggested that the Board allow him to collaborate with Mr. McNamara on what would be sent in writing to Counsel to solicit a response.  

 

Ms. Paliy asked if the driveways could be linked together.  Mr. Maynard said he didn’t have enough space to make radiuses and turning movements across the lot. 

 

It was noted that the proposed garage was included in the proposed new construction.  Ms. Guay asked if there was sufficient land at the back of the garage to get to the house.  Mr. Maynard answered no; there was not only a drop off behind the house, but also a pool and a wetland that prevented them from coming behind the home. 

 

Mr. LaFrance noted if an approval was granted by the Board, it could still be denied by the Highway Agent.  Mr. Hennessey said it didn’t meet the Special Exception criteria. 

 

Mr. Hennessey felt Ms. Paliy made her argument well by pointing out there had been changes in society making it a good thing to have a second driveway.  He felt that was appropriate to bring up to the Planning Board to change the Special Exception, however that was not in front of the Board.  He said the case in front of the Board, as with all Variance requests, was a unique set of five criteria that should be judged.  He said the Board had to look specifically at the applicant as to why they needed/wanted a second driveway.  He said the Board was the ‘relief valve’ for Zoning.  He saw the case as an example of a situation that didn’t quite meet the general requirements of Zoning.  Mr. Hennessey said the applicant’s testimony was specific to their lot and their structure; the arguments weren’t generalized.  He felt if the Board looked at the variance criteria the applicant had proven their case. 

 

Mr. McNamara believed by allowing an exception, it denied the power of the Special Exception in which an applicant had to meet the criteria.  He reiterated that Special Exception and Variance were different creatures and the Board’s authority was explicit.  The Board continued to discuss the matter and how they would proceed with the case.   Ms. Guay was in agreement with Mr. McNamara’s position of Special Exceptions and Variances being two separate and distinct entities.  Mr. Gowan brought up another aspect to the application, which was the proposed garage.  He couldn’t recall the Board approving an accessory structure that had its own garage.  He said structure would have the appearance of a duplex. 

 

Ms. Paliy asked for the square footage of the proposed unit.  Mr. Maynard said it would be under 750SF including the garage.  The plan showed a building envelope, as opposed to the actual structure.  It appeared to Mr. Hennessey it would be appropriate to except a motion that in addition to the variance criteria that the proposed meet all other criteria for an accessory apartment.  He felt it would be needed since a variance ran with the land.  He said the applicant was in front of the Board for a variance but had used the term ‘accessory apartment’.   Ms. Paliy questioned how the garage would be handled.  Mr. McNamara noted the obvious intent of the Special Exception was to have a home give the appearance of being a single-family home.  Mr. Gowan said perhaps the applicant may agree to table the hearing until the Board received clear legal opinion.  Mr. Hennessey was inclined to vote against the case given its complexity.

 

Ms. Guay said it was only in the third criteria that the garage was mentioned.  Mr. Hennessey said if the Board was to grant a Variance it would need to be attached to a motion indicating the applicant would meet all other criteria for Special Exception.  Ms. Paliy was unclear if the garage was included in the square footage calculation.

 

There was no public input. 

 

Mr. Maynard understood the argument about Special Exceptions, which was the reason the applicant requested a Variance application.  He said as part of that Variance application the applicant was willing to meet certain portions of the Special Exception criteria.  In theory, he said the request was to allow an accessory apartment to be created. 

 

Mr. LaFrance felt there was a hardship to the applicant because it was confusing as to how they were supposed to apply to the Board. 

 

Mr. Hennessey said if the Board believed the applicant met the criteria to grant a Variance, then a motion should be made for the applicant to meet all the other criteria for a Special Exception.  Ms. Paliy made that motion and added that the calculation would not exceed 750SF with the garage included.  Mr. Hennessey said the garage was not living space.  Mr. Gowan said the Board had a similar case and during the hearing the applicant proposed the restriction.  He reiterated his suggestion to obtain legal opinion. 

 

Mr. Maynard said he would like to proceed. 

 

Mr. Hennessey disagreed that the garage be included in the calculation and asked that the motion be reworded.  Mr. LaFrance felt the Board should be unanimous in how they would view the application because it was a hardship for the applicant.  He said they should decide whether to vote for a Variance or a Special Exception.  Mr. Hennessey said he would vote against the application because he felt there were other remedies.  Ms. Guay wanted to know how the Board would proceed.  Mr. Hennessey said the idea was if the Variance was voted down the Board would then take up the Special Exception.  He said a Special Exception would need to meet the criteria.  Mr. Ouellette agreed with Mr. LaFrance that there was a hardship on the applicant.  He recommended the Board wait for legal advice as was suggested by Mr. Gowan.  Ms. Guay noted that the applicant indicated they may want to move forward with the hearing and she didn’t want to place a hardship on them by waiting another month. 

 

Mr. Maynard had been in contact with his client through text message and told the Board his client indicated being fine with waiting for the Board to receive their legal decision.  Mr. Hennessey asked if they wanted both cases to wait.  Mr. Maynard answered yes. 

 

MOTION:

(Paliy/Ouellette) To move the Cases (Case# ZO2013-00010 and Case #ZO2013-00011) to the next meeting. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

The case was date specified to the May 13, 2013 meeting. 

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Case #ZO2013-00011

COSTA, William & Cecile  - 108 Dutton Road  - Map 36 Lot 10-372  - Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory apartment to be added to the existing single family residential structure.

 

Mr. McNamara read the list of abutters aloud during Case #ZO2013-00010.

 

The Case was date specified to the May 13, 2013 meeting.

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Case #ZO2013-00012

DESJARDINS REALTY TRUST -  80 Dutton Road - Map 36 Lot 10-367  - Seeking a Variance concerning 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 building lots one with 200’ of frontage and 6.8 acres with the other having 40’ +/- of frontage with 3.4 +/- acres.

 

Mr. Hennessey stated that his wife’s cousin was an abutter.  He had no interest in the property and would remain seated for the case. 

 

Mr. Ouellette was appointed to vote. 

 

Mr. McNamara 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. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the variance request.  He said they had come before the Board last year to subdivide the property into two duplex lots and divide the approximate 240ft. of frontage into even sections along Dutton Road.  That request was subsequently denied.  He said they have revisited the application and subdivide (based on the Board’s previous comments) that would be more suitable.  Mr. Maynard explained they were seeking to subdivide the parcel into two lots; one containing the existing duplex home that received a building permit application and was tentatively under construction at this point in time.  That lot would retain the 200ft. of frontage and end up being approximately 6.8 acres in size.  To the northerly side, they were looking to leave 40ft. of frontage for the remaining 3.4 acre lot.  On that lot the applicant was looking to place a single-family dwelling down near the Dutton Road side of the property.  Having the house in the proposed location would prevent them from crossing the poorly drained wetlands on the site.  Mr. Maynard said a conceptual subdivision plan was done showing that the lot (in theory) could be subdivide into three lots if a road was constructed in from Dutton Road.  The lot length would be approximately 550ft. with frontage and it would have to cross the first wetland with an impact of approximately 1500SF  and would have to cross the second wetland  (poorly drained soil) at the rear of the site with an impact of approximately 750SF.  Mr. Maynard discussed the unique shape of the lot, the burden of the wetlands that bisected, a power line easement at the rear of the property and noted that there was a junk/salvage yard  directly to the north that would affect any kind of lot value for subdividing in a traditional manner.  Another constraint of the narrow lot was the inability to bring a road in through a conventional manner.  Mr. Maynard noted in 2003 there was a different proposal to bring a road into the lot on the Mansur side of the property for building at the rear.  That case was turned down.  In this current proposal, the applicant was looking to get a reasonable use out of the property without having to go through the expense of constructing a large amount of road.   Mr. Maynard believed it was a modest request for frontage given there were ten acres of property.  He then read aloud the variance criteria submitted with the application.

 

Mr. Hennessey said he reviewed the meeting minutes from the 2003 application and found that the wetland crossing was of concern and especially sight lines coming on to Dutton Road.  He reviewed the location today and felt it was still a dangerous spot to have a driveway coming out.  He asked if any traffic studies had been done.  Mr. Maynard said they reviewed the location from the standpoint of if vegetation could be cut back it would immensely improve on that location.  A good portion of what needed to be pruned back was in the rights of the developer toward the southerly side.  Once the area was cut back it would be up to the AASHTO standards for sight distance. 

 

PUBLIC INPUT

 

Ms. Gail Nickerson, 4 Brandy Lane told the Board she reviewed the meeting minutes from Case#2263 in 2003.  She said she was also told to look into the Fisher v. Dover case.  She wasn’t convinced that the present case contained a use that materially differed in nature from its predecessor.  Mr. McNamara commented that the law on variances changed greatly since 2003, so even if the plan was identical the applicant would have the right to come in front of the Board.  Ms. Nickerson said when the applicant purchased the lot there was knowledge of being non-conforming.  She asked if the Board had the authority to keep one non-conforming lot and change the use to another.  She said the meeting minutes from the 2003 hearing had a lot of talk about the corner (at Dutton) being dangerous and the number of wetland crossings that would be needed to access the lot.  She noted that ten years ago the Board felt the traffic at the corner was an unacceptable safety risk and assured the Board that the traffic drove faster and there were more vehicles. 

 

Ms. Lisa Milne, resident of Brandy Lane told the Board she had noticed the increase in traffic due to the building on Frontier and the change of the applicant’s property would change the number of people living in the area.   She said the section of Dutton Road being discussed was a particularly dangerous portion.  Being a resident of the neighborhood adding one more structure and people to the neighborhood would be detrimental. 

 

Ms. Doreen Rossi, 25 Brandy Lane,  stated she was concerned with safety.  She said two decades ago when Brandy Lane was put in there was a concern about it being too close to the corner on Dutton Road.  She said now there was a request to add another entry point and add more vehicles at the corner which would render the stopping distance and reaction times of drivers almost impossible to negotiate.  Ms. Rossi told the Board that Brandy Lane had eleven teenage drivers that just received their licenses in the last two years and in the next two years there were approximately nine-eleven additional teenagers that would be driving.  She also commented that the school bus stops at the end of Brandy Lane backing up traffic around the corner five times per day.  Also with Dutton Road being a main access to Interstate 93 it has experienced an increase in traffic over the past ten years.  She questioned if the Variance was working in the spirit of the Town and in the best interest of public safety.  

 

Mr. John Mansur, 76 Dutton Road  told the Board that he lived at the corner of the road and pedestrians couldn’t even walk on that side of the road, not because of shrubs, but because there was a solid wall approximately 6ft-8ft. in height.  He said there was no sight distance and believed someone would be killed if the driveway was put in where it was being proposed.  He believed the only way to fix the sight distance was to cut into his yard by at least 10ft. 

 

Mr. Harry Betty, 10 Brandy Lane, echoed those who spoke before him and reiterated that the corner was dangerous.  He felt the request should be denied.

 

Mr. Walter Nickerson, 84 Dutton Road was concerned that the contractor was filling the wetlands in the rear of the property.  Mr. Hennessey suggested he contact the Planning Department.

 

Mr. Maynard said his client was trying to have a reasonable use from the property.  He believed driveways and  sight distance were issue better suited for the Planning Board.  He was willing to continue to the next meeting, shoot the actual sight distance and produce a plan showing they met the minimum AASHTO standards. 

 

Mr. McNamara asked if the duplex lot was a non-conforming lot.  Mr. Maynard said the lot contained 200ft. of frontage and had more than two acres. 

 

Ms. Nickerson came forward again to explain her comment about being non-conforming was relative to the side setback being 8ft. from her lot.  She said it had always been that way.  Mr. Gowan said according to the survey there was 12ft. to the property boundary.   He said the addition of the duplex didn’t make the existing deficiency any worse.  He said the point of land that’s part of the Nickerson’s property was approximately 20ft. wide that could not have a structure on it; there wouldn’t be any proximity issues with a neighboring structure.  He commented that in no place in Zoning or the Site Plan or Subdivision Regulations were duplexes defined in a way similar to accessory dwelling units. Mr. Gowan felt sight distance issues were important and typically handled by the Planning Board. 

 

Mr. Hennessey said he didn’t need a Planning Board hearing to see the corner; he was very familiar with the area.  In the best interest of the Town he couldn’t vote in favor of the request given the unusual setup of the lot and its location.  He didn’t see a hardship.  He recognized that the laws had changed and different criteria was being used, but felt the arguments he heard in 2003 remained.  He said it was an unusual lot containing a lot of wetlands, unusual shape and located on one of the busiest roads in Town.

 

Mr. McNamara appreciated Mr. Maynard’s efforts to make the application more palatable for the Board, but felt Mr. Hennessey was correct in his assessment that there were problems with the lot.  He said the other aspect was that the applicant recently purchased the lot so they had knowledge of the zoning and the difficulties of the lot. 

 

Mr. LaFrance respected the people on Brandy Lane, but didn’t see how the proposed development would affect them.  He understood the difficulties of the curve in the road.  He felt given the size of the lot that the applicant had a right to subdivide and build on the lot, but he also felt the applicant needed to prove to the Planning Board that it could pass a traffic study.   Mr. McNamara said there was case law indicating that the Board could take into account well known safety hazards; things that were in a direct threat to public health, safety and welfare and not hand them over to Planning. 

 

Mr. Maynard said he would argue that the wetlands on the site weren’t highly unusual or special in nature.  They are a poorly drained (Group 5) soil that dries up in the summer.  Being the way those wetlands bisect the lot he felt a wetland permit would be easily obtainable. 

 

BALLOT VOTE:

 

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

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

Mr. McNamara – No to all criteria

Mr. LaFrance -  Yes to all criteria

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

 

VOTE:

 

(1-4-0) The motion failed.

 

 

VARIANCE DENIED

 

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Case #ZO2013-00014

KOSIK, Thomas & Tanya Kosik  - Kosik Terrace - Map 16 Lot 8-8 - Seeking a Variance concerning Articles III & VII, Sections 307-12, 307-13 (B), 307-14, 307-39 & 307-41to permit a new house to be constructed on a lot with 90’ feet of frontage on a class V town road rather than 200 feet and to permit a portion of the house and detached garage to be constructed within the WCD along with grading and improvements not to exceed 8,000 s.f. of disturbance.

 

Mr. Ouellette stepped down.

 

Ms. Guay was appointed to vote.

 

Mr. Hennessey said in reading the case, he believed the Board would want to walk the site.  He said the abutter’s list would be read and if the Board agreed they would set the site walk.

 

Mr. McNamara 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 brief the Board regarding the variance request.  He told the Board that the lot was a pre-existing lot of record, plotted and approved in 1971 by the Planning Board.  He displayed the plan for review and told the Board that  Kosik Terrace turned from a public (Class V) road into a private road.  One problem was the lot should have had 200ft. of frontage, but the pavement ends approximately 90ft. into the lot.  Another problem is when the building setback and envelope were put on the lot there was no Wetland Conservation District (‘WCD’) Ordinance in 1971; and now they were in place.  The owner would like to have some use out of the lot and construct a home and detached garage, which would create a disturbance to the WCD.  To mitigate the disturbance the applicant has offered plantings along the edge of the WCD and gutters with mini dry wells to take water from the roof into the ground and added a silt fence.  An issue with this lot and others in the area is the flood plain.  An area of fill is being proposed around the building so they could be above flood zone elevation. 

 

Mr. Hennessey had Mr. Gendron hold off reading the criteria.

 

MOTION:

(McNamara/LaFrance) To conduct a site walk.

 

VOTE:

 

(5-0-0) The motion carried. 

 

A site walk was scheduled for April 20, 2013. 

 

The case was date specified to the May 13, 2013 meeting.

 

Mr. Ouellette returned to the Board.

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Case #ZO2013-00013

TANNER, David & Mary -  869 Mammoth Road  - Map 14 Lot 4-177 - Seeking a Variance concerning Article III, Section 307-7 & 307-8 (C) to permit the expansion of use on the property to include a drive-thru window.

 

Mr. McNamara 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. Joseph Maynard of Benchmark Engineering, representing the Bettencourts who were in the process of purchasing the property from the Tanners, came forward to discuss the request.   He discussed the lot dynamics and stated currently the property was occupied by the Hilltop Convenience Store which had seasonal outside seating and a sub shop within.  The use of the structure went back to a variance granted in the 1990’s.  Mr. Maynard said the lot had a couple encumbrances, such as a gas line along the northerly side of the lot, steeps slopes that came up to the parking area and additional steep slopes in the rear of the property.  Currently all the refrigeration equipment is located behind the building, which was noisy through most of the summer months.  He noted the lot had a new septic system had been installed within the past few years and was serviced by an on-site well.  Mr. Maynard said it was no secret that Dunkin Donuts was looking to purchase the location to put in one of their retail stores.  The franchise looking to do so owned the other two Dunkin Donut locations in Town and another location in Dracut.  The primary reason for the variance was to allow an expansion of use for a drive thru to be constructed onto the existing structure at the rear of the building.  The driveway accessing the back of the building would be relocated and the area would be landscaped to create a buffer for the abutters.  The neighbor’s house behind the lot sat approximately 20ft. higher than the drive thru.  Mr. Maynard pointed out there was a concrete block on the side of the building that would be removed as part of the work.  The building itself would have a number of renovations to give it an appearance of being more colonial in nature to fit into the residential area.  Any lights won’t shine towards abutters, given that the neighbors lots sat approximately 20ft. higher than the applicant’ s lot; any lights would be dark sky compliant.  The speaker box would be located toward the side of the structure, not at the rear of the building. 

 

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

 

Mr. O’Sullivan was concerned with safety and traffic issues.  Mr. McNamara said if the variance was approved the Planning Board would want a traffic survey.  Mr. Maynard said  before the purchase of the property a traffic impact analysis was done because the counters on the road were too far apart.  He said that area experiences approximately 5,000 cars. 

 

Mr. Gowan received written concerns in a letter dated April 1, 2013 submitted by Kristin Perry and Jeff Hanulec. 

 

Mr. Hennessey suggested the Board conduct a site walk.  Given the late hour, he suggested the hearing continue. 

 

Mr. McNamara read aloud the April 1, 2013 letter provided by Ms. Perry and Mr. Hanulec. 

 

MOTION:

(McNamara/Ouellette) To schedule a site walk for April 20, 2013 at 10am.

 

VOTE:

 

(5-0-0) The motion carried. 

 

A site walk was scheduled for April 20, 2013 at 10am.

 

The Case was date specified to the May 13, 2013 meeting.

 

 

SITE WALK – April 20, 2013   beginning at 9am–

Case #ZO2013-00014 - KOSIK, Thomas & Tanya Kosik  - Terrace  Circle- Map 16 Lot 8-8

Case #ZO2013-00013- TANNER, David & Mary -  869 Mammoth Road  - Map 14 Lot 4-177 -

 

DATE SPECIFIED PLAN(S) – May 13, 2013:

Case #ZO2013-00010- COSTA, William & Cecile  - 108 Dutton Road  - Map 36 Lot 10-372

Case #ZO2013-00011- COSTA, William & Cecile  - 108 Dutton Road  - Map 36 Lot 10-372 

Case #ZO2013-00014 - KOSIK, Thomas & Tanya Kosik  - Terrace  Circle- Map 16 Lot 8-8

Case #ZO2013-00013- TANNER, David & Mary -  869 Mammoth Road  - Map 14 Lot 4-177 -

 

MINUTES REVIEW

 

MOTION:

(McNamara/Paliy) To approve the minutes of March 11, 2013 as amended.

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

ADJOURNMENT

 

MOTION:

(LaFrance/McNamara) To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 11:05 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary