APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

May 13, 2013

 

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

 

The acting Secretary Chris LaFrance called roll:

 

PRESENT:

 

 

 

ABSENT:

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

 

Alternate Kevin O’Sullivan, Alternate Darlene Culbert

 

Board member Robert Molloy submitted his resignation as a full member due to employment commitments and requested to remain seated as an alternate member. 

 

CONTINUED HEARING(S):

 

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.

 

Ms. Guay was appointed to vote.

 

Mr. Joseph Maynard of Benchmark Engineering, representing the applicant, came forward to discuss the requested variance and requested special exception.  The Board discussed how they would proceed with the hearing.  See discussion under Case #ZO2013-00011. 

 

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. Hennessey said the Board discussed both cases (ZO2013-00010 & ZO2013-00011) during their previous meeting.  He said the first was to amend the requirements of the Special Exception.  During that meeting Mr. Hennessey and Mr. McNamara disagreed how to review the requests.  Mr. Gowan sought Town Counsel’s opinion. 

 

Mr. Hennessey read aloud the paragraph of Town Counsel’s letter dated April 24, 2013  that pertained to the discussion: “Jeff has explained that since my December advice, the ZBA has received applicants for variances that seek relief from one or more of the special exception criteria, following which the Board takes up the special exception.  As I discuss below, this is not permitted under N.H. law.”  He then asked Mr. McNamara to explain New Hampshire law as it pertained to the case.  Mr. McNamara explained that Town Counsel had told the Boards they could not vary special exception criteria.  If they were to do so, the Board would be undertaking a legislative role, and in essence rewriting the Zoning Code.  He said the Town voted to cover home occupations and in-law apartments  by special exception.  Mr. McNamara further explained that Town Counsel went on to say that an applicant who cannot meet the criteria of a special exception  has an alternative means of relief by applying for a variance from the Table of Uses in Zoning or from  some other aspect of the Zoning Code to try to remedy the reason why they couldn’t meet the criteria.  In principle, Mr. McNamara felt it would be harder to accomplish that the two step the Board had been doing.  He said it remained to be seen how the Board would apply it.  In summary he said the Board could no longer go through hearing a case for a variance and having an applicant agree to self-impose almost all of the special exception criteria. 

 

Mr. Hennessey apologized to the applicant.   He encouraged anyone falling within the category to request a copy of Town Counsel’s letter to review.  He said the Board was bound by Town Counsel’s recommendation until the court told them something different. 

 

Mr. Hennessey stated that the Board had a continuance from the initial hearing in front of them.  It originally came as a variance to amend the driveway stipulation (in special exception)  and then presumably proceeding as a special exception.

 

Mr. Maynard anticipated the variance request and the special exception requests as being two separate applications.   The variance was to allow an accessory apartment with a second driveway to the lot.  He said if for some reason he was unable to be granted a variance to allow the second driveway; a separate request was for a special exception for an accessory apartment, which he believed the applicant met the criteria.  He said the primary reason for asking for the variance was because of having a secondary driveway to the main road.  Mr. Maynard said he spoke with Mr. Gowan and saw the memo from Town Counsel.  He was open to discussion about the applications and asked the Board how they felt about amending the request.

 

Mr. Gowan said in Town Counsel’s opinion they reference the Table of Uses.  He didn’t feel that would work because the table didn’t describe relief to the criteria.  If someone approached a variance request versus a special exception,  he believed the only portion they could seek it was under the section of Zoning that indicates accessory dwelling units could be achieved by special exception.  He didn’t know what other section could be used for a variance.  Mr. Gowan said the challenge of Counsel’s opinion was determining what section an applicant could seek a variance to.  Mr. McNamara didn’t believe the Board could grant a variance to the section Mr. Gowan referenced.  Mr. Gowan said the opinion was a variance couldn’t be granted to one of the criteria of special exception.  Alternatively he said the only thing an applicant could seek a variance to was not described in the Table of Uses. 

 

Mr. Hennessey suggested that the two cases had to be reversed to hear the Special Exception for the accessory dwelling.  The Board would vote to determine if the accessory unit met the criteria or not.  He wasn’t sure why the second curb cut belonged to the Board and felt it belonged to the Highway Safety Committee to determine. 

 

Ms. Paliy questioned if the situation was actually a duplex on an undersized lot.  Mr. Gowan stated an accessory dwelling unit was not a duplex and wouldn’t carry the same restrictions; it would simply be a second unit on a piece of property.  He noted Zoning didn’t say much about what constituted a duplex.  He agreed with the opinion that special exceptions coming forward  should either meet the criteria or not.  He said the only exception,  in terms of a driveway or living space, would be for persons with mobility issues which was considered in variance criteria.

 

Mr. McNamara agreed that the Board should hear the special exception.  He didn’t feel that the Board could hear the variance request.  Based on Town Counsel’s letter, Mr. Hennessey agreed.      

 

Mr. Maynard questioned by what means the applicant would come back before the Board if they chose to add a driveway.   Mr. Hennessey wasn’t sure that the applicant would come before the Board for it.  He suggested speaking to the Planning Department staff.  He said the application for special exception was ‘cut and dry’; they either met the criteria or not. 

 

With regard to Case #ZO2013-00011 – Special Exception request, Mr. Hennessey asked that the abutter’s list be read aloud, even though it was read at the previous meeting.  He said the Board would only hear the Special Exception case. 

 

Mr. LaFrance 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, discussed the request for special exception and reviewed the criteria for such.  He noted that a subsurface septic design had been submitted to the State and received Department of Environmental Services approval.   He commented that the existing system appeared to be in adequate working condition.  He told the Board that the applicant would be living in the accessory unit, and the applicant’s daughter would be living in the existing home and questioned if it would need to be a deed restriction or condition of approval.  Mr. Hennessey said it was considered a condition of approval.  Mr. Maynard said the applicant understood and was acceptable to that condition. 

 

Mr. Hennessey asked if the building design was on file.   Mr. Maynard said the design was on file from the last time they met with the Board. 

 

Mr. Guay asked for the square footage of the accessory use.  Mr. Maynard said the use would be under 750SF allowed by the Ordinance.  Ms. Guay questioned the status of the garage.  Mr. Maynard replied without a driveway being proposed it didn’t make sense to have a garage.  He said they needed to determine if they needed to come back in front of the Board; the structure itself could support another garage because it wasn’t included in the dwelling (living space) calculations.   Ms. Guay confirmed for purposes of the present hearing, the garage and driveway were being eliminated from the plan previously submitted to the Board.  Mr. Maynard said to finish this portion of the request they were not included. 

 

Mr. Hennessey asked Mr. Gowan if he had reviewed the sketch provided to ensure it met the criteria.  Mr. Gowan said it was reviewed prior to last month’s hearing.  He said an approval would lead to a building permit that would be scrutinized by the Building Inspector.   If there is any discrepancy,  the permit would be held back. 

 

The hearing was opened to the public for comment.  There was no public input.

 

 

BALLOT VOTE

#ZO2013-00011:

 

Mr. Hennessey – Yes

Ms. Paliy – Yes

Mr. McNamara – Yes

Mr. LaFrance -  Yes

Ms. Guay – Yes – meets criteria of Special Exception

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCEPTION APPROVED

 

Case #AO2013-00010  request for Variance was not heard by the Board based on Town Counsel’s opinion. 

 

Mr. Gowan commented that he would seek clarification from Town Counsel regarding their opinion; specifically as to what section a variance would be requested. 

 

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. Ouellette was appointed to vote. 

 

Mr. Hennessey commented that the case was a continuation from the Board’s previous meeting. A site walk of the property had been conducted since that last hearing.  The Board was provided with meeting minutes from April 9, 1984 during which a Variance was granted for the property at ML 4-177 (Case #725).   Mr. McNamara noted that the Board received the meeting minutes from when the vote was taken  for the original Variance (in 1984),  but had not received a copy of the meeting minutes when the Board discussed the case on March 12, 1984.  In reviewing the Board’s vote (April, 9, 1984),  Mr. Hennessey didn’t see that conditions were attached to the approval.  

 

Mr. Joseph Maynard  of Benchmark Engineering, representing the applicant, came forward to discuss the Variance request.  He summarize the discussion from the previous hearing.  The property contains 1.75 acres and was currently occupied by Hillside Deli and Convenience Store.  The property has some outside seating and serves ice cream sales.  The use was granted by Variance in the late 1990’s; and noted that the use was there prior to the houses.  Mr. Maynard said it was a unique property that sat on a hill above Mammoth Road  and was encumbered by a gas line easement and steep slopes to the rear and side of the existing building.  The existing building was situated on a flat area of the property.  There are refrigeration and air conditioning units to the rear of the building that ran constantly through the period of the day.   The property had a new State approved septic system that was installed a couple years ago.  An on-site well was currently being utilized. 

 

Mr. Maynard told the Board the applicant was proposing to change the use of the store to a Dunkin Donuts with a drive thru (constructed at the rear of the building).  The refrigeration equipment will be relocated away from the back of the building.  The rear of the building, near the abutters behind the property where the driveway went to Valley Hill Road , would be reconfigured.  The area would be filled and a berm constructed with a large amount of evergreen planting to help re-vegetate and create more of a buffer.  Portions of the existing building will be removed given that the existing building was too big for what Dunkin Donuts needed.  Mr. Maynard corrected a statement from the previous meeting; this will be the fifth location for the franchise.  The franchise currently has two of those location in Pelham.  Any lighting in the area of the driveway reconfiguration will be Dark Sky compliant (downward facing).  The speaker box will be located further back and off to the side for the dedicated drive thru making it further from the neighbors.  Mr. Maynard informed that the Bettencourts (franchise owner) had been working with Dunkin Donuts on a plan to renovate the look of the outside structure.  They would add more dormers and windows to give it a more residential look. 

 

Mr. Maynard said there had been a discussion regarding property values.  He spoke to Ed Bisson of Re/max Prestige-Pelham who did an evaluation about values.  Mr. Bisson’s letter dated May 13, 2013 was submitted to the Board for review.  He said prior to Dunkin Donuts looking at the property they spoke to their traffic consultant, Mr. Kim Hazarvartian of TEPP LLC and had traffic counts done in the general area (Mammoth Road, Nashua Road etc.) to determine the traffic volume in this area of Town.  Subsequently Mr. Hazarvartian took the traffic numbers and did a comparison for a donut shop (with and without a drive thru) versus the current use.  Mr. Maynard said it was hard to do a full analysis of Dunkin Donuts that were small on a road with a few number of vehicles.  He said the traffic consultant took the average of all the book numbers (all vehicles travelling on Mammoth Road, square footage of building space and AASHTO Standard Values for that square footage).  A summary report was compiled and submitted to the Board for review.  The traffic consultant’s conclusion was there would be no considerable increase noticed from the change of a convenience store to a donut shop.  It was noted that the convenience store offered a multitude of things, such as a deli, coffee etc. 

 

Mr. Maynard told the Board he spoke with the current owner of the property David Tanner about the property in general.  With what the property had built up to, it pays a considerable tax base.  The property tax is offset by what the property has to bring in for income in order to afford maintenance and upkeep.  It came down to needing a substantial buyer who could afford to purchase the property and be able to do improvements to it.  A tenant, such as the Dunkin Donuts operator, had a number of other sites in the community and kept those sites neat and orderly.  Their plan was to do improvements to this property as well. 

 

With regard to the hardship criteria, Mr. McNamara understood the requirement that Dunkin Donuts needed a drive thru window, but didn’t feel it addressed the ‘reasonable’ or ‘unique’ criteria.  Mr. Maynard discussed the land.  He said there were steep slopes behind the building, a gas line easement and slopes to the side of the building.  The building itself sat on the flat portion of the lot and had enough room in front of it for parking to suit the use.  The only other location on the property for the type of expansion proposed was on the rear of the building.  The land itself was prohibitive to allow expansion toward the right of the lot.  To the left of the lot, the building sat relatively close to Valley Hill Road, which didn’t leave enough room for vehicle stacking.  Stacking traffic along the front of the store wouldn’t be feasible because of traffic accessing the site.

 

Mr. Hennessey expressed his opinion regarding value.  He recently attended a class/seminar on whether board members should get involved and express an opinion on value.  He said he hesitated to do so on several occasions, however the present case had an uncanny resemblance to a property (listed by his company, but not by his office) off Route 101A in Amherst, NH.  He said that property had been for sale for a while and backed up directly onto a Dunkin Donuts on Route 101A.  Prior to the case coming to the Board, the broker spoke to him about the difficulty of selling the property because of the sound from the drive thru.  It was Mr. Hennessey’s personal experience and professional  opinion (of being in real estate for 39 years)  there was at least a possibility that sound from a drive thru had an effect on people in the area. 

 

The hearing was opened to the public. 

 

Attorney Geoffrey Dowd of  the Law Offices of Geoffrey Dowd, Hampstead, NH, on behalf of Jeffrey Hanulec and Kristen Perry, 2 Valley Hill Road (uphill abutters of the existing convenience store), came forward to address the Variance criteria.  He handed out a memorandum outlining the factors to be considered in allowing the Variance request. 

 

Attorney Dowd said there seemed to be two major issues, the first being the hardship criteria.  The applicant presented well for the location of the drive thru, however he believed the request was for a ‘use’ Variance.  He said any expansion of use needed to satisfy the criteria just as if the property were seeking a new non-conforming use.  He commented that the drive thru itself appeared to be the extension/expansion of the use. 

 

Attorney Dowd told the Board that his clients would be most directly impacted by a drive thru with significant traffic (previously identified as being 500 cars per day).   He  said if at present the existing site had a volume of 500 cars per day,  those cars were pretty much toward the front of the lot.   The proposal had the cars accessing the back of the lot.  His clients moved from Massachusetts to enjoy Pelham’s rural nature.  Outside their home they have a farmer’s porch and swimming pool.  Attorney Dowd’s clients were aware that there was a store behind them.  They knew that the store was located within the Residential Zone on a very limited, but broad (in terms of what’s allowed at the location) non-conforming use.  An expansion of that non-conforming use will need to meet the Variance criteria. 

 

Attorney Dowd read aloud the memorandum  he provided to the Board (full text included within the Case file), which outlined factors for consideration in respect to each of the five Variance criteria.  He cited the Ray’s Stateline Market, Inc. v. Town of Pelham and Adolph Jarosky, Intervenor, 140 N.H. 139 (N.H. 1995), at 144.  The case involved the moving of shelves within a business.  He believed the Zoning Board at the time had said no and  the court found that the moving of counters etc. was not an expansion of a non-conforming use.  In this case, the addition of a drive thru would be much more along the lines of an expansion.  Attorney Dowd said the Board heard testimony relative to how expensive the property was to maintain in terms of the debt and the challenges of the property, such as there being a gas line.  He said the presence of a gas line in addition to the current commercial non-conforming use suggested a second economic use in the Residential Zone. This meant that the lot had a present on-going non-conforming commercial use and had also benefitted in the past presumably from the gas line easement.  This would restrict the uses on the property, but didn’t interfere with its current reasonable use.  Attorney Dowd addressed the Variance criteria.  In summary, he felt it would be a different case were the lot to have no development on it, and no residential wanted to be located on it and it was a request for a Variance to the terms of the Residential Zone, because no use for the property could be made.  He pointed out that the property was currently in productive non-conforming use.  His clients purchased their property knowing the convenience store was there, but the refrigeration they may hear was not overly burdensome on their property, however having 500 cars go adjacent to their back yard would be exceedingly prohibitive.   He understood that these cases were difficult because the Town and his town (Hampstead) was in favor of an increase in commercial development, but sometimes they don’t fit.  He felt this was a great instance of where that was the case.  Attorney Dowd discussed instances in his town where commercially zoned lots along main roads  (abutting residential properties) seek to put a drive thru toward the rear of their property.  These cases may need a Variance to setbacks, but in those cases the property owners purchased their property on notice that their abutter was a commercially zoned property.  His clients took their property (in Pelham) with notice that their abutter had a limited non-conforming use.  Based on the Residential classification in Pelham were confident that the zone would be upheld. 

 

Attorney Dowd proposed to the Board where there was no hardship in the case, if the proposed made for good development of the property and the Town would like to pursue it, it may be a good time to revisit Zoning on a warrant article.  He believed there were other residential properties that would be impacted as well. 

 

Mr. Hennessey acknowledged that the Board had the abutter’s letter from the previous meeting and the site walk minutes on file. 

 

Mr. Maynard stated he was familiar with the Dunkin Donut location in Amherst and the amount of traffic the road carried on a daily basis.  In comparison the proposed Pelham location would pull in bypass trips along Mammoth Road.   He noted that there was a well-established business on the property that did a certain level of business throughout the day.  Mr. Maynard noted that the refrigeration equipment was running 24/7 during the summer.  He said the traffic A.M. peak would be a total of approximately thirty trips in an hour passing through the area.  Anything else associated with the speaker box or that portion of the business would be moved further down the proposed driveway to gain additional separation.  He reiterated that there was an existing use already located on the property and there were certain limitations that the lot could sustain.  The parcel sat high above Mammoth Road and was limited in the area it had toward the front of the building.  In lieu of razing the building and refiguring the whole lot, the potentials of the lot were limiting.  Mr. Maynard  told the Board that the lot that sat behind the applicant’s lot was originally part of the property when the Variance was originally granted.  That lot was subsequently subdivided off .  When the house was constructed they tried to turn it in such a way so it wouldn’t face the back of the store.  There were a number of items presently behind the building that would be under the scrutiny of what the applicant had offered to do as well as under the scrutiny of the Planning Board if they placed additional requirements. 

 

Mr. Maynard discussed the separation of the residential properties from businesses and was informed by Mr. Bisson, who had been in Town for a very long time, that he didn’t see an impact on residential properties because of such.  He then addressed the traffic count.  His client hoped to have 500 cars, but those cars wouldn’t all go through the drive thru; it would be a percentage through the work day.  He explained that the traffic numbers were obtained based on the size store currently at the location compared to how a donut shop would be.  AASHTO number standards were used for businesses that had drive thrus and those that didn’t have drive thrus.  The traffic count numbers indicate there would be a decrease during the P.M. peak, given that donut shops are primarily a morning business that tapers off as the day goes on.  The existing business appears to be active right through the P.M. peak hours.

 

Mr. McNamara said he liked having the materials, but found it difficult to absorb the information while trying to make a decision.  He asked how many car trips were presently generated on site.  Mr. Maynard reviewed the existing traffic volume numbers: A.M. total street peak is 595 / P.M. total street peak is 626.  The A.M. trips for a convenient store/food business  = 116 / the P.M. trips = 111.  The proposed use showed the A.M. trips = 217 / the P.M. trips = 82. 

 

Mr. Hennessey saw that Mr. Maynard described the proposed business as a donut shop.   Because Variances run with the land, he wanted the applicant to be clear as to what they were requesting.  Mr. Maynard said the proposed was a Dunkin Donuts.  They didn’t do any baking on site; everything was brought in from an off-site bakery.  Mr. Hennessey commented that Dunkin Donuts had an expanded selection past just donuts, they sold sandwiches and other luncheon goods.  He wanted to know if the Variance was approved, if the Board would in reality be approving a takeout restaurant.  Mr. Maynard said they would have the same components as Dunkin Donuts, with some food sales basically quick dish items.  Food items are brought in from off site.  Mr. Hennessey commented that the Board wasn’t approving a Variance for a Dunkin Donuts, which was a brand name/business model.  He questioned what they were being asked to approve.  Mr. Maynard reiterated that it was Dunkin Donuts.  He said they items such as coffee, cappuccino and other drinks, donut sales, muffins, sandwiches, etc. 

 

Mr. Ouellette was unsure what the Chairman’s question was.  Mr. Hennessey said the Variance ran with the land.  The previous Variance was for a convenience store and office.  He didn’t think the request was simply for the addition of a takeout window.   He felt it was a thorough change of use to a food service Dunkin Donuts.  Mr. Ouellette said pretty much everything Dunkin Donuts sold was currently being sold at the convenience store.  The use of the convenience store was very similar to that of Dunkin Donuts.  Mr. Hennessey said the previous Variance was granted for a convenience store and retail office.  He questioned if the present request sounded like a retail office or convenience store.  Ms. Paliy said the request was for a convenience store.  She commented that convenient stores all sold alcohol and the Dunkin Donuts was not applying for a liquor license.  She believed the uses (of the existing and the proposed) were exactly the same.  Mr. McNamara believed the proposed would be a reduction of the use currently at the location.  He said it seemed the argument Mr. Hennessey had was that the nature of the existing store exceeded the  original Variance. 

 

Mr. Ouellette said the Board had to focus on the drive thru, it’s proposed location, landscaping , modification of the property and if it would enhance or take away from the residential use.  Mr. Hennessey question what the permitted use was on the existing property.  Mr. Ouellette said it was a commercial use.  Mr. Hennessey said the permitted use of the property was a convenience store or retail office space.  Mr. Ouellette believed the Variance granted in the 1990’s changed the use to a commercial use.  Mr. Hennessey disagreed; the Variance granted in 1984 was to construct a convenience store and office building space.  Mr. Ouellette said the Variance basically took the lot and made it into commercial use.  He said at present the Board needed to make a decision regarding a drive thru; he couldn’t answer if Dunkin Donuts was a convenience store.  Mr. Hennessey felt the request was a request for an expansion of an existing non-conforming use.  He was looking back at the past to decide how much of an expansion it would be.  In looking at what was granted, he saw something substantially different from what was in front of the Board.  Mr. Ouellette said every Dunkin Donuts had an office inside.  He suggested asking the owner what was granted in the 1990’s and find out if the new owner would exceed the use, or reduce the use by taking out the alcohol, the freezer section and reducing the size. 

 

Ms. Paliy stated that the use would be reduced with Dunkin Donuts.  She felt Mr. Hennessey was stuck on the ‘franchise’ aspect.  Mr. Hennessey asked that the record be clear that he was not opposed to the Dunkin Donuts franchise.   He said one of his issues was the statement by the applicant’s representative indicating that the request was only for a Dunkin Donuts.  He said that wasn’t what the Board was there for, and further felt it was wrong for towns to say locally owned businesses were allowed but national franchises weren’t.  He stated that the Board was dealing with the usage that was in front of them.  Ms. Paliy reiterated that Dunkin Donuts would be reducing the use and selling a specific product.  She said convenience stores cooked  products and sold additional items. 

 

Mr. Gowan told the Board that the applicant had come to the Board because he sent them.  He made no Administrative Decision on whether or not the existing store use is in violation of the Variance.  He said the store was in operation when he moved to the Town and had no reason to go back and ‘rein’ in the activity of the existing convenience store.  Mr. Gowan said in these days when a convenience store comes before the land use boards, typically the conversation includes what kind of food they will be serving and the boards have evolved with how they look at different kinds of food service.  Mr. Hennessey said he didn’t mean to imply that there was anything wrong with the existing operation.  He also didn’t mean to question the Zoning Administrator.  He said the application in front of the Board stated it was for the expansion of an existing non-conforming use.  When he sees that type of request Mr. Hennessey goes back to the origin to see what the Board approved.  He commented in 1984 a convenience store was conceived very different from what it was today.  He questioned if the applicant in front of the Board today was a logical expansion of what was approved in 1984. 

 

Mr. McNamara recalled the owner coming in front of the Planning Board for a renovation of existing space.  The owner, David Tanner, came forward and told the Board at the time they had the area and sold ice cream, but didn’t sell scoop ice cream.  Mr. Gowan said the owner had previously gone to the Planning Board because they re-vamped the store and added a country porch aspect. 

 

Mr. Maynard told the Board that the potential buyer of the property was willing to take the location on and had a long-standing record of doing a good job in Town.  He reiterated there would be no alcohol sales and no food preparation; but there would be food sales associated with the business. 

 

Mr. Tanner said he purchased the store eight years ago and discussed the process he undertook to do so.  He discussed the difficulty someone would have to purchase the property unless they had half a million to put down.  He said their business had dropped off approximately 30% in the last two years.  He discussed the interest that was received for the property in the past.  It was an economic issue for him to sell the store. 

 

Mr. Hennessey said he allowed the discussion based on there being an open discussion (of case law) whether economic arguments can be used in hearings.  His opinion of cases with a non-conforming use an economic argument was appropriate to discuss as to why a particular applicant would come in.  He said he  listened carefully to the reasons given why the particular buyer had come forth with the application. 

 

Ms. Paliy was curious how much noise was generated from Muldoon Park (across the street) and if the park had a speaker system.  Mr. Hennessey said it wasn’t being generated on the applicant’s parcel.  Ms. Paliy asked if the noise generated from the park could be heard inside the business.  Mr. Tanner answered no.  He said he spoke to one of the abutters (in their driveway) who was present for the site walk and questioned if they could hear the noise from the park during a busy day.  That abutter answered no.  He didn’t know how someone would hear a customer making an order (at the store) if they didn’t hear the noise from the park.  Mr. Tanner lives five houses from the store and told the Board if he thought if Dunkin Donuts would devalue his property he wouldn’t want to sell to them.  He noted he planned on staying there and wasn’t moving out of Town.  Mr. Tanner believed that Dunkin Donuts would do more improvements to the lot than he would have been able to do. 

 

No one else came forward to offer testimony. 

 

Mr. Hennessey asked the Board to review the information received. 

 

Mr. McNamara said in terms of being contrary to public interest, it would be hard pressed to say that a Dunkin Donuts in place of the existing store would threaten health, safety and welfare.  He questioned if it would alter the character of the locality.  Both Mr. LaFrance and Ms. Paliy believed it would better the locality.  Mr. McNamara said the drive thru somewhat altered the location, however it would be a hard issue to make that it altered the central character.  He said the spirit of the Ordinance usually went hand in hand with public interest. 

 

Substantial justice was discussed.  Mr. McNamara said it was the balancing test that any loss to the individual that is not outweighed by the gain to the general public would be an injustice.  Mr. Hennessey felt an economic argument (through testimony from the owner) was appropriate to address this, although he knew it was controversial.

 

As to diminution of value, the Board had received a letter from a local real estate company.   Mr. McNamara said the Board didn’t have to take expert opinion, they could rely upon their own evaluation.  He said Mr. Hennessey was in that profession and had mentioned a specific property to analogize the situation.  The applicant pointed out some differences in terms of the type of property, where the two structures were located and what the existing use of each was.  Mr. McNamara believed in order to give proper due to the unnecessary hardship criterion the Board had to focus on the property as opposed to anything else; the drive thru and the effect of it.  He said the applicant had described the topography of the area and made the argument that there was no room otherwise for a drive thru in the area.  The applicant also spoke about making reasonable buffering arrangements so the drive thru window would be shielded as much as possible from neighbors.  This aspect along with lighting, hours of operation etc. were more for Planning Board review if the Variance is approved.

 

Mr. McNamara said the question of if the use was reasonable couldn’t be judged in the abstract.  He said there was an existing non-conforming use of a store that sold all kinds of things.  It seemed to him that the Dunkin Donuts use would be somewhat less intrusive, but he believed the Board should be focusing on the drive thru and how it would change the use of the property.  He reviewed the traffic study provided by the applicant, which indicated the current vehicle trips in the morning are 116 and in the afternoon 111.  The number of trips to the proposed Dunkin Donuts was 217 in the morning and 82 in the afternoon. 

 

Ms. Paliy commented that she attended the site walk and listened to abutter testimony.  It was her belief that due to the games across the street (in Muldoon Park) the area was very noisy.   She said she passed the area all the time because she resided on Mammoth Road.  It had gone through her mind that the site needed a drive thru based on the amount of vehicles she sees in the morning and evening standing and trying to get into the store.  She said the existing traffic pattern was a mess; the curb cuts were ridiculous and vehicles were traveling in every direction.  Ms. Paliy felt the proposal would be a huge congestion reliever and fix the traffic pattern into an orderly flow.   She felt there would be a reduction of use on the site and the area would look nice because the franchises have certain standards that have to be upheld.  Ms. Paliy pointed out in current elections, the taxpayers  have again and again refused to pass things needed for increased residential area.  They have voted no to the Town increasing resources.  She said things that were going on in the 1960’s/1970’s was not occurring at present.  She reiterated her feeling that the proposed would be a reduction of use and cleanup of the lot that would not occur otherwise. 

 

Mr. LaFrance agreed to the fact that the neighborhood  would benefit by the cleanup and organization of the lot.  He said the present owner had done a wonderful job with the location,  however the proposal had a lot to offer  in correcting the traffic, parking, cleanup of rear of the building and buffering the neighbors.

 

Mr. McNamara believed the discussion would be far different if the Board were reviewing an application for a vacant piece of property.   He felt the point about the existence of the park being across the street was interesting.  He said when games were being played and the lights were on at the park lend itself to the neighborhood, which is zoned residential, but also has aspects that are not residential in nature. 

 

Ms. Guay said in looking at unnecessary hardship, over the course of time things change.  In the present economy big box stores have pretty much eliminated small individual businesses.  She felt the testimony regarding economic hardship was valid. 

 

Mr. Ouellette didn’t feel the Board would have denied a Variance  if the present owner had come before them requesting a drive thru.  He believed substantial justice would be done for a business to offer to purchase the property make the improvements shown on the plan.  He said the Town and the abutters would definitely benefit not only the noise levels, but also from the landscaping aspect.   He said it would be a great improvement. 

 

Mr. Hennessey heard reasons why the general public’s interest would be served.  He questioned if the Board could suggest they knew what was best for the people living next door, when those neighbors didn’t think it was best for them.  He listened carefully at the site walk about how things had changed over the years.  He said that the Board of 1984 reviewed something different from what was at that location at present, which was not what the Variance was granted for.  He said it was probably impossible for the traditional old time convenience store to exist in the suburbs faced with the competition that was there.  He said there was a balancing act between the neighbors and the general public’s interest. 

 

Mr. Hennessey spoke to the spirit of the ordinance.  A previous Board granted a Variance for a non-conforming use and the present Board was weighing the normal expansion of that use.  He said the question was if the drive thru would substantially change the nature of the site.  He felt there was a difference between people being in their cars to receive food and people parking their cars and going into the store.  He suspected convenient stores in America was trying to figure out how to put a drive thru in.  Mr. Hennessey said in regard to substantial justice; the lot had a dangerous set up and was probably unique in the Town given the topography, the amount of traffic going through and the children’s playground along the side.  He said it was probably unsellable as a homeowner’s lot, and in the language of real estate was probably in its highest and best use as a convenience store/Dunkin Donuts.  He said substantial justice was probably necessary to approve some form of non-conformance.  Mr. Hennessey struggled with values of surrounding properties.  His personal experience told him that the values,  if unregulated and if the Planning Board didn’t do their job, could be affected by the noise generated by the speakers.  He urged that sound detonating materials (not just arborvitaes)  be considered.  He believed if the sound level was maintained to be no worse than it currently was, there wouldn’t be a diminution of value.  Mr. Hennessey commented that there were special conditions of the property.  He believed there was a hardship given the financial aspect and the type of property.  He said he would reluctantly vote in favor of the Variance because it was one of the toughest ones he’d seen in a long time. 

 

Mr. Ouellette asked if a stipulation/recommendation could be added to the Variance regarding the sound.  Mr. Hennessey said the Board could make a recommendation that he hoped the Planning Board would listen to.  Mr. Ouellette commented that there was a difference between a sight buffer and a noise buffer.  He recommended that the proposed  buffer be for noise and not necessarily just for sight. 

 

MOTION:

(Ouellette/McNamara) To recommend (to the Planning Board) that the proposed buffer be for noise (the maximum possible) and not just for sight. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

 

BALLOT VOTE

#ZO2013-00013:

 

Mr. Hennessey – Yes

Ms. Paliy – Yes

Mr. McNamara – Yes – with the proposed recommendation

Mr. LaFrance -  Yes

Mr. Ouellette– Yes- based on recommendation of noise buffer addition

 

VOTE:

 

(5-0-0) The motion carried.

 

 

Mr. Gowan told the Board that the Notice of Decision will indicate that the Variance was approved, subject to a recommendation to the Planning Board that any buffer be both visual and sound buffer.  The Board felt that would be appropriate. 

 

VARIANCE APPROVED

 

 

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 the case was a continuation from the previous meeting; they had previously opened the case and read the abutter’s list aloud, but had no discussion.  He said a site walk was conducted. 

 

Mr. Shayne Gendron of Herbert Associates, representing the applicant, came forward to discuss the Variance request.  He said the property being discussed was a lot created in 1971 that had been plotted and approved by the Planning Board  at that time.  He provided a copy of the recorded plan from the Registry showing that the lot was originally Lot 6 on the subdivision plan with 200ft. of frontage and a 50ft. right-of-way that was intended to be a Town road.   Currently there was not 200ft. of Town road in front of the lot; there was approximately 90ft. of pavement and where it ends, the Town road ceases to exist.  They believe originally the lot intended to have 200ft. of frontage.  They’ve connected the proposed driveway for the home to the existing end of pavement so they would have a Class V connection with Kosik Terrace.  Also contained in the information given to the Board was a plot plan showing some of the proposed improvements for the lot and also some photographs of the site and road.  Mr. Gendron said it was their belief that the lot came into existence prior to the Wetland Conservation District (‘WCD’) being created. 

 

Mr. Gendron said the Conservation Commission had walked the site; he tried to work with them on the proposal.  Unfortunately,  the commission submitted a letter to the Board that was not supportive of the proposal.  He said they tried to offset the flood storage area by having two areas that would equal the area being disturbed.  He said even though the commission didn’t support the project, they said if the Zoning Board  was willing to approve the project, they would like to see half the flood storage area because it too was located within the WCD.  Mr. Gendron said when they went to the Conservation Commission they were originally asking for 8,000SF of disturbance; they shortened the area and went back to the commission with 6,000SF.  The flood storage areas had been 10,000SF each (5,000SF total), but have been reduced to two 2,500SF area (5,000SF total) at the commission’s recommendation.  The flood storage areas would be planted with a mixture of Silky Dogwood and proposed Speckled Alder, which are a woody shrub species for wetland.  When construction was done, the areas would return to a WCD type of performance and create flood storage from what was being proposed.  Mr. Gendron reviewed the plan and showed the proposed planting areas that were located beyond the filled areas.  The proposed house would have roof gutter drains that would run into catch basins. 

 

Mr. Gendron then read aloud the Variance criteria as submitted with the application.  He added that the lot had been in the Kosik family for over thirty five years.  The applicant, Thomas & Tanya Kosik had owned the property for the past eight years.  He said they would like to build a smaller home and retire there. 

 

Mr. McNamara questioned how many bedrooms the proposed home would contain.  Mr. Gendron said it would  have four bedrooms.  Mr. McNamara asked for the square footage.  Mr. Gendron replied the proposed home would be approximately 1400SF.  Mr. McNamara saw that the lot contained 4.71 acres with the vast majority being either WCD or wetlands.  He wanted to know how much land they had outside the WCD where the proposed house was to be located.  He said the back of the house appeared to be entirely in the WCD which left the question where they would go for outdoor recreation on the property.  Mr. Gendron couldn’t recall the exact acreage on what they had, but knew they met the soil size calculations with the well radius taken off for a four bedroom house.  He told the Board that the plan had been sent to the Deputy Health Officer Paul Zarnowski for approval (which occurred) and it was currently with the State for approval.  He explained that the applicant was looking to downsize and not have a great deal of lawn or maintenance.  They were not seeking to have another other than what was on the proposed plan. 

 

Mr. McNamara looked at the applicant’s request and saw them as two distinct and separate requests.  He felt the Board needed to be careful to treat them as such; 1) the lack of frontage, and 2) WCD work.  Mr. Hennessey hesitated on making a ruling on it, but said he would entertain a discussion.  He said the Board requested the Conservation Commission’s input and read aloud a portion of their letter.  The Commission’s position was that the lot was non-buildable.  They voted 0-4 against supporting the proposal and further indicated should the Zoning Board not follow their recommendation, they request that the applicant be required to offset approximately 50% of lost flood storage.  The lost flood storage area should be as far from the edge as possible and have wetland shrubs planted in that flood compensation area.  They further indicated 50% was simply a compromise between loss of flood storage and WCD disturbance.  Mr. Hennessey said if the Board took up the commission’s recommendation the 90ft. (frontage) would be moot.  He believed the Board had to decide if it was a non-buildable lot and would entertain additional discussion throughout the hearing. 

 

Mr. Gendron reiterated that the lot had been plotted and approved prior to the WCD Ordinance.  He said they weren’t filling any wetlands or disturbing any natural wetland areas.  They were only proposing improvements in the WCD area and were maintaining approximately 18ft. from the edge of wet.  He said the applicants had owned the lot, had been taxed on it and would like to get some use out of it.  Mr. Gendron believed they had done a good job at trying to balance a reasonable request before the Board with offsetting as much environmental impact as they possibly could and still make the project financially viable.  He said if there was anything else he could have given the commission to get a positive feedback, he would have done so.  He said he tried to work with them as much as possible.  Mr. Hennessey felt the application reflected such and the applicant did they best they could with what they had.  He said the commission also acknowledged the efforts. 

 

Ms. Paliy said amount of large downed trees really disturbed her.  She said the trees didn’t really have a root system.  She said there would be two reasons for that type of condition; either the property was unbelievably wet so the trees couldn’t grow a root system, or the area was pure ledge.  Another issue that disturbed her was the need to remove the other trees within the striking area of the house.  The removal of the additional trees would require them to go into the WCD and wetland causing additional disturbance.  Mr. Gendron said the soils type was Group 2.  The area had a high water table, but they went down beyond 5ft, but didn’t hit anything.   The Health Officer witnessed the test pit and had no issue with the design put together.  The plan has been sent to Concord.  Mr. Gendron believed the plan would receive approval because there were no waivers being requested.  With regard to the trees being down, there had been some recent horrendous storms occurring.  There were a lot of trees still standing.   They felt the plan was sufficient pertaining to the area they needed to clear to make a safe environment for the home.   Mr. Gendron didn’t feel that the soils on the lot were much different than a lot of other areas in Pelham with high water tables. 

 

Mr. Hennessey opened the hearing to the public.  There was no public input.

 

Mr. Hennessey stated that the Board had a recommendation from the Conservation Commission to declare the lot unbuildable, which was a serious consideration.  In terms of the hardship criteria, Mr. McNamara said the lot may be precisely the kind of case where the Governor’s Island case came into use.  He questioned,  based on that criteria, if the Board would be in essence denying all reasonable use of the property and if it was in affect a taking.   He was mindful to what the commission had advised,  and pointed out it was an extreme position.  Mr. Hennessey said the question of not allowing building on a tough lot was in fact a taking.  He said it could not be done lightly.  Ms. Paliy needed clarification.  She noted that the property had poorly drained soil and wasn’t sure which regulation was on top.  Mr. Hennessey said prior to Simplex, the only way a variance got granted (theoretically) was if there was nothing else that could be done with a property.  He said Mr. McNamara was pointing out if the Board took away someone’s right to use their property, there had to be a serious reason for doing so.  Ms. Paliy questioned if the regulations were in fact taking someone’s property.  Mr. Hennessey said they had to weigh public interest and refer to the five criteria. 

 

Mr. McNamara pointed out the other aspect was that the parcel was a pre-existing lot of record, which reinforced the gravity of the situation because it was approved by the Planning Board as a lot.  Mr. Hennessey said the matter before the Board was public interest versus a taking.  He noted that the wetland was a prime wetland and asked Mr. Gowan to explain the difference for the public.

 

Mr. Gowan explained for an area to be designated a prime wetland, it would have to be carefully evaluated.  He believed it was Mark West who did the work on this particular wetland.  A prime wetland has a higher value in terms of how they function.  The State setbacks for a septic to a prime wetland was 100ft.  The setback requirements had changed recently.  Mr. Gendron commented that the applicant’s lot didn’t qualify for the prime wetland ordinance taking by the State because it was not one that was recognized within the correct timeframe.  It was noted there was a cutoff date for lots to be recognized, and the lot being discussed wasn’t within that criteria.  None the less, the criteria for prime wetlands remains the same.  Mr. Hennessey believed it was the Selectmen that had final approval vote regarding prime wetlands. 

 

Ms. Paliy said the lot hadn’t been developed in a very long time and questioned if there was a history on the lot deeming it not developable.  Mr. Gendron told the Board that the lot had been in the applicant’s family for over thirty-five years.  The intention of Mr. Kosik (original owner) was to give all of his children a lot (parcel) of land.  Mr. Kosik made an investment on property in Town, the applicant would like to construct a home on the proposed parcel to retire in.  Mr. Gendron said they tried to balance everything as best they could and use as much technology in the plan  as possible.  They’ve reduced the fill area, proposed appropriate plantings and taken a very careful look at the wetlands to try and protect them and not create a problem. 

 

Mr. Hennessey said aside from trying to mitigate a tough situation, the Board made a similar argument regarding a lot on Dutton Road as being unbuildable.  It was demonstrated to be so.  He reminded the Board that they were overturned in that case and the lot was now occupied by a house. 

 

Mr. Gowan wanted to clarify that prime wetlands were something ultimately approved by the voters.

 

Mr. McNamara felt it may aid the Board to get an independent wetland scientist peer review to tell them what kind of damage, if any would be caused to the wetland.  Mr. Hennessey said the Board asked the Conservation Commission to provide comment; they voted 0-4 against approval.  He said one of the ways the Board weighed public interest was input from conservation. 

 

Ms. Guay commented that she knew little about wetlands and had to rely upon the expertise of the Conservation Commission.  Mr. Hennessey said the Board didn’t have to; statutorily there was no role for conservation in zoning.  In this case, the Board asked for their opinion for insight.  Ms. Guay said the commission seemed to defer to the Board’s ruling.  If the Board decided to grant approval, there were certain things the commission would like other parameters to be taken into effect.  Ms. Guay agreed with Ms. Paliy that it seemed to be a precarious location to place a house.  Mr. Hennessey said the Board was entitled to bring forward their own expertise.  He knew that Ms. Paliy knew trees pretty well.  He commented that he resided near a prime wetland and this year was a dry spring.  There was far less water in the wetland than in past years.  When on the site walk it was pointed out there was  seasonal stream but no water in it. 

 

Ms. Guay asked how much area would be built upon in the wetland.  Mr. Gendron none of the proposed would be built in the wetlands; they would be located in a conservation area.  They were not filling or building on wetlands.  It was all upland area.  Mr. Gendron reviewed the photographs and explained that how they reviewed the area and the proposed to be partially in the 50ft. off set area.  There would be some fill ancillary to the house because they had to bring the grade up to be above the flood elevation.  They were not filling any wetlands and would be maintaining a buffer of approximately 20ft from it along the edge and proposed plantings of wetland species shrubs. 

 

Mr. LaFrance felt there were two big hardships: 1) previous lot of record, and 2) lack of frontage.    He said given that lack of frontage, it required the driveway to be shifted in the location being shown, therefore, pushing the house around to a setup where it creates more disturbance  than what could have been made if the road was continued.  Mr. Hennessey asked if pushing the road further would have caused potentially more displacement of wetland setbacks.  Mr. LaFrance answered no, based on what he saw on site. 

 

Mr. McNamara asked the applicant if they would need to go to the Planning Board for a Special Permit if the variance were to be approved.  Mr. Gowan said the proposed ‘straddled’ land use and zoning.   He said if they didn’t have to come to the Board for road frontage, they technically could have gone directly to the Planning Board.  He preferred that they come to the zoning board.  He noted that the Subdivision Regulations require a Special Permit for work within a WCD.  The advantage to that, in this instance, is they would have the expertise of the Planning Board’s consultant to review the plan.  Mr. McNamara said he brought it up because it would perhaps bring another level of review and safeguards. 

 

Mr. Hennessey said one of the issues he had with the application, was that the voters, Selectmen and discussion about where prime wetlands would be imposed.  He said at the time they went through the setback was 100ft, and later changed by State Legislature. He noted that the location of the wetlands being discussed drained into a larger area.  Believed to flow into Golden Brook and eventually Beaver Brook. Mr. Hennessey said given the flooding the Town had downstream on Beaver Brook he was reluctant to approve a property that contained as much wetlands.  He said if it was a new subdivision the discussion would be different because they didn’t have 35,000SF high and dry area.  As reluctant as he was to take anyone’s property away, he felt the lot was unbuildable.  He said the abutters discussed the amount of water with the Board when walking the site.  Mr. McNamara agreed with what was being said, but was concerned with the constitutional taking aspect of the case.  He said the Board hadn’t had good luck with past experience.  There was a brief discussion regarding one of those cases and the challenges of the present case. 

 

Mr. LaFrance asked Mr. Gendron if he felt the Conservation Commission would have viewed the application differently had the garage been eliminated.  Mr. Gendron was unsure how they would have felt.  He believed that the idea of the proposal went against what the Conservation Commission stood for. He questioned if it would be more advisable by the Zoning Board to have the garage more attached to the house.  He noted they had no problem going in front of the Planning Board and working with their engineering firm (Keach Nordstrom) if the Board desired. 

 

Ms. Paliy asked if it was possible to put the garage under the house to reduce the building footprint.  Mr. Gendron said it would be possible to attach the garage.  Ms. Paliy discussed the disturbance and believed it would be larger if trees had to come down.

 

Mr. Hennessey asked the Board to make a determination regarding the WCD encroachment variance first.   He said if that variance is approved the Board would then make a determination regarding the road.   The applicant didn’t object. 

 

MOTION:

(McNamara/LaFrance)  If the Variance is approved, a condition of such is that the applicant go to the Planning Board to seek a Special Permit for work within the Wetland Conservation District and for further review of the impact.  

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. LaFrance read the ballots aloud.  The criteria question setup of the ballot was not familiar for Ms. Guay.  She believed her ballot didn’t reflect the intention of her vote and was given the opportunity to review her ballot so it could reflect the vote she intended. 

 

BALLOT VOTE

#ZO2013-00014

Re: WCD encroachment:

 

Mr. Hennessey – 1) No, 2) No, 3) No, 4) Yes, 5a) No, 5b) Yes- Final: No

Ms. Paliy – 1) No, 2) Yes, 3) Yes, 4) Yes, 5) Yes – Final: No

Mr. McNamara –  1) Yes, 2) Yes, 3) Yes, 4) Yes, 5a) No, 5b) Yes – Final:Yes

Mr. LaFrance -  Yes to all criteria

Ms. Guay – Yes to all criteria

 

VOTE:

 

(3-2-0) The motion carried.

 

 

VARIANCE GRANTED

 

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

 

Mr. Hennessey asked if there was anyone in the public that would like to speak regarding the requested Variance.  No one came forward. 

 

 

BALLOT VOTE

#ZO2013-00014

Re: frontage:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara –  Yes to all criteria – with conditions contained in motion.

Mr. LaFrance -  Yes to all criteria

Ms. Guay – Yes to all criteria

 

VOTE:

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

Mr. Ouellette returned to the Board. 

 

 

HEARING(S):

 

Case #ZO2013-00015

SEQUEIRA, Steven  -  209 Garland Drive  - Map 36 Lot 10-361-9 – Seeking a Special Exception concerning Article XII, Section 307-74 to permit an accessory dwelling unit above existing garage

 

Mr. Ouellette was appointed to vote.

 

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

 

The applicant, Mr. Steven Sequeira told the Board that he would like to add an in-law apartment by modifying the existing living area. 

 

Mr. Gowan said the submitted drawing indicated that the 750SF threshold was met.  He recommended that any approval be subject to receipt of State approved septic design and have the Building Inspector verify the plan prior to a building permit being issued. 

 

MOTION:

(McNamara/LaFrance) The application is subject to verification by the Building Inspector prior to a building permit being issued. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. McNamara confirmed that the conditions for Special Exception had been met.   Mr. Gowan stated he believed all the Special Exception criteria had been met.  He wanted the Building Inspector to confirm  the plan was in compliance. 

 

Mr. McNamara told the applicant if the Special Exception was granted it would be for an in-law apartment only; it could not be rented out. 

 

There was no public input. 

 

Mr. Ouellette asked if Mr. Gowan had reviewed the septic design.  Mr. Gowan answered no; that’s why he made the recommendation for the conditional approval.  Mr. Sequeira told the Board that the approval was in process; the design was submitted to the State.   

 

BALLOT VOTE

#ZO2013-00015:

 

Mr. Hennessey – Yes – subject to conditions

Ms. Paliy – Yes

Mr. McNamara –  Yes – with conditions contained in motion

Mr. LaFrance -  Yes

Mr. Ouellette – Yes – based on recommendation and Building Inspector approval

 

VOTE:

 

(5-0-0) The motion carried.

 

 

SPECIAL EXCPETION GRANTED

 

 

Case #ZO2013-00016

CANDIDO, Frank  -  4 McGrath Road -  Map 38 Lot 1-108-2 – Seeking a Special Exception concerning Article XII, Section 307-76 III to permit a roofing and snow plowing business in the residential zone. 

 

Mr. Ouellette was appointed to vote.

 

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

 

The applicant, Mr. Frank Candido came forward to discuss he request for Special Exception.  He said he would like to keep two marked vehicles at his home so he could do a snow plowing and roofing business.

 

Mr. Hennessey asked if he had come to the Board because of a complaint.  Mr. Candido replied he wasn’t aware that he needed permission.  Mr. Hennessey asked how long he had been in business.  Mr. Candido said he was previously in Massachusetts and had done business for twelve years; and in Pelham since June, 2012. 

 

Mr. Gowan said the applicant was seeking a Special Exception for a General Home Occupation.  Mr. Hennessey believed the Board should conduct a site walk since there was general public interest in the case.    

 

A site walk was scheduled for May 18, 2013 at 8am.  The case was date specified to the June 10, 2013 meeting. There will be no further abutter notification.   It was noted in the event the Special Exception was granted the applicant would need to also go to the Planning Board for site plan review. 

 

 

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. Gowan said he caught Mr. Joseph Maynard of Benchmark Engineering prior to him leaving the meeting and would be prepared to discuss the case at the June 10, 2013 meeting.  Mr. McNamara asked if the Board was in compliance with State law.  Mr. Gowan said  they were in a couple days outside it.  The applicant’s request came in and didn’t have the 24hour notice required for the agenda.  Mr. McNamara asked if the Board would be ‘slapped’ with an appeal for not hearing it within 30-days.  Mr. Gowan said the applicant’s request came in late the previous week and would not technically be within the 30-day period if it was postponed to the June 10, 2013 meeting.    Mr. Hennessey said the Board had to hear the case now.

 

Mr. Gowan explained that the applicant disagreed with what the Board cited in terms of denial for the Variance.  He said the applicant believed they were turned down for not having adequate sight distance although they met AASHTO standards.  Mr. Hennessey reviewed the letter the applicant submitted outlining the reason they felt a rehearing should be conducted.  He explained the Board’s procedure for rehearing discussions, which was usually not a public hearing or back and forth discussion with the person making the request. 

 

Mr. McNamara said in the discussion he indicated the Hill v. Chester case as being a factor to be considered.  Mr. Hennessey said the applicable portion of that case was the court’s rule that self-created hardship was not an absolute bar to a variance.  He said it didn’t mean that the Board couldn’t take it into consideration. 

 

Mr. Hennessey discussed the sight distance along Dutton Road.  The Board was not held to AASHTO standards, they could use their own knowledge of the site to make judgment.  He maintained that it was a ‘heck of a corner’ and situation.  Mr. McNamara said no one went the posted speed limit along the road.  He also noted there was an existing use on the property.  He believed the Board gave a fair hearing.

 

Mr. Hennessey asked the Board if they felt there was a valid reason contained in the request for them to conduct a rehearing.   Mr. LaFrance said he had voted in favor of the case because he felt it wasn’t fair for the Board to say no without the applicant giving evidence that they could.  Mr. Hennessey wanted to know  based on what the applicant wrote, if the Board felt there were errors made by the Board during the hearing that should be reconsidered. 

 

Mr. Ouellette said during the hearing he took all the information in account when making his decision.

 

Mr. LaFrance made a motion to rehear the case because the Board was not brought actual facts on sight line distance.  Mr. McNamara seconded the motion. 

 

Mr. Ouellette didn’t feel anyone questioned sight line.  He believed the concern was the safety of the corner.   Mr. McNamara noted that the information about the corner was available to the applicant.  They knew where they were locating the driveway and were on notice, especially with the prior variance that was denied.   

 

Mr. Hennessey said he didn’t need AASHTO Standards to know if there would be a problem.  He said he was aware of the area because he lived there.  He told the Board if they felt they needed the information, the Board should rehear the case.  Ms. Paliy questioned if it was up to the Town or State to make the rods safe.  Mr. Hennessey said the road was what it was.  Board had been asked for a variance to something he felt was dangerous.  Mr. McNamara said the Board could make judgment based on safety factors.  The Board discussed how they would proceed. 

 

MOTION:

(LaFrance/McNamara ) To rehear the case. 

 

VOTE:

 

(2-3-0) The motion failed. 

 

 

SITE WALK – May 18, 2013  -   8am

Case #ZO2013-00016 - CANDIDO, Frank  -  4 McGrath Road -  Map 38 Lot 1-108-2

 

 

DATE SPECIFIED PLAN(S) – June 10, 2013:

Case #ZO2013-00016 - CANDIDO, Frank  -  4 McGrath Road -  Map 38 Lot 1-108-2

 

MINUTES REVIEW

 

April 8, 2013 – deferred.

 

ADJOURNMENT

 

MOTION:

(LaFrance/Paliy) To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 10:30 pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary