APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 8, 2013

 

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

 

The acting Secretary Peter McNamara called roll:

 

PRESENT:

 

 

 

ABSENT:

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

 

Alternate Lance Ouellette, Alternate Kevin O’Sullivan

 

Ms. Guay was appointed to vote in the evening’s proceedings. 

 

CONTINUED HEARING(S):

 

Case #ZO2013-00019

RAWNSLEY, William & Pamela  -  28 McGrath Road -  Map 39 Lot 1-94  - Seeking a Variance concerning Articles III & VII, Sections 307-8(C), 307-12, Table 1 & 307-41(B) to permit the replacement of a shed.

 

Mr. Hennessey read aloud the site walk minutes of June 22, 2013. 

 

MOTION:

(LaFrance/McNamara) To approve the June 22, 2013 site walk meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Hennessey said the evening’s meeting was a continuation of the public hearing.  No one came forward to offer additional comment.

 

Mr. McNamara stated that the site walk demonstrated that the request was an ‘easy call’.  He said anyone with common sense would replace a falling down shed in a bad location with a brand new shed in a better location.  He felt if the neighbors had communicated better the site walk wouldn’t have been necessary. 

 

It was noted that the applicant was not present.  The Board took action on the case. 

 

BALLOT VOTE

#ZO2013-00019:

 

Mr. Hennessey – Yes to all criteria

Ms. Paliy – Yes to all criteria

Mr. McNamara – Yes to all criteria

Mr. LaFrance -  Yes to all criteria

Ms. Guay – Yes to all criteria

 

VOTE:

 

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

Mr. Gowan told the Board that the applicant would be contacted to be sure they were aware that their Variance was approved.

 

 

HEARING(S):

 

Case #ZO2013-00020

LEBEL, Ashley  -  44 Nashua Road, Map 21 Lot 3-59 – Seeking a Variance concerning Article V, Section 307-18 to permit the operation of a general home occupation (in-home daycare) from a duplex unit.

 

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.

 

The applicant, Ms. Ashley Lebel, came forward to discuss the requested variance.  She explained she had been establishing her home daycare/preschool during the past couple years.  When she went to become licensed, she found out that home daycares weren’t typically run out of duplexes and she needed to apply for a variance. 

 

Mr. Gowan said Pelham’s Zoning doesn’t allow businesses within duplexes.  He couldn’t find anything in the Statutes that indicated home daycare wasn’t a business, or anything that defined it otherwise.  He noted there were some extenuating circumstances as to the ownership and residents of the duplex.  He suggested if the Board granted a variance that a reasonable condition of such might be that the variance would be in force as long as the applicant was a resident.  Mr. Gowan felt Zoning contemplated not allowing home businesses in duplexes because of the closeness of the residents and possible aggravation because of business activity.  He believed the proposed variance was an unusual situation. 

 

Mr. McNamara asked  if the proposed would be considered a general or minor home occupation.  Mr. Gowan believed it to be a general home occupation since variance relief was being sought.  He said the applicant should be questioned as to how many employees she anticipated.  In this particular situation, he didn’t feel the applicant would need to go to the Planning Board. 

 

Mr. Hennessey asked Ms. Lebel if she owned the property.  Ms. Lebel replied her father owned the entire property (both sides of the duplex).  She noted that she had been going to school to establish her home business and was now at the approval stage. 

 

Ms. Guay wanted to know how many children would be cared for at one time.  Ms. Lebel said if she became licensed, she could have up to six preschoolers and possibly (depending on licensing rules) three before/after care children.  If she wasn’t licensed, she could have up to three children plus her own.  Ms. Guay asked for the hours of operation.  Ms. Lebel stated she would be open from 6AM to 6PM.  Ms. Guay questioned the age range of the children.  Ms. Lebel said they could be from six weeks to five years old, the before/after care could range up to elementary school aged (typically 12 years of age).  Ms. Guay noticed there was a pool shown on the plan and wanted to know if it had been filled in.  Ms. Lebel answered yes; the pool was gone prior to her father purchasing the property.  Ms. Guay asked if the yard was fenced in.  Ms. Lebel said the yard was currently open, but had a play space she would like to create.  It would be fenced in as soon as she needed to. 

 

Ms. Lebel read aloud the Variance criteria responses submitted with her application. 

 

Mr. McNamara asked who was living in the area that was proposed for conversion.  Ms. Lebel said she resided on one side of the duplex with her boyfriend and daughter.  She would continue to reside in the duplex while the daycare was being operated.  The first floor living space would be used for the daycare.  The size of the space upstairs was the same size as downstairs.  The other side of the duplex was occupied by Ms. Lebel’s sister and another tenant.  Mr. McNamara asked for clarification for how many children would be allowed.  Ms. Lebel said she was only allowed six preschool children; however, depending on licensing, most home daycares were allowed to have an additional three before/after care children.  Mr. McNamara wanted to know where drop off/pick up would occur.  Ms. Lebel said they would do so in the driveway.  Mr. McNamara asked if there was sufficient room in the driveway to turn around without backing out onto Nashua Road.  Ms. Lebel said the driveway was double/triple wide.  Mr. McNamara was concerned with there not being adequate room for vehicular traffic to access the lot and turn around safely without backing onto Nashua Road. 

 

Mr. Hennessey asked if State licensing looked at drop off locations or parking prior to issuing a license.  Ms. Lebel was unsure but would find out from licensing.  She noted resident vehicles would be gone for most of the morning. 

 

Mr. McNamara questioned how many resident vehicles were typically on site.  Ms. Lebel said there were four resident vehicles. 

 

Ms. Paliy wanted to know what kind of inspection the State would conduct.  Ms. Lebel said the State worked with her to child-proof her home and take the necessary steps to  come before the Board.  She said she would also need to do a fire and safety review.   She said coming in front of the Board was the first step in the process.  Ms. Paliy questioned how vehicles would maneuver in the driveway during drop off/pick up times.   Ms. Lebel said if she was allowed to have before/after care children they would arrive prior to the preschool children.  Ms. Paliy said at her daycare vehicles arrived at the same time, which may be difficult.  Ms. Lebel said she had yet to work out the traffic flow. 

 

PUBLIC INPUT

 

Ms. Ayla Rotelle, (applicant’s sister) resident of the duplex beside the applicant, came forward in support of the requested Variance.  She told the Board her sister was good with children and the daycare would benefit the community.  She commented if the driveway was an issue, there was a side (roundabout dirt) driveway that could be used for drop off/pick up.  She understood the concerns with traffic backing out into Nashua Road. 

 

Mr. McNamara asked where the second loop driveway was located.  Ms. Rotelle described the second driveway location as being beside the duplex and going around a rock garden.  Mr. McNamara asked if the driveway was accessible in the winter and located on the duplex property.  Ms. Rotelle answered yes it was located on the property and that  she had used the driveway all winter. 

 

Mr. McNamara asked if the other tenant of the duplex was in favor of the proposal.  Ms. Lebel answered yes. 

 

Mr. Hennessey suggested imposing a couple conditions if a variance were granted, the first being subject to State licensing. 

 

MOTION:

(Guay/McNamara) Variance is subject to State licensing (being obtained). 

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. McNamara suggested, as mentioned earlier, if the variance is granted it would be in effect only so long as Ms. Lebel conducts the daycare and lives in the facility; at such time as she vacates the residence, the variance would become null and void. 

 

MOTION:

(McNamara/LaFrance) If variance is granted, it will be in effect only so long as the applicant, Ms. Lebel conducts the daycare and lives in the facility; at such time as she vacates the residence, the variance will become null and void.

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Gowan discussed the issue of percentage.  He said in Zoning, a general home occupation cannot exceed 49% of the gross living area.  In his opinion, because the upstairs (of the duplex) was separate and divided the space approximately in half and the use of the other portion of the unit was not exclusive to the daycare operation.  He felt the use was clearly a subordinate use  to the residential use of the dwelling.  Mr. Hennessey asked if the 49% was on the structure or the unit.  Mr. Gowan said it was on the living area.   It was noted that the area used by the daycare while the children were present would be used by the residents when the children weren’t present.  He didn’t see the percentage as being an issue. 

 

Ms. Paliy said the applicant wasn’t using anything specifically for business so the percentages didn’t matter.  Mr. Hennessy asked if the basement was finished.  Ms. Lebel answered yes.  Mr. Hennessey questioned if the children would be using the basement.  Ms. Lebel answered no.  Mr. Hennessey said with that information, the percentage question was settled. 

 

Mr. McNamara asked if the septic system had been either recently checked or replaced.  Ms. Lebel said the septic system was replaced right after she moved in.  Mr. Hennessey asked if State licensing was concerned with septic systems.  Ms. Lebel was unsure, but would find out.  Mr. Gowan didn’t believe it was an issue they (the State) had.  He said if the septic system failed, the Town would become aware of it quickly. 

 

Ms. Guay questioned if there should be a condition regarding the circulation of traffic (on site) so the loop access described would be used.  Ms. Lebel said if she used that (loop) driveway as her access area, she would put up direction signs (indicating one way) for vehicles.  It was noted that the driveway was plowed in the winter.

 

Mr. Hennessey said the Board usually made a clear delineation between the Board’s duty and what the Planning Board reviewed.  However, the application in front of the Board would not be going to the Planning Board.   Mr. Gowan reiterated to the Board that the percentage and Planning Board review didn’t apply to the application.  He said the Board could consider leaving the traffic determination to either him or the Highway Safety Committee.  Mr. McNamara felt the criteria was applicable and put in place by the voters to guide daycare centers in residential districts.  He suggested that the criteria governed everyone that wanted to operate a small business and set limits for those operations.  He believed because it was in the Zoning Ordinance the Board could look at it as guidance.  Mr. Hennessey believed it was a means of analyzing a variance application.  He felt the concern expressed by the Board about traffic was appropriate.  Ms. Paliy suggested sending the applicant to the Planning Board for site plan review.  Mr. Hennessey noted that the applicant had told the Board a solution to traffic backing up on Nashua Road and the traffic.  He felt it was appropriate to have a motion for such. 

 

The Board discussed having a motion pertaining to the vehicular traffic flow on site.  Mr. McNamara said the Board’s preference was to have a circular drive-thru so vehicles could avoid backing out onto Nashua Road. 

 

MOTION:

(McNamara/LaFrance) In terms of health and safety pertaining to traffic, the Variance is subject to review/direction by the Highway Safety Committee.   The Board’s preference was to have a circular drive-thru so vehicles could avoid backing out onto Nashua Road

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Hennessey briefly discussed the ballot.  He said ordinarily a Board member would vote for either 5a or 5b.  If a member felt they could not vote for 5a,  they would have to look at 5b in the way it was presented to the Board.  He said ordinarily most cases didn’t fall under 5b. 

 

Ms. Guay wanted to note that the applicant incorrectly indicated ‘special exception’ not ‘variance’ under 5b. 

 

Mr. McNamara didn’t feel the Board needed to add a condition about fencing in an area for use based on the assumption that the State would have it as a requirement. 

 

BALLOT VOTE

#ZO2013-00020:

 

Mr. Hennessey – Yes to all criteria – with criteria adopted by Board

Ms. Paliy – Yes to all criteria

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

Mr. LaFrance -  Yes to all criteria – with all conditions

Ms. Guay – Yes to all criteria – subject to conditions

 

VOTE:

 

 

(5-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

MINUTES REVIEW

 

MOTION:

(McNamara/LaFrance) To approve the June 10, 2013 meeting minutes as written.

 

VOTE:

 

(5-0-0) The motion carried. 

 

DISCUSSION

 

The Board briefly discussed the membership of Robert Molloy.  Mr. Hennessey said several months ago Mr. Molloy sent correspondence regarding his employment conflicting with his role on the Board.  He said he replied to Mr. Molloy indicating he hoped he would consider an alternate position versus resigning.  No response has been received.  Mr. Hennessey felt it was time for the Board to request that the Selectmen accept his resignation and asked the Board for a motion.  He hoped Mr. Molloy would consider remaining on the Board as an alternate until such time as he could return as a full member. 

 

MOTION:

(McNamara/LaFrance)  To recommend that the Board of Selectmen accept Mr.  Robert Molloy’s resignation as a full member, but also to entertain a subsequent application as an alternate to the Board. 

 

VOTE:

 

(5-0-0) The motion carried. 

 

Mr. Hennessey was hopeful the Board of Selectmen would appoint a full member and asked those interested to submit an application for such. 

 

The Board briefly discussed the location they would hold their August meeting and made the following motion. 

 

MOTION:

(Paliy/McNamara) To hold the Board’s August meeting at an alternate location with air conditioning, such as the elementary school or Senior Center.

 

VOTE:

 

(3-0-2) The motion carried.  Mr. LaFrance and Mr. Hennessey abstained.

 

Mr. Gowan will put the request to the Selectmen and let the Board know the determination.

 

ADJOURNMENT

 

MOTION:

(LaFrance/Paliy) To adjourn the meeting.

 

VOTE:

 

(5-0-0) The motion carried. 

 

The meeting was adjourned at approximately 8:00pm.

Respectfully submitted,

                                                                                                Charity A. Landry              

                                                                                                Recording Secretary