BOA20050314

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 14, 2005

The Chairman, Mr. Peter McNamara, called the meeting to order at approximately 7:30= pm.

The Secretary, Mr. David Hennessey, called the roll:

PRESENT:

=

ABSENT:

Peter McNamara, David Hen= nessey, Jeff Gowan, Svetlana (Beloritsky) Paliy, Alternate Cindy Ronning

None.

Mr. McNamara informed that Ms. Ronning would be a voti= ng member for the proceedings. <= /p>

REQUEST FOR REHEARING

Case #2309= – ERICKSON, Craig & Pam – 27 South Shore Drive/ML 30/11-218 – By Applicant and By Abutter= (Mr. Donald Crossley)

Mr. McNamara said the Board had received two requests = for rehearing, one from the applicant and one from an abutter (Crossley). He suggested that the Board begin = by reviewing the Erickson’s request.

Mr. Hennessey reviewed the Erickson’s request an= d said the Board did not turn the variance down based on the criteria that it would diminish surrounding property values; the Board was unanimous that it would= not diminish surrounding property values. He said the Board denied the variance on the criteria that it would = be contrary to the public interest; based upon the Conservation CommissionR= 17;s negative recommendation relating to the applicant’s prior proposal to= the Board. He felt it was fair to= ask if the Board should have gone back to Conservation since the proposal changed. Ms. Ronning and Ms. = Paliy had no comments. Mr. McNamara= said in light of the change, he believed there would still be some impact to the WCD. Mr. Hennessey said the n= arrow argument was whether the Board should have relied on the Conservation Commission’s recommendation without acknowledging the change in the plan. He was unsure if his vo= te would change, but was willing to reopen the case on the narrow point that C= onservation’s opinion had not been revised when the plan was. He noted that he would be requesti= ng input from the Conservation Commission on the point of the addition. Ms. Ronning agreed. Mr. Gowan was unsure if his vote w= ould change, but agreed with Mr. Hennessey.

VOICE VOTE:=

=

Mr. McNamara – Yes

Mr. Hennessey – Yes

Mr. Gowan – Yes

Ms. Paliy – Yes

=

VOTE:<= /o:p>

Ms. Ronning – Yes

(5-0-0) The motion ca= rried to rehear a portion of Case #2309 as noted below.

Rehearing granted for the portion of the case in connection with Conservation Commission’s input regarding the plan (as amended) and previously presented to the Board.

The Board then discussed the request to not reh= ear Case #2309, as submitted by Attorney James Troisi representing Mr. & Mr= s. Donald Crossley of 14 & 16 South Shore Drive. The Board didn’t recall a si= milar request.

Ms. Paliy believed that the Crossleys were okay with t= he garage because it had been significantly reduced/moved from the original plan. She thought there was s= ome acceptance. Mr. McNamara didn’t recall t= he Crossleys agreeing to the plan. He said with regard to motions for rehearing, if the Board was convinced that there was a need for a new hearing because an error in law was made or if n= ew evidence was presented. The information from Attorney Troisi was received late in the day; when reviewi= ng, the Board didn’t see any new information presented. There was a brief discussion regar= ding the Shore Land Protection Act.   Mr. McNamara didn’t see any new evidence submitted and didn’t feel that the Board made an error.

There was a voice vote to determine those in favor of = allowing a rehearing to the Crossleys.

VOICE VOTE:=

=

Mr. McNamara – No

Mr. Hennessey – No

Mr. Gowan –&n= bsp; No

Ms. Paliy – No

=

VOTE:<= /o:p>

Ms. Ronning – No

(0-5-0) The motion failed. The Crossleys were = not granted a rehearing.

CONTINUED<= o:p>

Case #2309= – BOGUSH, Edward – 40 Burns Road / ML 28/2-6 – Seeking a Special Exception concerning Article XII, Section 307-76 (III) to permit a sawmill business in the residential zone.

Mr. McNamara said the Board had heard the case at the = last meeting; heard a presentation from the applicant and abutters. There was concern that the special Exception was properly before the Board so the case was continued pending discussion with the Town Planning Director.

Planning Director Will D’Andrea said the Town re= ceived a request for inquiry/complaint about the activity on the property; the Town (through Building Inspector Roland Soucy) observed the activity and contact= ed the operator of the business about the operation and contacted the owner of= the property/business owner regarding the activities who in turn made applicati= on to come before the Board for a Special Exception for a home occupation.

Attorney George Basbanes, appearing for Mr. Edward Bog= ush and Mr. Albert Trepanier who are operating under the partnership B & T = Wood Products was unsure why they were before the Board. He said the land had traditionally= been used by Mr. Bogush to plant trees and was also used for storage from a sawm= ill on an adjacent land. He said = Mr. Bogush had granted Mr. Trepanier the authority to come before the Board and seek appropriate permits. Unt= il recently, this year, the relationship between Mr. Bogush and Mr. Trepanier was not put into partnership forum; a written partnership agreement has been done betwe= en Mr. Bogush and Mr. Trepanier to run a forestry and wood business on the property. Attorney Basbanes believed it was adequately covered in RSA 21:34-a as well as various other statutes.

Mr. Hennessey said there were two questions: 1) interr= uption in the use of the land for the purpose in which case ‘grandfathered’ would not apply. He asked if the land was being use= d as it currently was continuously since before there was such a zoning. Attorney Basbanes questioned which= years were being referred to for abandonment.&nb= sp; Mr. Hennessey said the cord wood use was either always done, or an e= xpansion of the business. An expansion= of a non-conforming use would require a Special Exception. He said if the business had always= been there the question was if there had been continuous cord wood cutting and storage. Attorney Basbanes sa= id Mr. Bogush had been using the property for many years with documentation since 1954. He said it was difficul= t for them to prove that over the years something didn’t happen. Mr. Hennessey reviewed a memo date= d March 3, 2005, s= ubmitted by the Planning Director in which it states ‘The cordwood business is a = new use that has only recently been introduced.’ ‘It appears that t= he location of the stockpile is new and that this material is not located in a manner that would facilitate the logs being processed by the sawmill.’ Mr. Hennessey= said the Town was saying that this is a change in the permitted grandfathered us= e on the site. Attorney Basbanes s= aid he was not in a position to deny that the storage of wood may have moved from = one place to another, however, Mr. Bogush had used the land for years. He referenced RSA 674:32-b which s= tates that an agricultural use may be expanded, altered or meet changing technolo= gy etc. He said the applicant ha= d the authority to come forward and seek permits; there may be reasonable conditi= ons placed on it by the Town (i.e. hours of operation). He said the statutes encouraged fa= rming uses.

Mr. McNamara said part of the confusion was the Board received a lot of abutter testimony at the last meeting distinguishing the cordwood business from the sawmill; apparently the sawmill had been in operation for a great number of years, but approximately four years ago the= cordwood business started and became intrusive.   He said it seemed as if it w= as a new business.   He asked = when the partnership agreement was signed. Attorney Basbanes said the partnership agreement was signed this yea= r. He said a written contract was not needed to be partners. Mr. Mc= Namara said if a Special Exception was needed, in order to qualify one would have = to be the homeowner; there was conflicting testimony at the previous meeting.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara asked if the argument was that the Town h= ad no jurisdiction in the matter. Attorney Basbanes said that was essentially the argument because the business on this site (and the adjacent site) had been running for years. He said there was an expansion of = the business in the form of a partnership.&nbs= p; He said Mr. Bogush had planted approximately 1500 trees and referred= the Board to RSA 21:34-a and said one of the things allowed was forestry and lumbering operations. He didn’t believe, under the= statutes that it made a difference where the logs came from. He reviewed RSA 674:32-b . Mr. D’Andrea noted that ther= e were limitations also contained in 674:32-b(b) that states that any new establishment, re-establishment after disuse or significant expansion may be made subject to applicable special exception, building permit, or other loc= al land use board approval. He t= hen reviewed RSA 21:34-a which defined farm, agriculture and farming and discus= sed the operations of such. He sa= id the applicant was not harvesting trees as part of an established stand, he said through testimony, there was an introduction of a new and different use; hauling in = of logs from somewhere else and processing on the property, which he was unsure (by definition) if it qualified as agriculture. He said per RSA 674:32, the expans= ion would require local approval. Attorney Basbanes said the definition depended on the finding of certain facts. He said this was a continuation in= a different legal form. He said= they were not questioning the fact that reasonable conditions may be placed, but disagreed with the comment that there had been a cessation.

PUBLIC INPUT

Ms. Daryle Hillsgrove of 20 Pond View Road, came before the = Board and said there had been a previous question of who was running the business to which there was no mention of a contractual partnership; there was also a question regarding the NE Firewood and Landscaping Clearing to which Mr. Trepanier said there was nothing. She said there was something to that fact at 80 Sherburne Road, where Mr. Trepan= ier resides (per his testimony), which made her question what the relationship = was when the project started. Ms. Hillsgrove was concerned with environmental and personal safety concerns fr= om the 1000-gallon tank storage tank (containing fuel for equipment) on site.<= span style=3D'mso-spacerun:yes'> She questioned if the tank was bei= ng maintained as proper including the necessary permits (local and state). She said she could not find refere= nce in the State of New Hampshire one-stop database for a tank registered at the farm, which she felt the Pel= ham Fire Department should review. Ms. Hillsgrove said the applicant indicated they were harvesting timber at that site, not an agricultural use. She said there were a number of timber harvesting regulations, which included prohibiting work in the wetland area without a permit as well as paying tim= ber tax (is Town receiving proper compensation). There were also concerns from the = logs being brought in, such as insect infestation. Ms. Hillsgrove said she had walked= the border of her property and said the combustible drums (as depicted in photographs submitted at the previous meeting) had been moved, however there were still tires and abandoned cars that appeared to have nothing to do with the timber operation. There w= ere concerns with out of control fires and there was evidence of burning since charred timbers were visible. The New Hampshire Wetlands Bureau and the Pelham Conservation Commission has be= en notified of abutter concerns. Ms. Hillsgrove ended by encouraging the Board to deny the request because it po= sed threats to the environment and neighbors.&= nbsp; She encouraged the Board to communicate the concerns to the local fi= re department and other local and state authorities.

Building Inspector/Code Enforcement Officer Roland Sou= cy had visited the site (a couple weeks ago) and shared with the Board his observations. He said there w= ere a couple of loads of building debris abutting the wetlands and large stacks of logs piled fairly high, a barrel of diesel fuel, some tires and miscellaneo= us items. Attorney Basbanes aske= d if insect infestations were seen. Mr. Soucy said he was not looking for such.&nb= sp; Attorney Basbanes said he had a receipt for the barrel removal. He reiterated that the logs were f= ine on the property.

Mr. Hennessey said the argument was if there had been = a new establishment, re-establishment after disuse or significant expansion. He felt it was clear that there was either the establishment of something that was not there before, or an expansion. He said the first = question was whether the Board should be hearing the case. Attorney Basbanes said it was clea= rly an expansion, which was fine and encouraged by the state. Mr. Hennessey believed per RSA 674:32-b(b) that the Board had to approve it. Attorney Basbanes said the Board h= ad to make a finding and determine what a ‘significant’ expansion was= by providing some basis for such. Mr. Hennessey said the Board received testimony that in the eyes of the abutter= there had been a significant expansion on the site of the storage of the wood. Attorney Basbanes questioned what ‘significant’ meant. Mr. McNamara said the definition was subject to interpretation, howe= ver, based upon testimony provided to the Board, there had been a marked increas= e in the business of the property over the last several years, not involving the sawmill, but the storage of logs and increased traffic and use of the property. He was troubled wit= h the argument that the Town had no jurisdiction. Attorney Basbanes said it was an agricultural use that had to be permitted; the Board could place limitations.

Mr. Hennessey made a motion that per RSA 674:32-b(b) t= here is significant expansion of the operations on the site and therefore, the B= oard needed to determine whether there should be a special exception. He read RSA 674:32-b(b) aloud as follows: ‘(b) Any new establishment, re-establishment after disuse, or significant expansion of a farm stand, retail operation, or other use involving on-site transactions w= ith the public, may be made subject to applicable special exception, building permit, or other local land use board approval and may be regulated to prev= ent traffic and parking from adversely impacting adjacent property, streets and sidewalks, or public safety. = Mr. Hennessey said that the Board of Adjustment had jurisdiction to decide whether a special exception should be issued with appropriate accompanying regulations.

Mr. McNamara clarified with Mr. Hennessey that the mot= ion would be that the Board hear the application under the criteria for Special Exception/General Home Occupation. <= /span>

MOTION:<= o:p>

(Hennessey/Ronning)= The Board will hear the application under the criteria for Special Exception/General Home Occupation.

=

VOTE:

(5-0-0) The motion carri= ed.

Mr. McNamara said the Board would proceed under the criteria for General Home Occupations; the Board had concerns regarding some of the criteria.

Criteria #6: All outdoor storage, display an= d any other external indication of the business activity shall be screened from neighboring view. Mr. McNamara said pictures and testimony had been received that indicated there were logging operations, barrels and storage = tank within view of the neighbors. Attorney Basbanes believed the partnership would be willing to put u= p a fence. Mr. McNamara asked if = a site plan with the Planning Board would be required. Mr. D’Andrea answered yes (criteria #15).

Criteria #7: Any use that may be objectionab= le, obnoxious or injurious by reason of the production of emission of odor, dus= t, smoke, refuse matter, fumes, noise, vibration, heat or excessive illuminati= on is prohibited. In addition, t= he use, storage, or disposal of hazardous materials, chemicals, by-products, medical waste or similar items considered dangerous to health and safety sh= all not be permitted without full local and state regulatory approval. Mr. McNamara asked about the stora= ge tank. Attorney Basbanes said = the storage tank was on the adjacent parcel.&n= bsp; Mr. Bogush said it was behind the sawmill. Mr. McNamara asked if it was part = of the business. Mr. Bogush answered yes. Mr. Hennessey said it sh= ould be regulated with a permit. M= r. D’Andrea brought it to the Board’s attention that the last cord= wood operator who came before the Board had a large splitting machine and may wa= nt to find out the process being used to get the cordwood and if this applicant has a similar sized machine. = Mr. Hennessey said the sawmill had been in operation for a long time. Mr. D’Andrea said he would be surprised if the sawmill was used for cordwood. Mr. Soucy said the applicant may consider relocating the cordwood operation (to another area on the parcel) = since the parcel was large. Attorney Basbanes said he didn’t want to commit, but it could be a possibility= . Mr. McNamara suggested that the Bo= ard walk the site.

Criteria #8: A maximum of two registered veh= icles related to the business may be kept in view. All other business related equipme= nt must be garaged and screened from neighboring view. Attorney Basbanes said they didn’t have a problem with the criteria. Mr. Hennessey asked if there were unlicensed vehicles on the property that were being used during the course = of the business or abandoned.. M= r. Bogush said there were truck and tractors.= He said some were used for parts.&n= bsp; Mr. Hennessey said when driving by the site there appeared to be tru= cks that had not been operated for many years located on the property; the conc= ern was hazardous waste. Attorney Basbanes believed under criteria #8 if the vehicles were not in view, there wasn’t much for the Board to do.&nbs= p; He felt there were a lot of items contained in the criteria didnR= 17;t apply.

Criteria #9: Delivery of goods and materials= is limited to vehicles customarily associated with residential deliveries. Attorney Basbanes said he didn’t know what this meant. Mr. McNamara said logging trucks didn’t normally drop loads at houses. Ms. Ronning said Burns Road = was a connector road, unlike roads in subdivisions. Mr. Hennessey didn’t believe= it would be inappropriate to set appropriate hours for deliveries.

A site walk was scheduled for April 2, 2005 beginning at 9am.

The Case was continued to the April 11, 2005 meeting.

HEARING(S)= :

Case #2310= – FONTAINE, Beniot & Dolores – 14 & 18 Mercury Lane/ ML 3/5-37-1 & 2 Seeking an Appeal from an Administrative Decision of the Building Inspector for a minor home occupation in the residential zone. Section 307-76<= /p>

Mr. Hennessey read the list of abutters aloud. There w= ere no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters.

Attorney David Groff, representing the applicants Beni= ot & Dolores Fontaine, met with the Board to review the case. He said the applicant was a contractor. Deeds of the prop= erty had been submitted along with a summary of activity on the property and cop= ies of the 1996 violation notice sent by Mr. John Tucker (former Town Planning Director). He said Mr. Fontai= ne discussed the situation with Mr. Tucker and didn’t hear anything more about it until receiving the January 13, 2005 violation notice sent by Building Inspector/Code Enforcement Officer Roland Soucy. He said it was their contention that the home occupation statute that the Town had in effect when the Fontaines moved there in the early 1980R= 17;s is the one that’s effective in terms of the operation that he had conducted since that time; not the current statute.

Building Inspector/Code Enforcement Officer Roland Sou= cy said he was responding to a complaint that came in. He said the only thing he could wo= rk when reviewing a complaint is the current zoning regulations, which clearly stated anything exceeding a minor home occupation required a special except= ion and site plan review. Mr. D’Andrea said the Town didn’t have a copy of the 1988 zoning. He said the portion submitted by Attorney Groff of the 1988 zoning matched the language in the 1987 code and zoning ordinance in 1976 (predating the operation). In reviewing the 1976 ordinance, M= r. D’Andrea was unclear if a contractor’s yard would have been permitted. Attorney Groff ind= icated that he provided the Town with a copy of the 1988 zoning ordinance. He said they didn’t feel they needed a special exception because the business had been in existence prior= to 1992 which was when the special exception section was added to the zoning ordinance.

Mr. Hennessey asked if the contractors business was in operation in 1996 at the time Mr. Tucker sent the notice of violation. Attorney Groff said the contracting business had been in operation since 1984.= Mr. Hennessey questioned if the junkyard and masonry supply business ceased in August, 1996. Attor= ney Groff said there was no junkyard; masonry items are stored on the property.= Mr. Hennessey reviewed the 1996 no= tice of violation and said it didn’t contain anything regarding the contracting business. He said either Mr. Tucker saw nothing wrong with the contracting business, or there= was no contracting business. Mr. = Soucy didn’t think anything had changed from then until now; it was just le= ft over masonry supplies. Mr. Fo= ntaine said in 1996 he clarified with Mr. Tucker that there was not a junkyard. Mr. Hennessey questioned if the ma= sonry supply business was functionally equivalent to what is now being called a contractors yard. Mr. Soucy s= aid it was not really a masonry supply business; when material and staging is left over from a job it is brought back and stored. For further clarification, Mr. Hen= nessey said the Town was saying what was wrong in 1996 is still wrong today; basic= ally Mr. Fontaine is illegally operating a business in a residential area. Mr. Soucy said there was nothing h= armful to the environment, they are storing excess materials.

Mr. Hennessey asked the applicant if a business was be= ing run on the site. Attorney Gro= ff said he had a copy of the certificate of trade name dated July 5, 1985 (nature of busi= ness construction and drywall); he submitted a copy to the Board.

Mr. D’Andrea said the 1984 site plan requirements (1984 Site Development Regulations - revised addition October 1, 1984) would have required Planning Board approval for the introduction of a non-residential use onto the property. To Mr. D’Andrea’s know= ledge there was no such approval. H= e said in 1996 Mr. Tucker was asked by the Board of Selectmen (June, 1996) to revi= ew any potential violations on the property; in July, 1996 a non-public discus= sion with the Selectmen and Mr. Tucker was held in reference to the request; sub= sequently in August, 1996 Mr. Tucker sent the letter of violation to Mr. Fontaine. He said there was no follow up to = the letter of violation. With reg= ard to ‘grandfathering a non-conforming’ Mr. D’Andrea said by Mr. Tucker’s letter, the regulations effective at that time and by 1984 s= ite plan requirements each would have required some sort of Town approval. He said it was a granted use at the time, but there is no record of it being approved by the Town.

Mr. McNamara reviewed the certificate of registered tr= ade name “Pinex” (from the New Hampshire Department of State dated = July 5, 1985 expiring July 5, 1995) submitted by Attorney Groff. The nature of the business is construction and drywall. Att= orney Groff said the business was still the same, Mr. Fontaine doesn’t use = the trade name. He said the home occupa= tion by special exception rule went into effect in 1992.

Mr. D’Andrea went back to the 1976 zoning ordina= nce and reviewed what was permitted; he was unsure if a contractor’s yard wou= ld have been allowed. Attorney G= roff said it appeared that Mr. D’Andrea (Planning Director) disagreed with= Mr. Soucy (Code Enforcement Officer), who believed it was allowed as a home occupation. He said Mr. Fonta= ine predated the special exception and agreed that a contractor was a type of h= ome occupation that was recognized and allowed in Town. Mr. D’Andrea noted it was al= lowed under today’s ordinance. Mr. Soucy said it was allowed under today’s ordinance; the operation there now exceeded a minor home occupation and falls under the general home occupation, which needed a special exception to operate what Mr. Fontaine h= ad there now. In Mr. Soucy’= ;s opinion, if a special exception was granted Mr. Fontaine could continue wha= t he was doing now, but could not expand.

Mr. McNamara confirmed that there was no construction business. Attorney Groff said= Mr. Fontaine was a contractor in the construction business and stored his mater= ials on the site. Mr. Fontaine des= cribed how the materials were stored.

PUBLIC INPUT

Mr. Charles Sharp, 7 Mercury Lane, said he had resided at his home = for twenty-five years and had never had a problem with the operation at Mr. Fontaine’s home.

Attorney Groff reiterated that he didn’t believe= Mr. Fontaine needed a special exception because it didn’t come into effect until 1992 which was some time after the operation had already began. He said by virtue of the items bei= ng stored outside, under the current zoning ordinance, Mr. Fontaine would have= to get a general home occupation special exception. Mr. McNamara asked that Mr. D’Andrea’s point be addressed; if the type of home occupation M= r. Fontaine was conducting was not allowed at the time it was established, it wouldn’t be grandfathered. Attorney Groff said under the 1977 and the 1988 ordinances, it was allowed as a home occupation. Mr. D’Andrea quoted from the 1984 site plan and went back to the 1976 zon= ing as well as the 1987 Pelham code. Attorney Groff said the site plan portion for home occupations only became effective in 1992, but site plans in general were required earlier (= but not for home occupations). Mr. D’Andrea read from the October 1, 1984 (Article III, Section A) Site Plan Regulations which reviewed non-residential uses. Attorney Groff asked when it went into effect, since sometimes regulations were proposed and then voted on later. Mr. D’Andrea didn’t ha= ve the date.

The was a discussion regarding the items contained on = a site plan. Attorney Groff said to = do a site plan was expensive. Mr. D’Andrea reiterated that in order to establish ‘grandfathering’ the use would have to have been permitted. Even if it was allowed by ordinanc= e, site plan regulations would have been required and approval would have been needed. Mr. Hennessey made a = motion to continue the case to the next meeting because he didn’t think it w= as fair to make a decision with the lack of zoning to review. Attorney Groff said he could provi= de an additional copy of the 1988 ordinance.&nbs= p;

The case was continued to the April 11, 2005 meeting.

Case #2311= – NYMAN, Wayne & Patricia – 51 Simpson Mill Road/ ML 9/9-7 – = Seeking an Appeal from an Administrative Decision of the Building Inspector for a m= inor home occupation in the residential zone.&n= bsp; Section 307-76

Ms. Ronning said she had to recuse herself. There were four remaining Board members. Mr. McNamara informe= d the applicant that a 3-1 vote would be needed for approval. Attorney David Groff said the appl= icant preferred a full board to hear the case.&n= bsp;

The case was continued to the April 11, 2005 meeting. It was noted that there may not be= a full Board at the next meeting because membership was down.

Case #2313= – IACOPUCCI, Donna & Michael – 21 Arlene Drive/ ML 8/9-69-44 – Seeking an Equitable Waiver concerning Article VII, Section 307-41 (B) to permit the renewal of an expired building permit to complete the building o= f a deck within the 50ft. WCD setback in the residential zone. <= /b>

Mr. Hennessey read the list of abutters aloud. There w= ere no persons present who did not have their name read, or who had a problem with notification. The file did not contain any written correspondence from abutters.

Michael & Donna Iacopucci met with the Board to di= scuss the request for Equitable Waiver. Mr. Iacopucci explained that they applied for a permit (in 2003) to build a deck. They had a survey done = and submitted a plan/sketch of the deck and were granted a permit (#1997-00) at which point they began construction, excavation and placement of the footin= gs (which were inspected and okayed). <= /span>They began framing the deck, but delayed the project; at the point they went to = renew the permit, the Planning Department contacted them and informed of a mistake regarding the wetback for the wetland conservation district (‘WCD’). The setb= ack was supposed to be 50ft. and the deck was within approximately 40ft. Mr. Iacopucci believed they met the Equitable Waiver dimensional requirement and went on to review such (copy of which is contained in the case file).

Mr. McNamara asked for further clarification. Mr. D’Andrea said the origin= al plan, the size of the deck area wasn’t drawn to scale and showed the = deck area outside the WCD setback. However, upon review of the certified plan and a drawing to scale, t= he deck was shown to be within the WCD; which is clearly an encroachment. Mr. Soucy said the original buildi= ng permit application indicated that there was a WCD on the property, but that= the deck was not within it. He fe= lt it was an honest mistake.

Mr. Gowan asked if it was one footing within the WCD.<= span style=3D'mso-spacerun:yes'> Mr. Soucy believed it was one or t= wo (12”)sono tubes.    <= /span>

Mr. Hennessey asked the age of the house and if the applicants were the original owners. Mr. Iacopucci said they purchased the house in 1998 and believed it = was approximately 20 years old. <= /p>

There was no public input.

Mr. Hennessey felt this was an honest mistake. Mr. Gowan and Ms. Ronning agreed.<= span style=3D'mso-spacerun:yes'>

MOTION:<= o:p>

(Hennessey/Gowan) To grant the Equitable Waiver conc= erning Article VII, Section 307-41 (B) to permit the renewal of an expired build= ing permit to complete the building of a deck within the 50-foot WCD setback = in the residential zone.

=

VOTE:

(5-0-0) The motion carri= ed.

EQUITABLE WAI= VER GRANTED

Case #2314= – IACOPUCCI, Donna & Michael – 21 Arlene Drive/ ML 8/9-69-44 – Seeking a Variance concerning Article VII, Section 307-41 (B) to permit the already completed deck structure to be allowed and to renew the building pe= rmit to complete the deck within the 50ft. WCD setback in the residential zone.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara believed no action was needed regarding t= he variance request. The applica= nts withdrew their request for the variance.&n= bsp;

MINUTES

January 10, 2005

MOTION:<= o:p>

(Hennessey/Gowan) To approve the January 10, 2005 meeting mi= nutes as written.

=

VOTE:

(5 - 0 - 0) The motion carried.

<= /u>

February 14, 2005 –deferred to the April 11, 2005 = meeting.

SITE WALK(= S): April 2, 2005

Case #2309 – BOGUSH, Edward – 40 Burns Roa= d / ML 28/2-6 – Seeking a Special Exception concerning Article XII, Section 307-76 (III) to permit a sawmill business n the residential zone.

CONTINUED = CASE(S): April 11, 2005

1) Case #2309 – BOGUSH, Edward – 40 Burns = Road / ML 28/2-6 – Seeking a Special Exception concerning Article XII, Secti= on 307-76 (III) to permit a sawmill business n the residential zone.

2) Case #2310 – FONTAINE, Beniot & Dolores &= #8211; 14 & 18 Mercury Lane/ ML 3/5-37-1 & 2 Seeking and Appeal from an Administrative Decision of t= he Building Inspector for a minor home occupation in the residential zone. Section 307-76

3) Case #2311 – NYMAN, Wayne & Patricia R= 11; 51 Simpson Mill Road/ ML 9/9-7 – Seeking an Appeal from an Administrative Decision of the Building Inspector for a minor home occupation in the residential zone. Section 307-76

REQUEST FOR NON-PUBLIC SESSION

MOTION:=

(Gowan/Hennessey) Request for a non-public session p= er RSA 91-A:3,II,e (regarding legal matters)

=

ROLL CALL:<= /b>

Mr. McNamara-Yes; Mr. Hennessey-Yes; Mr. Gowan-Yes; = Ms. Paliy-Yes; Ms. Ronning-Yes

Mr. McNamara noted that the Board would not take any o= ther action publicly; the minutes of the non-public session would be sealed. The public session was adjourned; = The Board entered into a non-public session at approximately 9:22 pm.

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Respectfully submitted,

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Charity A. L. Willis

   &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;    Recording Secretary