BOA 7-13-2009

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

July 13, 2009

The Chairman Robert Mollo= y called the meeting to order at approximately 7:00 pm.

The Secretary Kevin O’Sullivan called roll:

PRESENT:

ABSENT:

Robert= Molloy, Svetlana Paliy, Kevin O’Sullivan, Peter McNamara, David Hennessey, = Alternate Bill Kearney, Alternate Chris LaFrance, Planning Director/Zoning Administrator Jeff Gowan

Altern= ate Lance Ouellette

CONTINUED

Case #2420 COLEMAN, William & SCIRE, Connie – 51 Bearhill Road - Map 20 Lot 3-133 – Seeking an “Area” Variance to Article III, Sections 307-12, 307-13(B.I) and 307-14 to permit the creation of two (2) lots with 25.80 feet of frontage on lot 3-133 and 25.81 feet of frontage on lot 3-133-1 on Bearhill Road and the construction of a house on lot 3-133-1.

Attorney William Mason, representing the applicant and Peter Zohdi of Herbert Associates who prepar= ed the plans, came forward to discuss the variance request. Attorney Mason stated that they ha= d come before the Board in May with a proposal, which according to the application, would have created (by virtue of a variance) two lots off the Bear Hill Road Ext. each having approximately 25feet of frontage. After reviewing the plan with the = Board, the matter was referred for input from the Planning Board. Attorney Mason indicated that they= met with the Planning Board and discussed the plans; there were a wide range of options they could move forward with. He said his understanding was that the Planning Board was not in fav= or of the horseshoe shaped lot. They would be more comfortable (subject to engineer drawings more compliant with= the Subdivision Regulations) with one lot at the end of Bearhill Road with 50-feet frontage= and two lots with access from = Mammoth Road. <= /span>Attorney Mason said they would like to modify their request to reflect the changes discussed with the Planning Board. The modified plan was brought in with the understanding that further engineering may still be needed for the lots while going through further Pl= anning Board review.

Mr. Hennessey asked if the applicant was seeking a variance for only one lot. Attorney Mason said they were aski= ng for a variance for one lot only. = He indicated that the Board had been provided with two plans, one showing what= had been given to the Planning Board, the other showing a plan that the applicant = felt the Planning Board would be happier with.&= nbsp;

Mr. Molloy read aloud a m= emo provided to the Board from the Planning Board Chair Peter McNamara indicati= ng their concerns regarding the irregular lot shapes, the number of potential waivers required to the Subdivision Regulations, the use of the 50-foot right-of-way for frontage of the two lots, and the steepness of the two proposed driveways onto Ma= mmoth Road. After some discussion (with the Planning Board), the applicants had proposed a plan with a reduced number of lots eliminating the horseshoe-sha= ped lot and using the 50-foot right-of-way as frontage for one lot (assuming variance relief); the remaining lots would utilize = Mammoth Road as their frontage. A consensus was reached by the Pla= nning Board as to the preference of having the plan with the reduced number of lo= ts understanding that detailed engineering and site work would still need to be done. Attorney Mason requeste= d that the letter from Planning Board Chair McNamara as well as the plan for the three-lot subdivision be entered into the Board of Adjustment file to prope= rly show the request being made. =

Mr. Zohdi came forward and reviewed the plan that had been presented to the Planning Board containing = four lots. He discussed the change= s that had been made and went on to review the amended plan that contained three lots.

Mr. Molloy asked where the proposed new structures would be located.&= nbsp; Mr. Zohdi showed where the existing structures were located and the location of the proposed structures. Attorney Mason noted that the lots off Mammoth Road didn’t require a variance because they contained sufficient frontage. Mr. Gowan stated that the new plan submission should be referenced in the file so the variance (if granted) wo= uld be attached to the amended plan. Attorney Mason said depending upon the action of the Board, they wou= ld provide the full sheet plan as documentation for the file.

Mr. O’Sullivan aske= d if there were any specific concerns that came to light when the Planning Board revie= wed the plan. Mr. McNamara said t= here were a number of concerns and stated that they weren’t pleased with a= ny of the proposals. He believed= the third proposal came up as a result of the comments and was more preferable = than the first two that were presented. He outlined the Planning Board’s concerns discussed at their meeting and that were outlined in their letter to the Board of Adjustment.<= span style=3D'mso-spacerun:yes'> Mr. Molloy confirmed that the Boar= d of Adjustment was only concerned with the variance for the 50-foot frontage. Mr. McNamara stated that was correct. Mr. Zohdi reviewed t= he plan shown to the Planning Board with the access from Bearhill (of two lots) that had been shown to the Planning Board.= He reiterated how they had amended the plan to have one lot from Bearhill, which was more favorable to the Planning Board. Attorney Mason noted that the appl= icant currently accessed the existing parcel through the Bearhill Extension; the driveway was currently in place and functional.

There was no public input= . Attorney Mason reminded the Board = that they should have letters of support (for the variance) as part of the recor= d in the file that had been previously submitted.

Mr. Gowan believed the ap= plicant reviewed the variance criteria as part of the first hearing. He suggested that they confirm not= hing, other than the fact that they were seeking one variance instead of two, had changed in terms of hardship. Attorney Mason stated that there had been no material change in the circumstances between the initial presentation and now except for the numbe= r of lots.

BALLOT VOTE:

Mr. Molloy – Yes = to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. O’Sullivan &#= 8211; Yes to all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

(5= -0-0) The motion carried.

“AREA” VARIANCE GRANTED

Case #2424 CAMIRE, Kenneth & Tammy – Off Chagnon Lane – Map 35 Lot 6-105 (51, = 52, 53, 56, 57, 58, 59, 60, 61, 62 & 63) – Seeking and “Area= 221; Variance to Article II, Section 307-12 to permit the construction of a dupl= ex on a lot with 50ft. of frontage on a class V road where 200ft. is required. =

The Board conducted a joi= nt site walk with members of the Conservation Commission, the applicant’s attorney Paul DeCarolis and a large group of abutters on June 13, 2009. Mr. Kearney read aloud the minutes= from the site walk. The site walk = was scheduled at the previous Board meeting due to concerns that the lot was ve= ry wet and construction of a house would create problems for abutters.

Mr. Gowan made note that = all of Beaver Brook within Pelham was known as a forth order stream which enjoyed a 250-foot Shore Line protection jurisdiction.

Attorney Paul DeCarolis c= ame forward to discuss the variance request and indicated that he made the chan= ges that were represented at the site walk.&nb= sp; He clarified that they were proposing a gravel drive to reduce as mu= ch run off as possible, but would like some portion of it close to the house paved. He requested that the variance be granted with a stipulation that pavement would be no more than 125feet from the house. He no= ted that all of lot 6-105 would be consolidated with lot 6-105-1. Attorney DeCarolis stated that the= y had agreed, if the variance was approved, they would need to present the lot consolidation to the Planning Board. On that plan they would show a reserved easement for the Leonard fam= ily to access their property. The easement would be located basically in the same area shown as the 50-foot w= ide right-of-way continuing on in more or less the same area to go back to the Leonard family property in case they wanted to do anything in the future. Attorney DeCarolis said he knew the neighbors were concerned with the wetlands and flooding in that area. He noted that on the proposed site= they weren’t crossing streams, filling wetlands, working in the Wetland Conservation District (‘WCD’) or constructing within the flood plain. He was not aware of ne= eding any variances in respect to wetland issues.



Mr. Hennessey said in zon= ing there is a distinction of single family and duplex lot only in terms of siz= e of lot. He said under the state regulations (through court cases) the Board was operating under Boccia (the area variance) which specifically states that the Board is entitled to a financial analysis. He said i= n the past they hadn’t concerned themselves with it because the difference between nothing being built and something being built stood on its own as a financial advantage to build. He questioned if the Board needed a financial hardship statement justifying a duplex rather than a single family home.&n= bsp; Attorney DeCarolis said he could assemble one and produce such for t= he next meeting if the Board felt it necessary. He didn’t prepare estimates = for the cost of the road because he believed it was well established that road construction costs were approximately $200 per foot and up. He said if they were to build a traditional subdivision they would need approximately 400 feet of roadway to service the existing lot 6-105-1 as well as lot 6-105. He believed under Boccia the finan= cial burden (approximately $80,000) would be compared with the benefit would be derived from it. He didn̵= 7;t see any benefit from construction a road and incurring the additional cost. He was unsure if it was relevant under Boccia to have one or two lots and believed the pros and cons would need to be weighed. Mr. Hennessey said his thoughts were of the Board stipulating that only a single-family be built versus a duplex.&nb= sp; Attorney DeCarolis said to restrict 110,000SF of dry land to be a si= ngle family, when only 35,000SF was required, would create an unreasonable finan= cial burden. He said the alternati= ve would be to construct two, single family lots.

Mr. Gowan said the requir= ements for a duplex lot were two or more acres of land, at least 55,000SF of contiguous non-wetland soils and an adequate septic design. He said if the applicant had not discussed ‘duplex’ in the application and hearing, and if a variance were granted, there wouldn’t be anything holding them to a single-family lot. Hypothetic= ally, Mr. Hennessey stated if he were to stipulate ‘single-family’, t= he applicant’s correct response under Boccia would be to produce a finan= cial analysis demonstrating that that would be a hardship. He said all the issues would need = to be weighed. Attorney DeCarolis reviewed a portion of Boccia that stated the Board must look at the project ‘as proposed’ by the applicant and may not weigh the utility of alternative uses; in the context of area variance, the question of whether = the property could be used differently from what the applicant had proposed is = not material.

PUBLIC INPUT

Mr. Dave Nevins, 23 Chagnon Lane stated that the conservation map showed the prime wetland line to be 100ft.-200ft. moved to the east compared to its location on the Assessor’s map. He said= if that were the actual line he didn’t believe the applicant could build where they proposed. He showe= d the Board a copy of the map and the line he was referring to. Mr. Hennessey believed they receiv= ed a stipulation on the site walk that the lot line was more than 250ft. from the edge of the watershed. He said rather than argue back and forth, the Board could make it a stipulation. Attorney DeCarolis said they weren’t requesting any waivers. He said if they were within the range, they would have a problem. Mr. Gowan said being within the Shore Land jurisdiction just meant that they were within the State Shore Land Jurisdic= tion and they would have to approve what was being built. He said there was no outright exem= ption of building within the Sh= ore Land setback. Mr. Nevins showed the Board where = the prime wetland map was located on the conservation map. Mr. Hennessey said the Board could= make a stipulation, if the lot fell within the Shore Land Protection Act, but the state would have to issue the permit.

Mr. Peter Zohdi of Herbert Associates came forward to address the Board. He stated that the plan was a floo= d zone map showing the approximate location of the flood zone. He said they identified flood zone= s by a bench mark and going to the site to run the elevation. He said they ran the elevation and= identified where the flood zone was and showed such on the plan. He said the Town tax map showed an approximate location. In refe= rence to Shore Line, Mr. Zohdi said they would have to find the edge of Beaver Br= ook and tie it to the boundary to see if they were within any of the buffers. He said if they were, they would h= ave to apply to the state and indicate how much they were impacting the buffer zon= e, pay the fees and make sure they were complying with the regulation.

Mr. Nevins said by lookin= g at the map and seeing the 100-year flood zone, he didn’t believe it would be possible to construct two separate houses and definitely impossible if a ro= ad were constructed. Mr. Molloy = noted that the application was for one duplex.&n= bsp; Mr. Nevins believed his property would be negatively impacted if construction occurred because the trees would be removed causing more water flow onto his and his neighbor’s property.

Mr. Joe Fornier, 9 Chagnon Lane, = stated that he had gone around with a petition opposing the granting of the variance. He presented the pe= tition to the Board. Mr. Molloy read= aloud the petition that was submitted. Mr. Fornier then showed the Board photographs representing the flooded areas as well as a map indicating the locating of the swampy areas and the wet areas= due to the rise of the water table. The Board passed the photographs around to review. Mr. Fornier discussed the existing hardship of the residents in maintaining sump pumps, (portable and permanen= t) generators and the destruction of their properties. He understood it was debatable whe= ther a duplex would devalue property values, but in his opinion it would. He didn’t feel the proposal = would keep with the intent of the neighborhood.&= nbsp; He questioned what the families (residing in the duplex) would be li= ke after seeing some of the duplexes in Town that were ill-kept. He said there were older residents= in the neighborhood who kept their properties well maintained.

Mr. John Deutchman, 32 Leonard Drive, told the Board that he had access to Beaver Brook. He said the Brook was a = lot closer than what the maps showed. He asked that he Board walk the brook to gain better perspective.

Mr. Greg Peters 28 Leonar= d Drive, told the Board that his house lost its foundation during the last (one hund= red year) flood. He showed the Bo= ard the location of his home. He = said during that time the water closed down three of the roads. He said he owned 2.5 acres of land= and every spring his yard flooded leaving him less than one acre. He said this instance was average = for several other neighbors as well. Mr. Peters discussed the water table. He noted August was the driest tim= e, tests could be done throughout the year, but they wouldn’t be able to see w= hat the real table was unless the tests were done for multiple years. He urged the Board to come to the neighborhood and have the owners walk with them around their lots so the Bo= ard could get an understanding of what happens to each of them. He said if the land is disturbed, = the water would also be disturbed.

Ms. Janice Fornier, 9 Chagnon Lane, stated that they had been in their home for forty-two years. She said the businesses that were allowed to be built up on Route 38 had drained upon the neighborhood. She said her land was nothing like= it had been when they first moved in. She said the water table was a problem because it drained slowly to Beaver Brook. She also wanted= the Board to walk the properties to see what people were dealing with. Ms. Fornier discussed the water pr= oblems they had that began with the storm in 1978. She said their house was shifting = with the tides and could be viewed by a wall in their bathroom that moved. She said the wall hadn’t com= e down to the summer level yet. She = said a person would have to live in the neighborhood to understand what they were speaking about. She wanted the Board to visit the site.

Mr. Shawn Murphy, 4 Chagnon Lane, didn’t agree with having a duplex in the neighborhood and felt it wou= ld diminish the property values. He discussed the problems that had occurred with a property in the neighborhood that had previously been a rental property.

Attorney DeCarolis commen= ted that duplexes were allowed and if a lot contained 55,000SF of land it was permit= ted without a variance. He review= ed a portion of Boccia which outlined that a variance was allowed to avoid an un= due financial burden on a landowner, which included the examination of the rela= tive expense of alternative methods. He said the alternative method was to build a road and have a single lot; they would be allowed to build a duplex without requiring a variance because they would then conform to the Town Ordinance.&= nbsp; He said it would be relatively expensive to build a road to create a single family lot. He believe= d the testimony supported the fact that the proposed was a better alternative for= the neighbors and the Town, rather than building a Class V road to serve a sing= le lot. He said if the road was = built, there would be significantly more disturbance such as pavement, impervious = soil with less ability to absorb water and Town would have to maintain the road. With respect to the fin= ancial burden, the road would be at a cost of approximately $200 per foot.

Mr. Hennessey reluctantly= agreed with Attorney DeCarolis’ review of Boccia. He said the applicant wouldn’= ;t have come in front of the Board if they chose to build a road to Town specifications and could construct a duplex if Town specifications were met. He said the applicant requested a variance so they wouldn’t have to construct a full-blown road, which would cause more of a problem for the residents of the neighbor= hood given the testimony. The appl= icant had an economic burden and chose to request a variance to build what they c= ould have without one. The applica= nt was saving money and building a less intrusive project on the environment. Attorney DeCarolis said the applic= ant would save money, but the Town and neighborhood would also be saving significantly by the proposed project as well.

Attorney DeCarolis said t= here was no evidence that the proposed development would have any bearing on the wat= er level; they wouldn’t be contributing to the flood plain or water burden. He was aware that the= re were problems on Leonard D= rive and Chagnon Lane in the area abutting Beaver Brook, but didn’t know what the project h= ad to do with it. He said the pl= an was consistent with what was viewed during the site walk. He commented that the neighborhood= had huge mature pine trees growing and said the Board could decide whether or n= ot they would grow in an area that was continuously inundated with water, whic= h he felt was not likely.

Mr. Peters came forward a= gain and questioned what the current water table level was for the proposed location. He noted that he ha= d pine trees in his back yard. Ms. P= aliy said the applicant had the right to construct a road and a duplex without asking for the Board’s permission.&n= bsp; She said the question was if the applicant would put a regular road,= or compromise and construct a gravel road.&nb= sp; She said to pave the road the applicant didn’t need permission, but to have a gravel road they needed permission.

Mr. O’Sullivan clar= ified that the request before the Board was solely for frontage. If approved, the applicant would s= till need to go in front of the Planning Board and other required agencies for further review (and approval). Mr. Peters said during the last flood his house was affected the most; his foundation collapsed. He told= the Board that while the house had been raised, water flooded into the area they were trying to pour cement at a depth of eight feet. He said the residents were trying = to tell the Boards of the situation before it became an issue.

Mr. Hennessey questioned = if the Conservation Commission had submitted a letter since the joint site walk was conducted. Mr. Molloy said th= ere was nothing in the file. Mr. McNamara recalled the Conservation Chairman commenting during the site walk about the road versus the driveway and the ‘lesser of two evils’. He believed the= re was some discussion about moving the house.&nb= sp; Attorney DeCarolis said the house was originally proposed closer to = the flood plain. Mr. Hennessey sa= id usually the Board looked for advice when asking the Conservation Commission= to attend a site walk.

Mr. O’Sullivan want= ed people to understand that the purpose of the hearing was not to make a final decision on the matter. They = were simply voting whether or not the applicant should be granted a variance for= the 50-foot frontage that would allow them to not go with their other option of building a large road thereby increasing the water shed significantly. Mr. Peters didn’t want the development either way. He sa= id if the applicant did construction the neighborhood would then be under water; = the water table would rise dramatically.

Mr. Nevins came back befo= re the Board. He believed if the app= licant constructed the road it was possible there wouldn’t be enough room to have a house without being within the 100-year flood plain.

Mr. Mike Trowbridge, 19 Chagnon Lane, asked if in approving the frontage the Board would be approving the gravel driveway. Mr. Molloy said the= Board was reviewing the driveway at this time.&n= bsp; Mr. Hennessey commented that the applicant had a right-of-way that c= ould be turned into a road by laying it out per Town specifications. He said the applicant was asking f= or a variance so they could continue using the opening as a driveway. Mr. Trowbridge asked if there were= any details on the driveway. Mr. = Molloy said during the site walk the location was pointed out in relation to the current trail. Mr. Trowbridge= had a strong objection to suddenly having rental property in the current family neighborhood and asked that the Board take it into consideration.

Mr. Fornier stated that t= he original plan was for two duplexes and one family home. Now the plan was down to one duplex. He would like a lette= r of intent for what would actually happen on the lot. Mr. McNamara believed the second variance request, which was a separate case, now stood in abeyance.     Attorney DeCarol= is stated that the request had been withdrawn. He said the property contained in lots

6-105 and 6-105-1 would be consolidated in the one lot. = Mr. Fornier asked if the single-family house had gone away. Attorney DeCarolis answered yes and further commented that it was on an entirely separate lot

(6-105-2). He said he had asked to be put ont= o the Executive Session with the Conservation Commission with respect to that lot.

Mr. Hennessey confirmed t= hat the applicant was stipulating that they would build the duplex on the specified lots and nothing more; no further subdivision. Attorney DeCarolis stated th= at was correct.

MOTION:

(Hennessey/McNamara) If= the variance is approved, there will be no further subdivision of lots 6-105 = and 6-105-1.

VOTE:

(5-0-= 0) The motion carried.

Mr. Paul Leonard, Leonard Drive, stated on record that during the initial meeting the Leonard Family’s primary concern was to memorialize the existing right-of-way. He told the board that those discu= ssions and agreements were in place (as part of the plan) as far as memorializing = the 50-foot right-of-way as it had existed and been used for the past forty yea= rs from Chagnon Lane into their property.&nbs= p; Attorney DeCarolis said it had been represented to the Leonards that= it was their (the applicant’s) intent to preserve the Leonard’s access to and from their property. He said the consoli= dation and easement area would be shown in more detail when the plan went before t= he Planning Board.    &nb= sp;

Mr. Trowbridge thought th= at the Conservation Commission would be making a judgment. Mr. Molloy said they had not submi= tted an opinion to the Board. Mr. McNamara said if the variance was passed, the applicant would go before the Planning Board who in turn would ask for input from the Conservation Commission. Mr. Trowbridge st= ated that a petition had been submitted containing the signature of approximately 99% of the residents and questioned if it would carry weight. Mr. McNamara believed it was not a generally applicable to everything, just specifics (i.e. well water test).<= span style=3D'mso-spacerun:yes'> He said the Board’s concern = was whether the five variance criteria laid out by statute were satisfied. He said the plan had not been engi= neered to any great extent; that process would occur during the Planning Board sta= ge. Mr. Gowan believed the petition (i= n this context) represented a well put together neighborhood documentation/opinion. He wasn’t aware that a petition ever had weight of its own legally other than gathering a consensus of the neighborhood. Mr. McNamara knew there was a stat= utory reference in terms of 20%, but believed it was to something very specific.<= span style=3D'mso-spacerun:yes'> Mr. Trowbridge said he spoke to an attorney that referred him to a state resource website containing informati= on regarding the statute.

Mr. Hennessey said the Bo= ard was bound by the rules and regulations of the state. He addressed criteria number five regarding the diminution of surrounding properties and commented that in his business (real estate) he didn’t know why the value would be diminish= ed or affected, but if enough people say that the construction would affect the value it would. He said belief creates value.

The Board discussed the p= roposal. The gravel drive was reviewed and a question arose about the rational to pave 125feet from the house. Attorney DeCarolis said they would= like to have an area for a front yard. Paving a portion would help to keep it neat without stone going on t= he lawn and keeping sand from going up near the house.

Mr. McNamara commented ab= out the letter submitted by the applicant and found it to be a statement of fact and questioned whether it was correct given Mr. Hennessey’s comments. Mr. Hennessey said he had been a r= ealtor for thirty-five years and was personally not aware of any data that showed = the affect of a duplex in an entirely residential area. Mr. McNamara stated that it was al= lowed in the Town’s zoning. <= /p>

Ms. Paliy was unsure if t= he duplex would be visible. Mr. Hennessey was unsure if value was only determined by what was seen. He said even if the duplex was not= seen a realtor would have to disclose it.

The Board continued their= discussion regarding the proposal and their feelings regarding the case. Mr. McNamara sympathized with the residents and the water problems they had been having. He said the Board had not received= direct evidence (other than people’s opinion) that constructing a duplex wou= ld cause a further water problem. He said that would come more into play when an application was submitted to the Planning Board; the plan would be reviewed by engineering.

The Board felt the applic= ant met the variance criteria. Mr. Mo= lloy questioned if the Board wanted to make a stipulation regarding the 125ft. p= aved area. The Board felt that was= the Planning Board’s purview.

BALLOT VOTE:

Mr. Molloy – Yes = to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. O’Sullivan &#= 8211; Yes to all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

(5= -0-0) The motion carried.

“AREA” VARIANCE GRANTED

MINUTES

June 8, = 2009

MOTION:

(McNamara/O’Sulli= van) To approve the Jun= e 8, 2009 meeting minutes as written.

VOTE:

(5-0-= 0) The motion carried.

ADJOURNMENT

MOTION:

(Hennessey/McNamara) To= adjourn the meeting. <= /b>

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 8:50 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary