Town of Plaistow Archive - ZBA Minutes 07-29-10

ZBA Minutes 07-29-10

ZONING BOARD OF ADJUSTMENT

July 29, 2010

The meeting was called to order at 7:00 p.m.

Roll Call: Present were Larry Ordway, Chairman; Robert Loeffler; Roderic Cole; Paul Boniface, Alternate; Joyce Ingerson, Alternate; James Allen, Alternate and Kim Crapo, Alternate. Julie Matthews, Vice Chairman, was excused.

P. Boniface and J. Ingerson were appointed as alternates for the meeting.

Minutes of June 24, 2010

R. Loeffler moved, second by L. Ordway, to approve the minutes of the June 24, 2010, meeting.

L. Ordway noted that there needed to be a change on page 5 adding the word “no” to the phrase “there could be (no) additional input” and a couple punctuation notes.

There were no additional changes. The vote was 3-0-2 (Cole and Boniface abstaining) to approve the minutes as amended.

#10-12: A request from Erin M. Jacobs & Suzanne Ouellette for a special exception under Article VIII, all sections, to permit an in-law apartment. The in-law apartment is pre-existing and this special exception is necessary due to a change in the property owner. The property is located at 49 Old County Road, Tax Map 32, Lot 30, in the RCII District. The applicants are the property owners of record.

L. Ordway noted this was an existing, pre-approved in-law apartment and the applicant was seeking their own special exception. He asked who would be living in the in-law unit.

E. Jacobs replied that she would be living in the main house and her mother (Suzanne Ouellette) would be living in the apartment.

R. Loeffler asked if there had been any changes in the apartment.

It was noted for the record that the unit was never occupied under the previous special exception.

The Board reviewed the requirements for a special exception to grant an in-law apartment noting the following:

The house will remain a single-family dwelling
The entrance door to the in-law is located on the side of the structure
The residential dwelling is not a condominium
Square footage for the unit has not changed from the original approval
The applicants purchased the property July 9, 2010
There is only one (1) bedroom in the unit and Ms. Ouellette will be the only resident
The unit is pre-existing and the well and septic are both adequate
There is ample parking on the 3 acre parcel

L. Ordway reminded the applicants of other requirements of the ordinance noting the following:

The unit cannot be converted to a condominium or any other form of separate ownership
All utilities must remain on the same meter
The special exception ceases should the property be transferred
A new certificate of occupancy must be obtained for a change in tenancy

L. Ordway asked if there were any more questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the matter was closed.

L. Ordway explained the normal procedure for the hearing and deliberation process for this meeting. He suggested, noting the number of people present for the second application, that the Board make a decision on this matter before proceeding.

DELIBERATION:

R. Loeffler moved, second by R. Cole, to grant the application by E. Jacobs and S. Ouellette for a special exception to have an in-law apartment at 49 Old County Road.

L. Ordway noted that testimony was made that the applicants purchased the property with the in-law apartment and nothing had changed from the prior approval. He added that applicants were just seeking a special exception to continue the use of the unit.

There was no further discussion on the motion. The vote was 5-0-0 U/A.

CONTINUED FROM JUNE 24, 2010:

#10-10: A request from Arthur Wicks for a variance from Article VI, §220-47 to permit an existing 7.10 acre lot to be developed using Article VI, Planned Residential Development when §220-47 requires a 10-acre minimum lot size. The property is located at 22 Witch Lane, Tax Map 42, Lot 23 in the MDR District. The applicant is the property owner of record.

Kevin Hatch, Cornerstone Survey; Roger Burlingame, Attorney for the applicant; and Arthur Wicks, property owner, were present for the application.

K. Hatch explained the application noting the following:

The property is located at 22 Witch Lane
The size of the parcel is 7.10 acres
There is frontage on Witch Lane and it borders Little River
The property abuts the Exeter Hampton (Unitil) property
The parcel was once the location of a riding rink
The property is located in the MDR (Medium Density Residential) district
The variance sought is to §230-47 which requires a minimum of ten (10) acres for developing a Planned Residential Development (PDR)
The parcel abuts some town-owned conservation land and there are no options to acquire additional lands to meet the ten (10) acre requirement
Other options, such as single-family and duplex development were considered
The parcel is unique in its location on Little River and proximity to open space parcels
There are approximately 50 acres of open space surrounding the property, this development would add 3 additional contiguous acres of open space
The road would be approximately 600 feet and would be essentially the same with either configuration
The PDR requires 50% of the parcel be preserved as open space
They would be consulting with the Conservation Commission (ConCom) about the possibility of what the Town would like them to do with the open space
They would be amenable to deeding the open space to the Town for conservation use

It was noted for the record that the open space cannot be deeded to the Town as it is used in calculating the minimum lot sizing of the individual parcels and remains under the controls of the home owners’ association that would need to be formed by the property owners.

K. Hatch said that his clients may be amenable to granting the Town an easement across the property to access other adjacent open space.

L. Ordway asked how his clients would feel about the Board possibly making that a condition of granting the variance.

K. Hatch and R. Burlingame consulted with clients.

It was decided that it was a moot issue as no one was really sure that the Town would even have an interest in acquiring this open space or an easement across it.

When they looked at conventional development they determined that they could subdivide into three (3) lots, each capable of supporting duplex structures
The property will be developed residentially whether they get the variance and develop it as a PRD or they use conventional requirements
A PRD design would allow them the option of developing the property with the new dwellings positioned away from the existing houses in the neighborhood
The desire to develop the property as 5 single-family dwellings (PRD) vs. 3 two-unit condexes is market driven; it’s easier to sell single-family dwellings than it is condex units
Three (3) condex units would likely mean more children in the school system
Property values are greater for five (5) single-family homes and would affect the neighborhood accordingly
The intent of a PRD is not to end up with small isolated parcels and to enhance the open space areas
This project would connect three (3) additional, contiguous acres of open space to an existing fifty (50) acres, for permanent open space
It is the best stewardship of the land

K. Hatch noted for the abutters that this would be a first step in the process. If the variance is granted they would still have to look at additional engineering to bring the project to the Planning Board and all abutters would again be notified of that application. He offered that the Board was only allowed to look at the issue of allowing a PRD on less than ten (10) acres.

L. Ordway asked about the wetlands on the property and if they made the property undevelopable.

K. Hatch explained that he showed the approximate location of the wetlands on the plan, adding not all wetlands could be used for the open space calculations for the PRD.

K. Hatch provided the following evidence in support of the variance application:

There will be no diminishment of surrounding property values as the use would be the same no matter how the property is developed. The greater setbacks of the PRD would make for higher property values
The application is not contrary to the public’s interests because the open space will be preserved, contiguous with larger open spaces, creating better habitants for wildlife and a more aesthetic environment.
The parcel is unique because it is the last undeveloped parcel available and has the ability to connect to other open space parcels and town-owned properties, to create a larger open space

L. Ordway offered that adding three (3) acres of open space to 50 acres didn’t seem significant.

K. Hatch replied that the significance of it is the fact that it connects to existing open space.

The intent of the 10 acres minimum is to prevent small isolated parcels of open space and preserve wildlife areas. This development, by being contingent to other open spaces, does that
This would not adversely affect the rights of others because the open space that it creates would only improve the surrounding properties while giving better access to the town-owned parcel on Little River
By allowing this 7.10 acre parcel to be subdivided utilizing Article VI, the land could be permanently protected as open space and would serve the landowner and the community as an attractive development using good stewardship of the land.
The intent of the PRD is to preserve larger blocks of land that are protected from development. This smaller PRD would accomplish this by connecting other tracts of land together and not leave them disconnected by a conventional subdivision.

L. Ordway asked if the electric company property was conservation land.

K. Hatch answered that it was not conservation land; but it was Unitil policy not to sell any of their land, for any reason.

R. Cole said that he didn’t stand how a conventional subdivision wouldn’t preserve the land.

K. Hatch replied the conventional subdividing would make all the open space part of individual property lots, under private ownership, eliminating the possibility of connection to other open space parcels. He added the PRD would preserve the open space in a larger parcel area.

R. Burlingame offered that they were looking to develop a parcel in a district that was designated as appropriate for alternative development, such as the PRD, in exchange for open space and conservation as stated in the ordinance. He added that the parcel was going to be developed anyway and that it would be in the Town’s and the abutters’ best interests to have it developed in a manner that would preserve open space. Mr. Burlingame asked if the Town would rather have the open space with all the controls or would they rather have that space be under the controls of the individual lot owners. Would they rather have three (3) acres added to the open space bank or nothing. He suggested that this subdivision would accomplish much of what the ordinance intends. Mr. Burlingame stated that the hardship to his client was that they don’t have ten (10) acres and there is no way for them to acquire what they need to make ten (10) acres.

L. Ordway reiterated that the Board was charged with determining whether or not to vary the nearly three (3) acres and allow a PRD on less than ten (10) acres, not to determine the type of structures that will be built. He added that should a variance be granted Mr. Wicks would still have the option to build the type of homes that he feels will best sell.

L. Ordway asked if there were any additional questions from the Board, there were none. He asked if there was anyone speaking in favor of the application, there was no one. He asked if there was anyone speaking in opposition to the application.

Wayne Daniels, 18 Witch Lane, offered that he was in opposition for two (2) reasons:

The Town made the ordinance to set a minimum standard, this application falls short of that standard by more than 30% and there are a lot of wetlands to consider
There would be an increase in activities on their residential street

W. Daniels added that he didn’t see that there was a hardship in this parcel of land.

Heidi Peabody, 20 Witch Lane, offered that she was not opposed to building on the property, but her biggest concern was over the missing three (3) acres. She illustrated on the map provided by the applicant, how many parcels this plan would need to acquire to meet the minimum ten (10) lot requirement. She noted four (4) parcels fronting on Witch Lane and a portion of a fifth parcel. Ms. Peabody added that putting five (5) additional septic systems and wells in a parcel with so much wetland areas was a great concern to her and additional to the increase in vehicle traffic on Witch Lane, noting that there were a number of children on the road that used the route to get to school and ride their bikes. She felt this would be too great an impact to the neighborhood.

Jill Senter noted that she was a member of the Plaistow ConCom, as well as a resident of Maple Ave. She offered that ConCom had not yet seen this plan but did have a casual discussion about the potential development at their last meeting. She said that most of their concern was with protecting the integrity of the land, which is why the ten (10) acre minimum was set. Ms. Senter offered that there was a very good wetlands ordinance in place for the protection of the wetland areas with 50 and 75 foot buffer requirements. She questioned if the wetlands had been flagged, noting that she was aware of a seasonal stream on the property, and how that would affect the calculations. Ms. Senter noted there was access to all the open space through a town-owned property adjacent to the Torromeo property (Little River Village); the electric company doesn’t allow people to access their property; and the Town doesn’t want people to be accessing the pump house area either. She added that she didn’t see any benefits to the Town. Ms. Senter reiterated that ConCom did not see a plan and their discussion was casual and informal. She added that she had not yet been contacted by the applicant for formal review of the plan. Ms. Senter said that she would like to see the ordinance enforced as its written.

R. Loeffler asked if there had been any issues with the recent heavy rains, noting he had observed an increase in the flow of Little River.

J. Senter replied that she didn’t know if the property was affected as she didn’t access the private property.

Al Wheeler, 12 Witch Lane, offered that he abuts the property on the side with the wetlands. He added that he was not opposed to development of the property but did agree with the other concerns expressed by his neighbors.

Cheryl Kelly, 15 Witch Lane, offered that the property had been clear cut right up to the wetland areas, which affect her property and others during recent windstorms. She said that as many as twenty (20) trees were blown onto her property from Mr. Wicks’. Ms. Kelly did note that Mr. Wicks did come and remove the trees.

Gary Ericson, 11 Witch Lane, asked what the size of the parcel is. It was verified to be 7.10 acres.

K. Hatch reiterated that they could build five (5) stand alone single-family dwellings as a PRD on the property or they could build three (3) duplex-style homes. He offered that the PRD would offer them the chance to develop the property with lower traffic and septic use as well as preserve open space.

A. Wicks noted that he never clear cut the parcel

L. Ordway interjected whether or not he did was not part of the decision that the Board would be making at this meeting.

A. Wicks offered that he left a buffer around the property and a large number of trees around the river.

L. Ordway asked if the area that was cut was the same as the area where the houses might be located.

K. Hatch noted there had not yet been a plan developed for the development but the trees were removed in the general area where the cul-de-sac would be located.

K. Hatch offered that trees that were blown onto abutting property were mostly older pines with low root systems that would be blown over in wind storms.

C. Kelly asked to follow-up with her comment.

L. Ordway said that he wasn’t going to allow it as it wasn’t germane to the purpose of this discussion.

There was no additional input and the matter was closed.

The chairman called for a break at 8:12 p.m. The meeting was called back into session at 8:19 p.m.

DELIBERATION:

CONTINUED FROM JUNE 24, 2010:

R. Cole moved, second by P. Boniface, to grant the request for a variance to allow a PRD to be developed on 7.10 acres, where 10 acres is the minimum requirement, at 22 Witch Lane.

L. Ordway offered a summary noting the following:

This is a 7.10 acre parcel that abuts about 50 acres of open space and land owned by the electric company, which is not conservation land, but is open space
Five (5) single-family homes would be built which are said to be more beneficial than the three (3) duplex-style dwellings that could be built with conventional development
The applicant is willing to grant an easement across the open space to allow access to town-owned lands
J. Senter noted that there was access to town-owned lands along Little River from a Main Street access and noted that the Town may not want access to the pump house
The abutters note significant wetlands on the parcel, though it was noted that a soil scientist had not yet officially flagged those areas
The request is to vary the requirement over 30%
30% of the parcel may not be buildable

R. Loeffler noted that they could put duplexes on the property even if the variance was granted as they were not locked into a plan until they went to the Planning Board.

L. Ordway said that he understood that single-family homes did have more value but he was concerned about varying over 30% with so much wetland area on the property. He said that he might feel differently if the property was shown to be high and dry. L. Ordway reminded that they could be setting a precedent for future development.

J. Ingerson offered that she had concern for the wetland areas and what affect additional septic systems and wells would have on that.

P. Boniface noted that he felt 30% was a significant amount to vary.

R. Cole said that he was struck by the visual presented by an abutter as to how much that 30% would be.

L. Ordway questioned if the abutters would prefer to have five (5) single family homes or six (6) condex units as neighbors.

R. Cole replied that he felt that to be a moot point as there were no restrictions on that happening even if the variance were to be granted.

L. Ordway reminded that the property would be developed even if the variance is not granted.

The Board reviewed the criteria for the granting of a variance, noting the following:

The application is not contrary to the public’s interest as there would still be preservation of the open space abutting conservation lands, improving open space areas
There would not be anything contrary to the spirit and intent of the ordinance as there would be nothing that would adversely affect the health, safety or general welfare of the community
The property rights of the owner were not being taken away as he still be able to develop the property as the district intends, and by applicant testimony with a higher density than a PRD would allow.
There is no loss to the general public, in fact the three (3) acres of open space could be considered a gain
There was no direct testimony offered either way as to how a PRD would affect property values of the surrounding properties, that would probably be decided by how well the development was buffered to the surrounding properties
Hardship in the land is sometimes very easy to determine but was not in this case

R. Loeffler noted that it was stated a number of times that the property would still be developed, even with more units, so he didn’t see that there was a hardship in the land to grant a variance.

L. Ordway added that it was unique in how it was bordered by conservation land and Little River but that uniqueness didn’t create a hardship.

The use, while reasonable, would alter the essential character of the neighborhood by allowing a PRD on 7.10 acres when the ordinance calls for ten (10) acres.

There was no additional discussion on the motion. The vote was 0-5-0 and the motion to grant the variance was defeated.

The Board did not find that evidence was presented supporting a hardship in the land

There was no further business before the Board and the meeting was adjourned at 8:35 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant