Town of Plaistow Archive - ZBA Minutes 04-26-12

ZBA Minutes 04-26-12

ZONING BOARD OF ADJUSTMENT MINUTES

April 26, 2012

Call to Order: 7:05 P.M.

Item One:

ROLL CALL: Present were – Larry Ordway; Chairman, Joyce Ingerson and Tim Fisher; Alternate. Roderick Cole was excused and Paul Boniface was absent.

L. Ordway appointed Alternate member T. Fisher to be a voting member for the meeting.

Minutes of October 27, 2011 and February 23, 2012

L. Ordway explained that there are not enough board members present that were at both of these meeting to vote on the minutes. They will both be continued until the May 31, 2012 meeting.

L. Ordway told the applicants that there are only three members sitting on the Board this evening; all cases heard need three affirmative votes to be granted. He explained that they have a right to ask for a postponement until there are five voting members sitting on the Board. He asked that each applicant tell the Board if they would like to proceed with their case or postpone when their case is called before the Board.

CONTINUED FROM MARCH 29, 2012

#12-04: A request from Patrick M. Connolly, LLC, for an appeal of an administrative decision of the Planning Board that deemed a proposed use to be a Contractor’s Yard and therefore not a permitted use in the ICR District under Article V, §220-35.G. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record.

J. Ingerson recused herself from this case; conflict of interest. She noted that a Planning Board (PB) member can vote on both Boards on any case but she is recusing herself due to a conflict of interest.

L. Ordway explained that as there are now only two Board members to hear the case; they will need to postpone it until the May 31, 2012 meeting.

CONTINUED FROM MARCH 29, 2012

#12-05: A request from Patrick M. Connolly Contracting, LLC, for a variance from Article V, § 220-32I and allow the use of an existing garage for commercial purposes. The garage exists 25.10’ from a residentially used parcel, which requires a 50’ setback. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record.

J. Ingerson recused herself from this case; conflict of interest.

L. Ordway explained that as there are now only two Board members to hear the case; they will need to postpone it until the May 31, 2012 meeting.

CONTINUED FROM MARCH 29, 2012

#12-06: A request from George Pynn Realty, LLC, for a variance from Article IV, § 220-21 to permit a concrete block retaining wall to be built within the 50’ wetland buffer zone for poorly drained soils. The property is located at 29 Newton Road, Tax Map 66, Lot 20, in the ICR District. The applicant is the property owner of record.

Present for the hearing is Kevin Hatch, Cornerstone Survey Associates and George Pynn, 29 Newton Road. The applicant decided to proceed with the hearing.

Kevin Hatch explained the following to the Board:

The hearing is regarding G. Pynn’s site with the storage units and his masonry business.
He is currently using the garage and parking area for a home base for his equipment.
The proposal goes back to the definition of a structure.
Work has been started on the site; the issue of a structure definition came up and M. Dorman, Building Inspector, requested G. Pynn go to the PB to determine if a retaining wall is a structure.
The case went to the Conservation Committee due to the setback distance between the wetland and the retaining wall/structure.
A letter from the Conservation Committee is on file; their determination is that it should be considered a structure and so it went back to the PB.
The PB went along with Conservation and sent the applicant to the ZBA for a variance.
The site plan with 25’ and grading in that area was first approved in the early 2000’s before the current regulations were in place.
Parking lot is a level pad with a steep slope off to a fence followed by the wetland.
They propose to change the steep sloped area to a level pad on top with a retaining wall and a level area at the bottom.
The area is already disturbed and was legally disturbed when it was originally approved; it is a grassed in area.
The retaining wall now is completely outside of the 25’ buffer.
They will not be touching the existing vegetation.
They are within the next 25’ setback which makes the total of 50’ from the wetland.
They propose to put a retaining wall within the 50’ setback.
The Conservation Committee, inside the letter, supported the retaining wall as long as it was outside that 25’; they have eliminated a small portion of the wall that was inside the 25’ setback.

L. Ordway inquired the reason for the retaining wall.

K. Hatch replied that it will allow the applicant to have dry storage, scaffolding and planks, therefore alleviating his parking area of the storage materials. He added that it will not change the drainage at all; Conservation noted that it was an improvement; although still a flaw.

There will be no paving.
They will back fill to level; brought in from off-site.
The wall will be a 225’ long concrete block wall
The highest point could be up to 5’ in some areas going shorter near the storage units.

L. Ordway asked how the retaining wall will affect the drainage.

K. Hatch answered that it will decrease the rate of run-off to the wetland. He noted that very little water from the parking area makes it to the wetland anyway.

There were no further questions from the Board. There was no one to speak in favor of or in opposition to the application and the case was closed.

L. Ordway explained that they will hear the other cases and go into deliberative sessions later in the meeting when the decision will be made. There can be no further input for the case. The applicant can wait to hear the decision but it will be mailed to them within 14 days. If granted the applicant cannot proceed until 30 days has passed to allow others to appeal the decision.

#12-07: A request from Jeffrey & Sandra Peabody for a variance from Article III, §220-13B to permit a commercial vehicle, greater than 1-ton capacity, to be parked at a residential parcel. The property is located at 37 Forrest Street, Tax Map 49, Lot 2 in the LDR District. The applicants are the property owners of record.

Present for the hearing was Jeffrey & Sandra Peabody, 37 Forrest Street. The applicants decided to proceed with the hearing.

J. Peabody explained that he wants to bring his truck home and work out of his house. He noted the following:

It is only him working in his business.
Only one tractor with no trailer; only occasionally.
It is a tandem axel tractor.
The tractor is 9 ½’ tall and will fit in his garage; it will fit through the side door.
He will park it in the garage when weather is bad; winter time, etc.
The driveway is paved.
There are no restrictions on the deed.
There is signage on the truck; Peabody Transportation.

The Board asked the applicant to step through the requirements for the granting of a variance:

The values of surrounding properties will not be diminished because:

J. Peabody replied that it would not diminish property values; it is no different than his camper except it is smaller. He added that it is well maintained.

Granting the variance would be beneficial to the public interest because:

S. Peabody replied that they have two properties in town and they would like to eventually sell or rent the business. She added that they do not have any employees.

The property has or does not have a unique setting in its environment which would cause a strict application of the zoning ordinance to interfere with the reasonable use because:

S. Peabody replied that there is plenty of space between them and their neighbors on both sides; they have 5/8 of an acre.

A fair and substantial relationship does or does not exist between the general purpose of the zoning ordinance and the specific restriction on the property for which the variance is being requested because:

S. Peabody stated that J. Peabody is the only one who will operate the tractor. Traffic is not an issue as he leaves early in the morning; 3:00am. The tractor makes less noise than a motorcycle.

L. Ordway asked what the hours of operation would be.

J. Peabody said he has one account that requires him to leave at 3:00am but usually anywhere from 6:30am to 9:00am. He added that he hauls used cars. He currently picks up the trailer at his place or another lot he has access to; he would rarely if ever bring the trailer home as there is not enough room for it.

The variance requested is not contrary to the public interest because:

S. Peabody answered that they keep their business in their area (on their property).

Granting the variance would do substantial justice because:

S. Peabody replied that they will keep and maintain a residential looking property.

This use will not be contrary to the spirit of the ordinance because:

S. Peabody answered they will adhere to all the rules set.

There were no further questions from the Board.

L. Ordway asked if there was anyone speaking in favor of the application. Four letters of support were read to the board from abutting neighbors:

Alan and Andrea Hood; 39 Forrest Street.
Mary LeBlanc, 35 Forrest Street.
Peter S. and Tara Swaney, 34 Forrest Street.
Susan L. Colby, 32 Forrest Street.

There was no one to speak in opposition to the application and the case was closed.

#12-08: A request from Jeffrey & Sandra Peabody for a special exception under Article X, all sections, to permit a home occupation, namely a trucking business. The property is located at 37 Forrest Street, Tax Map 49, Lot 2 in the LDR District. The applicants are the property owners of record.

Present for the application was Jeffrey Peabody and Sandra Peabody, 37 Forrest Street.

S. Peabody explained that they need a home office to have a physical address for Peabody Transportation to forward applications and file paperwork. There will be no customers.

The Board went through the requirements for a special exception and the following was noted:

It is a permitted use under §220-66; C.

There will be no repairs made on the property.

The applicants have lived at the property for many years.

The applicants have provided a sketch of the site to the Board.

Only 11% of the home will be used for the home occupation.

The home occupation will not change the physical appearance of the dwelling.

The applicants do not have plans for a sign.

No employees; one person will cover J. Peabody during vacations.

There will be no merchandise.

Vehicle does exceed one ton capacity

There is plenty of parking

There were no questions from the Board.

L. Ordway asked if there was anyone to speak in favor of the application. A letter of support for the home occupation from Susan L. Colby, 37 Forrest Street, was read for the record.

There was no one speaking in opposition to the application and the case was closed.

#12-09: A request from Kathleen M. Gerskowitz for a variance from Article V, §220-32I to permit to replace and enlarge an existing shed. The expanded portion of the shed is proposed to be 8’ 3” from the rear property line, where 15’ is the minimum. The property is located at 16 Chandler Ave, Tax map 38, Lot 3 in the MDR District. The applicant is the property owner of record.

Present for the hearing was Kathleen Gerskowitz, 16 Chandler Ave and her fiancé, Marc Daine. M. Daine gave pictures of the property to the Board for review. He noted the following to the board:

They have an existing 10’ X10’ shed.
The shed is rotting away.
They would like a riding lawn mower and need a larger shed to accommodate it.
They propose to increase the shed by four feet and keep it at its current location; if they move it, it will be in the middle of the yard.
The shed is 10’ from one fence and 8’ from the other.
The back of the house is all woods.
The applicant owns the fence; she had the land surveyed when she put it up.
There are no wetlands near them.

The Board asked the applicant to step through the requirements for the granting of a variance:

The values of surrounding properties will not be diminished because:

M. Daine replied that they will be tearing down an old rotten shed and replacing it with a new gambrel shed.

Granting the variance would be beneficial to the public interest because:

It will bring up the value of the property.

The property has or does not have a unique setting in its environment which would cause a strict application of the zoning ordinance to interfere with the reasonable use because:

M. Daine replied that the land is not level; 4’ to 5’ from the shed the land starts to slope. He showed the Board members in the pictures the slope in the land. He explained that the shed company told them that they cannot install the shed at that location, 15’ from the fence, as they will not be able to level it above 18” due to the slope.

T. Fisher stated that the variance they are requesting is not to move the shed to the right but to continue along the same line and move it forward. To move it forward appears to be on flat land.

M. Daine replied that they need to move it forward and to the right because it is 8’ from the back of the fence and 10’ from the side of the fence.

L. Ordway explained the ordinance to the applicants.

K. Gerskowitz explained that if they moved the shed to meet the 15’ setback it would be in the middle of the property and would look terrible. The lot is .38 acres. There was more discussion on this issue.

The Board continued reviewing the requirements for the granting of a variance:

M. Daine replied that it is the slope in the land.

Granting the variance would do substantial justice because:

M. Daine stated because they are replacing a shed that is close to being condemned.

This use will not be contrary to the spirit of the ordinance because:

M. Daine said they would be enhancing the property value by replacing the old shed with a better looking shed.

M. Daine also noted the following:

It is mostly woods all around the property with the exception of the one neighbor on the side; with a camper to obstruct the view.
It is a 6’ tall fence
They feel it will benefit the neighborhood to have a nicer shed on the property

L. Ordway asked the applicants what they will do if the application is not granted.

K. Gerskowitz replied that the shed will need to come down; if they do not get the variance they will not be able to get the riding mower.

There were no further questions from the Board and there was no one to speak in favor of or in opposition to the application and the case was closed.

DELIBERATIONS

CONTINUED FROM MARCH 29, 2012

J. Ingerson motioned to grant the request from George Pynn Realty, LLC, for a variance from Article IV, § 220-21 to permit a concrete block retaining wall to be built within the 50’ wetland buffer zone for poorly drained soils. The property is located at 29 Newton Road, Tax Map 66, Lot 20, in the ICR District, second by L. Ordway. The case was opened for discussion.

L. Ordway summarized the case noting the following:

G. Pynn proposes to build a concrete block retaining wall; 5’ at the highest point sloping down to nothing; it would be 200’ long.
It will provide an area for dry storage such as plank and pipe staging.
They have a letter from the Conservation Committee that indicated that the retaining wall will cut down on drain water entering the wetland area.
L. Ordway took the letter from Conservation as a letter for support of G. Pynn’s petition.

The Board went through the requirements for a variance noting the following:

The public interest is to protect the wetlands and the wall will help alleviate potential erosion and control run-off.
G. Pynn is aware of how to build a retaining wall and will build a nice one to reflect his business.
The spirit of the ordinance is being observed by controlling the water into the wetlands.
Helping a business man improve his property to use it more efficiently helps everyone.
Values of surrounding properties will be increased due to less drainage going into the wetlands; less problems for the surrounding property owners.
It is a hardship as the wetlands are not G. Pynn’s creation; the level area will be a benefit to him.

J. Ingerson looked at the date on the Conservation Committee letter and questioned if anything might have happened on the site since November, 2011 and now.

L. Ordway replied no and added that the weather would not exasperate any issues as well. He reminded the Board that the variance goes with the property and the wall could be there forever.

There was no further discussion on the motion and the vote was 3-0-0 U/A.

T. Fisher motioned to grant the Peabody’s request for a variance, second by J. Ingerson and the case was opened for discussion.

L. Ordway summarized the case as follows:

The variance request is to allow J. Peabody to park his tandem axel tractor on his property overnight.

The truck can fit into the garage using the side entrance.

As the Peabody’s are getting older they are trying to simplify things; possibly prepare to sell their Danville Rd. property where truck is now stored.

There will be no trailer storage on the property.

J. Ingersom commented that it was very nice that they had the (4) letters attached; it was nice consideration of the neighbors.

The Board stepped through the requirements for a variance noting the following:

The public interest is to prevent large commercial operations/vehicles to be operated and stored in a residential area; they only heard from four neighbors but not from other who did not receive the notice of petition.
The Board needs to consider the needs of the general population in that area; a large truck leaving the property early in the morning might be a problem.

J. Ingerson noted that motorcycles that are in the area at all hours are much louder than a tractor trailer.

The spirit is to prevent commercial operations in residential area. The idea of a home occupation is to give residents an area in their home which to earn a living; most granted have been for small operations and not large trucks.

L. Ordway noted that there are a large number tractor trailers on Main Street; enough to prompt the Town to do a study.

J. Ingerson replied that in this case it is only one truck that may end up being part-time.

Substancial justice; the Board must weigh the benefit to the Peabody’s against the loss to the general public.
There is no hardship in the land; there would be a hardship to the Peabody’s if denied.

There was no further discussion on the motion and the vote was 2-1-0; L. Ordway voted no.

L. Ordway gave the following reasons for his vote:

The variance is contrary to the public interest; having a large truck in a residential area does not benefit others living in the area.
Values of surrounding properties would be diminished.
He does not see a hardship in the land.

J. Ingerson motioned to grant the request from Jeffrey & Sandra Peabody for a special exception under Article X, all sections, to permit a home occupation, namely a trucking business. The property is located at 37 Forrest Street, Tax Map 49, Lot 2 in the LDR District, second by T. Fisher and the case was opened for discussion.

L. Ordway summarized the case noting the following:

The home occupation would be for a home office
They will use the office to maintain their DOT records
It will occupy 11% of the dwelling
They meet all of the requirements.

There was no further discussion on the motion and the vote was 3-0-0 U/A.

T. Fisher motioned to grant the request from Kathleen M. Gerskowitz for a variance from Article V, §220-32I to permit to replace and enlarge an existing shed. The expanded portion of the shed is proposed to be 8’ 3” from the rear property line, where 15’ is the minimum. The property is located at 16 Chandler Ave, Tax map 38, Lot 3 in the MDR District, second by L. Ordway and the case was opened for discussion.

L. Ordway summarized the case noting the following:

They heard testimony the property slopes off from where the existing shed is placed and it slopes to a degree higher than will allow the shed company to level the shed.
The proposed shed will be 4’ larger than the existing shed.
The existing shed is deteriorating.
The new shed will look a lot better and raise the value of the property.

The Board stepped through the requirements for a variance noting the following:

The shed will be in the back of the property where the existing shed has been since the house was built
There are 5 acres of woods behind the shed.
The house to the side has a 6’ fence and a camper to shield the view of the shed.
The spirit is observed as the extra amount for the shed (4’) is not a huge amount.
Allowing a larger shed is allowing them to have a rider lawn mower; as they are getting older.
Values of surrounding properties will either go up or have no effect.
It is a small lot with no room to put a new shed in.

There was no further discussion on the motion and the vote was 3-0-0 U/A.

J. Ingerson welcomed T. Fisher to the ZBA. She added that at the next meeting they will need to vote on officers.

Other Business/Updates: Misc. Notices, letters, and other Correspondence from Dept. of Building Safety, Planning Department and ZBA

There is no other business before the Board; the meeting was adjourned at 8:25 P.M.

Respectfully submitted as recorded by Laurie Pagnottaro.

Approved by the Planning Board on ______________________________________

_______________________________________

Larry Ordway, Chairman