Town of Plaistow Archive - ZBA Minutes 01/08/15

ZBA Minutes 01/08/15

ZONING BOARD OF ADJUSTMENT

January 08, 2015

The meeting was called to order at 7:03 p.m.

Roll Call: Larry Ordway, Chair, Excused

Timothy Fisher, Vice Chair

James Allen

Paul Boniface

Martha Sumner, Alternate

T. Fisher appointed M. Sumner as a voting member for this meeting.

Approval of Minutes

M. Sumner moved, second by J. Allen, to approve the minutes of the October 30, 2014 meeting. There was no discussion on the motion. The vote was 4-0-0 U/A.

T. Fisher moved, second by P. Boniface, to approve the minutes of the December 04, 2014 meeting. There was no discussion on the motion. The vote was 1-0-3 (Allen, Boniface and Sumner abstaining).

T. Fisher noted that there was only a four (4) member board for the meeting. He explained the implications this has for voting and informed the applicants that they had the right to request a continuance.

It was noted that M. Sumner would be abstaining from hearing the application made by Karen Evans, as they have a work relationship. Ms. Evans was informed that there would be only three (3) members voting on her application.

It was noted to all that if they do not prevail in their application, the lack of a full board cannot be used as grounds to request a re-hearing.

All Matters have been continued from December 04, 2014

#14-20: A request from Craig Whittaker special exception under Article X, All Sections to permit a home office for a Pepperidge Farms bread route. The property is located at 3 Windsor Ct, Tax Map 63, Lot 42 in the LDR District. The property owners of record are Craig & Susan Whittaker.

Craig Whittaker, 3 Windsor Ct, was present for the application. Mr. Whittaker noted that following about his application:

The business would be a Pepperidge Farm snack route
He was purchasing an existing Haverhill route
He had one (1) box truck, one-ton capacity
There would be no customers ever coming to his home
He would be servicing local stores
The home would be used to park the truck and for light bookkeeping
There will be no sign
There is no extra traffic anticipated

The Board reviewed the criteria outlined in Article X. Mr. Whittaker answered each criteria item noting the following:

There are no noxious or injurious uses
The home is owner occupied
The business will use 7% of the living space
The residential character of the dwelling will not be changed
There is no exterior storage
There will not be a business sign
Mr. Whittaker is the only employee
There will be no outside display of merchandise
There will be no clients at the home
There will be no deliveries to the home
There is only one (1) truck
There are no flammable chemicals as part of the business
There are no covenants in the deed to prohibit a home business
There is a letter from the Home Owner’s Association with no objections to a home occupation
This is the only home occupation at this address

J. Allen asked if it the truck was diesel.

C. Whittaker replied that it was gas powered.

J. Allen questioned if the truck was lettered.

G. Whittaker responded that it wasn’t currently, but he would like to reserve the right to do so in the future.

It was noted that there are no prohibitions in the ordinance to prevent the truck from being lettered in the future.

M. Sumner asked where the product will be picked up from.

C. Whittaker answered that he picks up his product in Portsmouth.

T. Fisher asked if the Board had any additional questions, 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.

#14-25: A request from Nolan Pelletier special exception under Article X, All Sections to permit a home office for an electrical contractor. The property is located at 24 North Ave, Tax Map 36, Lot 9 in the LDR District. The property owners of record are Nolan R. Pelletier and Jessica M. Migliori.

Nolan Pelletier, 24 North Ave, was present for the application. He noted the following in support of his request:

He previously worked for someone else and would now like to work on his own
His business vehicle is a single ¾ ton van
He was driving the same vehicle before starting the business
There will be no customers at the house
He doesn’t start work until after 8:00 a.m., after he puts his daughter on the school bus

The Board reviewed the criteria outlined in Article X. Mr. Pelletier answered each criteria item noting the following:

There was no work done at the house so there would be nothing noxious or injurious
The home use would just be an office use
There may be deliveries, but nothing larger than a regular FedEx truck, no tractor-trailers
He has some ladders, but they stay on the truck
No refuse from any jobs are brought home for disposal
Mr. Pelletier recycles all the lamps
The home office will occupy 14% of the home
There are no restrictions in the deed
There will not be a sign
The residence if owner occupied
There will be no changes to the residential character of the building
There will be no exterior storage
Mr. Pelletier is the only employee
There will be no merchandise display
There is plenty of off street parking for any FedEx deliveries
This is the only home occupation at this address.

#14-24: A request from Karen L. Evans for a special exception under Article V, §220-32B.D. to allow a doggy daycare and training facility. The property is located at 134 Newton Rd, Tax Map 70, Lot 20 in the ICR District. The property owner of record is Northland Mall, LLC.

M. Sumner recused herself from this hearing.

Karen Evans, business owner and Joseph Trevisone, applicant’s son and dog trainer, were present for the application.

K. Evans was again cautioned about having only a three (3) member board for her hearing and asked if she would like to proceed. She stated that she would.

K. Evans offered that following in support of her application:

Her son apprenticed in No Reading (MA) for ten (10) years and the other trainer that will be at the site has thirty (30) years experience
Their hours would be Monday through Friday 6:00 a.m. to 9:00 p.m.; Saturdays 8:00 a.m. to 3:00 p.m.; closed on Sundays
There will be one trainer or every fifteen (15) dogs
During training classes the owners will remain with the dogs
There is a 24’ X 24’ enclosure, sectioned off by the size of the dogs, to take the dogs outside for bathroom purposes
Pictures of the waste elimination system were submitted with the application
All solid waste would be immediately picked up and put into the waste elimination system, which would be emptied into the dumpster at the end of each day
The trainer is responsible for keeping the dogs under control and minimizing any barking
The dogs would be taken out through a back door of the unit to be walked and for bathroom purposes
The training course synopsis was provided
The business is intended to be located in Unit 5, and a map was provided
The application has the written support of the property owner, Alan Daviduk

T. Fisher noted that how defecation would be handled had been explained and asked how urination would be taken care of.

K. Evans replied that the dogs would urinate on the ground, which would be turned and treated with lime on a weekly basis.

T. Fisher asked if food would be stored on the property.

K. Evans answered only if a dog had a special diet and needed to be fed at a specific time. Most dogs would be fed before they came or after they went home.

T. Fisher questioned how rodents would be controlled.

K. Evan responded that it shouldn’t be an issue as no food would be stored overnight. Any food that was brought would be on a daily basis and would go back home with the dog at pickup time.

The Board reviewed the criteria listed in the ordinance noting the following:

The applicant stated there will be one (1) trainer for every fifteen (15) dogs
There will be no overnight boarding

T. Fisher asked what would happen if a dog wasn’t picked up for some reason beyond the owner’s control.

J. Trevisone replied that he would wait with the dog until the owner could get there or if the owner wasn’t going to be able to get there he would take the dog home with him for the overnight. He also noted that they would have emergency contact information on file for all the dogs in their care.

The facility is only for dogs

There was a discussion on how to determine that the pen sizing was adequate for the size and number of dogs. It was noted that all dogs would be leash-walked and would never be outside without a trainer with them.

Dogs over 180 pounds are prohibited
A description of the waste control plan was provided
The back of the building would be used to take the dogs out
Other businesses in the plaza only use the back of the building for deliveries, there is no customer traffic

There will be no on-site veterinary services so there are no licensing issues

K. Evans noted that all dogs will be required to keep their veterinary records up to date with them.

T. Fisher asked about how the animals will be sheltered and watered when outside.

K. Evan replied that they had an “easy-up” canopy that would be put up during the day and stored at night.

It was noted that should the applicant prevail at this meeting they would still need to go to the Planning Board to update the site plan for the change of use.

#14-21: A request from Ronald Reardon for a variance from Article III, §220-8.1 to allow a 792 sq ft horse barn to be built. The requested square footage will exceed the aggregate1200 sq ft. allowable for garages/barns by 707 sq ft. The property is located at 4A Witch Lane, Tax Map 42, Lot 14 in the LDR District. Ronald E., Sr. and Donna P. Reardon are the property owners of record.

#14-22: A request from Ronald Reardon for a variance from Article V, §220-32E.C(7) to allow a horse barn to be built 70 feet from the left property line, where 100 feet is the minimum required. The property is located at 4A Witch Lane, Tax Map 42, Lot 14 in the LDR District. Ronald E., Sr. and Donna P. Reardon are the property owners of record.

#14-23: A request from Ronald Reardon for a variance from Article V, §220-32E.C(7) to allow a horse barn to be built 65 feet from the right property line, where 100 feet is the minimum required. The property is located at 4A Witch Lane, Tax Map 42, Lot 14 in the LDR District. Ronald E., Sr. and Donna P. Reardon are the property owners of record.

Ronald and Donna Reardon, 4A Witch Lane, were present for the application.

Pictures that were submitted with the application were distributed to the Board.

R. Reardon noted the following information for the Board in support of his application:

He noted that he would like to erect a 22’ X 36’ horse barn
The barn would be set back 450 feet from Witch Lane
He is not 100% sure there will ever be a horse in the barn
He would like the possibility of bringing the horse home in the winter and would board it in the summer
The barn has already been framed in
The barn is not on a foundation and can be relocated
The property has been surveyed and the original measurements were incorrect
He would like to be 55 feet away from one side (but the request was noticed for 65 feet)

There was a discussion regarding the survey. It was noted that Mr. Reardon could be farther away than his variance request, but he could not be closed to the property line without reapplying and re-noticing the matter.

Mr. Reardon has a place to dispose of manure. REP landscaping will pick up the waste
They already spray for mosquitoes and would be willing to spray for flies also
There are no wells in the vicinity of where he would like to erect the barn
Mr. Reardon can meet the fifty (50) requirement for the corral
It was not intended to put the barn on a foundation so that one day it could be removed if the applicant desired

There was a discussion about the shape of the property. T. Fisher noted that it was shaped like a “V.”

Mr. Reardon noted that was part of the reason for getting the property surveyed. The pine tree marker with barb wired was once thought to be a property boundary; which turned out to not be the case.

T. Fisher asked why the barn could not be moved farther back and perhaps be able to meet the setbacks.

R. Reardon replied that the land drops off and he didn’t want to have to put the structure on a foundation.

T. Fisher noted that the request of 707 square feet beyond the allowable was a significant request.

R. Reardon noted that he had a 28’ X 32’ garage and has a roof structure, instead of a Quonset hut structure, over his motor home which is what puts him so far over the maximum. He added that he had to get rid of that structure in order to have the barn he would be willing to do so.

T. Fisher asked why he was looking for a 792 square foot barn.

R. Reardon responded that he laid it out, took measurements and that is what he came up with.

T. Fisher noted that Mr. Reardon was coming to the Board after already starting the construction.

R. Reardon offered that he never thought that it would be as difficult as it turned out to be.

T. Fisher noted that it was a large request and is quite a challenge.

R. Reardon added that another reason that he couldn’t move the structure further back on the parcel was that it would be too close to Little River.

The Board reviewed and discussed the variance criteria.

T. Fisher offered that the application was pushing the limits of size and set back seeking a 707 square foot variance.

R. Reardon reiterated that if he had to he would take down the 550 square feet of cover over his motor home.

The application is not necessary to the public interest
The spirit and intent of the ordinance is not observed at the 707 sq foot request
There is justice in having a proper barn for a horse, but the size is pushing the limits
Surrounding property values could be affected with the large buildings that are so far beyond the ordinance
There may not be a hardship in the land itself as the horse is not currently being housed on the property, but it is understood the applicant would like to be able to bring the horse home

There was discussion on the possibility of making any motion to grant conditional on the removal of the 550 square feet over the motor home.

R. Reardon suggested that the Board should try to explain to his daughter that there wasn’t a hardship.

M. Sumner asked if he structure was one (1) or two (2) stalls.

R. Reardon explained that it was two (2) stalls so the horse could be moved into the second stall while the first stall was being cleaned.

M. Sumner asked if Mr. Reardon would consider downsizing to a single stall.

R. Reardon replied that he would rather lose the cover over his motor home. He added that extra space also made it nice to store hay, the large amount tack that his daughter has as well as wash the horse. He noted that building was intended to be a single-story, 23’ high, with a 12 pitch roof.

T. Fisher asked if there were any additional questions from the Board. There were none.

T. Fisher asked if there was anyone speaking in favor of the application.

Two (2) letters of support were read into the record. The letters were from Virginia Richard, 4 Witch Lane and Mary Senter, 8 Witch Lane. Neither letter expressed concern over either the size or location of the proposed barn.

T. Fisher asked if there was anyone speaking in opposition to the application.

Kathleen Derby, 6 Witch Lane, submitted pictures taken from her house and noted the following concerns:

Flies and rodents
Horse smell
Manure smell
Urine contaminating ground water, noting her well to be in her back yard
Resale value of her property
Would there be other animals on the property
How would the care and treatment of the animals be enforced

It was noted that most complaints are first received by the Department of Building safety, who would call in the Animal Control Officer if he felt any animals were being mistreated.

Could Little River be affected

R. Reardon offered that following in rebuttal:

The closest corner of the structure to Ms. Derby’s well is at least 250 feet and where the horse would be was even farther
He would spray for flies and properly dispose of manure as he didn’t insects or odors at his house anymore than an abutter would
He noted there was a prevailing west wind that would push any smells away from the abutter

Joseph Merry, 6 Witch Lane, noted the following concerns:

He noted that he and the applicant were long time friends and was sad that this application was coming between that friendship
He also had concerns over contamination of the wells, adding that if contamination could get into Mr. Reardon’s artesian well, it could get into his dug well
He said that he wasn’t really opposed to the barn itself but everything that could go along with housing a horse there. He added that Mr. Reardon does maintain his property nicely and that he would just like to get along

R. Reardon offered the following in rebuttal:

The artesian well was only used for irrigation purposes; his potable well was a dug well. He added that the water in the artesian well was not of good quality.

T. Fisher asked if there was anyone else who would like to be heard. There was no one and the matter was closed.

#14-19: A request from Daniel W. Reynolds for a variance from Article III, §220-9.1 to allow a driveway to be on the property line, instead of set the minimum of 25 feet off the property line. The property is located at 4 Sunrise Terr, Tax Map 14, Lot 18 in the LDR District. The property owner of record is Reynolds Family Rev Trust, Daniel W. Reynolds, TR.

The matter of #14-19 was called three (3) times. There was no representation, the result of which is an automatic denial.

DELIBERATIONS:

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

The applicant would be using a 1-ton capacity, gas powered truck
There would be no deliveries to the home
The applicant is the only employee
There is no sign planned at this time
All operations are during normal business hours

J. Allen moved, second by M. Sumner, to grant the application for a special exception for a home occupation at 3 Windsor Court as stated in the legal notice. There was no discussion on the motion. The vote was 4-0-0 U/A.

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

The applicant is only using 14% of the living space
The only deliveries that would be made to the home would be in line with normal residential deliveries
No exterior storage
No customers
Minimal signage on the truck, not other sign planned at this time

P. Boniface moved, second by M. Sumner, to grant the application for a special exception for a home occupation at 24 North Ave as stated in the legal notice. There was no discussion on the motion. The vote was 4-0-0 U/A.

M. Sumner recused for this matter.

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

The applicant submitted a description of procedures
There was a plan for waste disposal
Description of operations
Listed hours of operation
Pick up and drop off plan
Qualifications of the staff were included
There is a letter of support from the property owners
There will be outside shelter for the dogs
The business is to be located in Unit 5 of the Northland Mall
There was a description of how the dogs will be moved around, noting all walking will be on-leash and the dogs will go out via the back door, away from customers of the other businesses

There was a brief discussion regarding disposing of the waste in the dumpster. The Board had concerns over the same commercial dumpster that is used for the other businesses, including restaurants being used for dog waste. They Board directed that a letter be forwarded to the Planning Board to express their concern.

J. Allen moved, second by T. Fisher, to grant the application for a special exception for the care and treatment of animals at 134 Newton Rd as stated in the legal notice. There was no discussion on the motion. The vote was 3-0-0 U/A.

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

The barn has been under construction but is not on a foundation and can be moved
The barn exceed the maximum by 707 sq ft, which is a lot
The applicant offered to remove a 550 sq ft section of a structure that is over his mobile home to make the variance a more palatable 157 sq ft.

T. Fisher noted that it would be wise to remove the 550 or make the barn smaller.

J. Allen offered that he didn’t think it was right for the Board to make him take the cover down from over his motor home.

T. Fisher suggested that applicant could come back and request a smaller barn if he didn’t want to take down the motor home shelter.

M. Sumner reminded that it was Mr. Reardon who brought up taking down that shelter rather than reducing the size of the barn.

There was discussion regarding a phrasing the motion to restrict the size of the barn. It was questioned who would enforce the removal of the structure. It was noted that if it was a condition of the variance that the Building Inspector would have to verify that it was removed before he could grant the permit.

P. Boniface noted that the average horse stall was 10’ x 10’.

T. Fisher added that this barn was the size of a seven (7) stall barn.

The Board reviewed all the submitted pictures.

T. Fisher reminded that there was testimony that the bigger size was to also allow for the storage of tack and other accessories.

M. Sumner asked if they were denied this application could they come back to request a smaller barn. It was confirmed that they could.

T. Fisher moved, second by M. Sumner, to grant the application for a 792 sq ft barn at 4A Witch Lane as state in the legal notice with the following condition:

The 550 sq ft structure over the mobile home must be removed.

There was no discussion on the motion. The vote was 4-0-0 U/A.

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

There was a survey done of the property
The barn, although already under construction, is not on a foundation and could be relocated
The barn cannot be moved farther back because of a steep slope and proximity to Little River
The applicant does not want to put the barn on a foundation as he would like to be removable
There were two (2) letters of support from direct abutters

J. Allen suggested that the applicant move the structure closer to the left side so that it could meet setbacks on the right side.

There was discussion regarding why the applicant didn’t choose to do as J. Allen suggested. It was noted that there was no testimony regarding why the right side setback couldn’t be met. It was noted that, if the application is defeated, the applicant could possibly come back with those reasons as new evidence and request a re-hearing.

The Board reviewed the variance criteria noting the following:

The application is contrary to the public interest, although it was suggested that the abutter with concerns could be accommodated by moving the location to comply with the setback on that side. Particularly in light of the fact that the abutter on the other side did not have an objection
The spirit and intent of the ordinance is not observed as the intent is to keep separation with animal barns
There is substantial justice in having a barn to properly house a horse
Possible impact to property values, particularly with the proximity to abutting wells

J. Allen questioned if the barn could be turned the long way and if that would help the situation.

T. Fisher noted that there were clearly alternate options to granting the variance.

T. Fisher moved, second by M. Sumner, to grant the application for a variance to allow a horse barn to be 70 feet from the left property line as stated in the legal notice. There was no discussion on the motion. The vote was 2-2-0 (Fisher and Allen dissenting).

Reasons for denial:

Contrary to the Public Interest
Potential Negative Impact to Surrounding Property Values

T. Fisher read the legal notice.

T. Fisher summarized the application noting the following:

The applicant is looking to be 65 feet from the property line, which is a 35 foot variance request
The neighbors at 6 Witch Lane expressed concerns about closeness to wells, urine contamination, manure disposal and odor and flies
There was a letter of support from 8 Witch Lane

M. Sumner noted that much of what was discussed with the last application would apply to this one as well.

T. Fisher agreed and called for a vote.

T. Fisher moved, second by M. Sumner, to grant the application for a variance to allow a horse barn to be 65 feet from the right property line as stated in the legal notice. There was no discussion on the motion. The vote was 2-2-0 (Fisher and Allen dissenting).

Reasons for denial:

Contrary to the Public Interest
Potential Negative Impact to Surrounding Property Values

The meeting was closed at 9:04 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant