Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, January 12, 2010 at 6:30 PM in the Auditorium at City Hall. Jack Currier, Chair, conducted the meeting. Members present were: Jack Currier, Chair Sean Duffy (arrived at 6:45) Robert Shaw Gerry Reppucci Ryan Williams Carter Falk, Deputy Planning Manager Mr. Currier explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Currier explained how testimony will be given by applicants, those speaking in favor or in opposition to each request, as stated in the Zoning Board of Adjustment (ZBA) By-laws. Mr. Currier also explained procedures involving the timing light. 1. Pennichuck Water Works, Inc., & Harris Preserve Homeowners Assoc. (Owners), City of Nashua, Division of Public Works (Applicant) “L” Manchester Street over the Pennichuck Reservoir, (Sheet 52 Lot 118 & Sheet G Lot 24), requesting special exception to perform a Phase 1 Archaeological Study in the wetland buffer at the Pennichuck Reservoir, as part of the Manchester Street bridge replacement. R18 Zone, Ward 3. Voting on this Case: Jack Currier Robert Shaw Gerry Reppucci John Byatt, P.E. CLD Engineering, Manchester, NH. Mr. Byatt said the overall project is the replacement of the Manchester Street Bridge, at the border of Nashua and Merrimack, and spans each city. He said there have been plans to replace the bridge for years. He said the project will be receiving State money, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 2 so, there are many rules and regulations. He said one of those regulations is going before the State Division of Historic Resources. He said that they have asked that an archaeological study be done at the site, which would be a Phase I investigation, in which ten test-pits are proposed, hand-dug, spread around the property. He said there was a thought that there may be some Native American artifacts there. Mr. Byatt said the entire bridge project is within the buffer of the Pennichuck Reservoir. He said they have gone before the Conservation Commission already, with four stipulations that are agreed to. He said when the bridge project is done; they will come before the Conservation Commission and Zoning Board again, as there is a substantial amount of wetlands. He said this request is basically for the ten test pits for the archaeological study. He said they are only one or two feet deep, and dug by hand. Mr. Currier asked Mr. Byatt about the wetland special conditions, all were answered satisfactorily by the applicant. Mr. Byatt also agreed to all the Conservation Commission stipulations. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the special exception on behalf of the applicant. Mr. Currier stated that it is listed in the Table of Uses, Section 190-112. Mr. Currier stated that it will not create undue traffic congestion or unduly impair pedestrian safety, and, there is no impact on public water, drainage or sewer or other municipal systems. Mr. Currier stated that the special regulations are fulfilled, and the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. Mr. Currier stated that the special condition is that the applicant will abide by the Conservation Commission’s four stipulations of approval. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 3 SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 2. The Salvation Army (Owner) 1 Montgomery Avenue (Sheet 2 Lot 57) requesting the following variances: 1) to exceed maximum ground sign height, 6 feet allowed, 7.5 feet existing - 9 feet proposed; and 2) to exceed maximum ground sign area, 10 sq.ft allowed, 35 sq.ft existing from variance granted on 1-12-93, 46 sq.ft proposed – both requests to replace an existing nonconforming ground sign. RA Zone, Ward 7. Voting on this Case: Jack Currier Sean Duffy Robert Shaw Gerry Reppucci Tom Jenkins, 2 Crestwood Ln, Nashua, NH. Mr. Jenkins said that the Salvation Army services the public in many ways, and the sign is necessary to adequately promote them. He said that the proposed sign is to take a nonconforming sign and make it less nonconforming by meeting two setbacks that are currently not met. He said the area is predominantly commercial in nature, and the Salvation Army has been there since 1981. Mr. Jenkins said the proposed sign would be in character with the neighborhood, it would not negatively impact the property values, and the public benefit would be to have clear signs identify the location of the Salvation Army. Mr. Jenkins said the current sign doesn’t meet the setback to Main Street, and also to the intersection, the new sign would eliminate the need for these two variances. He showed the Board some photos of signs in the neighborhood, and throughout the City, such as schools and churches, in residential neighborhoods, and they have similar signs to this request. Mr. Duffy asked about the illumination and lettering. Mr. Jenkins said it is externally lit, with manually changing ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 4 letter, it’s a two-sided sign. Mr. Currier said the sign is only 12 square feet, and there is an approval from years ago for 31 square feet. He asked how the proposed sign matches the one across the street. Mr. Jenkins said they are looking to match that sign. Mr. Currier asked if they considered using the size granted by the old variance. Mr. Jenkins said they would lose the effect by putting the sign further away, the signs advantage and visibility would be lost. SPEAKING IN FAVOR: Steven Bonnette, 22 Edson Street, Nashua, NH. Mr. Bonnette said he is in favor of the sign, the firm does a great service to the community all year long. Major Carl Carvill, 3 Montgomery Avenue, Nashua, NH. Maj. Carvill stated that he is the Administrator for the Salvation Army. He said they want to be more easily found by clients, and unclear signage makes it very difficult for folks that need this business. He said the new sign will be more aesthetically pleasing, also. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the request on behalf of the applicant. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. He stated that to move the sign and make it larger, they need a variance to do that. Mr. Reppucci stated that it is within the spirit and intent of the ordinance, it is improving the neighborhood, and it’s being brought into a more conforming setting, by way of the setbacks. Mr. Reppucci stated that it will not adversely impact property ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 5 values of surrounding parcels, as no testimony was to that effect, and the request is not contrary to the public interest, and substantial justice would be done. SECONDED by Mr. Duffy. Mr. Reppucci said it was presented to the Board that it would be externally lit. MOTION CARRIED 3-1 (Mr. Currier). 3. Charlotte R. Vincent (Owner) 0 Sherman Street (Sheet 59 Lot 13) requesting the following: 1) special exception to allow a two family residence; and, the following variances: 2) minimum lot size, 8,250 sq. ft. existing, 14,520 sq.ft required, and 3) minimum lot depth for a corner lot, 75 feet existing, 90 feet required. RA Zone, Ward 2. Voting on this Case: Jack Currier Sean Duffy Robert Shaw Gerry Reppucci Charlotte Vincent, 0 Sherman Street, Nashua, NH. Ms. Vincent said they have a single family house, a raised ranch, and would like to make it a two-family after finishing off the basement, so the footprint would be the same. She said the reason why she is doing this is because her mother is elderly. She said she contacted her abutters, and they were all ok with the request. Ms. Vincent said that no one would see any changes, they would all be on the inside. She said her contractor is with her. Mr. Reppucci asked why they are going for a two-family instead of an in-law apartment. Ms. Vincent said that she’d need some income later, after her mother goes into assisted living. Mr. Shaw asked what the size of the interior fit-up would be. Ross Urquhart, Contractor. Mr. Urquhart stated that it would be one bedroom. He said a portion of the basement is already ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 6 finished. He said the 21’x18’ area is already finished area. He said they would do the bathroom and kitchen area, and a bedroom area. He said it would be over the maximum in-law apartment size. Mr. Currier said he would be more comfortable with an in-law apartment, instead of a two-family home. Mr. Reppucci asked if it meets the egress requirements. Mr. Urquhart said the windows and doors will meet the requirements, they have already contacted the Building Department. Mr. Duffy said he was uncomfortable with a basement becoming a full living unit for a two-family. He said he was also concerned about the lot size being smaller. Mr. Urquhart said they couldn’t apply for an in-law unit because it exceeded the size. Mr. Currier said that they could put up a wall down there to reduce the size, and, could also apply for a variance to allow a somewhat larger unit. He said he would be more comfortable with an in-law unit, rather than making it a two-family dwelling. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Shaw said he would be comfortable if this were an in-law apartment, not a two-family, and said the usage is more towards an in-law apartment. Mr. Duffy said he would be more comfortable with an in-law unit, it is a lesser nonconforming use, and the area variances wouldn’t be necessary. Mr. Falk said they may not need the variances for the lot area and for the corner lot depth, but may need some for the size and/or percentage of the in-law unit. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 7 Mr. Currier said they could vote on it as an in-law apartment tonight. He said they want to use the whole basement, and thought it was a fine design to do it this way, but it may violate the size numbers. Mr. Duffy questioned whether it needed to be re-advertised. Mr. Falk said it should be re-advertised, as a special exception to allow an accessory dwelling (in-law) unit, and possibly area variances for the size and percentage, which, those numbers are not known at this time. He said it was advertised at a two- family. He said the cleanest thing to do is to re-advertise it. Mr. Reppucci said if they deny this case, they should be able to re-apply sometime in the future. He asked what the Board would do with this situation. Mr. Duffy said he is not comfortable with this property as a two-family, if it has an in-law, it can be sold that way. Mr. Falk said there is quite a bit of difference between a two- family and a single-family with an in-law, as the taxes and assessments will be different, also, it is a more intensive use of the structure. Also, there are certain requirements that must be met with an in-law. MOTION by Mr. Currier to waive the rules to allow additional testimony from the applicant. SECONDED by Mr. Duffy. MOTION CARRIED UNANIMOUSLY Mr. Currier said he is sensing great discomfort with a two- family, but not with an in-law apartment. He asked what would happen if this were to wait another four weeks. Mr. Urquhart said everything would be completely backed up. Ms. Vincent said her mother would be alone, and she wants to keep moving forward with this. Further discussion ensued. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 8 Mr. Falk said the Board can do anything they want within reason, and if this is approved as an in-law, abutters would have a 30- day time limit to request a rehearing. He said the cleanest thing to do is to readvertise it. Mr. Williams said the notice would be different from the decision, and people could come back to object this, from a procedural standpoint. Mr. Falk said he is not sure about the size of the in-law apartment. Mr. Urquhart said the basement area is about 783 square feet. Mr. Reppucci stated that he thought that there will be additional fees, as it may be readvertised. Mr. Falk said there would be new fees. Further discussion ensued. MOTION by Mr. Currier to grant the special exception on behalf of the owner. Mr. Currier stated that the motion is to allow a special exception for an in-law apartment at 0 Sherman Street, which will have 783 square feet, which would be the basement of the house, that also requires a variance above the 700 square foot maximum, and that is part of the motion also, to allow that variance. Mr. Currier said the plan is approved as planned and presented before us tonight, with the 783 square feet and the percentage as it is calculated. Mr. Currier said it is listed in the Table of Uses, by testimony, the Board does not believe that an in-law would create undue traffic congestion or unduly impair pedestrian safety. Mr. Currier said that by having an in-law apartment, it will not overload public water, sewer, drainage or other municipal systems. He said that per testimony, the applicant has agreed to abide by the special conditions. He stated that the Board believes that the in-law apartment will not impair the integrity or be out of character of the neighborhood, or be detrimental to the health, morals or welfare of the residents. SECONDED by Mr. Reppucci. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 9 Mr. Reppucci said by making this motion, he didn’t want to preclude the applicant from coming back to apply for a two- family when they decide to do that. He said they didn’t want to deny the application, but he stated that they should have the right to apply for a two-family later on if they choose to do so. AMENDED MOTION by Mr. Currier to add in the previous statement by Mr. Reppucci. Mr. Duffy said he didn’t think it was necessary to add in that language, he thought it could pre-dispose a future Board. Mr. Currier re-clarified the motion, it’s for a special exception for an in-law apartment, and it doesn’t preclude the applicant from coming back for a two-family, although, there is a lot of uncomfortable thoughts from the Board about a two- family. MOTION CARRIED UNANIMOUSLY 4-0. 4. First Church of Nashua (Owner) 1 Concord Street (Sheet 43 Lot 11) requesting special exception to use existing church nursery space as a family daycare for up to 8 infants. RC Zone, Ward 3. Voting on this Case: Jack Currier Gerry Reppucci Robert Shaw - RECUSED Gerry Reppucci Attorney Morgan Hollis, Gottesman & Hollis, PA, Nashua, NH. Atty. Hollis said the proposal is to allow a portion of the finished basement area for infants during the week. He said the area is already finished, it is 1,600 square feet. He said the church has had a long-standing relationship with the Nashua Pastoral Care Center, located just to the north. He said that the Pastoral Care Center works with the Norwell Home across the street, involving the care of young mothers and their children. Atty. Hollis said that the Pastoral Care Center has a relationship with Southern New Hampshire Services, providing ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 10 services to young mothers and toddlers and infants. He said that they have met and come up with an outreach program, which would be managed by Southern New Hampshire Services, which would allow up to 8 infants and toddlers to use the already existing space in the church. He said the Fire Department requires one staff member for every two children, with no outside play area. He stated that the hours of operation will be 7:00 am. To 6:00 pm at night. Atty. Hollis identified findings of fact, and went over all the points of law. Mr. Duffy asked if Atty. Hollis would be amenable to a stipulation about drop-offs being in the rear parking lot, and not on Concord Street. Atty. Hollis said that would be acceptable. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Duffy to approve the special exception request on behalf of the applicant. Mr. Duffy stated that the use is listed in the Table of Uses, Section 190-36 C, and number Table of Uses number 241. He said it will not create any undue traffic or unduly impair pedestrian safety, it should not overload public water, sewer, drainage or other municipal systems with such a minor use. Mr. Duffy stated that there are no special regulations apply, and the use will not impair the integrity, or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. Mr. Duffy said the special conditions are: 1) hours of operation, which is 7:00 am to 6:00 pm, Monday through Friday, 2) there will be no outside play, 3) up to no more than four staff employed, and 4)drop-off allowed at the rear of the property, not along Concord Street. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 11 SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 5. Linear Nashua Retail #1 LLC (Owner) Site Enhancement Services (Applicant) 225 Daniel Webster Highway (Sheet A Lot 190) requesting variance to exceed maximum wall sign area, 77.25 sq.ft allowed – 105 sq.ft proposed. GB/HB Zones, Ward 8. Voting on this Case: Jack Currier Gerry Reppucci Robert Shaw Gerry Reppucci Charley Schalliol, South Bend, IN. Mr. Schalliol said he is representing Fidelity Investments. He said they are requesting 105 square feet, where 77.25 square feet is allowed, which is 27 square feet in addition to what the Code allows. He said the reason they are here is that Fidelity is going into the existing plaza, and the location was previously unoccupied. He said that their lettering and logo is a stacked format, and it would be internally illuminated with LED lights. He said the square footage of the Fidelity portion is 69 square feet, he said a large portion of the space is either dead space or the logo crest. Mr. Schalliol stated that they will have a small tenant panel on the existing ground sign. He said that the storefront is set back some 330 feet from Daniel Webster Highway, in-between there is intensive landscaping with trees, and there are other visual blocks. He passed out a package with pictures and drawings of the proposed signage. He said they have 178 locations nationwide, and very few are similar to this location, it is unique for this company, and they just want adequate identification to Daniel Webster Highway. Further discussion ensued. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 12 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. He stated that the applicant testified that they don’t have a sign right on Daniel Webster Highway, and this will accommodate them. Mr. Reppucci stated that this request is within the spirit and intent of the ordinance, it is consistent with other signs in the area. Mr. Reppucci stated that it will not adversely affect property values of surrounding parcels, it is not contrary to the public interest, it is a benefit to the public to show the storefront is occupied, and substantial justice will be done by the granting of this variance. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. 6. Peter Bonnette & Alvin Bonnette, Trustees of the Alvin Bonnette Rev. Trust (Owners) SNHS Management Corporation (Applicant) 88 Temple Street (Sheet 37 Lot 1) requesting use variance to allow a child daycare facility for up to 32 children. RC Zone, Ward 7. Voting on this Case: Jack Currier Gerry Reppucci Robert Shaw - RECUSED Sean Duffy Mr. Currier said before the case is heard, the Board needs to consider the Fisher v. Dover case, on whether there is a substantial change in the application, or, a substantial change in the neighborhood. If one of these occur, the Board will then hear the case. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 13 Attorney Morgan Hollis, Gottesman & Hollis, PA, Nashua, NH. Atty. Hollis stated that due to Mr. Shaw’s relationship with the First Church, he requested that he recuse himself from the case. Atty. Hollis said he did not want to proceed with three voting members. Mr. Shaw said he would recuse from the case, as he has vested interest in the Pastoral Care Center. Mr. Currier stated that due to a recent ordinance with voting members, the Board is required to proceed with the case, with three voting members. He said that Mr. Shaw will scribe as the Secretary. Atty. Hollis said they are requesting to postpone for another two weeks. Mr. Currier said there is no way to determine how many members will be here on future meetings. Mr. Reppucci said the Board is bound by the ordinance. Further discussion ensued. Atty. Hollis stated that they object to going forward with a three-person Board. He stated that this property was previously before the Board in 1998, when a variance for a day care operation for 60 to up to 80 children was denied. He said this request is for a maximum of 32 children. He said the age group was originally up to 5 yrs old, where this application is similar ages. He said the zoning standards for hardship have changed since 1998 as well. He said today’s standards indicate if the use is reasonable, a hardship request can be met. He said the prior standard had to make the argument that the proposed property didn’t have a reasonable use as it is currently zoned. Atty. Hollis stated that in 1999, a variance was brought forward on this property, in which hardship was found, but it was for a hair salon. Atty. Hollis stated that opponents of the original application had a problem with noise, with over 60 children. He said this case will have much less, also, the traffic is significantly ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 14 less with only 32 children. He said that there have been traffic calming techniques done at this intersection around 1999-2000, and presented drawings indicating the changed circumstances around this intersection. He said the Senior Center was recently constructed as well. He said there have been some buildings that have converted from commercial to residential, also, some have gone from residential to commercial as well. He said they believe they meet the Fisher v. Dover criteria, as far as both issues. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: John Manzdiej, 92 Temple Street, Nashua, NH. He said even with a smaller enrollment of children, the site is still too small for a daycare. He said the changes made to the neighborhood have made it worse for the applicant. He said the intersection changes have taken away three parking spots in front of the building. He said it also brought in a bike lane in front. He said that Streeter Shores has brought in apartment units, and Kazmir Place has as well, and there were two commercially zoned buildings that abutted the building, and now are residential. He said there is a lack of parking on Temple Street, too. He said the rehearing part of it is very similar to what was given before, and there is still the same amount of staff members. He said there is no hardship or substantial justice. Jim Vayo, 3 Arlington Street, Nashua, NH. Mr. Vayo stated that East and West Pearl Street, and Temple Street have all been pilot streets for the traffic calming the City has taken on recently, and it is his belief that the dynamics of the neighborhood have changed, as traffic has been significantly calmed, there has been parking put in, and frequently there is available parking. He said there are several businesses, mixed in with residential, which is a good mix of uses, and this is the type of use that should be promoted to have a healthy mix for the economy. He said as much diversity should be supported in this neighborhood, as people can walk to work or to drop off children. SPEAKING IN FAVOR – REBUTTAL: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 15 Atty. Hollis stated that the opposition pointed out that the staffing will remain the same, he said that the staff will park at the Senior Center, which was not available at the original application. He said that the opposition did bring up the fact that there have been some changes to the neighborhood, and the intersection. Mr. Williams asked if he knew if a change in circumstances with hardship criteria qualifies as a change to be considered in the Fisher v. Dover case. Atty. Hollis said in the first application, the Board has to judge on certain criteria, and made a decision. He said in the Fisher v. Dover case, they don’t want an applicant to keep coming back time after time trying to get different Board members. He said in this case, if this case gets by the Fisher v. Dover issue, they would have to meet whatever the new hardship criteria is. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: John Manzdiej, 92 Temple Street, Nashua, NH. Mr. Manzdiej stated that the staff parking off site was not mentioned in the application. Mr. Reppucci said it is a different application in many ways, just the reduction in children is significant. He said it should be re-heard. Mr. Currier said the neighborhood has changed substantially, with the traffic calming measures, and it is much different. He said there is enough change to the area to hear the case again. MOTION by Mr. Currier, on behalf of the owners, Alvin and Peter Bonnette, 88 Temple Street, that this application, given the changes in land use law that have occurred since 1998, and also the changes to the neighborhood, especially to the street and traffic, and also because of the smaller size of the proposed daycare, that the Board should err on the side of caution, and that is a substantial change, and that the Board should hear the case. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 16 Attorney Morgan Hollis, Gottesman & Hollis, 39 E. Pearl St, Nashua, NH. Atty. Hollis stated that the property is located right next to the Senior Center. He said that it is zoned RC, and there are a mix of uses in the neighborhood. He described the building’s location. He said there are 18 paved parking spaces, with an entrance off of Temple Street. He said there are no changes to the exterior of the building. Atty. Hollis stated that this application is for up to 32 infants and toddlers. He said that the area is the first floor of the building, which is two floors. He said that daycares are not allowed as a principal use in the zone. He stated that the proposed hours of operation are 7:00 am to 6:00 pm, with 10 employees, who would park in the Senior Center parking lot to the west. Atty. Hollis stated that the elderly housing site has adequate vacant parking spaces for the proposed daycare staff. Atty. Hollis stated that the proposed use is reasonable, as the area is mixed, as identified on the map. He pointed out some of the nearby uses. He said they would agree to a stipulation of a six-foot high fence, and landscaping would come up at the Planning Board. He described the roadway and traffic, and the traffic calming that was installed. Atty. Hollis said that no fair and substantial relationship exists between the restriction and the general purpose of the ordinance, as, given the mix of uses, and the setting of this site, the general purpose of the ordinance to keep “like” uses near one another has failed, as this neighborhood has many different uses. He said this area, zoned RC, doesn’t necessarily reflect the zone. Atty. Hollis stated that the private rights of others will not be affected. He said the proposed use has a traffic study analysis done by Steven Pernaw, and submitted it to the Board. He said it will have approximately 30 vehicle trips in the morning, and granting the variance will only be plus 1 car every two minutes during morning peak traffic. He said it is a low traffic generating use, and there is excellent site distances, and the traffic will be safe and adequate. Atty. Hollis submitted a real estate analysis by Robert Bramley, which indicates it will not affect property values. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 17 Atty. Hollis stated that the spirit and intent of the ordinance will not be negatively impacted or violated. He said the use will preserve values, and is a good match with the Senior Center next door. He said the use is for infants and toddlers. He said it will be professionally managed and run. Atty. Hollis said there will be no impact to property values, and for the public benefit, there is a need for an infant/toddler daycare setting. He said it will service the neighborhood in a positive way, there is adequate parking, a driveway, and proper access to the site. He said traffic flows adequately. He said that substantial justice would be served by granting this request at this location. Mr. Currier asked how the traffic for the proposed use would compare to the credit union that was in the building for many years. Atty. Hollis said it was the Nashua Credit Bureau, which was more like an office use. He said there would be about 25 more cars added for traffic if this variance were granted, as compared to the hair salon at peak hour. He said during non peak hours, there would not be a lot of cars going there. Mr. Currier asked about the possible driveway connection between the back of the parking lot and the Senior Center, or whether that would be a stipulation. Atty. Hollis said he didn’t know, as they haven't been to the Planning Board yet. He said they would like to connect to each building. Mr. Currier asked about the potential of hazardous wastes on the site. Atty. Hollis stated that he read the editorial in the newspaper. He stated that there is no need to go past the pavement that already exists, so nothing will be unearthed that is underground, and, no one is proposing to do so. He said it is a steep embankment, and it will not be disturbed. He said it wouldn’t be any different from any other children who live in the area and playing outside. He said if an RC use was there, people would live there, also, he has heard of no reports or any epidemiology about health issues. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 18 SPEAKING IN FAVOR: Marise Wirbal, CEO Nashua Pastoral Care Center, 7 Concord Street, Nashua, NH. Ms. Wirbal stated that she is in full support, as many of their clients will access this daycare. She said the Adult Day Care on Lake Street is similar to this use, the other one is Minds in Motion on West Hollis Street. She said that many of the clients are single mothers who are trying to rebuild their lives, and many do not have cars, they will walk there. She said the partnership with SNHS will ensure the safety and well-being of the children. Jeanne Agri, Child Development Director, SNHS. Ms. Agri stated that any of the elderly who live next door may volunteer to walk the children. Janet Allard, 76 Temple Street, Nashua, NH. Ms. Allard said she didn’t have any concerns with the daycare, but was concerned if they would be taking the Senior Center’s parking spaces. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: John Manzdiej, 92 Temple Street, Nashua, NH. Mr. Manzdiej said he has a petition, and a write-up of what he wants to speak about. He said he is opposed to the request, and thinks that the site is too small, and there are traffic and parking issues, and thinks that it will affect property values. He said he didn’t believe they can meet the hardship, or the substantial justice. He said that the changes in the neighborhood has made the request even worse. He stated that the daycare will bring in a different breed of commercial use to the neighborhood. He indicated that it will bring a lot of extra traffic, and indicated some pictures of other daycare centers with cars stacking out in the roadway. He said that they will need outdoor space for children at play. He said they didn’t answer the hardship questions adequately. Ruth Reskevitch, 1 Spruce Street, Nashua, NH. Ms. Reskevitch stated that it is difficult to get out of the driveway at times, the people are afraid to get out of their driveways. Grace Bonner, 76 Temple Street, Nashua, NH. Ms. Bonner stated that she is concerned that they will be taking parking spaces from the Senior Center. She said she doesn’t oppose the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 19 daycare, but is concerned about taking the Senior Center’s parking spaces. SPEAKING IN FAVOR – REBUTTAL: Atty. Morgan Hollis. Atty. Hollis stated that there is a daycare facility in the Park Industrial zone on Northeastern Boulevard, at Broad Street, and one on the lower level of 98 Spitbrook Road and 1 Tara Boulevard. Atty. Hollis stated that the children in this program are under the age of 3. He said they are babies, and don’t make the noise that older children do. He said it is 50 square feet of space, outdoor, per child, and they won’t all be out there at any one time. He said it is a mixed use neighborhood. He said the children will all be arriving at different times, they won’t arrive all at the exact same time. He said there will be 15-18 spaces, and after they drop off their child, they leave, so it’s not like the spaces will be used all day. He said if there is an issue with parking, the staff will move their cars. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: John Manzdiej, 92 Temple Street, Nashua, NH. Mr. Manzdiej stated that on the application, they didn’t list anything about staggered parking or coming in on a different schedule. Mr. Currier suggested that the case be tabled to look over the additional information that was submitted this evening. He said the Board could be a little more thorough, and it would just be a Public Meeting. Mr. Reppucci said he is inclined not to table, it was not a big volume of information submitted. He said it is also not clear who will be attending the next meeting. Mr. Williams said he would be prepared to vote on the case if it comes back in two weeks. Mr. Currier said he could digest all the information better. Mr. Duffy said he did have a little bit of time to peruse the information, and is ready to go ahead with a vote tonight. MOTION by Mr. Currier to Table this case to the next meeting, which is January 26, 2010, to have the Public Meeting two weeks ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 20 from now, there will be no public input, so that the Board members can have the time to fully digest all the information. SECONDED by Mr. Reppucci. Mr. Duffy said it would be at the end of the next agenda meeting. MOTION CARRIED UNANIMOUSLY 3-0. 7. Richard P. & Jacquelyn Martin (Owners) 11 Middle Dunstable Road (Sheet B Lot 2022) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit; and the following variances: 2) to exceed maximum area of accessory dwelling unit, 700 square feet allowed, 1,300 square feet proposed, and 3) to exceed the maximum floor area for an accessory dwelling unit, 30% allowed – 50% proposed. R18 Zone, Ward 9. Voting on this Case: Jack Currier Gerry Reppucci Robert Shaw Sean Duffy Richard & Jacquelyn Martin, 11 Middle Dunstable Road, Nashua, NH. Mr. Martin said they purchased the home in October, and they wanted a big place to bring his wife’s mom. He said it was completely finished downstairs for a living unit. He said an appraiser came in, said it was an in-law apartment, and it was not permitted, as there was no paperwork or permits to allow it. He said they took the stove out to help comply. However, it is much easier for his mother in-law to have the stove, so, they are requesting to have this unit be legal. Jacquelyn Martin. Mrs. Martin said they did buy the house for her mom to live in, she is 76 years old, and it is all finished, and they were not aware that proper permits were acquired. She said it was bought as a single-family home with a finished basement. She said they just want to put the stove back to make it a legal in-law unit, and the variance to exceed the size, as it’s over 700 square feet. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 21 Mr. Currier asked what the impact would be if it were held to 700 square feet, instead of the 1,300 square feet that is submitted. Mrs. Martin said that it can’t be done. Mr. Martin said he’s checked with the Fire Department, and it’s all accessible. Mr. Currier read the accessory dwelling unit criteria. Mr. Martin said they will comply with everything, except for the size, and variances are applied for. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mike Ollendieck, 14 Middle Dunstable Road, Nashua, NH. Mr. Ollendieck stated that he’s lived there for a year and a half. He said he believes that there are a number of people living there now, and there are a lot of cars in front, and believes this needs to be inquired about. He said there are usually five cars there. Mr. Currier said when the house was built, it hasn’t changed since. SPEAKING IN FAVOR – REBUTTAL: Mrs. Martin said her mother is living in there now, but she’s not using a stove or anything, she has a hot plate. She said she has a 27-year old son, her car, Mr. Martin’s truck, her mom’s car, and her car in the garage, which accounts for all the cars, and they don’t park in the street. Mr. Martin said there are five people living in the house now. He said his son is in college, and will be gone to school soon. He said at any given time, there are four cars in the driveway, and they never park in the street. Mr. Currier said he didn’t really see any violations. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 22 Mr. Martin said they move their cars around the best they can on the lot. He said he parks his truck on the side of the driveway by the garage. Mrs. Martin said it’s a graveled area where the truck is parked. Mr. Falk said there’s really not an ordinance that addresses how many vehicles a single-family home may have. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mike Ollendieck, 14 Middle Dunstable Road, Nashua, NH. Mr. Ollendieck stated that he has a little problem with the cars. He said it looks a little different here, and thought that maybe a different family is living here, and just thought that this should be adequately represented here, because it could be a problem with property values. Mr. Shaw said he’s generally in favor of the case. Mr. Reppucci said he’s not supportive of this case. Mr. Duffy thought it’s large, with two bedrooms for an in-law apartment, and the size is pretty dramatic. Mr. Currier said he had a hard time reading the plans. He thought it’s the first time ever he’s seen a two-bedroom in-law apartment. Mr. Duffy said it’s not only the square footage of the apartment, it’s the percentage, too. Mr. Williams said the in-law is advertised at 50% of the size, and questioned how something can be accessory, if it’s literally half of the size of the house. Mr. Currier said they want the kitchen back in here, so it would be an independent unit. He said he is supportive of the mother living here, but the two bedrooms, at 50% of the size of the house, is much larger than the norm. Mr. Reppucci said he’d be in favor of tabling it so that the applicant can meet up with his neighbor. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 23 Mr. Currier said he’d be fine with that. He recommended it would be the first case at the next meeting. MOTION by Mr. Reppucci to table this to a date certain of January 26, 2010, and it would be the first item on the agenda, and the Public Hearing is closed, the Board will resume the Public Meeting. SECONDED by Mr. Currier. MOTION CARRIED 3-1 (Mr. Duffy). 8. Vasilios P. & Tasia Zacharopoulos (Owners) 37 Sherri-Ann Avenue (Sheet 137A Lot 107) requesting variance to encroach 1.5 feet into the 10 foot required side yard setback to construct a 21’x25’ foot carport and wood storage structure. RA Zone, Ward 2. [TABLED FROM THE NOVEMBER 10, 2009 MEETING] TABLED TO THE FEBRUARY 9, 2010 MEETING. 9. Katherine Williams (Owner) T-Mobile Northeast, LLC (Applicant) 70 Coburn Avenue (Sheet F Lot 30) requesting special exception to construct a 101-foot high monopole communications tower with associated support equipment. R18 Zone, Ward 1. [TABLED UNTIL THE FEBRUARY 9, 2010 MEETING] TABLED TO THE FEBRUARY 9, 2010 MEETING. REHEARING REQUEST: 1. 45 Pine Hill Road Real Estate Development, LLC (Owner) 45 Pine Hill Road (Sheet E Lot 44) requesting the following: 1) use variance to allow two buildings with a total of 52 multi-family dwelling units; and the following variances: 2) to exceed maximum number of principal structures on one lot, 1 permitted – 2 proposed, and 3) to exceed maximum building stories, 2½ permitted – 3 proposed. R9 Zone, Ward 1. Due to the lateness of the evening, the Board discussed tabling this case. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 24 Mr. Currier said this case will take at least an hour, to do proper discussions and due diligence to this matter. Mr. Shaw said that by tabling the case, that is considered action. MOTION by Mr. Currier to table the rehearing request, given the late hour, and we’ll table it to the next meeting, where we’ll take it off the table and deliberate the case. SECONDED by Mr. Reppucci. Mr. Duffy said it would be at the end of the meeting. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Currier said he’s aware of the Board elections, but would like to put that off, and we’ll review the agenda and minutes at the next meeting. MOTION by Mr. Duffy to accept and ratify last years By-Laws, without any changes, because we have to have a business meeting in January, and the By-Laws require that there be two meetings if there will be any changes at all to them. He said they must be on two agendas. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. REGIONAL IMPACT: The Board did not see any cases of regional impact. Mr. Reppucci asked if Corporation Counsel can give any guidance on the second 91 Farley Road rehearing request. MINUTES: Mr. Currier said that they will postpone the minutes to the next meeting. Mr. Currier called the meeting closed at 11:45 p.m. Robert Shaw ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 12, 2010 Page 25 Clerk CF Taped Hearing