Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 9 2010 at 6:30 PM in the Auditorium at City Hall. Jack Currier, Chair, conducted the meeting. Members present were: Jack Currier, Chair Gerry Reppucci Rob Shaw Bob Carlson (arrived at 6:40) Carter Falk, Deputy Planning Manager Since there was only one applicant present at the meeting, including Mr. Steve Auger from Hayner Swanson, Inc., and Mr. Donald Ware from Pennichuck Water Works, both of whom are familiar with the Zoning Board rules of procedure, Mr. Currier suggested to save time by waiving the reading of the rules and regulations. Mr. Ware and Mr. Auger said they had no objection, as they have been before the Board several times. 1. 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. POSTPONED TO THE 2-23-10 MEETING. 2. City of Nashua (Owner) Pennichuck Water Works, Inc. (Applicant) E Street, requesting special exception to expand a nonconforming use by constructing a 160 square foot addition onto an existing water pumping station. GI Zone, Ward 7. Voting on this Case: Jack Currier Robert Shaw Gerry Reppucci ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 Page 2 Mr. Steve Auger, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Auger stated that they are requesting approval to expand an existing nonconforming use to construct a 160 square foot addition to an existing water pump station. Mr. Auger said the property is city-owned, limited accessway on Route 111, adjacent to the intersection of Bridge Street and E Street, and is in the General Industrial zone. He said the building expansion will allow for a back-up. Mr. Auger went over the five relevant points of law for a special exception. He said that an employee will be visiting the site about every two weeks, or once a month. He said there is parking available on E Street, adjacent to the building, and there will be some additional plantings on the site. Mr. Shaw asked to confirm if the addition is to allow for a back-up pump, and not for additional capacity. SPEAKING IN FAVOR: Donald Ware, Pennichuck Water Works, Inc. Mr. Ware said that when this was put in 1992, for a back-up supply in the Litchfield/Hudson area, they put in the smallest one. He said they will be putting in an identical pump, and only one will run at a time, he said they don’t expect to deliver any more water. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant. Mr. Reppucci stated that it is listed in the Table of Uses, it will not create undue traffic congestion, or impair pedestrian safety in any way. Mr. Reppucci stated that it will not overload any public utilities, all the special regulations have been fulfilled, it will not impair the integrity or the character of the neighborhood. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 3. Daniel J. & Christine M. Grieve (Owners) 92 Cherrywood Drive (Sheet C Lot 2882) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit; and, 2) variance to exceed maximum area of accessory ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 Page 3 Dwelling unit, 700 square feet allowed, 720 square feet proposed. FUOD Zone, Ward 9. CASE WITHDRAWN 4. 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. Voting on this Case: Jack Currier Robert Shaw Gerry Reppucci - RECUSED Bob Carlson Mr. Currier said that staff provided a letter/email from Steve Bennett, suggesting that the Board separate the right-of-way issue from the area variance, and hear the case without prejudice. Mr. Falk said the issue of the retaining wall is that it is not on his property, it is in the right-of-way, and other enforcement agencies will address it. The Zoning Board should just deliberate on the area variance for the carport. Mr. Carlson said the letter/email should say that it is from Corporate Counsel. He also stated that it is a note from Counsel Bennett, very well written. He stated that it doesn’t say “in my opinion”, and is not listed as an opinion letter, or a statement of fact. He said that the letter is not officially guidance, as it does not state “in my opinion”, or relative fact, or precedent. Mr. Currier said that going forward, it would be better to have a letter addressed to the Zoning Board. Mr. Falk described the history of the email, and it was addressed to Mr. Dookran and himself, and it was merely answering a question. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 Page 4 Mr. Currier said that Mr. Falk is the liaison to the Board, and didn’t’ think it would be a big deal for Attorney Bennett to get a letter to the Zoning Board of Adjustment. Mr. Carlson said the words “in my opinion” should be incorporated in a letter from an attorney. Further discussion ensued. Mr. Currier said the Board has to decide, whether to maintain the previous position of last meeting, which was to not hear this case until the right-of-way situation is rectified, or, to separate that issue and hear the case. He said he’s compelled to hear the case, as the right-of-way is a separate issue. He said another issue is that the applicant is not present. He said the Board has a responsibility to move along promptly with a decision. He said there are enough voting members here tonight. Mr. Shaw said that the case is still on the Table. Mr. Falk said since the applicant is not present, in the past, the Board has denied cases in which there is no one present. Then, the applicant can ask for a rehearing, so that they can make a presentation. MOTION by Mr. Currier to remove the case from the Table. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Currier said that the applicant has already orally spoken before the Board on this request. He said his concerns have not changed since the original testimony and application. He said he didn’t see the hardship in this case, he didn’t see how the carport couldn’t be built without encroaching into the setback. Mr. Carlson said it’s already built. Mr. Shaw said he’s having trouble seeing the hardship in this request, it’s 25 feet in length, it’s the long end that’s encroaching into the setback. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 Page 5 Mr. Currier said it’s an “as-built” situation, and didn’t see the hardship in the land. He said the Board has a duty to act on this application. MOTION by Mr. Currier to deny the request on behalf of the applicant. Mr. Currier stated that on the written application, he didn’t see that the variance is needed to enable the applicant’s proposed use of the property, he said there is plenty of storage for wood and cars without encroaching in the side yard setback, if there is information there, he didn’t see it in the application, and it isn’t in the spirit and intent of the ordinance, there is no testimony either way about surrounding property values of surrounding parcels, but the encroachment for no apparent reason other than lack of knowledge about it is not enough reason to substantiate a variance. SECONDED by Mr. Shaw. MOTION CARRIED 2-1 (Mr. Carlson). Mr. Reppucci said the motion to deny carries. He said it’s only a motion to approve where you need three affirmative votes. He said a motion to deny only needs a majority of the quorum. REGIONAL IMPACT: The Board did not see any cases of regional impact. MINUTES: 1-26-10: Mr. Falk said that Mr. Shaw made a small correction, and staff corrected it already. MOTION by Mr. Currier to approve the minutes, waive the reading, and place these minutes on file. Mr. Currier said he has one correction, for the case for 15 Dudley Street, on page 6, he meant to say that the neighborhood has a lot of large back yards, that was a notable characteristic of the neighborhood, and that with the house in the back, it would be out of character. Mr. Shaw said that Mr. Duffy was the Clerk. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 9, 2010 Page 6 Mr. Falk said he would make the changes. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Reppucci said that the Board should only discuss land use issues, and not consider items outside the issues that the Zoning Board governs. Mr. Carlson said that in many other cities, applicants cannot go forward until all fines, taxes and any other financial matters are paid. He said he agrees with Mr. Reppucci, but Community Development should be more aggressive with the laws that you cannot go forward if you owe any money. Mr. Currier said that any time during the year, Board members can flag changes in the By-Laws, and action could be taken at two public meetings. Further discussion ensued. Mr. Currier called the meeting closed at 7:30 p.m. Robert Shaw Clerk CF Taped Hearing