Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 23, 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 (left at 6:40 pm) Gerry Reppucci Rob Shaw Bob Carlson 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. Mary H. & Stephen Kelly (Owners) 9 Quinton Drive (Sheet C Lot 785) requesting variance to encroach 16 feet into the 25 foot required right side yard setback to construct an attached 24’x24’ garage. R40 Zone, Ward 9. Voting on this Case: Jack Currier Rob Shaw Bob Carlson Gerry Reppucci Ryan Williams Stephen Kelley, 9 Quinton Drive, Nashua, NH. Mr. Kelley stated that they want to add a two-car garage to the end of the house, it will be attached. He said it will encroach 15 feet into the 25 foot side yard setback. He stated that he has spoken to his neighbors, and they are supportive. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 2 Mr. Shaw asked if it will be a single-level garage. Mr. Kelley said it will be a two car garage, and there will be a room above, it will not be finished right away, perhaps it will be a game-room. There is no intent to make any plumbing changes to the garage. Mr. Williams asked how the garage will be connected to the house. Mr. Kelley said it will be a mudroom, all enclosed. SPEAKING IN FAVOR: No One. 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 applicants proposed use of the property, given the special conditions of the property. Mr. Reppucci stated that it is within the spirit and intent of the ordinance, it will not affect the property values of surrounding parcels, there was no testimony either way on that, and there is no reason that it would, it is not contrary to the public interest, the abutting neighbors are in favor to the application, and substantial justice is done. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 5-0. 2. Roland & Joyce Brito (Owners) “L” Berkeley Street (Sheet 47 Lot 123) requesting the following two variances: 1) for minimum lot width, 75 feet required – 66 feet proposed, and 2) confirming that Lot 123 (vacant) and Lot 93 (5 Berkeley Street – developed) are not merged, enabling Lot 93 to be separately developed and conveyed. RA Zone, Ward 3. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 3 Voting on this Case: Jack Currier Rob Shaw Bob Carlson Sean Duffy Gerry Reppucci Attorney Brad Westgate, Winer and Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate stated that the Brito’s own two properties on Berkeley Street, near the Laton Street intersection. He said it is zoned RA, and RB is to the west and south. He identified the lots on a map. He said the lots have been separately owned from a title search for at least one hundred years, and separately assessed as well. Atty. Westgate stated that they are seeking a width variance from the vacant lot to be used for a single-family dwelling, and it is the only vacant lot in this area. He stated that if this lot was across the street, this variance would not be necessary. Atty. Westgate said it has about 65 feet of frontage, and about 9,500 square feet of area, and meets the frontage and lot area requirements in the RA zone. He stated that the only criteria it does not meet is the lot width, where 75 feet is required, and about 68 feet is present. He said that they propose to construct a single-family home on the vacant lot, and 5 Berkeley Street is a duplex, and the owner will be converting it into a single-family home. He said this will be a density neutral approach, there will not be any additional dwelling units here. He said that a single family home will be more compatible with the area. Atty. Westgate said it is important to know that they are not subdividing this property, they are two lots, just changing the ownership of one of the lots. He said that they envision a shared driveway for this, probably straddling the lot line, and it would serve the same curb-cut. Atty. Westgate handed out some drawings indicating what the property may look like, and a conceptual drawing showing a 3D picture showing what it may look like. Atty. Westgate went over all the points of law. He said the special conditions are that it is the only vacant lot on this ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 4 area of Berkeley Street area that is undeveloped, and besides lot width, it meets all other dimensional criteria of the RA zone. He said the lot can easily accommodate a house, meeting all setbacks. He said the lot has 68 feet of width at the front setback line. He said that 3 Berkeley is a nonconforming lot as well. He stated that the use is reasonable, as it is a permitted use; that has city services. He said it is not contrary to the public interest, and a proposed house will be permitted. He said that the use will be consistent with the spirit and intent of the ordinance, and that substantial justice will be done to allow an infill lot to be built, without sacrificing city services, and building vitality to the neighborhood. He said that surrounding property values will not be negatively affected as well. Atty. Westgate handed in a letter from Randy Turmel relative to property values, and it states that they will not be negatively impacted. He said that a letter from four different abutters will be submitted, stating that they have no objection to the request. He submitted assessment cards, indicating that the lots are separately assessed. He said the vacant lot is actually assessed at a higher value than 5 Berkeley Street, which has a house on it. Mr. Currier read the letters of support into the record from the abutters. Mr. Reppucci asked what can be done with the property if this request is not approved. Atty. Westgate stated that it would stay as is, it would be a yard for the duplex. Mr. Williams asked about the 59 foot lot width at the rear of the lot. Atty. Westgate said that it is measured at the front yard setback, not at the rear of the lot. Mr. Williams asked if the letters of support are from property owners. Atty. Westgate said they are all property owners. Mr. Williams asked if the testimony is the same on the merger of ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 5 the lots as with the dimensional variance. Atty. Westgate said that it is, they go part and parcel. Mr. Carlson asked how much this would add to the city’s tax rolls. Atty. Westgate said at least $4,000 - $5,000, approximately. Mr. Williams asked what precautions will be done to ensure that this will remain a single family home, at 5 Berkeley Street. Atty. Westgate said there will be a covenant, and it will be a stipulation of approval, and prior to the issuance of a certificate of occupancy, and it will stipulate that a kitchen will be removed. Mr. Currier asked what the make-up of single-family vs. duplex lots are in the area. Atty. Westgate stated that to the north and east its’ mostly single family, but to the west and south, there are some duplexes. Mr. Currier asked what size house will be built. Atty. Westgate said the size of the houses in this area varies, but most likely it will be about 2,400 square feet. Mr. Currier said the nice things about this neighborhood is the nice front lawns, without parking in the front. He said he is concerned that he is concerned about the number of cars in the front. Atty. Westgate said that the parking will be in the back of the house as far as he knows. SPEAKING IN FAVOR: Joyce Brito, 704 E. Nova Avenue, Littleton, CO. Mrs. Brito stated that they bought the property in terrible condition, and they cleaned it up quite a bit, and even the neighbor’s erected fences to block it off. She said it had a very negative history, and they maintained the land and painted the house. She said they had no intention of moving, but a job change ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 6 forced them to move. She said after they put it on the market, the market went downhill, and tried to ride the market out. She said it’s been 18 months, and thought that this was the best option. She said it’s been taxed as two lots, and has been assessed as two lots, and selling them separately would give additional flexibility, and it allows it to not regress into a negative situation. She said a brand new house in the neighborhood will bring up the values, and the neighborhood will be better by changing the two family house into a single, and would keep the density the same. She said the existing house is 3,100 square feet. She said they don’t want to see it go into foreclosure. She said the request will bring a known result. Mrs. Brito said when they lived there, there were a total of six vehicles there, and there is a wide expanse at the end of the driveway for people to park. She said a new house will not need extensive parking spaces. Chris Harrises, 10 Chester Street, Nashua, NH. Mr. Harrises said he lives in the rear of the Brito property, he said he is not against it, but is not in favor, but, stated that the preference would be to have no house there, but would rather have a known entity there. He asked if there is a guarantee that a large 4,000 square house would not be built there. Mr. Reppucci said there is a limit by what the zoning ordinance allows, as setbacks and open space limit what could be built there. He said the house would have to conform to the current rules, the approval would be that the new house complies. Mr. Falk stated that there isn’t a minimum or maximum size of a single family home, if the use is allowed, there isn’t a limit, but the size of the house is governed by the size of the lot, when you take away the setbacks and open space, there is only so much room left, so there is a built-in size that remains. He said that most all developers and builders build something that will conform to the neighborhood. Mr. Harrises said they’d have to remove the kitchen. Mr. Falk said they’d need to obtain a building permit to change the house into a single family, which would entail removing all utilities that would go into the second unit. He said it would be required to get a certificate of occupancy for a single family, so it would have to meet the ordinance and building code ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 7 for a single family home. Mr. Harrises asked about the deed restrictions. Mr. Falk said that shared driveways are permitted, and there is no setback for driveways, the only thing that staff regulates is the width of the curb cut, which cannot exceed 24 feet. Alan Henning, 41 Watersedge Drive, Nashua, NH. Mr. Henning stated that he has known the Brito’s for seven years, and indicated that they are solid citizens and have done a lot for the community. He said he thought their request would fit in with the neighborhood. James Monahan, 9 Berkeley Street, Nashua, NH. Mr. Monahan said he is cautiously in favor, as long as the existing house gets turned into a single-family residence. He said the neighborhood has older homes, and it is a narrow lot, and 3 Berkeley Street is only about 4 or 5 feet from the side property line, and questioned what the side setbacks are. Mr. Currier said it is ten feet. He said that any proposed house would not encroach into the setback. Mr. Monahan said there would only be about 15 feet between houses. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Philip Kaplan, 6 Berkeley Street, Nashua, NH. Mr. Kaplan said he is across the street, and has lived there for 47 years. He didn’t think the request to subdivide the lot into two lots was in the character of the neighborhood. He urged the Board to maintain the integrity of the street. Mr. Carlson said that the Brito’s property is taxed as two separate lots, they are not creating a new lot. Vernon Gates, 14 Berkeley Street, Nashua, NH. Mr. Gates stated that the Brito’s are good friends. He said he thought by changing the house into a single-family is in the best interests of the neighborhood, and there are no new homes in the neighborhood. He said he likes the fact that the homes are all old. He was concerned about the architecture of a new home in the area. He said a new home may undermine the architectural ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 8 integrity of the street. Mr. Williams asked if a site plan would be required. Mr. Falk said that this case would not require a site plan, just a building permit. He said most all developers and builders build something that will conform. Diane Sheehan, Ward 3 Alderman. Ald. Sheehan said she is concerned, as this is in the Historic District, and is concerned that it will not be in the character of the neighborhood. She said there is also a concern with the sharing of the driveway. She also said there are concerns about the house possibly going back to a two-family, after it’s converted to a single-family. Mr. Reppucci asked if this property is located in the Historic District. Mr. Falk said that it is not, it is close, though, and there have been discussions about having Berkeley Street into the District. Marianne Pleakas, owner of 3 Berkeley Street, Nashua, NH. She said she currently lives in Merrimack. She said she is concerned about a 2,400 square foot home, her home is only about 790 square feet, and its two stories. She said she only has between 3-5 feet of setback on one side, and if a 2,400 square foot home is built next door, on only 66 feet of width, it will not be good for the neighborhood. She said she is concerned with the frontage, and if a home goes in on a lot that is narrower, it will create problems. SPEAKING IN FAVOR – REBUTTAL: Atty. Brad Westgate. Atty. Westgate stated that the two lots in question are about 9,500 square feet in area, where 7,500 square feet is required in the RA zone. He said they each have about 68 feet of lot frontage, and about 66 feet of width. He said that 3 Berkeley Street has about 60 feet. Atty. Westgate said they are not subdividing one lot into two lots, it already is a separate lot. They are taxed separately, as well, which goes to the uniqueness of the property. He said that the Brito’s do not object that the new home be up to 2,400 square feet, with no larger than a two-car garage in addition to ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 9 the home living space, and to be located in the rear of the lot. He said that they own both properties, and there will be a driveway easement for access and plowing arrangements, there will be no surprises with the driveway. He stated that they are changing a duplex into a single-family, which is a compelling action, but, the tradeoff is that there will be a new home built on the vacant lot. He said the new house will be compatible with the neighborhood. Mr. Williams confirmed that there will be a covenant that will require the two-family to change into a single-family. Atty. Westgate said that is clearly the intent. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No One. Mr. Reppucci said that he liked the request, there are a lot of compelling events coming together, with the structure changing to a single-family home, and the use of a shared driveway, and all of the testimony is very credible, and the neighborhood will be better off. Mr. Williams said it is a very unique situation, there are two separate deeded parcels. He said he still has concerns about it going to a single-family, but said he wants the contingency that it goes to a single-family, and wants a deed restriction that it does this. He said there should be a legal method that it stays a single-family, and a permanent covenant would help. Mr. Carlson said that the situation is that we know what we have. He said they are proposing actions that are orderly, according to a plan, with covenants, and it will add value to the neighborhood. He said that what is being proposed is positive, and it is known. Mr. Shaw said with the covenants, it maintains a good plan. He said they don’t have much control over the architectural elements, but that could happen anywhere on Berkeley Street or in any neighborhood. He said that this request minimizes the risks of what could happen if this is not supported. Mr. Currier said it is very compelling that the property has been two lots for all these years, and they will be sharing a ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 10 driveway, and there are a couple other shared driveways in the area. He said he liked the covenant to keep 5 Berkeley Street as a single-family home. MOTION by Mr. Williams to grant the variances on behalf of the applicant. Mr. Williams stated that in granting the variances, the Board finds that it enables the applicants proposed use of the property, and the special conditions of the property, as there are two lots and they have been taxed as such for the past one hundred years, and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for applicant to pursue other than an area variance. Mr. Williams stated that both the area variance and the other request are within the spirit and intent of the ordinance, they will not affect property values of surrounding parcels, and it is not contrary to the public interest, and the variances will do substantial justice. Mr. Williams said the special conditions of approval is that the existing property at 5 Berkeley Street will be converted to a single-family, that a covenant to that effect will be incorporated into the deed of that property, that the improvement to the vacant lot will be a house which is not in excess of 2,400 square feet. Mr. Currier stated that the garage should be behind the house, a two car garage. Mr. Williams said as part of his motion, the driveway is shared, and the garage will be in the rear of the property, no more than a two car garage. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0 (Mr. Reppucci abstained). 3. Kimko Webster Square, LLC (Owner) Portrait Innovations (Applicant) 256-268 Daniel Webster Highway (Sheet A Lot 19) requesting use variance to allow a photography studio in a portion of an existing building. GI/HB Zones, Ward 8. Voting on this Case: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 11 Jack Currier Rob Shaw Ryan Williams Bob Carlson Gerry Reppucci John Farris, Arch Street, Boston MA. Mr. Farris stated that hw works for CB Richard Ellis in Boston, and they are involved in the transaction. He said they have 175 locations, and 20 in New England. He said that all other locations are in shopping centers similar to Webster Square. He said it will be about 2,500 square feet, and it will create eight jobs. Mr. Carlson asked why this is required to apply for a use variance. Mr. Falk said the property is split-zoned, commercial and general industrial. He said that the building is located in the GI portion of the property, and the site plan stipulates retail use. He said the proposed use is not listed as retail, it’s listed as a “photography studio”, and staff believed the best decision is for the applicant to apply for a use variance. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Carlson to grant the variances on behalf of the applicant. Mr. Carlson stated that the motion is to approve the request, as the variance is needed to enable the applicants proposed use of the property, and there is no restriction between the general purposes of the zoning ordinance and the requested use. He stated that the variance will not injure the public or private rights of others. Mr. Carlson said that granting the variance is within the spirit and intent of the ordinance, it will not negatively impact the property values of surrounding parcels, and it is not contrary to the public interest, and substantial justice is served by granting the variance. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 12 SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 5-0. 4. Akvile Dargiene & Remigijus Dargis (Owners) 344 Main Street (Sheet 9 Lot 28) requesting use variance to allow a television repair service, with retail sale of accessories. RB Zone, Ward 7. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Bob Carlson Gerry Reppucci Remi Dargis, 344 Main Street, Nashua, NH. Mr. Dargis stated that he wishes open up a television repair shop at this location, it is a two unit house, and the repair shop will be on the first floor, and there is one apartment upstairs. He said a lot of their business will be in the customer’s homes. He said there will not be heavy traffic, and parking spaces are planned for the front of the building. Mr. Dargis said the property will be better maintained with the business there. He said there are numerous other businesses along this portion of Main Street. Mr. Currier said he is concerned about the proposed parking area in the front, as most of the businesses along Main Street have lawns, he said the area in the back is mainly for the resident upstairs for parking. Mr. Shaw said the plan calls for a total of five parking spaces, and wondered if three parking spaces could be built out front, and two in the rear, so the ordinance would be met. Mr. Dargis said if four parking spaces out front will not be supported, then he said three would be fine. Mr. Williams asked about the garage, and the parking in the rear. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 13 Mr. Dargis said the garage is full of things, it is not used for a garage. He said there are two parking spaces in the rear. He said the residential tenant’s park back there. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Nancy Philpot, 4 Faxon Avenue, Nashua, NH. Ms. Philpot said she owns the property directly behind the subject property. She reiterated that there is little space in the rear to park. She said that the front lawn is all dirt, and people park there now. She said that paving a parking lot in the front would look awful, and it may impact property values. SPEAKING IN FAVOR – REBUTTAL: Remi Dargis, 344 Main Street. Mr. Dargis said it wouldn’t look bad if there was parking in the front, it is much worse now, being dirt and having cars park there, he said there would be a green space in the front, and the property will be maintained and spruced up. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No One. Mr. Reppucci said with all the other commercial uses, with driveways and parking, this request is within the character of the neighborhood for three parking spaces in the front. He said this is evidenced by looking at the GIS map. Mr. Currier said that Merchants and Napa both have a lot of parking in the front, but those are commercial uses and commercial buildings, where the proposed use is a house, with a residential feel to it. He said they’d be changing a lawn into a parking area, and didn’t think it is appropriate. Mr. Shaw said this area is very mixed, and there have been so many changes, it’s hard to determine exactly what this area is. He said that with three parking spaces in the front, it would be acceptable. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 14 Mr. Williams said that cars are parking on the front on the dirt area. He said the area is mixed, and understands the concerns about parking in the front, and said three spaces in the front would be ok with him. Mr. Falk said that five parking spaces are required, and this site will need to get site plan approval from the Planning Board. Mr. Williams asked what the size of a parking space is, and asked what the dimensions are in the rear area. Mr. Falk said he’s not sure of the exact dimensions in the rear, but parking spaces are 9’x20’. He said the garage could be a parking space, and the other paved area is just an existing paved area, an existing grandfathered area. Mr. Currier said his position is that the lot is too small for a business and a residence. MOTION by Mr. Reppucci to grant the use variance on behalf of the applicant. Mr. Reppucci stated that the zoning restriction as applied interferes with the landowner’s reasonable use of the property, considering the unique use of the property in its environment. He said with the discussion of the Board, the zoning of the area is very mixed and the proposed use is consistent with what is already there now. He said that per discussion with the Board, it is within the spirit and intent of the ordinance. Mr. Reppucci said it will not be a negative impact to surrounding property values, it is not contrary to the public interest, although there were concerns raised by an abutter about the appearance of the parking in the front, there was nothing substantially negative heard, and that substantial justice would be done. Mr. Reppucci said that the proposal has four parking spaces in the front and the Board limited it to three parking spaces, and increasing the setback, and leaving the greenspace towards the street. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-1 (Mr. Currier). ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 15 5. Equity Trust Company (Owner) Howard Chain (Applicant) 339 Main Dunstable Road (Sheet C Lot 102) requesting special exception to work within the 40-foot critical wetland buffer of Hales Brook to subdivide one lot into two lots and construct a single-family home. Previously approved by the Zoning Board on October 26, 2004. R9 Zone, Ward 5. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Bob Carlson Gerry Reppucci Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the plan is similar to the one that was approved in 2004, except that one portion of the lot line was altered slightly, less than one foot. He said the original subdivision had a house on the property that was demolished, and a new house has been constructed, it’s not finished yet. A single-family house is proposed on the remaining lot. Atty. Prunier said they are requesting a special exception, to encroach upon the Hales Brook wetland buffer. He said the houses will not impact pedestrian or vehicular safety in the area, and the houses will be served by all public utilities. He said this area is made up mainly of single-family homes, and it is not out of character with the neighborhood. Atty. Prunier said there some wetland special conditions, which he went over with the Board. He said there is a wetland planting plan, which was approved by the Conservation Commission. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 16 MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-112. He said it will not create any traffic congestion or unduly impair pedestrian safety, it will not overload any public water, sewer, drainage or any other service. He stated that the special regulations have been fulfilled, and it 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. Reppucci stated that the special conditions will be all of the stipulations from the Conservation Commission letter dated March 17, 2010 to Mr. Chain will be complied with. SECONDED by Mr. Carlson. MOTION APPROVED UNANIMOUSLY 5-0. 6. DWA Hollis Properties, LLC (Owner) 502 West Hollis Street (Sheet E Lot 83) requesting that special condition #1 of a special exception granted on April 27, 2004 be amended to permit restoration of portions of a 30-foot no-cut buffer which were disturbed by the prior owner and to allow the proposed restoration to modify the requirement that the 30- foot buffer remain undisturbed, including the possible removal of the walking path within the 30-foot buffer. R9 Zone, Ward 5. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Bob Carlson Gerry Reppucci Atty. Alex Buchanan, Nashua, NH. Atty. Buchanan stated that this request is the property that was started by John Picard a number of years ago. He said that a special exception was granted to this property in April, 2004. He said that they are requesting a limited purpose, in that the original approval for the special exception, there were a series of conditions placed on the project, one of which was to maintain a 30-foot undisturbed, no-cut tree buffer, and it included that if any trees that are dangerous to abutters could come down. He said ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 17 the basic premise was to create a 30-foot strip around the property to isolate it from the abutting properties, mainly by vegetation and growth. Atty. Buchanan said that Mr. Picard lost the property to foreclosure, and it was acquired by DWA Hollis Properties. He said there is an as-built plan prepared to see exactly what the project entails, and it was discovered that some areas of the buffer that had been disturbed, and vegetation removed, and the deposit of construction debris. He said they want to have permission to amend this stipulation to allow access into the buffer to replant, and correct the mistakes that were made in the past. He said a lot of work has already been done to the site, a lot of infrastructure. SPEAKING IN FAVOR: Eric Swanson, Cuoco & Cormier Engineering, Nashua, NH. Mr. Swanson described the areas of encroachment into the buffer, and indicated what happened in each area. He showed pictures of nine areas of encroachment into the buffer, and they were staked, so they know the exact area. He went over the pictures with the Board, and described what happened in each area. Cynthia Boisvert, Cuoco & Cormier Engineering, Nashua, NH. Ms. Boisvert said that the goal is to replace the trees that have been removed in the buffer. She said that the goal is to have evergreens, an understory of natural woodlands, so there would be a staggered plan, with healthy stock, so when it fills in, it will look like it did originally, and it will help with screening of the abutters homes. Mr. Shaw asked what size trees will be planted. Ms. Boisvert said that they haven’t specified the exact plants, but said that the City has some good specs, so they will be good size, the deciduous trees will be 3 – 3½ inch caliper trees, and the shrubs will have a 2½ - 3 foot height, which will show an immediate effect, and within about three years, the trees will be gaining height. Mr. Currier said that the advertisement has a statement at the end about the possible removal of the walking path. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 18 Atty. Buchanan said the Board can eliminate that from what was advertised, it was a mistake in communication, and they are not asking that the walking path be removed, just to do the work in the buffer as has been discussed. Jim Dale, 37 Whiteplains Drive, Nashua, NH. Mr. Dale said some of the abutters are concerned about the blasting that did occur previously, but they are happy that someone has had an interest to come in here and do this right. Bill Keaney, 39 Whiteplains Drive, Nashua, NH. Mr. Keaney said they are cautiously optimistic about the project, and is behind the developer to do what should have been done in the first place. He said he has about ten sixty-foot tall pine trees, and the foliage on them is sparse, and don’t start until about 30 feet from the ground, so they don’t provide a visual buffer, and one of them snapped off in an ice storm, and damaged his roof. He said the pines are a safety issue, and more of them should be removed. He said some of the shorter, younger trees are doing well. He said he has asked the owner to remove some of these tall pines, as they provide no buffer, and they are a safety hazard, and to allow the younger saplings to grow. Mr. Shaw said in the original approval, there was already a stipulation about removing trees that could be potentially be dangerous, so Mr. Keaney’s concern is already covered. Tom Maddox, Applicant and Owner, 502 West Hollis Street, Nashua, NH. Mr. Maddox said they want a nice project, and said he’d work with the abutters to make everyone happy. He said he wouldn’t have an issue with taking down the tall pine trees. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier on behalf of the applicant, per testimony, that the request is approved to revegetate and disturb the buffer to make it undisturbed, to go in there and make it right. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 19 7. Hanzhla, LLC (Owner) George Clark & Ed Corriveau (Applicants) 590 South Main Street (Sheet 129 Lot 1) requesting special exception to expand a nonconforming convenience store by converting existing storage and office space to a pizza kitchen with no indoor seating. RA Zone, Ward 7. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Bob Carlson Gerry Reppucci George Clark, 11 Knowlton Road, Nashua, NH. Mr. Clark said he is requesting approval to use existing space inside the building for a take-out pizza place. He said there will not be an expansion on the outside, everything will be inside. He said he submitted some pictures. He said they will be asking for a separate entrance on the south side of the building. Mr. Clark said the building is in pretty bad shape, and they will be looking to clean it up for the neighbor to the south who’s looking into the parking area. He said they will be replacing the siding on the building that is rotting, and will do landscaping, shrubs, mulch, and dress it up nicely, instead of the garbage that’s out there now. Mr. Clark said they will knock down one wall that separates two rooms, and they will put in a service counter. Mr. Currier said it looks like the City is installing a sidewalk there, he said he’s in favor of businesses succeeding, but said he’s concerned about the traffic and parking, and backing out, which is not good. Mr. Clark said he agrees, it is a difficult area to back out of, it’s not an eat-in pizzeria, it is mostly takeout and delivery. He said they will divert the traffic to down on East Hobart Street, and you can go right into an existing driveway that is there now, and you can park there, and you wouldn’t have to back out onto South Main Street. Mr. Currier asked if any of the residents on East Hobart Drive know that there is the potential for this driveway to go from a ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 20 low traffic area to a high traffic area. He said this request will bring a lot of traffic onto East Hobart Street. Mr. Clark said they got 83 signatures in favor from people from the convenience store, but said he’s not sure if they know what the exact traffic flow could be, but they are aware that there is traffic going into the driveway with the auto repair shop, which has a lot of traffic going in the driveway. Mr. Currier asked about the 50 visits to the site, and asked if that is per day or per week. Mr. Clark said per day. He said he’s using the convenience store, as they would be coming into the convenience store, and then being exposed to the pizza restaurant. He said he didn’t think they’d have 50 people per day walking into the business. He said there will be a lot of foot traffic from residents and from college students. He said they will be concentrating on the deliveries, not the foot or vehicular traffic. Mr. Reppucci asked if Mr. Clark is connected with the convenience store. Mr. Clark said he is not, he will run the pizza business, in conjunction with the convenience store, a co-tenant. Mr. Reppucci asked about the access into the building. Mr. Clark said there will be two, one will be the front door, and there will be one on the south side of the building. Mr. Reppucci asked if the 50 cars per day would be driving past the auto repair shop on the bottom to get to the pizza restaurant. Mr. Clark said they would be deliveries, and would be driving past the auto repair. He said he’d want one or two delivery cars back there, they’d be doing the driving. Mr. Currier asked about the fryolaters, and the grease odor. Mr. Clark said they’d have a vent system installed. He said they are mainly concentrating on subs and pizza, not the fried food. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 21 Mr. Currier said someone could drive there, and park either in the front, or in the back. Mr. Clark said yes. Mr. Reppucci asked if there is going to be a connection between the driveway and South Main Street. Mr. Clark said no. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Malcolm Brazill, 591 South Main Street, Nashua, NH. Mr. Brazill stated that he lives across the street. He said the parking area is just a mixed use of cement there, and should be cleaned up. He said there is a dumpster there now, and asked where it would go. He said he has a concern of the smell of grease from the fryolater, and of the extra traffic that will be brought on by the pizza restaurant. He said he didn’t think that drivers would drive around the back to get pizzas. He said he is concerned whether it will be slices of pizza sold, as napkins and paper goods and wrappers will accumulate on the ground and blow around. Mr. Shaw asked about the existing traffic to the site. Mr. Brazill said it’s not as bad as it could be, there is a blind side coming out, but he didn’t think it is high volume. He said it is a bigger problem when the parking lot is full, and someone is waiting for a spot. He said there are about six or seven spots in front now, and at any given time, there are about four or five cars there in front. He said his concerns are the litter, the smell and the traffic, and if there will be extended hours. SPEAKING IN FAVOR – REBUTTAL: Mr. Currier said the hours are 9:00 am – 10:00 pm Monday through Thursday, and 9:00 am – 11:00 pm Friday to Sunday. He asked what the store hours are. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 22 Mr. Clark said it opens at 6:00 am, and typically closes at 9:00 pm, and 10:00 pm in the summer on the weekends. Mr. Shaw asked if we know how many parking spaces are required with this additional use. Mr. Falk said they’re using existing space that was used for an office and storage. He said staff will have to review it a little more, but the space used by the pizza use is extremely small, it may be a wash with what was there, but if they need an additional space, they will have to provide it. Mr. Currier asked about the dumpster, whether it will be moved or not. Mr. Clark said the owner approached him, and we will work with them in any way, the owner said that the dumpster could be moved all the way down to the other end of the driveway, so you wouldn’t see it from the house at all, and the trash would be towards that way. He said that restaurants have trash, all the trash put in that dumpster will be controlled from the inside. He said they are not selling any drinks, due to a conflict of interest with the convenience store. He said one option they have with the fryolaters is a vent-less model, that you don’t need a vent for, he said he would look into that. He said he would be open just during the store hours. Mr. Currier asked if this was approved, would the site be painted and cleaned up, versus the trash that is there now. Mr. Clark said that the entire site would be cleaned up, they have carpenter friends that will take the whole side down and redo it. He said they want it to look nice. Mr. Currier said the application says mostly takeout, with a little seating, and asked about the seating. Mr. Clark said maybe one table with a couple chairs and an umbrella outside, that’s all, like on the platform. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Malcolm Brazill, 591 South Main Street, Nashua, NH. Mr. Brazill stated that to fix the paint on the front would be nice, and said he still has a concern about the trash, and has a concern about the table on a deck. He said he doesn’t see people using ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 23 the rear driveway to access the pizza use, he sees them every day trying to get as close as possible to the front door, as opposed to any other way to get into the building. He said he’s also concerned about the summer hours, if the convenience store is open later, that means that the pizza place will also be open later. Mr. Currier said the positive aspects of this application is that they will clean up the façade and the building and the trash, and to bring in a new generation to the building that is better than what it is now. He said the challenge is to be adding more traffic. He said that Mr. Brazill has expressed some concerns, it is a residential district, he thought that it shouldn’t be open past 10:00 pm if the Board approves it. He said he is concerned about the deck where the tables would be, because it can grow into more, he said that he’d only support one table. He said the fryolater, if one is installed, should be filtered. He said that most likely, people would be parking in the front, and not around the back. Mr. Reppucci said if Mr. Clark owned the building, he’d be more comfortable with the things that have been said. He said he doesn’t discourage entrepreneurial efforts, but didn’t think it’s a good site for this, the back of the building is a dump, it’s dirty and a mess. He said it’ll be tens of thousands of dollars to clean up this site, but Mr. Clark doesn’t even own the building. He said if the pizza place is successful, it will generate a lot of traffic, and didn’t see people going to the back of the building. Mr. Williams said he echo’s Mr. Reppucci’s concerns. He said he didn’t consider any way of connecting the front and rear parking areas, and asked if that is conceivable. He said he wouldn’t be as concerned about the traffic and parking if that could be done. He said he’s not sure of the lease, and what kind of restrictions there would be with the repairs. Mr. Carlson suggested that the applicant come back to the Board with the owner, so we could rule effectively, and that it should be tabled, and have the owner explain these repairs to us. Mr. Shaw said it is a huge difference in the hours of operation between 10:00 pm and 11:00 pm. He said he shares the same general concerns about the traffic. He said if these guys are going to make the business successful, they will need to clean ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 24 up the site and make it more attractive. He said that having a convenience store is one thing, but by adding another layer of the pizza/food business creates a lot more impact. He said they will have to clean up the site and make it more presentable. MOTION by Mr. Currier to table this request to the next meeting with the stated goal of having the owner of the property come with the applicant to address the Board’s concerns about the improvements to the property and the parking situation, which the Board is unconvinced, or unswayed, that it will be acceptable to a higher traffic volume that a successful business would generate. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Currier said it will be heard on April 13, 2010, and it will be first on the Agenda. REHEARING REQUEST: None. REGIONAL IMPACT: Mr. Falk said the Agenda for April 13, 2010 is not prepared yet, as there was an extra week for the application deadline. BY-LAWS: Mr. Falk said that Mr. Shaw’s signature is needed on them, so they can be filed in the City Clerk’s office and the Community Development Department. Mr. Shaw signed the By-Laws. Mr. Currier said that because of the Alternates not sitting on the stage, Mr. Duffy left the room. Mr. Currier said that this conversation will be tabled. MINUTES: MOTION by Mr. Currier to waive the reading and place on file the minutes of February 9, 2010 and February 23, 2010. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 25 SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Currier said he was called into a meeting with Mayor Lozeau, former Corporation Counsel David Connell, Jamie McNamee and Ken Dufour. He said the purpose of the meeting was to see how the Boards use alternates. He said that ZBA is low on members, so alternates usually participate on cases where there are 5 members and 1 alternate. He said that Atty. Connell pointed out that there is an RSA that he felt that it was out of order for alternates to participate in any form; they shouldn’t even be on the stage. He said that Mr. Dufour said that they have 5 full members and 5 alternates, and the extra alternates sit in chairs in the audience, and don’t participate at all. He’s heard that some of these alternates have raised concerns, that they’re wasting their time. He said he was surprised at Atty. Connell’s direction that alternates need to stand down. He said this is only impactful if all 5 members are present and Mr. Williams attends. Mr. Currier said that there is active legislation in Concord that would specifically say that all alternates do participate in the meeting, but wouldn’t necessarily be voting. Mr. Currier said he’d abide by that direction. Mr. Reppucci said he thought it was that non-voting members shouldn’t be on the stage. He said if the Board gets more alternates, and they can’t participate, they’ll lose interest. He said maybe we can rotate who is participating. He said he didn’t want the alternates to lose interest. Mr. Currier said he’d prepare a short statement from the Board, saying that we discussed it, and will abide by it, although we would prefer that alternates participate. Mr. Shaw said he’s troubled by it, and his impression is that it was strong guidance by Atty. Connell that it was clear that we are not following the statutes by proceeding the way we have been. He said he’s uncomfortable with just adopting this and going forward without getting the RSA and getting a little better … ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 23, 2010 Page 26 Mr. Reppucci read from the OEP State handbook relative to RSA Section 673:11. Further discussion ensued. ADJOURNMENT: Mr. Currier called the meeting closed at 11:35 p.m. Robert Shaw Clerk CF Taped Hearing