Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 11, 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 Ryan Williams Carter Falk, Deputy Planning Manager/Zoning 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. Kenneth & Lisa B. Gogan (Owners) 6 Lee Street (Sheet 64 Lot 141) requesting variance to encroach 3 feet into the 6 foot required side and rear setbacks to construct a 15’x30’ above-ground swimming pool. RA Zone, Ward 2. Voting on this Case: Jack Currier Gerry Reppucci Ryan Williams Ken Gogan, 6 Lee Street, Nashua, NH. Mr. Gogan stated that they are requesting a pool within the 6 foot setback. He handed out to the Board a clearer plan than what was submitted. He said they used to have an in-ground pool, it is no longer there, and now would like an above-ground pool. He said by putting the pool in the proposed location, it should afford the abutters the most privacy, even though it will cost more money. He said he’s met with the neighbors about it, but they still do not agree with it. He said it is to their benefit to have it located in the corner. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 2 Mr. Williams asked if the pool was installed off the deck in the back of the house, if it would meet the setbacks. Mr. Gogan stated that it depends, it has pole supports that extend into the ground and it would extend into the setback by a few inches, but it would just be the support poles, the buttresses. Mr. Reppucci asked where the in-ground pool was located. Mr. Gogan said that he used to own 5 Ashland Street, and did a lot line relocation to build 6 Lee Street, and the pool actually straddled the property line. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Marilyn Colburn-Pieczarka, 12 Lee Street, Nashua, NH. Ms. Colburn-Pieczarka stated that they live to the right. She said her mother is opposed to the request, and her mom has lived there for 32 years, and doesn’t want the pool that close, as it would ruin her quiet enjoyment of the property. SPEAKING IN FAVOR – REBUTTAL: Kenneth Gogan, 6 Lee Street, Nashua, NH. Mr. Gogan said that the old pool that was there had a lot of activity in it, a lot of parties and a lot of kids using it. He said there is a 6- foot high fence between the properties, and the pool is only 52 inches tall, you can’t even see over the fence. He said with the noise, it’s only a couple months out of the year that the pool is used. He said the other pool was 20’x40’, they are trying to replace it with one that is a little smaller. He said they are trying to minimize the noise by having it in the corner. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Marilyn Colburn-Pieczarka, 12 Lee Street, Nashua, NH. Ms. Colburn-Pieczarka said they are still concerned with the impact on the property values, and that her mother is not happy with this request. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 3 Mr. Williams stated that the location that was chosen is less visible to the abutting properties. He asked if the pool were put in another location, to be more visible, and asked how the surrounding properties would be impacted. Ms. Colburn-Pieczarka said in any case, it’s going to be visible, a six foot high fence is only 72 inches, if you have a pool that is over 50 inches, and with kids standing on the deck, the activity will be seen. MOTION by Mr. Currier to deny the request on behalf of the owner. Mr. Currier stated that the testimony provided tonight of the affecting of property values of the abutting properties, with the closeness of the pool, that the three feet does in fact make a difference, and that the criteria is not met. SECONDED by Mr. Williams. Mr. Currier added that the applicant believes that the proposed design is the best design, and the least impact on the abutters, there is conflicting testimony that is not the case, and there is another solution, which is putting the pool in the other location, whether it’s 6 feet over, or behind the bulkhead, the applicant has other solutions to still have the pool, but not within the 3 foot encroachment, so, the variance is not needed to enable the applicants to enjoy the pool, just not within 3 feet of the property line MOTION CARRIED UNANIMOUSLY 3-0. 2. Brian C. & Shana L. Dodge (Owners) 16 Lisbon Lane (Sheet A Lot 778) requesting variance to encroach 10 feet into the 25 foot required front yard setback to construct an 18’x36’ attached garage/family room addition. RA Zone, Ward 7. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Brian Dodge, 16 Lisbon Ln, Nashua, NH. He said the house is a cape, on a dead end street. Mr. Dodge said the main problem with the setback, is that the City owns the first ten feet from ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 4 the edge of the building to the pavement is actually 37 feet. He said the proposed addition is 18’x36’ overall, in which the first 18’x24’ is a garage, it would be an oversized one car garage, and to the rear would be a 12’x18’ family room. He said this sized addition, in this location, will allow the family room addition to flow with the kitchen. He said they are only going ten feet into the setback, there will still be 27 feet to the pavement, and it is a dead end street. Mr. Dodge said the request is not contrary to the public interest, because there is still adequate space for parking. He stated that the 25 foot setback is to not have a congested neighborhood, the 27 feet they will have is more than adequate, and it will allow storage of lawn items and toys in the garage, so it will look cleaner. He said being a property appraiser, this addition will not hurt the property values, it will add to the values in the neighborhood. Mr. Reppucci asked what will be over the garage. Mr. Dodge said it will be a loft and storage, no living space, it wouldn’t have the height. Mr. Currier said if this is approved, and the City puts in sidewalks, the cars wouldn’t be able to park in the driveway without going over the sidewalks. Mr. Dodge said the other side of the street has sidewalks. He said it is a dead end street, and it’s unlikely that the City would install a sidewalk on this side of the street. Mr. Falk said sidewalks are all in the City right-of-way, and the Board has no jurisdiction over them. He said the street is short, all built-out, and there is a sidewalk on the other side of the street, which is good for students/children who walk to school. He stated that although he hasn’t seen this street on the sidewalk priority map, it is unlikely that a sidewalk is needed on this side of the street. Mr. Currier said the street is not highly used, he said he’s struggled with a driveway that is short and may not accommodate a car, he said in this case he’d be willing to overlook it, because the cul-de-sac is rarely used. SPEAKING IN FAVOR: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 5 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 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 by testimony, the applicant stated that the family room in the back is desirable for them to keep it lined up with the kitchen, and to have a 24 foot garage so that they can store trash cans and other things in the garage. Mr. Reppucci said it is within the spirit and intent of the ordinance, it will not adversely affect property values to surrounding parcels, even though we heard no testimony either way on that. Mr. Reppucci said it is not contrary to the public interest, no one testified against it, and substantial justice would be done. He said the Board did discuss the potential of the sidewalk being put in, but the consensus is that while it is a possibility, considering that it is a cul-de-sac and a very low use road, it is a remote possibility of another sidewalk being put in. SECONDED by Mr. Currier. Mr. Williams said the property slopes off to the back, which is another factor to not building off the back of the house. MOTION CARRIED UNANIMOUSLY 3-0. 3. Nashua Building Contractors, Inc. (Owner) City of Nashua Department of Public Works (Applicant) 17 Jackson Street (Sheet 39 Lot 27) requesting special exception to work within the 75-foot prime wetland buffer of the Nashua River to install a slide gate within the existing concrete chamber of the Nashua River interceptor. GI Zone, Ward 7. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 6 Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Amy Prouty Gill, Engineer, DPW, City of Nashua, Nashua, NH. Ms. Gill stated that they are requesting to work within the prime wetland buffer of the Nashua River. She stated that the City is doing a wastewater improvement project, in conjunction with the EPA, to reduce the amount of discharges that are going into the wetland. She said the overflows occur during certain rain events, and the City proposes to install a slide gate in an existing concrete chamber that exists at 17 Jackson Street. She said the City has sewer easements that run through the property, and the job scope will be within the concrete chamber, which is 25 feet deep. Ms. Gill said that within the buffer area, vehicles will be entering and leaving the property to work within the chamber, and delivery of parts for the gate, and an electrical panel. She said she’s gone over all the points of law in the application. Mr. Currier went over all the nine special wetland points, and Ms. Gill answered them to the Board’s satisfaction. SPEAKING IN FAVOR: No One. 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 is listed in the Table of Uses, Section 190-112. Mr. Reppucci stated that it will not create undue traffic congestion or unduly impair pedestrian safety per testimony. He stated that it will not overload public water, drainage, or ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 7 sewer or other municipal systems. He said that per testimony, all the special regulations are fulfilled, there were two special conditions from the Conservation Commission and they will abide by those, 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 residents. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0. 4. 7 Van Buren Realty Trust (Owner) 7 Van Buren Street (Sheet 38 Lot 8) requesting use variance to allow a group home/lodging home. GI Zone, Ward 7. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Attorney Robert Shepard, 47 Factory Street, Nashua, NH. Atty. Shepard stated that the Trust purchased this property in August, 2009. He said the road is small and narrow, and is a dead end. He said the house is older, it was built in the early 1900’s, and is approximately 2,000 square feet in size, and there is enough room for two cars to park on site, and there is parking available at the Nashua Farmers Exchange as well. Atty. Shepard said the surrounding neighborhood consists mainly of residential uses, there are multi-family uses, auto repair, Nashua Farmers Exchange, a Laundromat. He said it is located in the GI zone, and states that the proposed use is not industrial. He said the proposed use is residential, it is called the NH Gatehouse, a sober living home, privately owned, and offers sober living and lodging for men over age 18. He said is safe, and it’s for men trying to recover from drug or alcohol addiction. He said it is not a halfway house, people are not sentenced to this house. Atty. Shepard attached a copy of the application to live at the house, along with the house rules and regulations. He said people must do chores, and are encouraged to be working. He said they can be summarily asked to leave if they do not follow the rules. He said they are subject to random drug testing. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 8 said that his client’s son lives at the house, and is the manager. He said that he has the ability to give breathalyzer tests, so if anyone tests positive, they are out. Atty. Shepard said there may be up to 8 people living in the home, and there are 6 bedrooms. Atty. Shepard went over all the points of law, as stated in their application. Mr. Reppucci asked if the NH Gatehouse is the only one. Atty. Shepard said the plan is to have more of them in the future. Mr. Reppucci asked if this is a new business venture, and asked if the applicant has any experience in this type of facility. Atty. Shepard said the owner’s son, Nathaniel, does have experience, he is recovering and has achieved his sobriety and will be the house manager. Mr. Reppucci asked how long the average applicant lives in the house. Mr. Nathanial Irvine, 7 Van Buren Street, Nashua, NH. He stated that the average stay could be from 30 days, to 6 months, it is based upon the 12 steps of recovery. He said when he moved up here, he saw a very big need for this type of home. Mr. Reppucci asked what percentage of the residents drive cars. Mr. Irvine said about 25%. Mr. Reppucci asked about the criminal backgrounds of the people living there. Atty. Shepard said that is something that they are going to be adding to the application, especially the sex offenders. He said it is a work in progress. He said it will be added to the rules, there will be certain crimes that will not allow people to live in the house, a sex offence would be one of them. He said they are also considering violent crimes as well. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 9 Mr. Reppucci said it is encouraging that they will ask for this information, it’s just what will be done with it. Atty. Shepard said that a sex offender will not be allowed to live in the house, that is a definite. He said beyond that, the goal of the house is to help people maintain their sobriety and achieve it, but also to be good neighbors as well. Mr. Reppucci asked if there are restrictions on visitors. Mr. Irvine said there are no visitors. Mr. Williams asked what basis is the 25% of the residents driving. Mr. Irvine said if it’s a single-family house, there could be several cars there. He said there is a back-up parking plan at the Nashua Farmers Exchange. He said that a lot of the guys have had DUI’s, so that’s why a lot of them don’t have licenses. Mr. Reppucci asked if any of the residents have tenant rights. Atty. Shepard said under the Landlord/Tenant statute, there is a provision in there whereby people are not, if it’s a rooming house or boardinghouse, are not considered to be tenants. He said this is important, because if someone loses their sobriety, they need to be removed. They cannot claim this house as their residence. Mr. Williams asked if there is any certification or licensing process with Health & Human Services, or some other agency. He said the use is bordering on some type of medical service, they are not just lodging these people, there is some counseling going on. Atty. Shepard said there is no counseling going on, but he didn’t think with the 12-step program whether you had to be certified for that. Mr. Nicholas Spalaris, 7 Van Buren Street, Nashua, NH. Mr. Spalaris said as part of the 12-step program, there are professional counselors, based upon the brotherhood of the program. He said you are supposed to get a sponsor. He said there is no professional counseling or therapists, it is a group of people committed to helping one another. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 10 Mr. Reppucci asked how long the house has been open and operating. Mr. Irvine said sometime last November. SPEAKING IN FAVOR: Jean Thomas, 9 Van Buren Street, Nashua, NH. Ms. Thomas said she lives right next door. She said that the property at 7 Van Buren is kept up very well, and Nathaniel is very nice and professional, and said they have no problems with them whatsoever. She said the street is tight and narrow, but every one gets along and manages fine. She said the parking is no worse that what it would be with a single-family house. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the request on behalf of the applicant. Mr. Currier stated that the stipulations are as follows. The first is that the business comply with all State regulations for this sort of business. He said that the Board is unsure of what those exactly might be, so there are other stipulations. He said that the residents do not fall under the landlord/tenant criteria, so the residents do not claim this address as their home. Secondly, the house rules specifically incorporate how the house will address people that have a violent criminal record, or are sex offenders, actually, that all residents will have a criminal background check performed, and that sexual offenders are prohibited from this home. He said that this proposal goes before the Planning Board, subject to a conditional use approval, as if it were under the RC zone, and that when it goes before the Nashua Planning Board, that those house rules are modified to specifically address how violent criminals would be welcome or not, and it should be clear in their rules before they go to the Planning Board. Mr. Currier said that the zoning restriction, which is essentially the General Industrial zone, does interfere with the landowners reasonable use of the property, considering that this is really a residential street, it’s really a tight urban area, that’s levied with the General Industrial zone, and that he finds it worthy to grant relief from the General Industrial zone to allow a group home/lodging home, therefore, it is within the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 11 spirit and intent of the ordinance, because its really not an industrial street. Mr. Currier stated that there wasn’t any professional testimony about the property values to surrounding area, there is compelling testimony by the direct abutter that it’s a help to the neighborhood, not a hurtful use. Mr. Currier stated that it’s not contrary to the public interest, and that substantial justice is served. Mr. Williams said the stipulations should be referred to as conditions of approval, and that they should have continued compliance with these conditions. Mr. Falk said that staff refers them to as special conditions in the approval letter. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: Mr. Currier suggested he contact the Mayor to move Mr. Williams into the full member seat that was recently filled by Mr. Duffy. Mr. Williams said he agreed with this. Mr. Currier said they should have an election to fill the vacant Vice-Chair seat, but should do so when all members are present. REHEARING REQUESTS: None. MINUTES: April 13, 2010: MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 11, 2010 Page 12 MOTION CARRIED UNANIMOUSLY 3-0. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. Mr. Falk said that they notified all the towns within a 20-mile radius for the cell tower. ADJOURNMENT: Mr. Currier called the meeting closed at 9:12 p.m. Robert Shaw – absent (Mr. Falk wrote the case summaries) Clerk CF Taped Hearing