Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 25, 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 Bob Carlson 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. Greyhawk Properties, LLC (Owner) 0 Ashland Street (Sheet 64 Lot 191) requesting variance from minimum lot depth, 90 feet required, 75.1 feet proposed (from Ashland Street). RA Zone, Ward 2. [PREVIOUSLY APPROVED BY ZBA ON 1-9-08] Voting on this Case: Jack Currier Gerry Reppucci Ryan Williams Bob Carlson Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that this case was previously approved on January 9, 2008. He said the purpose of this request is the lot depth, it is a corner lot, 75 feet is existing, and 90 feet is required. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 2 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the variance request on behalf of the applicant. Mr. Reppucci stated that it’s an RA zone, and the reference is 190-16, Table 16-3, in the Code. He said it 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 said that the application was considered in 2008, and was approved, and didn’t see any reason to change the motion now. Mr. Reppucci stated that it is within the spirit and intent of the ordinance, it will not adversely impact property values of surrounding parcels, there was no testimony on that, it is not contrary to the public interest, and substantial justice will be done. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. 2. Harald & Eva Skardal (Owners) 34 Watersedge Drive (Sheet H Lot 200) requesting variance to encroach 4 feet into the 30 foot required rear yard setback to expand an existing porch from 10’x16’ to 16’x16’. R18 (Cluster) Zone, Ward 2. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Bob Carlson Harald Skardal, 34 Watersedge Drive, Nashua, NH. Mr. Skardal read through his application and the points of law. He said the porch will be single-story. He said that he’s spoken with his neighbors, and they seem to be happy about the request. He said that you can’t see the porch from the street. SPEAKING IN FAVOR: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 3 No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the variance on behalf of the owner. 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. 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, it can’t be seen by anyone except the two neighbors and they are in support of it per testimony, and substantial justice would be done. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. 3. Bruno Leclerc (Owner) 16 Dumaine Avenue (Sheet H Lot 118) requesting special exception to expand a nonconforming use by constructing an attached 13’x20’ open deck and a 10’x18’ wood shed. PI Zone, Ward 2. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Bob Carlson Bruno Leclerc, 16 Dumaine Avenue, Nashua, NH. Mr. Leclerc stated that his request is as advertised. Mr. Currier asked if the work has already been done. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 4 Mr. Leclerc said last year he applied for a permit to build a shed, but never built it, he said right now it is just a canvas tent over the wood. He said that the deck is not there, he wants to build it. Mr. Currier said the house is near an Industrial Park, and the zoning district is PI, but the street is residential, and the only reason why he is before the Board is due to the district, if it were a residential zone, all it would require is a building permit. Mr. Currier went over the points of law, and they were answered to the Boards satisfaction by Mr. Leclerc. 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 is listed in the Table of Uses, Section 190-119 (A) (4). Mr. Currier stated that, per testimony, the Board finds that it will not create undue traffic congestion or unduly impair pedestrian safety. He stated that it will not overload public water, drainage, or sewer or other municipal systems. He said that per testimony, all the special regulations are fulfilled, and that the deck and wood shed in the owner’s back yard 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. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 4. Nicole B. Heffron (Owner) 73¾ Bowers Street (Sheet 19 Lot 5) requesting special exception for in-home day care for an additional 3 children (9 children approved by ZBA on 8-11- 09). RB Zone, Ward 7. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 5 Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Bob Carlson Nicole Heffron, 73¾ Bowers Street, Nashua, NH. Ms. Heffron stated that she wants to increase her license size, and hire an assistant to help out the business. She said she’s been license exempt since June 2009, and has had children at her house for a year. Mr. Currier said there was some negative feedback from the neighbors the last time, and asked what the status of that is now. Ms. Heffron said that they put up a 6-foot stockade fence between the properties, and said that her whole downstairs is finished, and they have two big rooms to play in. She said there have been no concerns from the neighbors. Mr. Currier said that there is a large vinyl sign on the fence, which isn’t allowed; he said that a 2 square foot sign is allowed. Ms. Heffron said she’d take it down. Mr. Carlson asked if she carries insurance. Ms. Heffron said she will be getting it. Mr. Currier asked what type of insurance it would be. Ms. Heffron said that the State doesn’t require it, but there is an extra liability insurance that she’d get. Mr. Williams suggested she check her policy to see if it’s sufficient. He asked what the capacity is that she’s been operating at. Ms. Heffron said she has a license for nine, but only has six children. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 6 Mr. Currier asked about the parking and traffic on the street. Ms. Heffron said the street has a lot of traffic, but it’s a wide street. She said the children get dropped off at varying times, between 7:00 – 10:00am, and they get picked up between 4:00 – 6:00pm, so there’s usually only one or two there at one time, and they don’t stay at the house for more than five minutes. She said there haven’t been any problems. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the request on behalf of the owner. Mr. Reppucci stated that it is covered under Section 190-36 B. Mr. Reppucci said that it will not create any undue traffic congestion or unduly impair pedestrian safety; there was no testimony that it would. Mr. Reppucci stated that the request will not overload public water, drainage sewer or other municipal systems, the special regulations are all fulfilled, and the request will not impair the integrity or be out of character with the neighborhood, or be detrimental to health, morals or welfare of residents. Mr. Reppucci said the special conditions are carried through from the previous approved application, all others except the number of children allowed, which this special exception increased. He said the original special exception was granted on 8-11-09, all the other requirements would still apply. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 5. 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. [REHEARING] ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 7 POSTPONED TO THE 6-8-10 MEETING. 6. Association Doucet, Inc. (Owner) Sunsar Towers Northeast, LLC (Applicant) 124 Ridge Road (Sheet B Lot 55) requesting special exception to construct an 180 foot high multi-user monopole communications tower with associated ground support equipment. R18 Zone, Ward 9. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Bob Carlson Attorney Earl Duval; Duval, Klasnick & Pastel P.A., Woburn, MA. Atty. Duval introduced the team of professionals that are involved with the tower. Bob Cormier, Cuoco & Cormier Engineering, Nashua, NH. Mr. Cormier said that Camp Doucet is on Ridge Road, bordering Salmon Brook, is about 20 acres in size, and is heavily wooded. He said the tower is planned for the northwest corner of the property. He stated that the tower is planned for 180 feet in height, and it’s setback well exceeds the distance to all property lines. Mr. Cormier stated that the tower is located more than one mile away from all other towers, and it fills in a dead zone for cell coverage in this part of the City. Mr. Cormier said that a gravel road will be constructed by the camp, 12 feet wide, into the woods, to go to the tower site, which will have a fenced-in area. He said it is 150 feet away from the wetlands, and said they are notifying the State for the Shoreline Protection Act, however, this site has little or no impervious area, well below State standards. He said it is outside the Salmon Brook wetland buffer as well. He said the utilities will be underground, and electricity will be run underground to the pad site, and it will be surrounded by a 6- foot high chain-link fence. Mr. Cormier said the tower is proposed at 180 feet in height, and the trees are about 100 feet in height, so, about 80 feet of the top of the tower will be visible, which will be the equipment, above the tree-line. He said it will be a monopole ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 8 tower, not a lattice tower. He said it will have the ability to have six different carriers. He said it is a very level site, and will be easy to install. SPEAKING IN FAVOR: Dan Goulet, RF Engineer, representing AT&T, C-Squared Systems, Manchester, N.H. Mr. Goulet said that AT&T is licensed to operate in this market. He showed an existing coverage map, showing “in-building” wireless coverage, and another color depicting “in-vehicle” coverage and another color showing no coverage or marginal service. He said that people/customers want wireless coverage, broadband, voice, in their home and office now. He said the areas shown in white or orange doesn’t have coverage, and there is no 3G services, which is video, wide area voice and wireless broadband services. Mr. Goulet showed a coverage footprint with the tower installed at 179 feet. He said there are some minor gaps, but it covers a very large area that has no coverage. He said that AT&T is trying to cover as many homes, offices and commuters that they can, and with this site, it can do that, it will offer competitive services. Andrew Lemay, Real Estate Appraiser, Concord, NH. Mr. Lemay stated that a copy of his appraisal is in the packet relative to property values. He said by granting the permit, it will not diminish the value of surrounding properties. He said he’s studied sales of 23 homes in both NH and MA, with values of $149,000 to $2,000,000. He said he’s talked to the brokers or buyers to determine whether the presence of a tower has any negative impact or any influence on the transaction, and no one has said that they’ve been materially impacted the transaction in any way. He said in his package there are several sales transactions examples, with no diminution of value with respect to visibility. He also said that there have been no extended market times with these sites. He said he’s surveyed assessors from around the country, and hasn’t found any responses that were negative as far as lost value or length on market. He said his opinion, after doing all this extensive research, is that there will be no loss in value. Don Haes, Ph.D, Independent Consultant. Dr. Haes said he’s reviewed this with only AT&T on the tower, the other approach is with six different carriers. He said his degree is in radiation ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 9 safety, and knows all about the FCC regulations. He said the Board has a copy of his report. He said his calculations are conservative, as well. He said if only AT&T were the only provider on the pole, theoretically, it would be a thousand times below the standards set by the FCC. He said if it had six providers, fully loaded, it would be thirty times below the acceptable limit, which means you could have up to thirty of these poles at this location, and it would still comply with the federal limits for RF exposure. Mr. Williams asked if a shorter tower would meet the needs of the client. Mr. Goulet stated that they analyzed it at 159 feet tall, and there was some loss of coverage to the residential areas, so it does impact the coverage. He said that another consideration is that mitigation of towers, because if the height is reduced, it also reduces the height and capability of future co-locators, because there has to be ten feet of vertical separation between each carrier so that they don’t interfere with one another. It would hold fewer carriers. Mr. Currier asked what the impact would be if it were at a lower height, and it may be a better visual view shed impact. Mr. Goulet said he’s run an analysis, with copies submitted to the Board. Mr. Williams said the coverage map seems to have a substantial amount of overlapping. Mr. Goulet said that there has to be some overlap, which is a part of providing competitive wireless service. He said you have to have overlap, since you’re mobile, it’s required. Mr. Currier asked about the possibility of camouflaging the tower. Mr. Kenneth Kozyra, KJK Wireless. Mr. Kozyra stated that his company has built hundreds, maybe thousands, of cell towers throughout the Northeast. He said they’ve built several “trees”. He said that some communities only want trees. He said that 9 out of 10 times, they find that the “tree” is far more visible than a lattice or monopole structure, because the branches must protrude beyond the antennas, to give the illusion ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 10 that it’s a tree. He said that the platforms that the antennas are put on are triangular in shape, and typically, 12-14 feet wide. He said the branches can be 18-24 feet wide, which are much larger than real trees. He said they are far more visible to the eye, and they don’t really disguise what it really is. Mr. Reppucci asked if there are going to be lights on the tower. Atty. Duval said there will be no lights on the tower, it is not required. Mr. Currier read a couple letters in favor into the record, the first is from Mahesh Kalkar, who is in favor of the cell tower. The other letter was from Mike Maynard of 145 Ridge Road. Dick Young, 15 Quarry Road, Nashua, NH. Mr. Young said he’s lived in this general neighborhood for about 27 years, and has been without cell phone service. He submitted a petition with thirty names from his neighborhood, including Quarry, Winn and Covey Roads, and some on Quinton Drive, all in support of the cell tower. He said without cell phone service, it’s been a burden without coverage. He said it is a deterrent to try to sell a home without cell phone coverage. Mike Maynard, 145 Ridge Road, Nashua, NH. Mr. Maynard said the neighborhood has changed a lot, it all used to be farms. He said at one time, there weren’t even any telephone poles or paved roads in this area. He said that all the recent condos were built. He said you have to have a cell phone nowadays, and more and more people run small businesses out of their home, and they can’t even use their cell phone. He said he’s in support of the tower. Kenneth Kozyra, 127 Ridge Road, Nashua, NH. Mr. Kozyra said his driveway is directly across the street. He said all the neighbors are asking him why they can’t have cell phone service. He said it’s difficult for him, being a consultant in this industry, and has to tell customers and clients to not call him on his cell phone. He always gets asked, all over the country, if he’d want one across the street from where he lives. He said he does want one across the street from his house. Ralph Keyslay, 12 Lojko Drive, Nashua, NH. Mr. Keyslay stated that he concurs with the previous speakers, he said he works out of his home, and calls get dropped all the time. He said he has ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 11 a signed petition of people in his neighborhood speaking in favor of the tower. Pam Price, 6 Indian Fern Drive, Nashua, NH. Ms. Price said she is a State Representative in the area. She said she is speaking for her family, and said that her neighborhood is strongly for this tower. She said she went to 39 homes, and got 37 signatures, of which 3 were “no’s”, 26 were “yes”, and was not able to contact ten people, an 8:1 ratio in support. She said cell phones are a widely used form of communication, and it’s unacceptable that the second largest city in the state doesn’t have cell phone service within the city, and said it’s a negative issue with property values. Kate Sheehan, Indian Fern Drive, Nashua, NH. Ms. Sheehan said if she were to try to sell her house today, she didn’t think she’d be able to compete with some house that has cell phone coverage, it’s in a different class. Cindy Herweck, 4 Crestwood Lane, Nashua, NH. Ms. Herweck said she has the same concerns as everyone else. She said a lot of people go to the Bicentennial School to make calls in the parking lot. She said if there is a bad storm, the land lines will go down. Rick Defelice, 14 Crestwood Lane, Nashua, NH. Mr. Defelice stated that his biggest concern is that if the Board doesn’t grant the special exception, this area may never have cell phone service in the future. Bob Lavoie, 34 Lawndale Avenue, Nashua, NH. Mr. Lavoie stated that he is from Association Doucet, and has a petition from users of Camp Doucet in support of the tower. He said the Camp is a charitable organization, and has been since 1939. He said the property is a youth facilities camp. He said that the donations have been drying up, along with the rest of the economy. He said the proposal is good for the Association. Eric Parent, 120 Ridge Road, Nashua, NH. Mr. Parent stated he’s lived here for a few years, and has a small business, and needs his cell phone, and it is impactful that it can’t be used. Arthur Matsis, Nashua, NH. Mr. Matsis described how wireless systems work. He said there are hundreds of millions of wireless users. He said that phones are smaller and they do a ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 12 lot more than they did years ago. He said there is no medical proof that there is any health damages that can be caused by using cell phones. Alderman Jeff Cox, 12 Colleen Road, Nashua, NH. Ald. Cox said to date, he has received 163 emails and phone calls, of which 17 are in opposition. He said with regards to the balloon test, he drove around and you can see the tower from Crestwood Lane, but just barely. He said it will be seen from parts of Georgetown. He said a lot of people work out of their home, and it’s a problem if you cannot get service. Craig McLaughlin, 19 Salmon Brook Drive, Nashua, NH. Mr. McLaughlin said he has the same issues and concerns as the previous speakers, it’s a burden to the whole area without cell phone service. Scott Silva, 27 Middle Dunstable Road, Nashua, NH. Mr. Silva stated that he has a petition from 20 of his neighbors in favor of the tower. He submitted a letter in support as well. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mr. Currier said the Board has received several letters of opposition, and they are all in their package. He read a couple letters, the first from Bill Evarts, 64 Cadogan Way, and another one from Barbara Chenevert, 11 Meadowview Circle. Judith Hirsch, 58 Georgetown Drive, Nashua, NH. Ms. Hirsch said she is concerned about the environmental, and fire hazards of the tower. She said the tower would not be accessible to fire and police vehicles, and it’s in a heavily wooded area. She said it has diesel fuel, and if it catches fire, there are four condominium communities nearby, hundreds of homes too. She said these properties are worth hundreds of millions of dollars. She said if the Board approves this tower, there could be other towers coming before the Board as well. She said there will be a drop in property values. James Norrad, 16 Mountain Laurel Road, Nashua, NH. Mr. Norrad stated that his concerns are the property values. He said that Sky Meadow is a beautiful view, and bought the entire floor, just for the views. He said the tower will have a negative impact on the views. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 13 Bill Noreski, 12 Mountain Laurels Drive, Nashua, NH. Mr. Noreski said the proposed tower would be totally out of character with the neighborhood, it is very picturesque. He said the tower would be 18 stories high, and will affect property values. He said he bought the property for the view. Natalie Caldwell, 12 Georgetown Drive, Nashua, NH. Ms. Caldwell said she has issues with her cell phone reception. She said she’s learned to adapt without having cell phone coverage, she said there are other things that are more important. Barbara Chenevert, 11 Meadowview Circle, Nashua, NH. Ms. Chenevert said she understands the need, in this economy, for small businesses and cell phones. She said this area is zoned residential, and this is where we live. Karen Price, 39 Meadowview Circle, Nashua, NH. Ms. Price said she agrees with everything that’s been said in opposition to the tower. She said that the tower will have a negative impact to the property values, and it is not in keeping with the residential character of the neighborhood. Carol Menard, 2 Southgate Drive, Nashua, NH. Ms. Menard said she’s been a real estate agent in Nashua since 1982, and believes the tower will have a negative impact on property values. She said it is close to Barrington and Cadogan Way. She mentioned the Coburn Woods tower that was denied. She said the values could go down between 5-18%, and the perceived health risks cannot be ignored. She said it is a buyers market, they’ll skip homes in which they can see a cell tower. David Noblet, 43 Georgetown Drive, Nashua, NH. Mr. Noblet said there are alternatives, such as the micro-cell, to improve coverage for your home. He said it does improve the coverage. Sumner Roper, 16 Mountain Laurels Drive, Nashua, NH. Mr. Roper stated that they bought in Sky Meadow due to the view, which is pristine. He said it is zoned residential, so it would protect their investment. He said he strongly feels that the tower would impact their property values, it certainly won’t enhance the values. Lee Nguyen, 16 Mountain Laurels Drive, Nashua, NH. Mr. Nguyen said he loves the view, and pays view taxes. He said he is against the tower, and said he only uses his cell phone in an ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 14 emergency. He said he also cares about the health concerns with the tower. Richard Lucey, 58 Cadogan Drive, Nashua, NH. Mr. Lucey said he agrees with remarks in opposition to the tower. He said it will have a negative impact on property values. Kelly Sims, 43 Georgetown Drive, Nashua, NH. Ms. Sims said that you can buy devices that enhance your cell phone coverage in your home. She said that you can have call forwarding options so that if someone calls your cell, it could be routed to another number, and it looks as if the caller is calling your cell. She said they have fine coverage in Georgetown. Juana Velosa, 45 Georgetown Drive, Nashua, NH. Ms. Velosa said they bought this house because of the view. She said if being a first-time homebuyer, she wouldn’t have bought into here if there was a cell tower in view. Jeff Buzen, 12 Mountain Laurels Drive, Nashua, NH. Mr. Buzen said he has 3 degrees in applied math, and said that Sky Meadow is at eye level with the antennas and transmitters, and said he didn’t know if they are safe. He said that technology is always increasing, and wondered if in 5 years that the tower will become obsolete. John Marshall, 21 Cadogan Way, Nashua, NH. Mr. Marshall said that he wouldn’t select the lowest elevation in this entire area. He said to the west, there is a spot 700 yards to the west off of Cherrywood Drive, it is owned by the City. He said that the City’s Master Plan calls this area as a potential school site. He said all the other elementary schools take up 5 acres or less, and this site is significantly larger than that. Mr. Williams asked if there is residential development around this lot. Mr. Marshall said there is, and named the streets in Maplewood. He said it’s a better elevation, as it’s 90 feet higher. SPEAKING IN FAVOR – REBUTTAL: Kenneth Kozyra, KJK Wireless. Mr. Kozyra said that the diesel fuel is encapsulated in a double walled tank, that is puncture- proof, and it has like a bathtub feature so nothing can leak and ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 15 be distributed in the surrounding area. He said that generators are allowed by the issuance of a simple building permit. Mr. Currier asked about fires. Mr. Kozyra said the area is fully accessible by the Fire Department, and said that he sees Fire Dept vehicles in there all the time. He said the facility itself is not combustible, it is pre-cast concrete, and there is no element of the structure that is combustible. Mr. Currier asked if RF is going to be beaming to the Sky Meadow properties, and whether it is a consideration. Dr. Haes said in order to be exceeding the public limit for the typical array, you’d have to be within eleven feet at the same level. Mr. Reppucci said that someone remarked that you can’t truly know about the impacts of a tower from a model. He asked if once the tower is constructed, can it be verified that the tower is within its limits before it’s used. Dr. Haes said that the theoretical predictions he makes are overly conservative. He stated that his predicted values are often five if not ten times higher than what is out there. He said that each licensee is required to be within all the Federal limits and guidelines for their equipment. He said that they cannot exceed these values. He said that the antennas are so high up, that people are so far away from the antennas. Mr. Currier said that in the application, there were numerous other sites considered. He said he didn’t remember if the Cherrywood Drive site was considered. Mr. Kozyra said it was not considered. He said that that facility has an elevation that is 69 feet higher than the proposed tower location. He said that site is not an acceptable location. Mr. Goulet said that the Cherrywood Drive site is 69 feet higher. He said that this site, even with an 180 foot high tower, would not provide coverage in certain areas, actually, it would provide less coverage. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 16 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Judith Hirsch, 58 Georgetown Drive, Nashua, NH. Ms. Hirsch said that the Exxon Valdiz also was supposed to be puncture-proof and safe. She said there was no information given about the existing towers in Nashua, what they are generating, she said once it’s built, it’s “after the fact”. She said this is a massive amount of money that would be spent on this, that may not be needed. She said that we all live here, Sunsar Towers is in Miami, this is where we live and the children play. She said that a lot of neighborhoods do not want these towers. She said that there is a big difference between the cell tower company, and the homeowners in this area, that have a vested interest in this neighborhood, she said it’s a big difference. Mr. Reppucci said it seems like the people in opposition think that the applicant needs some sort of special permission to put the tower up, that it’s contrary to the ordinance. He said that is not the case, a special exception is a permitted use in the City of Nashua. He said the rules for a special exception are clear, if the applicant meets all the requirements, a Zoning Board must approve the request. He said the Board is driven by Section 190-38, and we are completely governed by this ordinance. He said that if people want a rule that they don’t want these things being built, they can talk to their Aldermen to not allow it, so then they’d need a variance, which are completely different rules of law. He said he believes that they meet the five criteria. Mr. Carlson said he didn’t believe the request meets criteria #5. He stated that he didn’t feel that the tower was good for property values, and therefore, it affects the welfare of the residents, regardless of what the consulting experts say. He said for the character of the neighborhood, it’s a subjective matter. He said there’s been an equal number of people for and against the request. He said it’s a concern that people don’t have cell phone coverage, however, people have purchased homes and live here, and they feel that the tower will affect the integrity and character of their neighborhood. He said that people talked about their view, and how it would be seen. He said he thought it would have a detrimental affect on the welfare of the citizens, with potentially decreased property values or their ability to sell, regardless of what the consultant would say. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 17 Mr. Williams said the Board has heard testimony, and evidence, that there is a substantial gap of coverage in this area, and the Board has heard testimony from people who live around here, who all state that there is a substantial lack of coverage, and that the applicant has considered other locations, and based upon their testimony, this is the best location, and, unfortunately, wherever this tower goes, someone is going to have an issue with it. Mr. Currier said if you look at the cell tower map, with the circles and 1-mile radius, there is certainly a gap in coverage. He said that the law is is that wireless services are to be provided, therefore, it’s a special exception, not a variance. He said this is the last remaining spot in the City that is not within the 1-mile radius. He said there is a gap. He said this location is a pretty good choice, it’s a large plot of land, far from houses. He said there is a valley where this property is, and houses up on the hill, that have coverage, and wouldn’t see any benefit to this tower, as the Sky Meadow people don’t need it. He said it was surprising about the amount of support for the tower, usually it’s the other way around. He said that by and large, most people wouldn’t want to look at a tower, but a lot of people have said that they’d rather see it, if it provides them service. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant. Mr. Reppucci said that it is listed in the Table of Uses, Section 190-38. Mr. Reppucci said it will not create undue traffic congestion or unduly impair pedestrian safety, there was no testimony that would affect any of those things. Mr. Reppucci said it will not overload public water, drainage, sewer or other municipal systems, there is no reason to believe it would, all the special regulations are fulfilled. Mr. Reppucci stated that it would not impair the integrity or be out of character with the neighborhood or be detrimental to the health, morals or welfare of residents, we had lengthy discussion about that, its not a unanimous consensus on the Board on #5, but, in general, it will not impair the integrity or be out of character with the neighborhood, as that neighborhood relates to every other neighborhood in the City. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 18 Mr. Reppucci said for a special condition, that once the tower is completed and before it goes into full service, that the owner of the tower confirm that it’s within the Federal guidelines that are specified out that they have to meet. He said that the requirements that they have to meet in order to build the tower and operate it within Federal guidelines, they will confirm that they meet it. SECONDED by Mr. Williams. MOTION APPROVED 3-1 (Mr. Carlson). 7. Kenneth E. Mayo Living Trust (Owner) “L” Wellington Street (Sheet 65 Lot 200) appealing administrative decision that two adjoining lots must be combined in order for owner to plant a garden as the principal use on an abutting lot (9. RA Zone, Ward 3. Voting on this Case: Jack Currier Ryan Williams Gerry Reppucci Bob Carlson Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said the lot is a conforming lot, as well as the lot where the house is located on. He said that Mr. Mayo owns both lots, and this is in the RA zone. He said that before he started this project, the owner went to the Building Department to ask what he needs. He said he got a call, stating that he didn’t need a building permit, and that he could proceed. He said it’s a “Japanese-type” garden. Mr. Williams asked about the structures under construction. Atty. Prunier said that they are pumps, it will pump water through the stream. He said that it will be buried. Atty. Prunier stated that the owner met with the Building Department, with Mark Collins, Bill Tracy and Marcia Collins. He said that he didn’t hear back on what he needed, so a month later, he kept going. He was then told, after pouring the concrete for the pump-house, that he’d have to merge the lots if he wants to keep going. He said that they got a letter from Mr. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 19 Falk saying that they’d have to merge the lots, to consider it an accessory use. Mr. Reppucci said if they are two separate lots, what would happen if the owner just sells the lot with the house on it. He asked how this thing would be maintained. Atty. Prunier said it would just grow over, like a wild lot. Mr. Reppucci asked about the two structures. Atty. Prunier said that they are buried, and are underground. Mr. Reppucci asked if they need to meet setbacks if they are underground. Atty. Prunier said that is another issue, that they’ll have to come back with for setbacks. Atty. Prunier said that Use #279 is permitted in this zone, and #282 is also allowed, and #290 is. He said it is like a park. Mr. Williams asked if the Board can consider a variance tonight with the pump-house so close to the street. Mr. Falk said no, because it is a separate variance, with noticing and advertising that is required. He said the pump- house is about 12’x24’, about the size of a one-car garage, and staff looked at it as an accessory structure, which needs a 20- foot setback to a front property line. He said that setbacks go from the ground up to the sky, and said that the building is well over 12 feet high, and it is not below ground, it has been backfilled with some stones, rocks and dirt on the sides, but it is above ground. Atty. Prunier said he is not here for the structure setback. Mr. Currier asked if they consider this an underground structure, yes or no. Atty. Prunier said it is going to be an underground structure, it’s not now, but will be. He said once it’s covered, it will be. SPEAKING IN FAVOR: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 20 Mr. Ken Mayo, 96 Wellington Street, Nashua, NH. Mr. Mayo said he’s lived here for about 50 years, and is a registered engineer. He said his expertise is in hydrodynamics and hydraulic structures. He said he’s been trying to buy this lot for thirty years, and finally bought it, to build a garden. He said it includes a waterfall, a mountain backdrop for the pond, a lot of gravel and dirt was brought in. Mr. Williams said the taller structure sits close to the property line, and asked if it will have a barrier. Mr. Mayo said it will have dirt on it, and it will look like a mountain, and on the street side it will have a low stone wall, about 3 feet high. He said he’s hired an architect to help with this as well. Atty. Prunier said to continue, he needs to apply for front yard setback relief for the pump-house. Mr. Mayo said it is his intention to vegetate the slopes, and wants to plant bamboo on the sides near the street. Mr. Currier asked Mr. Mayo if he is familiar with the Our Lady of Fatima Shrine in Pepperell Mass. Mr. Mayo said he is not familiar with it. Mr. Currier said in that case, many years ago, the owner started a shrine, but it grew and grew, and it’s a wonderfully big structure, that all the abutters are very angry at, because it’s not what they expected up front. He said it’s the Boards responsibility to look out for the abutters. He asked if the abutters knew about this, and are in favor. Mr. Mayo said he’s put in a fabricated block wall between his lot and the Johnson’s house on Elliott Street, along the property line. He said that that abutter is happy with the project. Mr. Currier asked about the house across Elliott Street that looks at the pump-house. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 21 Mr. Mayo said he’s trying to clean up the view for that neighbor, but since he’s stopped working on the building, nothing is being done. Mr. Currier asked if he explained to the Building Department that the building would be underground, or that the ground would be elevated with a mound. Mr. Mayo said he brought in the plan, and never had a discussion with them about it. He said he just left the plan there. Mr. Currier said to merge the lots, where they couldn’t be separated could be a financial burden. He asked if a stipulation could be put on, where the lots are merged, and this becomes an accessory use. He asked if a stipulation were placed that if the structures were removed, it would go back to a single-family lot, based upon the same zoning ordinance that is in effect now. Attorney Prunier said it could be a legal problem, and the Board doesn’t have the authority to do that. He said if it’s one lot, the only way to make them into two lots again is to do a subdivision. Carter Falk, Deputy Planning Manager, City of Nashua, NH. Mr. Falk said this is a staff decision, it’s not me vs. the applicant. He said that any use that comes into the City, for anything, the first thing that staff looks at is the Table of Uses, to see which item it falls under. He said that staff looked at the Table, and didn’t see anything that it fit under as a principal use. He said that the use is being referred to as a garden. He stated that most people think of a garden as vegetables or flowers in a corner of someone’s back yard, where this use is over 14,000 square feet, and includes a waterfall, a fish pond, a bog, a 14’x24’ pump-house, statues, major grade changes, and is quite extensive. Mr. Falk stated that they saw significant grading changes, and that this is a pretty significant use of the land, it is not a typical single-family use, also, it is on a separate, conforming lot of record. He said that Mr. Mayo bought the lot with the house on it in 1959, and bought the subject lot next door in August, 2008. He said it is a separate lot of record. He said any lot that is separate lot of record, whatever you put on it, has to conform to the Zoning Ordinance, and the Table of Uses, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 22 and staff did not see this use listed anywhere in the Table. He said there are almost 300 uses listed in the Table, and none fit this use. He said that Atty. Prunier listed a couple uses that it could be, but staff didn’t think that they match any of the Uses in the Ordinance. Mr. Reppucci asked if he applies for a variance, could this lot be used as he proposes? Mr. Falk said he could, but we don’t have an application. He said it is a stand-alone lot of record, and it doesn’t meet the Ordinance. Mr. Falk said that any use proposed to staff, that is not listed in the Table of Uses, is not permitted, as our Code is a permissive code. He said if a use is not listed anywhere, it’s not permitted. Mr. Williams asked if the Board could consider this request as an appeal/variance. Mr. Reppucci said it wasn’t notified that way. Mr. Falk said no, it wasn’t advertised that way, and if someone wanted to appeal, they’d have good ground to stand on. Mr. Reppucci asked if it would be a concern to the Planning Department if this property were to stay as two separate lots, and if the lot with the house on it were sold, and this use were just sitting there by itself. Mr. Falk said that would be a concern, because this lot is not tied to anything, and staff has concerns about maintenance, safety, and having it become run down. Atty. Prunier said it’s a park, a playground, they are allowed uses. Mr. Currier said his concern is uses that are outside of what is permitted. He said that this use is a potential white elephant at this point in time. Atty. Prunier said the Ordinance allows parks and playgrounds. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 23 Mr. Williams said that he should come back and apply for a variance. Mr. Reppucci said the only item that is before the Board is whether or not the administrative decision made by Mr. Falk is correct. He said the applicant hasn’t applied for anything beyond that. He said that the Planning Department is 100% right in determining that this use is not a principal use, and not listed in the Code. Mr. Currier said he agrees with Mr. Reppucci, he said he believes that the Planning staff has made an accurate decision, he said he’s looked through the Ordinance to see how it’s defined, and said he agrees with Mr. Falk on this decision. Mr. Reppucci said if they did allow this administratively, it would be fodder for people saying that they’re going outside of what they’re allowed to do. He said it was very prudent that it was brought before us, and believes that the Board should uphold staff’s decision. Mr. Williams agreed, Mr. Falk correctly stated that it is a permissive code, and stated that they should file an application for a variance. MOTION by Mr. Currier that he agrees with the administrative decision that the two adjoining lots must be combined in order to plant the garden as a principal use on the abutting lot. He said that the term “garden” has been used tonight, it’s a large structure that is within the setback, perhaps there was a misunderstanding in the Planning Department that got us there from here. He said he didn’t think that a garden like this is a horrible thing, it’s probably very good, he said he’s agreeing with the administrative decision that it should be a principal use on a separate lot. Mr. Reppucci said that his belief is that staff feels that if the lots were merged, it would be an accessory use, but there are other options besides merging the lots. SECONDED by Mr. Reppucci. MOTION CARRIED 3-1 (Mr. Carlson). MISCELLANEOUS: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 24 REHEARING REQUESTS: 1. Roland & Joyce Brito, “L” Berkeley Street. Rehearing was submitted by Philip Kaplan. Mr. Carlson said it is outside of the 30-day limit rule, they had their opportunity to submit it in time. Mr. Reppucci agreed, based upon the fact that they didn’t file the appeal within the window. Mr. Currier said the Courts have been very adamant, that 30 days is 30 days, and if we were to go with this, that it would be overturned. MOTION by Mr. Currier to deny the rehearing request, because it was not submitted within the 30-day window. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. 2. Remi Dargus, 344 Main Street. Mr. Falk said he’s submitted pictures of what he wants to do. He said that the Board approved it with three parking spaces in front, he wants four spaces. He submitted a picture of what it may look like. Mr. Reppucci asked if the fourth space would violate the front yard setback. Mr. Falk said it can’t be within the front yard setback, which is a minimum of ten feet from the property line. Mr. Currier said if this is approved, it would just be for the parking spaces in the front, not for the use. Mr. Falk said he’s asked the Board just to re-consider their special condition about three spaces in front, not four as requested. He said this is very similar to Mr. Laliberte’s request on Harbor Avenue, where, the case was approved, but the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 25 Board had a special condition only on the parking, and he brought it back just for that issue. Mr. Currier said it looked as if the house was a two-family, and didn’t want four spaces out front, and it was the only one with parking in the front lawn. He said he was uncomfortable with four spaces out front. Mr. Reppucci said in the applicants letter, they gave the wrong dimensions, and that the Board was considering some wrong information. Mr. Currier said in looking at the drawings, it just dimensionally doesn’t add up. Mr. Reppucci said when we originally discussed this, we didn’t think that four spaces would fit in the front, and stay within the setback, now, he’s saying that he can. Mr. Williams said he remembers the Board discussing the size of the parking areas, but said there was a lot of concern about how they would look, and whether or not it’s within the character of the neighborhood. MOTION by Mr. Reppucci to grant the rehearing request, because there is new information provided by the applicant. SECONDED by Mr. Carlson. MOTION CARRIED 3-1 (Mr. Williams). MINUTES: April 13, 2010: May 11, 2010: Mr. Currier stated that the Board will do the minutes at the next meeting. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 25, 2010 Page 26 ADJOURNMENT: Mr. Currier called the meeting closed at 11:45 p.m. Robert Shaw, clerk – absent (Mr. Currier and Mr. Falk co- wrote the case summaries) CF Taped Hearing