Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, June 22, 2010 at 6:30 PM in the Auditorium at City Hall. Jack Currier, Chair, conducted the meeting. Members present were: Jack Currier, Chair Rob Shaw 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. 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] [TABLED FROM THE JUNE 8, 2010 MEETING] Voting on this Case: Jack Currier Gerry Reppucci Ryan Williams Gerry Reppucci - RECUSED Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said he objected to going forward without a full five-member Board. Atty. Prunier gave the Board a handout, showing where the house and garage is. He said the garage goes back 25 feet, it’s the 21 foot width that goes into the setback. He said on the right hand side is where the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 2 structure encroaches, about 1.5 feet. He said from the photo, he wants to store the wood in the garage. He said there is plenty of room for emergency personnel to go around. Atty. Prunier said for the hardship, he said that the owner thought the setback was seven feet, not ten feet. He said it is within the character of the neighborhood, and the closest abutter has no issue with the structure. Atty. Prunier went over all the relevant variance points of law. Mr. Currier asked if the driveway will meet the maximum width allowed by the Ordinance, which is 24 feet. Atty. Prunier stated that his client will not exceed the width, and would reduce it if it exceeded the ordinance. He said he didn’t mind having a stipulation that the opening must meet the ordinance. SPEAKING IN FAVOR: Letter from 22 Danbury Street from Daniel Cagguila. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance request on behalf of the applicant. Mr. Currier said the approval is based upon the applicant maintaining the maximum 24-foot wide curb-cut, which is the City Ordinance maximum width. Mr. Currier said with that 24-foot wide maximum curb-cut, believes the variance is needed to enable the applicant’s proposed use of the property, which is a garage and a wood storage area, and said that this is a approval for a currently built structure, and given that the one affected abutter at 22 Danbury has provided a letter of support, this case is within the spirit and intent of the ordinance. Mr. Currier stated that this request will not adversely affect property values of the surrounding parcels, and is therefore not contrary to the public interest, and substantial justice is done to allow the applicant to have a 1.5 foot encroachment into the 10 foot required side yard setback. Mr. Williams said that the fact that the garage is already on the property is not a factor that the Board considered. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 3 Mr. Currier amended his motion to add the fact that the Board looked at this case as if the garage didn’t exist. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0. 2. Kathleen H. & Gary E. Nelson (Owners) S.W.L.C., Inc. (Applicant) 138 Spit Brook Road (Sheet B Lot 76) requesting the following variances: 1) to exceed maximum ground sign height, 6 feet permitted, 10 feet requested, 2) to encroach 10 feet into the 10 foot required front yard setback, and 3) to allow manually changeable copy on a portion of proposed ground sign. R18 Zone, Ward 8. Voting on this Case: Jack Currier Gerry Reppucci Ryan Williams Gerry Reppucci Attorney Robert Welts, 29 Factory Street, Nashua, NH. Atty. Welts said that this is the 15th year that the World Schools has been at this location. He said it is a private school, with summer camps. He said there are three variance requests before the Board, to move its existing sign to another location on the property, and a slight modification to the face of the sign. Atty. Welts said the existing sign is located on the easterly end of the property, alongside a common driveway, shared by Grace Lutheran Church. He said the sign is set back over 90 feet from the nearest travelled way on Spit Brook Road. He said that the road was straightened and modernized, thereby moving it away 60 – 90 feet to the south, and the City retained the extra land for the right-of-way. Atty. Welts said that in 2001, a variance was granted by the Board for a 0 foot setback, and for the area. He said that the purpose of tonight’s variance is to allow the sign to be relocated approximately 170 feet northerly, along the stone wall, as shown in the pictures and plan, in front of the school, in the center of the front boundary. He said the reason to move the sign is to improve the visibility of the sign. He said since the original sign was placed, the trees have grown in the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 4 City right-of-way, and it is difficult to see the sign. He said that other problems have arisen with the common driveway, and the close proximity of the school and church signs. Atty. Welts said the location of the proposed sign would be over 30 feet closer to Spit Brook Road than the present sign. He said the height and square footage proposed are what was approved before, but this time they would like to add a manually changeable reader board. He went over all the relevant points of law. Mr. Shaw said that he was concerned that the sign would not be perpendicular to the street, even though it would be closer, and didn’t think it would be as visible. He said he was concerned with the flow of traffic also, he said the intent is to have traffic enter at the common driveway, and funnel through at the westerly driveway for egress. He said by moving the sign, it would raise greater ambiguity where the entrances are to the property. Atty. Welts said he’s driven by the site numerous times, and cannot see the sign coming from the east. He said they’ve discussed the location at length, and believe its proposed location would be the best. He said they also believe it will look nicer, with the school in the background. Mr. Currier read a portion of the minutes from the 2001 meeting, in which Atty. Welts stated that many prospective parents and other persons visiting the school have complained that they have passed the common driveway. Atty. Welts said that circumstances have changed, for one thing, the trees have grown. Mr. Currier asked if they have contacted the City to cut or trim the trees. Atty. Welts said that they have not, the trees are beautiful, but they have grown, and the sign is less visible. Mr. Williams asked about the enrollment, and just how many people drive by the site and can’t find it because of the signage. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 5 Atty. Welts said every year, students graduate, and there is a whole new class of students coming in, so there are always new people going to the site. He said about 40% of the students are from out of town. He said they believe that if the sign is 30 feet closer, it will be easier to read. Further discussion ensued. Mr. Currier said he wouldn’t be in favor of an internally lit changeable copy sign. Atty. Welts said the existing sign is internally lit. SPEAKING IN FAVOR: Kathy Nelson, 138 Spit Brook Road, Nashua, NH. Ms. Nelson said that the sign is a big financial commitment to them, and the parents. She said they have looked at the sign situation very closely, and is concerned about the neighborhood. She said they are doing everything they can to make the sign look nice and serve as an adequate identification to the school, and fit into the character of the school. She said they have been looking at the sign for a long time, and believe it is attractive. Mr. Reppucci said he is grateful for all the research and time put into the application, but is concerned that the sign will be relocated away from the only entrance to the school. Ms. Nelson said the best thing is if they could have two signs, and have one at the entrance. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Reppucci said they already had the square footage and height approved by their original variance, they are just relocating it to another location. He said that it was well-known at that time that the sign was internally lit. He said they’re really not looking for anything except a different location on the lot. He said if the applicant and the sign company have discussed this at length, and can’t imagine why they wouldn’t want an entrance sign. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 6 Mr. Shaw said he wasn’t convinced that the situation is becoming better with respect to signage. He said the placement of the sign is very aesthetic with relation to the school from Spit Brook Road, but said he was concerned with people finding their way to the entry of the school. Mr. Williams said that by putting the sign there doesn’t create any traffic dangers, if anything, drivers will pass the school and turn around. He said that the excessive setback from Spit Brook Road is a condition that is unique to the property, and could be looked at as a hardship. He said that the signage doesn’t bring a negative aesthetic value to the neighborhood. Mr. Currier said this is the gateway to South Nashua, and didn’t want to see it cluttered with signs. He said that the changeable copy adds to the clutter a little bit, but, the sign is smaller. He said the discussion has mainly centered upon the placement of the sign. He said that he wasn’t that compelled by the arguments in 2001, that people miss the site, and struggle to get there. He said that they believe that the new location will be better for them, and would support the case for that reason. Mr. Falk said that they can have a directional sign without a variance. He said it is limited to six square feet, and the corporate logo/business name cannot exceed 33% of the face of the sign, and it must show an entry arrow, or give some sort of direction for drivers. He said they can just submit a sign permit for that. Mr. Reppucci said that this applicant is trying to do this the right way, and said it gave him a strong motivation to help them do this. He said he wouldn’t stand in their way, but believes the sign will be less visible in the proposed location. Mr. Williams agreed, he said it’s not our position to make a business determination on their part on whether or not it will aid them, he said this is a unique characteristic with the State owned right-of-way here, and wasn’t concerned that the sign would or could cause any traffic issues. Mr. Currier said it’s their belief that their proposed location will serve them better. He said that most of the Board didn’t believe that the location was necessarily better, but the Board ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 7 is inclined to support the request, based upon their testimony, and to really allow them a sign with changeable copy. Mr. Shaw said that aesthetically, the sign will probably be an improvement, but is still concerned about the potential traffic and safety concerns. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant. Mr. Reppucci stated the variances are 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 the Board discussed in detail the reasons why the applicants proposal and find that their positions credible and reasonable. Mr. Reppucci said it is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, in fact, it should increase the visibility of their signage, and substantial justice would be done. Mr. Reppucci said that with the exception of adding the changeable copy to the sign, the only change for this approval is to relocate the sign, everything else was approved in 2001. He said they decreased the rest of the signage to stay within the size they were approved for earlier SECONDED by Mr. Williams. MOTION CARRIED 3-1 (Mr. Shaw) 3. Douglas A. & Dennis Juonis (Owners) “L” Miami Street (Sheet 130 Lot 72) requesting variance for minimum lot area, 6,000 square feet required, 5,745 square feet existing, to allow this nonconforming lot of record to be separately developed and conveyed from common ownership with 6 Intervale Street. RB Zone, Ward 4. Voting on this Case: Jack Currier Gerry Reppucci Ryan Williams ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 8 Gerry Reppucci Douglas Juonis, 6 Bitirnas Street, Nashua, NH. Mr. Juonis said he and his brother inherited the property from their father, and believed it was a buildable lot, but it doesn’t, it doesn’t meet the minimum 6,000 square foot requirement. He said they are seeking the variance so that if they want to build a house on the lot, they can. Mr. Currier asked if the lots are taxed together. Mr. Juonis said they are taxed separately, and have been since 2004. Mr. Williams asked if they are just seeking approval to make it a buildable lot right now. Mr. Juonis said that is correct, there are no plans for any building improvements, he said his father just passed away. Mr. Falk said that this request is only to convey the lot separately, all they want to do is have this lot separate from the lot with the house on it, there are no plans submitted to construct a new house. Mr. Williams said it’s hard to assess the application if there is nothing to look at as far as plans for a house, it’s hard to tell if it will be in the character of the neighborhood. He said the lot is substandard in size, something could be built right up to the setbacks. Mr. Juonis said he lives in the neighborhood, and wouldn’t do something like that. Mr. Currier asked about the setbacks for the lot. Mr. Falk said the lot is a double frontage lot, with two front yard setbacks and two side yard setbacks. He said the lot limits the size of the house that could be built there anyway. He said in the RB zone, it is a 10 foot front, and a 7 foot side yard setback. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 9 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Eliza Weeks, 19 Miami Street, Nashua, NH. Ms. Weeks stated that she lives right across the street. She handed some handouts of the area, with a photo study of what it may look like with a house on the lot. She said the lot is very small, and is not in the character of Little Florida, and will dramatically change the look of the entry from Intervale Street. She said it will lower the property values in the neighborhood as well. She said she is also concerned that it will become a rental unit, and is concerned with her neighbor’s property, with it being so close to the lot. Charles Adie, 6 Miami Street, Nashua, NH. Mr. Adie said that the lot could be used for a better purpose, the house adjoining the vacant lot could use some additional land, and perhaps they could split that lot up. Keith Nadeau, 17 Burns Street, Nashua, NH. Mr. Nadeau stated that he is the abutter to the vacant lot. He said if he knew that the property line was that close, he would have never bought the house. He said that part of his lawn that he’s been maintaining is actually the empty lot. He said the lot is small, and thought the owners would do well to sell the property, he said he’d like to buy it but cannot afford it. He said there needs to be some stipulations, and we need to know what will be built there, and the lot is small. Mr. Reppucci said the lot is generally pretty small, so most likely it will be a small single-family ranch-style home, and it’s also likely that the owner will live there. SPEAKING IN FAVOR – REBUTTAL: Douglas Juonis, 6 Bitirnas Street, Nashua, NH. Mr. Juonis said it would be nice if one of his nieces could build a house on the lot, and not just have a piece of land that we are paying taxes on that is useless. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 10 Mr. Williams said the Board heard a very similar case to this on Berkeley Street a couple months ago. He asked if Staff had reviewed Section 190-121 (b)(3). He said that the last sentence may get them out of this provision. Mr. Falk said that neither the applicant nor staff had considered that exact language, or provision. Mr. Falk said that the applicant came in with the application for land area. Mr. Williams said it looks like this provision may apply to this owner, as there lots around this one that are substandard, and didn’t want the applicant to submit the fees and come back again. He said this is very similar to the Berkeley Street matter. Mr. Currier said the lots have been held in common ownership since prior to 1976, as stated in the ordinance. He said because of the common ownership, before 1976, that they are grandfathered in, and we’ll just consider the application before us. Mr. Williams said he still had concerns, this is still just like the Berkeley Street case, where both of those properties had been owned by the same people, and the department had interpreted that this provision applies, and they had to get a variance. Mr. Falk said the Berkeley Street case was short on lot width, so, the wording of the ads aren’t exactly the same, but it’s still getting them to the same place, the same conclusion, which is relief from the Board for a dimensional issue that didn’t meet the ordinance. Further discussion ensued by the Board. MOTION by Mr. Currier to grant the variance on behalf of the owner. Mr. Currier stated that he believes the variance is needed to enable the applicants proposed use of the property, which is the development of a single-family home, and the Board stipulates not to exceed two stories, to try to minimize the impact on the abutting neighbors, by limiting the size of the home, the fact that this has been two separate lots, that they have paid taxes on for many generations. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 11 Mr. Currier said that this is within the spirit and intent of the ordinance, it will not adversely affect property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. Mr. Currier said the special condition is that it will be a single family home, not to exceed two stories. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REHEARING REQUESTS: 1. Robert Kerouac (Club Social), 6 Denton Street. Mr. Falk said that there is a letter requesting that the rehearing request for 6 Denton Street be postponed another two weeks. MOTION by Mr. Reppucci to remove the rehearing request from the Table. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Reppucci said he’s inclined to say no to the request, the Board was more than generous in allowing extra time to allow them to come up with additional information. He said this was articulated very clearly to them. He said he didn’t feel that the people asking for this are being reasonable, they haven’t made the effort to comply with the rules, we gave them a break, and they’ve done nothing. Mr. Williams agreed with Mr. Reppucci. He said he is sympathetic to their needing additional time, but has found out that they’ve been told numerous times what they need, and we still have nothing. He said the abutters need to move on, as well, and it is not fair to them, and we’re putting more effort into this application than the applicant is, and it is ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 12 disappointing and surprising that they’ve submitted nothing to even discuss. Mr. Shaw said he shares the same sentiments that have been brought up. Mr. Currier said it looks like they took our recommendations to heart, and want to do it the right way. He said they were probably overwhelmed by what is needed, and just weren’t ready. Mr. Williams said he could have had a fully prepared argument ready for this case in a matter of hours. He said this wouldn’t have taken a lot of time. Mr. Reppucci said he is certain that the rules have been read to the applicant, and they knew that something had to be submitted, and they had plenty of time to get something written. He said they had 841 signatures for approval, you’d think someone could have written something competent within the first 30 days, and now, to extend it beyond, they’ve had their opportunity. He said the abutters have rights, too, and the rules are very clear, and they should follow them. Mr. Falk said the applicant was given a little extra time. He said the Board can only stretch this out for so long, and they’ve already been given a break to come back tonight. He said if they even go to the next meeting, they’re already a month after the 30-day deadline, which is quite generous. Mr. Reppucci asked if the Board is setting some sort of precedence by allowing so much additional time, and what will happen for future cases that will impact people. Mr. Williams said there could be numerous different reasons or excuses why someone isn’t ready. He asked if there is going to be some sort of precedence with allowing additional time, and this could cause some harm to abutters. Mr. Shaw said he didn’t want the Board to have conditional treatment of rehearing requests, whether it’s an approval or a denial, or by the applicant or by an abutter. He said it would open the Board up to more difficulties in terms of the Boards consistent treatment of situations. He said he understands that the Board is sensitive, and tries to be accommodating and to give full consideration, but said that the Board shouldn’t ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 13 undermine our actions and By-laws. He said we tried to accommodate them two weeks ago, and allow for some leniency, and we still have nothing. He said the Board could be undermining the By-laws, and acting in a manner inconsistent with past practice. Mr. Falk said sometimes issues are raised in Court when they see that By-laws aren’t followed, or the Board acts in a way that is not typical of past practices, rules of procedure, or By-laws. He said the Board should act consistently, and follow the laws and By-laws. Mr. Reppucci said that what was unique about this rehearing request is that it wasn’t weak, it had no specific information at all in it, just a vague statement that there was some new information. MOTION by Mr. Currier to deny the rehearing request, because there’s been no tangible evidence for this Board to approve a rehearing request, and without that evidence at this time, this Board recommends denial. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MINUTES: June 8, 2010: MOTION by Mr. Currier to approve the Minutes as presented, waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. ADJOURNMENT: Mr. Currier called the meeting closed at 9:30 p.m. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 22, 2010 Page 14 Robert Shaw, Clerk CF Taped Hearing