Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, July 27, 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, Clerk Gerry Reppucci 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. Bruce A. & Michelle E. Seppi (Owners) 56 Wethersfield Road (Sheet B Lot 714) requesting variance to encroach 5 feet into the 10 foot required right side yard setback to construct a 20’x28’ garage. R9 Zone, Ward 9. Voting on this Case: Jack Currier Gerry Reppucci Rob Shaw Tom Landry, Tom Landry Construction, Nashua, NH. Mr. Landry stated that the neighbors are all in favor of the addition, and it will increase the value of the home. He said they’d like to have the two-car garage in there. Mr. Currier said the encroachment is only for a corner of the garage, it’s not the whole length. He asked what the impact would be if they made it narrower, and didn’t go into the setback. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 2 Mr. Landry said it would increase the cost of the addition dramatically, because the cuts and angles would be all custom cuts. SPEAKING IN FAVOR: Michelle Seppi, 56 Wethersfield Road, Nashua, NH. Mrs. Seppi said they couldn’t reach a couple of the neighbors, but they did make the effort to contact everyone. Mr. Currier asked about the access for emergency personnel around the side. He said there is a large shed on one side. Mrs. Seppi said they have had emergency vehicles at the home, and there is sufficient room for access. She said that trees have been taken down as well. Mr. Currier asked about the shed. Mrs. Seppi said it is on blocks, and it was there for a long time, when the house was bought. Mr. Reppucci asked if the shed could be relocated. Mrs. Seppi said they could move it to the back on the other side. She said it’s already been relocated. Mr. Currier said there are four letters that are in support in the record. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance request on behalf of the owner. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, which is that the right side yard property line angles back, so the encroachment isn’t for the whole length of the addition, it’s just the back corner. Mr. Currier said he didn’t believe the applicant could get a nice addition like this by some other method reasonably feasible for the applicant to pursue, other than an area variance. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 3 Mr. Currier said that the request 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 would be done. Mr. Currier said that a special condition that the setback issue will be taken care of with the shed, that they’ll move it out of the setback. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 2. Maxine M. Crooker (Owner) 13 Cheryl Street (Sheet D Lot 107) requesting special exception to work within the 75- foot prime wetland buffer of the Nashua River to construct a 10’x32’ addition onto an existing mobile home, and for the relocation of an existing wood deck to be relocated to an existing concrete pad to service an exterior door on the street side of the home. R9 Zone, Ward 5. TABLED TO THE 8-10-10 MEETING. 3. Nashua Investors Limited Partnership (Owner) 105 Spit Brook Road (Sheet A Lot 684) requesting special exception to work within the 40-foot wetland buffer of a stormwater retention/detention basin to remove three multi-family buildings and construct three new multi-family buildings on essentially the same foundations. RC Zone, Ward 8. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Richard Maynard, Maynard & Paquette, Nashua, NH. Mr. Maynard said he is requesting to remove and reconstruct three multi- family buildings on the same foundations that exist within the buffer and stormwater retention basin. Mr. Maynard said the existing buildings were built in the early 1970’s, and are in poor quality, as the foundations leak, and the walls are poorly insulated, and the buildings are in poor condition. He stated that the buildings will be torn down, the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 4 foundations will be repaired and rehabilitated, and they will rebuild new multi-family buildings over the existing foundations. He said they are within the 40-foot buffer of a man-made stormwater retention basin. Mr. Maynard said the project was reviewed by the Conservation Commission, and a letter of approval with nine stipulations are included in the package. Mr. Maynard went over all the special regulations for encroaching into a wetland buffer. Mr. Shaw asked about condition number 5 from the Conservation Commission, it seemed vague as to when the photos could be taken. Mr. Falk said it would be optimal to get photos at all the different stages of construction. He said he would contact appropriate staff so that they can relay this information to the contractor. 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 the use is listed in the table of uses, section 190-112. Mr. Currier said that per testimony, there will not be any change or any undue traffic congestion, there will be no impact on municipal water, drainage and sewer. Mr. Currier stated that per testimony, all the special regulations are fulfilled, all nine, and this project will not be out of character with the neighborhood, in fact, it will make the neighborhood look a lot nicer, and the request was approved by the Conservation Commission with nine stipulations. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 5 4. Bellavance Beverage Co., Inc. (Owner) Laura Smith and KL3, LLC (Applicant) 22 Charron Avenue (Sheet E Lot 1340) requesting use variance to allow an indoor skate park facility in a portion of an existing building, which would include skateboards, BMX bikes, roller blades and non- motorized scooters. AI Zone, Ward 1. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Laura Smith, 15 Independence Drive, Merrimack, NH. Ms. Smith said she is seeking a variance for an indoor skating facility for in-line skates, BMX bikes, roller skating. She said that there are three uses in the Table of Uses that allow similar uses, number 202 for outdoor skateboard parks, number 209, which allows indoor recreational facilities, and 227, which allows stadiums, arenas, which could be either indoor or outdoor. She said her use is number 226. Ms. Smith went over all the variance points of law as specified in the application. She said that the Nashua Airport and the next door abutter, Brady and Sullivan, are both in support. She said that numerous residents and parents are also in support. SPEAKING IN FAVOR: Ken Azarian, 15 Independence Drive, Merrimack, NH. Mr. Azarian said that there are numerous kids that would utilize a facility such as this. Mr. Currier asked if they had looked at any other sites in the City. Ms. Smith said that they had, but this building was the best fit because it has the 18-foot or higher ceiling, which is necessary for the business. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 6 MOTION by Mr. Reppucci to grant the use variance on behalf of the applicant. Mr. Reppucci stated that a zoning restriction as applied interferes with a landowners reasonable use of the property, considering the unique setting of the property in its environment, and no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property, and the variance would not injure the public or private rights of others. He stated that there was no testimony that there would injure anybody’s rights, and it’s a unique requirement that they have an 18-foot high ceiling, which limits their possibilities, which this property meets. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance, it will not impact the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Currier. Mr. Currier agreed, and appreciated that the applicant was thorough in looking at the table of uses, and that more intense recreational uses would be allowed by right. MOTION CARRIED UNANIMOUSLY 3-0. 5. Face Investments, LLP (Owner) 11 Northeastern Boulevard (Sheet B Lot 1257) requesting variance to encroach 8 feet into the 10 foot required setback to replace an existing ground sign with a new 42 square foot ground sign. HB Zone, Ward 9. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Attorney Peter Bennett, Winer and Bennett, 111 Concord Street, Nashua, NH. Atty. Bennett said the building is in the HB zone. He said that the variance is from Section 190-101, to allow for a new 42 square foot ground sign, to replace the existing one, which is the same size. He said that the sign would go in the same location, and a variance is needed for the setback. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 7 said that the new sign will help to bring a better look to the property, and to upgrade an old, existing sign, and make the property look more attractive. He said that the new sign would be about 2 feet from the right-of-way, and the setback is ten feet. Atty. Bennett went over all the variance points of law to the Board’s satisfaction. Mr. Currier asked what the square footage of the existing sign is. Atty. Bennett said the proposed sign is 42 square feet, and the existing sign is about the same size. Mr. Currier asked if the new sign would block anyone’s views, as far as traffic goes. Joseph Fuoco, Face Investments. Mr. Fuoco said there is great visibility from both directions. Mr. Shaw asked if there was any consideration to make the sign taller, so that the encroachment could be reduced. Mr. Fuoco said he didn’t think a taller sign, set back more, would be a better look for the building, he said that the proposed design is better for the building. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance on behalf of the applicant. Mr. Currier stated that a zoning restriction as applied interferes with a landowners reasonable use of the property, considering the unique setting of the property in its environment, and no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property, and the variance would not injure the public or private rights of others, as this request will replace an old sign with a new, nicer one. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 8 Mr. Currier said the request is within the spirit and intent of the ordinance, as the new sign is about the same size as the old one. He stated that it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. Mr. Currier said a special condition is that the sign will not be an internally lit sign. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 6. Kenneth E. Mayo Living Trust (Owner) “L” Wellington Street (Sheet 65 Lot 194) requesting the following: 1) use variance to allow the vacant lot to be used for a Japanese Garden; and, 2) variance to encroach 6 feet into the 20 foot required front yard setback (on Elliott Street) to allow a 12’x24’ pump house. RA Zone, Ward 3. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Attorney Gerald Prunier, Prunier & Prolman, P.A, 20 Trafalgar Square, Nashua, NH. Atty. Prunier described the history of the use, in April of 2008, he spoke with the Building Department, and he was told that they wanted to review the plan and call back later. He said that he was told that he could pick up his plan, and didn’t need a building permit. He said he was told at the most he’d need was an electrical permit for the Japanese Garden. Atty. Prunier said the lot is a separate, legal, conforming lot. He said that Mr. Mayo began construction on the garden, including the pump house, which is supposed to be underground. He said that he was told that he’d need a permit, and ultimately a variance, for the pump house, after construction had begun. Atty. Prunier said once the garden is completed, it will not depreciate any values, it will be a nice looking use. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 9 Atty. Prunier said the pump-house will be covered with soil, and technically would be underground, and understood that perhaps it was thought that a permit wouldn’t be needed. Mr. Currier asked about the elevation of the pump-house it looks as if it would be 24 feet high. Mr. Kenneth Mayo, 96 Wellington Street, Nashua, NH. Mr. Mayo said he’s lived here in this house for about 50 years. He said he wanted the view from the sunroom of the house to look at the pond, with the mountain in back of it. He said that he heard from the Building Department that it will be an unoccupied, concrete building, and totally underground, and that a permit would not be needed. He said he never got anything in writing. Mr. Mayo said that the property corner by the telephone pole was called out as “elevation zero”, and other facets of the Garden were noted from this zero elevation. He said that the term “Japanese Garden” just means that it is not a vegetable or flower garden, it’s largely plants, sculptures, stone walls and the pond. He said the bog garden would have carnivorous plants in it. Mr. Reppucci asked how deep the foundation is from ground level. Mr. Mayo said that he excavated a foot or two, probably about two feet. He said the foundation will be covered with a lot of dirt. Mr. Reppucci asked how far down in the ground are the footings. He said the frost line would be four feet deep. Mr. Currier asked how low the footer is below the natural ground surface. Mr. Mayo said it is about 2 feet below the surface, the natural surface. He said there is a flat slab, there is not a frostwall, because the ground will be built above it, about 10 feet above. He said the walls are resting on the flat slab. He said the mountain will be above it. Mr. Reppucci asked when the project is complete, how deep will the water be, the ponds. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 10 Mr. Mayo said the pond may be 2 or 3 feet deep, but the water in the pump-well will be deeper. SPEAKING IN FAVOR: Letter read into the record from Meri Goyette. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Denise Maistrosky, 97 Wellington Street, Nashua, NH. Mrs. Maistrosky said a lot of the neighbors are sick of the mess, and would like to see it cleaned up, but there are a lot of things that people are concerned about. She said the beauty of it would be fine, but neighbors are worried about the noise level, and the pumphouse. Karen Trowbridge, 80 Wellington Street, Nashua, NH. Mrs. Trowbridge said she is upset about the size and height of the pumphouse, and it is quite close to the street. She said her house is historic, and sits right on the street. She said Mr. Mayo removed all the trees on site, and began blasting the ledge. She said she is concerned about the drainage, and if it is 24 feet high, with bamboo, it is a safety issue, and is concerned about children playing around it. She said it is a quiet street, and the pumphouse is pretty large. Ken Berkins, 73 Wellington Street, Nashua, NH. Mr. Berkins said he started by cutting down the trees, and never communicated how large the project would be. Ledge blasting trucks came in. Backhoe’s were there every morning, and then large concrete drain pipes were delivered. He said a beautiful wooded lot has been destroyed and it is now an eyesore. He said that Mr. Mayo never received a building permit for this project. He said he has pictures of Mr. Mayo working on the project, even after the stop-work order was issued. He said he would have a hard time selling his house with the construction going on across the street, and also stated that he is concerned about the safety of the children. Mr. Currier asked what Mr. Berkins would think about the pumphouse, if it were finished. Mr. Berkins said this would be a 24-foot high mountain, that’s all he’d see. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 11 Robert Trowbridge, 80 Wellington Street, Nashua, NH. Mr. Trowbridge stated that the property never looked better before the work was started. He said the lot had about 30 large pine trees, and they were all felled in one day. He spoke of Mr. Berkins project that was denied a few years ago. He said that this project has been going on for over two years. He said he questioned the size of the pumphouse, if the pond will only be 2 feet deep. He said the pumphouse would be only 15 feet shorter than the Green Monster at Fenway Park. He said there will be a large water flow. Mr. Currier asked if it were finished, and vegetated over, how would he like it. Mr. Trowbridge said he doesn’t like the height of the pumphouse. SPEAKING IN FAVOR – REBUTTAL: Mr. Mayo stated that the size of the pumphouse has nothing to do with the size of the pump. He said that the pump will be contained underwater, in a manhole, below the floor level of the pumphouse. He said he doubted that anyone would hear the pump at all. He said it would be a modest amount of water flowing. He said it would be about six feet below the pumphouse. Mr. Mayo said the floor level of the pumphouse is about 1 or 2 feet below the natural ground level. He said that the top of the arch is 12 feet above the floor, so the net altitude is about 10 feet high, and there will be about two feet of soil on top of it. Atty. Prunier said it was good that Mr. Mayo addressed the noise concern. He said that the height of the pumphouse will be two feet taller than what it is now. Mr. Shaw said he still sees a 19 foot high elevation difference between the structure and the road, he said he doesn’t see the 10 or 12 foot height. Mr. Mayo said the topo drawing is more of an artistic creation, and it could be wrong, he said the calculations that he just described are more accurate, he said he didn’t visualize it being any higher than two feet taller than the arch of the roof. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 12 None. Mr. Reppucci said something just isn’t right with this application. He said the applicant’s perspective doesn’t match the reality of what is out there, and the time it may take to complete it. He said that Mr. Mayo didn’t address the concerns with two of the direct abutters. He said there is a big disconnect here. He said the request is contrary to the laws of the City, it’s contrary to the procedures that he has to follow, it has a negative effect on the neighbors. He said that the Board has a responsibility to the neighbors and to the City, and cannot support the request in any way. Mr. Shaw said for the length of time that this has been going on, there was a stop-work order in place for quite some time. Further, he said there was testimony about property value concerns, and believes they are valid. He said he didn’t see any need for the encroachment of the pumphouse. He said the neighbors will be looking at something that is approaching twenty feet of an earthen wall of vegetation, with a steep slope, and said he didn’t see any evidence or testimony as to why it needs to be in the location it is in. Mr. Currier said that the abutters will be faced with a view of this mountain, he said if the Board were to approve this, they’d be approving an elevation of a 19-foot structure, and it would be a negative impact to the abutters. He said it would be a substantially different application if the pumphouse were to be smaller or out of the setback. He said that Mr. Mayo has a right to cut down the trees. He said he’s stuck on the height of the building, it’s too big. He said it may be a beautiful vision for Mr. Mayo, but it would be a threatening one for the neighbors. Mr. Reppucci said a lot of talk and discussion is on the pumphouse, but not the use variance for the use of the lot for the Garden. Mr. Currier said the requests go hand-in-hand. Mr. Reppucci said the pumphouse and the garden are separate requests, actually, one of the requests could be denied and one could be approved. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 13 Mr. Currier said by denying the area variance, and approving the use variance, the Board would be mandating a major re-design, and is uncomfortable in doing that. Mr. Shaw said the Board should act upon the area variance first, and assuming that it isn’t supported, then the use variance can be acted upon. He said if the area variance is denied, it renders a large part of the use ineffective, so the concept couldn’t even be acted upon without the approval of the pumphouse. Mr. Falk said the applications are separate. He said they should be voted upon separately. He said it’s possible that the use variance could be approved, and the area variance could be denied. He stated that the use variance is driving the request, without the use variance, there would be no need for the area variance, so the use variance should be acted upon first. He said that the structure is related to the area variance. He said that the structure is part of the use. He said they should be addressed separately, but the real question, or request, is the use of the land, the structures upon it are different. Mr. Currier said he’d like to vote on the area variance first. MOTION by Mr. Currier to deny the area variance on behalf of the owner. Mr. Currier said he didn’t believe that the Board finds this variance is needed to enable the applicant’s proposed use of the property, which is the Japanese garden, that could be accomplished without the 12’x24’ pumphouse at a 19-foot plus height, that, in combination with it being too close to the street, it doesn’t need to happen in order to accommodate the Japanese garden, and that height, that close to the street is credible testimony that it will impact the property values of the surrounding parcels, especially the two parcels that testified tonight that are in direct sight of it, and downhill of it, therefore, it is not within the spirit and intent of the ordinance, and it is contrary to the public interest. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. Further discussion ensued. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 14 MOTION by Mr. Currier to deny the use variance on behalf of the owner. Mr. Currier stated that the reason for denial is that the design as presented needs to be materially different because of the denial of the area variance, because the pumphouse is in the setback, and very large, which would require a substantial re-design of the plan, and the Board is uncomfortable approving a design that it doesn’t know what it would look like, in addition, the Board also finds… Mr. Reppucci said that in his way of thinking, the motion should be to approve the Japanese garden, because the Board has already eliminated the possibility of the pumphouse, and then it becomes the responsibility of the applicant to present a design that is acceptable to the City. Mr. Currier continued, with a lack of a clear design at this point, to approve this request would not be within the spirit and intent of the ordinance, it would be contrary to the public interest. SECONDED by Mr. Shaw. MOTION CARRIED 2-1 (Mr. Reppucci against) Mr. Reppucci said a motion to deny carries with a majority, so that motion is approved 2-1. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. REHEARING REQUESTS: None. MINUTES: July 13, 2010: MOTION by Mr. Currier to approve the Minutes as presented, waive the reading, and place the minutes in the file. Mr. Shaw said it should list Mr. Williams as Acting Clerk. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 27, 2010 Page 15 Mr. Falk said he would make the changes to the Minutes. Mr. Currier said the Motion is to approve the minutes with the one correction. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Currier to elevate Mr. Shaw to be the Vice Chairman to replace Mr. Duffy. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. ADJOURNMENT: Mr. Currier called the meeting closed at 9:40 p.m. Robert Shaw, Clerk CF Taped Hearing