Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 14, 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, Vice Chair Bob Carlson (left at 10:15) Ryan Williams Gerry Reppucci (arrived at 6:40) 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. Lavoie, F Apartments, Inc. (Owner) T-Mobile Northeast, LLC (Applicant) 511 Broad Street (Sheet F Lot 20) requesting special exception to construct a 120-foot high flagpole- style monopole communications tower with associated support equipment. R9 & R18 Zones, Ward 1. Voting on this Case: Jack Currier Rob Shaw Ryan Williams - RECUSED Bob Carlson Gerry Reppucci Attorney Steven Grill, Devine, Millimet & Branch, Manchester, NH. Atty. Grill stated that they are requesting a special exception to allow a 120-foot tall telecommunications tower. He said there is a coverage gap in the T-Mobile network to the west and south of the proposed site, along the Hollis border. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 2 said the goal of this tower is different than in years past, now, they try to provide coverage that is robust, or strong everywhere, in their homes and cars. He said these are essential to many people, maybe more so than their land lines. He said cell phones have much more capability, such as email and internet. Atty. Grill said that T-Mobile is competing for more customers, and their customers expect a robust service, and to do that, they need a full-service telecommunications device that meets their needs. Atty. Grill said the tower has been moved from its proposed original location on the site, to be closer to Broad Street. He said that they’ve done the best they can to balance the location of the tower with the residential units in the neighborhood. He showed full-sized plans indicating what was submitted in the package. Atty. Grill went over the special exception criteria as indicated in the submitted application. He said the lot is already being used for commercial use, it is near a busy street, and said they’ve done their best to site the tower in a location that minimizes the impact to neighboring properties. He said the tower meets all the criteria as specified in Section 190-38. He said that they believe that if the Zoning Board approves the request, that they are ready to go to the Planning Board. Mr. Carlson asked about safety issues with the tower. Atty. Grill said the site will be secured, it will be adequately signed as well. Mr. Reppucci said the Board is not allowed, per Federal law, to discuss health issues with cell towers, unless there is evidence produced that shows that it is contrary to what the Federal law allows. Atty. Grill agreed, he said in 1996, the Federal Telecommunications Act was enacted to encourage the growth of cell phones. He said they will be well below the maximum exposure allowed by Federal law. He said they will certify that they will be. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 3 Mr. Shaw said he didn’t see any elevation drawings showing what the tower would look like, or a balloon test indicating its actual position on the property. Atty. Grill said they didn’t do a balloon test, but they did have an environmental study done. He said there are some photos of the site, but not a balloon test. Mr. Currier said he wanted to see a map showing the towers, at least one mile away from one another, showing the other carriers on the towers. He said he wanted to see how the service is needed on this tower, as opposed to why it can’t be put on any other towers. Atty. Grill said he cannot speak for any other carriers, they all have different systems. He said that a determination has been made by T-Mobile that they need a tower in this area. He stated that there are other towers a little over a mile away. He said each tower serves a specific area, they are very sophisticated with the coverage they provide. He said that this area is an underserved area. Mr. Currier said if all the other nearby towers are all filled up, and there is no capability for co-location, it may be a good reason to grant this request, conversely, if there is room on other towers, they should be willing to co-locate. Atty. Grill said he did have a copy of a map of the tower inventory in the City. Mr. Currier asked if there are any towers in the Town of Hollis in this area. Atty. Grill said he is not aware of any. He said the goal of this tower is to serve this portion of the City of Nashua. Mr. Currier said that the application states that trees will block the view of the tower to the surrounding residential subdivisions. He said that a balloon test could verify that the tower will be hidden. He asked if the applicant would consider doing a balloon test. He said that he didn’t have the authority to have a crane test. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 4 Atty. Grill said that they could use a weather balloon, and take photos from nearby properties, and model it with a simulated tower. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Al Mento, 20 Brittany Way, Nashua, NH. Mr. Mento said that there should be a crane test, but if there is a balloon test, it should have a full 360-degree view to see the girth of the tower. He stated that it was indicated that the tower would cover west Nashua, but said that it appears it may cover in Hollis, too. He asked that a third-party study be done to show the circumference of the coverage. He said that the denial of the Coburn Woods tower is still relevant for this case. He said that this case will affect the property values. Robert Rella, 4 Natick Street, Nashua, NH. Mr. Rella said he lives right off of Broad Street. He said there is no one here in favor of the tower. He said the tower is five times the height of King Kong, it is too tall and obtrusive for the neighborhood. Edwina Kwan, 48 Cathedral Circle, Nashua, NH. Ms. Kwan stated that when the leaves fall, she’ll see the entire tower, and it will be an eyesore. She said it will harm the welfare, and will disturb the neighborhood. She said this is a residential neighborhood, and it will be disturbed. Ben Daigle, 10 Majestic Avenue, Nashua, NH. Mr. Daigle stated that he is about 250 feet away from the proposed tower. He passed out prior Board decisions with regards to the Red Barn going to a convenience store in 2003. He also mentioned information about a crane test in the Sullivan Farm request. He said the tower is out of character with the neighborhood. Dave Durocher, 29 Majestic Avenue, Nashua, NH. Mr. Durocher stated that if this request is granted, what would happen to the parcel beyond it, and asked if it would be a land-locked situation. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 5 Mr. Currier stated that this isn’t a subdivision, it’s just a leased area that they would use, there would be complete access through and around the subject lot, and it wouldn’t land-lock anything. Mike Dube, 6 Majestic Avenue, Nashua, NH. Mr. Dube stated that he downloaded a program, and borrowed a phone, and took pictures showing that there was at least three bars on the phone on all parts of Majestic Heights, and had three bars in Hollis Crossing. He said it doesn’t seem like this tower is for the benefit of Nashua. He said it was done with a T-Mobile phone. Peter Wright, 10 Cathedral Circle, Nashua, NH. Mr. Wright said that he didn’t hear anything about non-existent coverage. He said the Telecommunications Act didn’t mandate full coverage. He said the spirit of the Act is in good faith here. He said for the character of the neighborhood, it’s subjective, but said that only one tower is in a residential neighborhood, on Columbia Avenue, the rest are in commercial areas. He drew a map, and within a 500-foot radius of the proposed tower, there are 65 homes. He said that the one on Columbia Avenue has 15 houses. He said if the circle is drawn to a quarter-mile, it is 257 homes within the radius. He said the tower is about 20 feet in circumference, and when the leaves fall, it will stand out much more. Babbar Harish, 11 Majestic Avenue, Nashua, NH. Mr. Harish agreed with previous speakers. He said there is a regulation from the HUD, that any house within 500 feet of a tower, they won’t insure the loan for the borrower. He said he is concerned about the property devaluation. He said the balloon test should be done in the fall, and it would be better to have a crane. Bill Flynn, 27 Majestic Avenue, Nashua, NH. Mr. Flynn said that he agreed with previous speakers. He said he bought in this neighborhood to enjoy the pristine scenery, the tower will ruin it. He said also, that the utilities are underground. He said they should employ a crane test. Justin Moquin, 17 Majestic Avenue, Nashua, NH. Mr. Moquin stated that he agrees with previous speakers, and is not in support of the proposed tower. Ken Clancy, 15 Majestic Avenue, Nashua, NH. Mr. Clancey said he has T-Mobile, and always has at least three bars, and doesn’t ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 6 see the need for this tower. He said he is concerned about the property values for his property. He said he has good coverage in the whole area. Rick Manning, 12 Majestic Avenue, Nashua, NH. Mr. Manning said he lives directly across the street from where the tower would go up. He stated that he opposes the tower for all the reasons that have been brought up so far. He stated that on the FCC website relative to lighting and markings, and it says that it always requires a study that the tower will not create any negative issues with lighting and painting. He said they have to provide an environmental assessment. Zebulon Brundage, 32 Cathedral Circle, Nashua, NH. Mr. Brundage said it will devalue property, and will negatively affect the properties in the area. He said it will be a 12-story tower, it is not something that the neighborhood wants. Alex Kutschke, 35 Majestic Avenue, Nashua, NH. Mr. Kutschke stated that he objects to this request, and agrees with previous statements. Ernie Swerksi, 22 Cathedral Circle, Nashua, NH. Mr. Swerski stated that his understanding is that Hollis has severe restrictions on their allowance for cell towers. He said there’s been a lot of testimony that reception in Nashua is quite acceptable. He asked whether we are being asked to carry the burden for another municipality for this tower. He said there is adequate coverage in Nashua, and wonders why it can’t go in Hollis, where it is needed more. Asma Ahmed , 58 Majestic Avenue, Nashua, NH. Mr. Ahmed said he lived in Hollis Crossing the past three years, and has a T- Mobile phone, and has coverage. Jin Sung, 41 Majestic Avenue, Nashua, NH. Mr. Sung stated that he has a T-Mobile phone, and has adequate coverage. He said the health aspects notwithstanding, it is the emotional aspect from the community, getting the neighborhood worried, takes a toll on families, with getting babysitters and kids to bed. He said the will of the people have spoken. Kathy Vitale, Alderman Ward 1. Ald. Vitale stated that she’s received numerous calls about concerns about the proposed tower. She stated that there should be a crane test, they’ve been done ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 7 in the past, and it would be beneficial to the residents. She said the property is grandfathered as a campground, and there are people currently living there, and asked if the people living there would be displaced from their housing. She said that the City uses this location to place some homeless people, or people who need emergency housing. She said that because it’s a grandfathered site, asked if it’s another use after a new use were to be put on the site, and asked the Board to consider and discuss their grandfathered status. Brian Foley, 45 Magestic Avenue, Nashua, NH. Mr. Foley said that the neighborhood has really been brought together with this case, it is a great showing. He said the tower will be detrimental to the health, morals and welfare of the neighborhood. He said there’s no guarantee that the trees will stay here. He said the properties will be devalued, and the City will be gaining less in taxes. Paul Mallier, 16 Magestic Avenue, Nashua, NH. Mr. Mallier said that the tower will be an emotional impact, and children will be put in danger with the tower. He said there are many other sites where the tower can go. Harold Sowell, 19 Magestic Avenue, Nashua, NH. Mr. Sowell said he is in opposition to the tower. Mark Cookson, Alderman at Large. Ald. Cookson said the City’s been through this before with other towers, in Coburn Woods, and at Sullivan Farms. He said the residents have done a great job in addressing their concerns to the Board. He said the City Planning Department has reviewed the application, and has deemed it complete, and asked whether it is complete or not. He stated that it is requested by the applicant whether the use will impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. He said the response they wrote didn’t answer the question. He said that it is time that T-Mobile provide an independent third-party study of the coverage in this area, and asked that the Board request this of the applicant. He said the tax rating will be changed if this is approved, as well. Mr. Reppucci asked if there is any residential location in the City that the same concerns being raised tonight wouldn’t apply. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 8 Ald. Cookson said the Board can only vote on what is before them, and hopes to meet with the Aldermen to define areas in the City where towers wouldn’t be permitted. Diane Sheehan, Ald. Ward 3. Ald. Sheehan said that she has thirteen years in the cellular phone industry, and that included buildout of networks. She said that the rules dictate that 95% of the population need coverage. She stated that it used to be 80%. She said that when you have three bars of coverage, it is great coverage, and that is what exists here. She said the impact, if this is approved, would be a problem for HUD for people trying to sell their house. She said that 95% of the population has coverage here, and it meets the guidelines. Unknown female speaker. She said this will create more foreclosures, and the benefit will be to the cell tower, not the residents. She asked about the power to the site, and if it will drain the utilities, and if it will affect the wildlife in the area. Atlandt Schmidt, 11 Hope Circle. Schmidt stated that cell towers are located in many non-residential areas, if not most, and the residents are generally not opposed to that. He said it is easier to go here, rather than Hollis, because they don’t even allow them. SPEAKING IN FAVOR – REBUTTAL: Atty. Grill said it is not true that this facility is only used for Hollis residents, the map indicates many areas where coverage is lacking in Nashua. He said there is a large segment where coverage can be improved. He said the white color on the map indicates poor coverage. He said this cannot be a directional tower, either. He said he is unaware of any law that states that someone cannot sell property or get a mortgage within a certain distance of a cell tower. He said he is also not aware of any property values being devalued by being in proximity to a cell tower. He said if any other information is requested by the Board, the applicant will look into obtaining it. Mr. Reppucci asked if any towers were proposed in Hollis. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 9 Danish Dasani, RF Engineer, T-Mobile. Mr. Dasani said he’s not aware of any towers being proposed in Hollis since he’s been with the company, which is two years. Mr. Reppucci said that he checked with the Town of Hollis, and T-Mobile did try, at two different locations, to put towers there, close to the Nashua border. Further discussion ensued. Atty. Grill said they would schedule a balloon test. Mr. Currier asked about the tall trees, and asked if the tower is approved, would a condition be stated that the trees nearby be put in a no-cut buffer. Atty. Grill said there could be a condition of approval, to negotiate that condition. He said it could depend on what the landlord says. Mr. Currier said it appears as if there is service there, and asked if a third-party could be employed to verify the coverage. Atty. Grill stated that they could do that, if required, this does happen for Zoning Boards to request this. Mr. Carlson said if the Board wants a condition, it is up to us to identify it, it’s not a negotiable decision with an applicant. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS –REBUTTAL: Ald. Cookson, Alderman-at-Large. Ald. Cookson stated they are concerned about the scientific versus the anecdotal evidence about the tower. He said the constituents have just as much evidence as the RF engineer. He said it looks like there may be up to three or more antennas at the top of the tower, and they are all around the tower, so there absolutely is directional capability for the tower. He stated that if the case is to move forward, the abutters want an appraiser, at the expense of T- Mobile, to assess the evaluation of the homes, and the abutters want to hire their own attorney and RF engineer, to refute any data presented with the case. He asked how many T-Mobile subscribers are in the service area, it appears as if the sales team want this for a five-bar coverage, which isn’t needed here. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 10 He said this looks like a sales quota issue here, with home coverage versus road coverage. Mr. Reppucci said they should bring a crane out there, so they can see the results of what it would look like. He said it will be seen by the neighbors. He said the applicant should provide data that indicates that the tower is absolutely needed, and it’s reasonable to think that they can show what their needs are in the future, as they may need additional capacity. He said he has an issue with the Hollis coverage, it doesn’t make sense. He said he’d like data from both the Nashua and Hollis areas. He said he thinks the tower is more for Hollis than Nashua. He said that no matter where it would go in the City, neighbors would have the same concerns. Mr. Shaw said it would be nice to have some direct representation of the structure, it is a good opportunity to see the visual impact of what may be seen. Mr. Currier said he’s seen a balloon and a crane test. He said the woods block the bottom part of the tower, and, it would be located in a conservation easement area, which is why he voted against it. He said that the Sullivan Farm site, the crane was completely visible, as well as the computer generated models. Mr. Reppucci said we should assume the worst, that it will be clearly visible to everyone. Mr. Currier said with the strength of the signal, maybe they want more for capacity in the future, it may accommodate more customers, but there is nothing to substantiate it. He said he is compelled to ask for a third-party study. Mr. Currier said this is so much different from the Camp Doucet case, in which abutters were saying that there was completely no coverage. He said he thinks that the City is not barring T- Mobile from having service in the City. Mr. Shaw said this may come down to the welfare of the residents. Further discussion ensued. MOTION by Mr. Currier to table the application to require the applicant to do a crane test, and to have a third-party ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 11 independent study that the Board would be the curators of, in order to understand how much coverage they don’t have, and how the City may be restricting them from doing business, and to table this until the applicant can reasonably supply the crane test, and we can reasonably review. He said it would be do a date uncertain, it would be when they could reasonably supply this information, and to have the advertising to be done. This would give the applicant time to do all of this. SECONDED by Mr. Shaw. MOTION FAILS 2-2 (Mr. Reppucci and Mr. Carlson against Motion) Mr. Reppucci said we need to see information whether it’s for Nashua or Hollis. Mr. Carlson said we should look at the application at its face value. Mr. Currier said it seems like this area is pretty well served by T-Mobile. MOTION by Mr. Carlson to deny the application as presented. He said it is listed in the table of uses, it will not create undue traffic congestion or unduly impair pedestrian safety, it will not overload public water, drainage or sewer or other municipal systems, special regulations are fulfilled, but believes it will be detrimental to the character of the neighborhood and the welfare of the residents. Mr. Reppucci said there should be specific criteria as to why the application does not meet the points of law. Mr. Currier said that through all of our training, there should not be an expectation to vote if there is a lot of information submitted, to come up with a well-articulated motion. He said it is our right to table the request. He said it could just come back to a public meeting, not a hearing. Mr. Carlson said there’s been enough testimony submitted tonight to come up with a vote. He said this has been presented in Hollis, and the applicant didn’t even seem to know this. Mr. Reppucci said we need to articulate reasons why we’d deny the case. He said we need to do our due diligence. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 12 Mr. Currier said we need to have a well-articulated motion. He said if we table it just for a decision, it would just be a public meeting. NO SECOND. MOTION by Mr. Currier to table the public meeting to a date certain in two weeks, where the Board will pick up the public meeting where we left off now, and it serves the opportunity for all of us to review and make a motion one way or another on this application. SECONDED by Mr. Shaw. MOTION FAILS 2-2 (Mr. Reppucci and Mr. Carlson) Mr. Reppucci said the criteria mentioned should be specific to Nashua, not another town. He said he feels that this tower is targeting Hollis. He said it doesn’t meet Section 190-38, because the application is not targeting the City of Nashua, its targeting T-Mobile’s needs that go beyond the city, and he said he didn’t believe it’s necessary. MOTION by Mr. Reppucci to deny the application on behalf of the applicant. Mr. Reppucci said it is listed in the Table of Uses, Section 190-38. He said it will not create undue traffic congestion or unduly impair pedestrian safety, there was no testimony to that one way or another. He stated that it will not overload public water, drainage or sewer or other municipal systems. Mr. Reppucci said the Board does not believe that the special regulations are fulfilled, with Section 190-38 of the Land Use Code, in that section, it targets the welfare of the residents of the City, and the Board is not convinced that this application is to the benefit to the general welfare of the community of Nashua. Mr. Reppucci said based upon testimony, it will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents, and based upon the lack of demonstration of the benefit to the residents, the Board finds that it is detrimental to the welfare of the residents, by putting the tower there with no benefit to the immediate residents of Nashua. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 13 SECONDED by Mr. Carlson. MOTION APPROVED UNANIMOUSLY 4-0. 2. Jason & Tracy Kittredge (Owners) 8 Madera Circle (Sheet C Lot 2137) requesting special exception to maintain an existing accessory (in-law) dwelling unit. R9 Zone, Ward 5. [POSTPONED FROM THE AUGUST 24, 2010 MEETING] Voting on this Case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Bob Carlson – (left the meeting) Jason Kittredge, 8 Madera Circle, Nashua, NH. Mr. Kittredge stated that it is an existing in-law apartment, which was built about 20 years ago. He said that it was never permitted, and only found out about this due to a re-financing of the property. He said they’d like it granted to continue to live in the house and to go forward with the re-financing. Mr. Currier went over all the relevant points of law, and the special regulations for an accessory dwelling unit, which were agreed to by the owner. 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 owner. Mr. Currier stated that the use is listed in the Table of Uses, Section 190-32. He stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, per testimony. He stated that the use will not overload public water, drainage or sewer or other municipal systems, and that all special regulations are fulfilled. He indicated that ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 14 the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 3. Southern New Hampshire Medical Center (Owner) 17 Prospect Street (Sheet 18 Lot 4) requesting variance for minimum open space, 35% required - 20.8%, to allow for building renovations/additions. RC Zone, Wards 4 & 7. [POSTPONED FROM THE AUGUST 24, 2010 MEETING] POSTPONED TO THE OCTOBER 12, 2010 MEETING. 4. Shane R. & Kristi Tumpney (Owners) James Ducharme (Applicant) 32½ - 36 Summer Street (Sheet 44 Lot 78) requesting the following variances: Proposed Lot 1: 1) minimum lot area, 18,666 square feet required - 17,395 square feet proposed, 2) to allow two principal structures on one lot, one permitted, 3) minimum lot frontage, 50 feet required - 20 feet proposed, 4) minimum lot width, 60 feet required – 20 feet proposed; Proposed Lot 3: 5) minimum lot width, 60 feet required, 50 feet proposed; and Proposed Lot 4: 6) minimum lot width, 60 feet required, 50 feet proposed. RB Zone, Ward 3. [POSTPONED FROM THE AUGUST 24, 2010 MEETING] Voting on this Case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the property is located on the corner of Summer Street and Kendrick Street. He said the property is about an acre and a quarter in size. He said there are three buildings on the one lot, and the purpose of this request is to have a subdivision for Lot 1 which will have 17,395 square feet, and it will have two buildings on it, and will use the present driveway that is there. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 15 Atty. Prunier said that Lots 3, 4 and 5 would be configured to erect single-family lots. He said that all of these lots conform with density and setbacks, the only thing they don’t meet is the lot width. He said the lot frontage is meeting the Ordinance. Atty. Prunier passed out a sheet, showing the outline of the lots in red. He said the second thing is a plan showing where the parking will be located. He said the third sheet shows that the lots in this particular area are small, and are used for single and multi-family use. He said that based upon the total acreage of the lot, it is conceivable that there could be nine single-family units, so they are below the density. Atty. Prunier went over all the points of law for a variance. Mr. Williams asked about the hardship in the land, to ask for this many variances. Atty. Prunier said it is an attempt to try to meet all the zoning ordinances in this area, and on one lot, it is only about 1,000 square feet short. He said all the setbacks are met, and all of the dimensional requirements are met, too. He said that they believe the use of these three lots is fair for the development of this property. He said the frontage is met, just not the width. Mr. Currier said the Aldermen established the lot width because of a ceiling density that they want to have. He said he sees no hardship here, and the width is good for odd-shaped properties. Mr. Currier asked if Kendrick Street is an accepted street, it is very narrow, and a lot of it is dirt. Atty. Prunier said it is a regular city street. Mr. Currier asked how many units are in each structure. Atty. Prunier said three in one structure, two in another, and the other is a single-family. SPEAKING IN FAVOR: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 16 Chris Tsoukalas, 9 Kendrick Street, Nashua, NH. Mr. Tsoukalas stated that this request will do a lot of good to the neighborhood, it will be a big improvement. Shane Tumpney, 32 Summer Street, Nashua, NH. Mr. Tumpney said that the applicant is doing a great job in cleaning up the property. He said the house used to be Alice Dube’s house, a former Mayor in Nashua. He said he bought all of this as three parcels. He said the City combined the lots together after he bought them. Mr. Williams said the Legislature just passed a Statute that forbids municipalities from forcing a combination of lots together. Mr. Tumpney said they’ve decided to do this the right way, and have asked for the variances. He said he purchased the properties as one lot, and then bought another lot. He said it used to be known as 80 Kendrick Street, and cut off some land from it, and it’s now known as one lot. He said he’s been paying taxes on one lot. He said he has two first mortgages on the property. He said they want to have a closing on the three buildings. He said he bought the property in 2004. Further discussion ensued. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ald. Ward 3, Diane Sheehan, 20 Lock Street, Nashua, NH. Ald. Sheehan stated that the neighbors are happy that the big house is being rehabilitated, as it was a big eyesore. She said there is no driveway, and they are affecting the density. She identified where the cars are parking, not in a driveway. She said that this area is the worst part of Summer Street, as there are gang tags, paint falling off, railings in disrepair, boarded-up windows and other Code violations, such as overgrown shrubbery. She said that by adding additional units, it is affecting the density. She said this is a very condensed area, and they are adding more units and increasing the density. SPEAKING IN FAVOR – REBUTTAL: Atty. Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said he has two first mortgages, and they’re not separate lots. He said there are not any Code violations in ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 17 these properties. He said that Mr. Ducharme is buying this property and fixing it up. Mr. Tumpney said they will be adding a parking lot for adequate parking, so the parking will be improved. He said they will need a curb-cut from the City to do this. He said the neighborhood is all run-down, and they’re trying to fix it up. He said there were gangs around, but those tenants were evicted. Atty. Prunier said they will have enough parking for all the units, it will be more than the minimum required amount. Mr. Currier said he’s struggling with the number of variances being requested. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Ald. Sheehan said the owner may have an issue, or a court case, with the person whom he bought the property from. She said a lot of the neighbors have come to her, stating that this request will de-value their property, and it is too dense already. She said the hardship may be for the owner to go after the person he bought the property from, as he thought it was different, but this case does not constitute a hardship, these are small lots, with a narrow street. She said by adding more homes, it will depreciate the other homes around it. Mr. Williams said he believes that they are asking for too many variances. He said he’d be more in favor of granting the variances for Lot 1. Mr. Reppucci said the owner lives here, and the whole area is in need of re-development. He said the plan is to improve the section, and bring it up to code. He said the overall package is an improvement to the City. Mr. Currier said it’s good what they are doing to the house in the front by fixing it up, but is not supportive of the lots in the back, the density is too much. He said he’s struggling with the back three lots. Mr. Shaw said the Board can’t consider the other lot that the owner has in the front, as it’s not before the Board tonight for anything. He said that the owners can get three additional lots out of this, with the land size. He said the tract 1 and tract ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 18 2 and looking at the ability to support the back part of the property, with the three parts. He said he’s favorable overall. Mr. Currier said the frontages are there, but it doesn’t necessarily mean that he can get the variances. Mr. Williams said there has to be some basis in finding a hardship, and doesn’t see one in this case. He said just because they have large lot, it doesn’t mean that they can carve it up into as many lots as possible, and, to apply for six area variances to do so, it is the overall numerocity of the request, as there is a huge difference between asking for just one area variance as opposed to a much higher number, so it goes against the spirit and intent of the ordinance. Further discussion ensued. MOTION by Mr. Reppucci to grant the request on behalf of the applicant. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue other than an area variance. He stated that by testimony, the City merged two lots owned by owner into one, and that caused a hardship in his ability to refinance the land, and to utilize the land as it was reasonable to sell it. Mr. Reppucci said it is within the spirit and intent of the ordinance, the properties will be consistent with the neighborhood. He stated that it will not adversely affect property values of surrounding parcels, it may actually increase property values. He stated that it is not contrary to the public interest, and substantial justice is done. SECONDED by Mr. Shaw. Mr. Currier said he disagrees with the hardship, the City merged the lots eight years prior to them buying it. He said he is struggling with the three lots in the back. MOTION FAILS 2-2 (Mr. Williams and Mr. Currier against Motion). MOTION by Mr. Williams to grant the request on behalf of the applicant. Mr. Williams stated that the Board should support ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 19 the first four variances. He said that they are within the spirit and intent of the ordinance, they are needed to enable the applicant’s proposed use of the property, they will not adversely affect the property values, they are not contrary to the public interest, and substantial justice will be done by granting the variances, he said the lot is unique, and the position of the structures on the lot are unique to the property. SECONDED by Mr. Currier. Mr. Reppucci re-iterated that the approval is just for the front two lots, for Lot 1, the first four variances. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Currier to deny the variances that were not approved, for proposed Lot 3 and Lot 4, based upon the discussion of the hardship on the merger that happened in 1986, etc, and the density of the neighborhood. SECONDED by Mr. Williams. MOTION FAILS 2-2 (Mr. Reppucci and Mr. Shaw). 4. Wilinson Dominguez (Owner) 46 Palm Street (Sheet 83 Lot 61) requesting the following: 1) special exception for a major home occupation for an in-home day care for six children, and 2) variance to allow a day care in a two-family structure. RC Zone, Ward 4. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci (left at 11:50 pm) Wilinson Dominguez, 46 Palm Street, Nashua, NH. Mr. Dominguez said his wife would like to open a day care for six children at his house, which is a two-family structure. He said there is adequate parking. Mr. Currier asked about the other tenant. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 20 Mr. Dominguez said the tenant understands, and is in support of the request. They have their own parking spaces, and they’ll be gone during the day, when the children are there. He said his wife has all her certifications, and the Fire Department is ok with it. He said there will be a six-foot high stockade fence. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to grant the special exception on behalf of the owner. Mr. Williams stated that the use is listed in the Table of Uses, it will not create undue traffic congestion or unduly impair pedestrian safety. Mr. Williams said it will not overload public water, drainage, or sewer or other municipal systems; the special regulations are fulfilled per testimony, Section 190-36, except number 2, which will have six children, and that the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Williams to grant the variance on behalf of the owner. Mr. Williams stated the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, the discussion was that it is a large 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. Williams said the variances are 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, and substantial justice is granted. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 21 Mr. Currier said the total number of employees will be one, the hours will be 6:00 am to 5:00 pm, and no outside play before 9:00 am. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. 5. Rosemary A. Carroll (Owner) 6 Bulova Drive (Sheet A Lot 540) requesting the following variances: 1) to exceed maximum accessory (in-law) dwelling unit area, 700 square feet allowed – 1,290 square feet proposed; and, 2) to exceed maximum accessory dwelling unit floor area, 30% allowed – 40% proposed – both requests to allow for a 372 square foot addition onto an existing accessory dwelling unit. RA Zone, Ward 5. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Francis Queen, Contractor/Builder, Nashua, NH. Mr. Queen said he’s worked on numerous other in-law spaces in the City. He said the existing space was done 25 years ago, but the parents cannot make the stairs now. He said they are adding about 372 square feet to the structure, in the rear. He went over the points of law. He said the daughter will be moving into the accessory dwelling unit, but they need to add one more bedroom. He said they cant do the addition on the ground floor, because the bulkhead is there. 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 the variance is needed to enable the applicant’s proposed use of the property, which is two elderly and somewhat immobile parents that cannot use the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 22 in-law dwelling the way it is, so there will be this proposed change, and they need the additional size. Mr. Currier stated that the request is within the spirit and intent of the ordinance, it will not adversely affect property values, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0. 7. Pennichuck Water Works, Inc. (Owner) Intersection of Tinker Road and F.E. Everett Turnpike (Sheet G Lots 286 & 488) requesting special exception to work within the prime wetland buffer of the Harris Pond Tributary and Tinker Pond to construct a gravel road to access stormwater improvements previously approved by the ZBA on 6-24-08. R18 & R40 Zones, Ward 3. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Mr. Donald Ware, Pennichuck Water Works. Mr. Ware said this plan is to enhance the stormwater capabilities in this area. He said it was approved by the Board in 2008, this request is to install a gravel wood road to access the improvements, and it is within the 75-foot wetland buffer. He said that 18 trees must be removed, but they have come up with a tree mitigation plan. Mr. Currier said the Conservation Commission has approved the plan, on 9-9-10, with stipulations. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 14, 2010 Page 23 MOTION by Mr. Currier to grant the special exception on behalf of the applicant. He stated that it is listed in the Table of Uses, Section 190-112. He said that per testimony, it will not create undue traffic congestion, or unduly impair pedestrian safety. He said that it will not overload public water, drainage or sewer or other municipal systems, it will actually improve that. He said that the special nine wetland regulations are fulfilled per testimony, and that the last stipulation is not really applicable to build a gravel road. Mr. Currier said the applicant will abide by the Conservation Commission approval and stipulations. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0. ADJOURNMENT: Mr. Currier called the meeting closed at 12:20 a.m. Robert Shaw, Clerk CF Taped Hearing