Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 21, 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 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. NH B II, LLC (Owner) ABCO Welding and Industrial Supply (Applicant) 472 Amherst Street (Sheet H Lot 136) requesting use variance to allow three outdoor bulk storage tanks, for liquid nitrogen, oxygen and propane. AI Zone, Ward 2. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the building sits with an elevation below Amherst Street. He said it is a 26-unit building, of which one- half is occupied. He said that ABCO wants to lease three of the units at the front of the building. He said the company is a supplier of oxygen and nitrogen and propane, and wish to erect three tanks on the property, they are non-combustible tanks. He said they are a distributor, they don’t do too many sales in this area, their trucks go to the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 2 customer, usually hospitals and machine shops and welding companies. Atty. Prunier said it is a perfect place for them, because it’s located on a main artery. He said they are a supplier of industrial and medical gases, as well as welding and industrial safety equipment. He said there will be a small amount of retail space, for welder’s gloves and similar items. He said the business involves bulk storage of non-combustible and inert general gases. Atty. Prunier said the outdoor bulk storage is allowed in the General Industrial zone, not in the Airport Industrial zone, even though the same type of materials are allowed in the Airport zone. He went over the variance points of law. SPEAKING IN FAVOR: Mr. Ron Bomengen, Fuss & O’Neill, Manchester, CT. Mr. Bomengen stated that propane isn’t considered a combustible gas, it is flammable, though. Mike Ross, President, ABCO Welding, Waterford, CT. Mr. Ross stated there are two sets of laws for flammable, one with the Department of Transportation, and the Code of Fire Code Regulations, provide the safety and how propane is going to be used and stored. He said the other set of laws is from the NFPA. He said it is combustible; it is a fuel gas for trucks and cars. He said it’s really about the safe storage and handling, and the training that is done with the employees. He said they comply with all the safety laws with the storage and handling. Mr. Currier asked if the 20-foot tall tank will be above the roof line of the building. Mr. Bomengen said the propane tank lies horizontally. He said the 20-foot tanks are at the asphalt level. He said the building at the back is almost 23 feet tall, so they won’t stick above the building. Atty. Prunier said he provided a letter from Rick Wood about the fire safety issues, which state that they are in favor about the request. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 3 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the request on behalf of the applicant. Mr. Currier stated that the zoning restriction as applied interferes with a landowners reasonable use of the property, which is the outdoor storage of those three types of gases, even though it is not permitted normally in the Airport Industrial zone, he said the location of the use, away from the Airport’s runways, tucked away, down with the lower topography, makes the request not contrary to the spirit and intent of the ordinance. Mr. Currier said the Board has received professional testimony that says that surrounding property values won’t be affected, and they may be improved with a new business coming to town, and a higher occupancy rate, therefore, the variance is not contrary to the public interest, and substantial justice is served by allowing the outdoor bulk storage of these three gases. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 2. Joseph Aceto (Owner) “L” Kinsley Street (Sheet 89 Lot 93) requesting the following: 1) a determination whether a material change of circumstances affecting the merits of the application has occurred, or that the application is for a use that materially differs in nature and degree from the prior application for a variance denied by the ZBA in February 1998, and, if so, requesting the following variances: 2) minimum lot area, 7,500 sq.ft required, 7,100 sq.ft proposed, and 3) minimum lot width, 75 feet required, 71 feet proposed - to construct a single-family home on a nonconforming lot of record. RA Zone, Ward 6. [Previously approved by the ZBA on 6-26-07, approval lapsed]. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 4 Cheryl Aceto, 3 Euclid Avenue, Nashua, NH. Mrs. Aceto said the owner in 1998 was not them, it was a previous owner. She said they bought it in 2000, and came to the Board in 2007. She said the lot is stumped for water, sewer and gas, and the house they want to put on the lot is smaller than the one proposed in 2007. Mr. Currier pointed out the house in the submitted plan. He said they should say that the neighborhood has changed, and it’s appropriate to have a small house on the lot, because it is similar to others in the neighborhood. Mrs. Aceto said they are proposing a small turnaround, so people can pull out better. She said the townhomes connected to the pizza place are new, too. Mr. Currier remarked that the turnaround is a great idea, and a good design. MOTION by Mr. Currier that there has been a material change of circumstances in the neighborhood since this Board originally deliberated on this case in February, 1998, there’s other houses that have been that built, a business across the street, and therefore, having a home as proposed would be substantially in character with the neighborhood. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. Mrs. Aceto said they have brought utilities to the lot. Mr. Currier asked if the house in the drawing is the one that will be built there. Mrs. Aceto said it is the house they propose, it is a modular home, with a deck, and the garage may be put in later. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 5 MOTION by Mr. Currier to grant the request on behalf of the owner. Mr. Currier stated that the request is needed to enable the applicants proposed use of the property, given the special conditions of the property, which are the slight decrease of frontage is equivalent to other lots in the area, and also the slight decrease of lot area is equivalent to many other developed lots that have been around for many years in the area, and by constructing the proposed house in the application is within the spirit and intent of the ordinance. Mr. Currier said it will not adversely affect property values of the surrounding parcels, the Board finds that it will probably enhance the surrounding parcels by having a house there, versus a vacant lot. Mr. Currier stated that it is not contrary to the public interest, and that substantial justice is served. Mr. Currier said that the drawing of the home in the application would be the home that is built, or will be substantially equivalent to it, and we have a design in the application, so that is what the applicant has testified to be built, plus, with the setback and the driveway as provided in the application. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 3. Raymond G. Presenti (Owner) Edis G. de Oliveira (Applicant) 12 Shattuck Street (Sheet 44 Lot 92) requesting the following: 1) special exception for a major home occupation for an in-home day care for 9 children; and 2) variance to allow a day care in a two-family structure. RB Zone, Ward 3. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Guizilla De Oliveira, 12 Shattuck Street, Nashua, NH. Ms. De Oliveira stated that they are requesting a home day care, which will be safe, affordable, and will meet the public interest, it will be fenced in. She said there would be no changes to the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 6 house. She said the children will have staggered dropping off and pick-up times, and there will be a fenced-in playground outside. Mr. Currier asked if the other tenant is aware of this request. Ms. De Oliveira said that they are aware. Mr. Currier said that one of his concerns is that another tenant could move in to the other unit, and there would be no way of controlling who they may be, and it may not be a safe situation for the children. Ms. De Oliveira said their friend lives there now, but if she moves out, the owner will mention it on the contract that there is a day-care next door. Mr. Currier asked why the applicant is requesting to watch nine children, instead of a lower number, such as six. Ms. De Oliveira said it is a good number for us to start off with, as she was a teacher in Brazil for over twenty years. Mr. Currier asked if the Board were to approve this case, if it were to only be for the applicant, and no one else at this location. Ms. De Oliveira said the owner won’t rent the other unit to just anyone. Mr. Reppucci asked if there will be any employees. Ms. De Oliveira said no, nine children doesn’t require another person, according to an employee in the Nashua Child Care Program. Mr. Reppucci asked what the age range of the children would be. Ms. De Oliveira said four children from newborn to three years old, and up to six children from three years to six years old. Mr. Reppucci asked if the entire day care area is on the first floor. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 7 Ms. De Oliveira said it is, the children won’t be going up or down any stairs. She said the children will not be allowed upstairs. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Kyle Scribner, 14 Shattuck Street, Nashua, NH. Mr. Scribner stated that his concern is that the request will bring undue traffic congestion to the area, as well as negatively impacting property values. He said their intent is noble, and have been good neighbors, but the intent may not carry over to the actual practice. He said he believes that the noise level will increase greatly, and a lot of people use his driveway, the street is very narrow, and the distance between his driveway and the applicants is only about ten feet, and it’s congested with only two cars. Mr. Currier asked if the City plows Kendrick Street. Mr. Scribner said the City plows it, but it is narrow, generally only one car can fit through at a time. Mr. Currier asked if a fewer number of children would be more amenable for the day care. Mr. Scribner said that he believes that even with six children, the traffic and noise would still be an issue, and would affect the character of the neighborhood. SPEAKING IN FAVOR – REBUTTAL: Ms. De Oliveira there is parking for six cars, and the children will be dropped off and picked up at different times. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Scribner, at Mr. Currier’s request, identified where his property line is located. Mr. Currier said the house at 14 is built right at the property line. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 8 Mr. Reppucci said it’s naïve to think that the applicant can watch nine children without an employee, he said that nine children may be too much for this site, it’s too intense. He thought it may be better for them to start out with three children, and when enough experience is gained, then apply for more. He said he wasn’t comfortable of an absentee landlord, and to have a day care in a two-family house. Mr. Shaw said the number of children, and number of employees, is governed by the licensing by the State. He said he is struggling with this application, there is a need for day care, and it’s growing in Nashua, but this location is not ideal. Mr. Currier said he’s uncomfortable that there is an absentee landlord, he said he wanted to stipulate that Edis is the applicant, and Presenti is the owner. He said if there’s a change in owner or operator, they’d have to come back. He found that the abutter’s testimony to be credible. He said he’s uncomfortable with the application in general, but would rather see it start small, with fewer children. Mr. Shaw said he’d be more comfortable with fewer children, such as six, and with the stipulations that Mr. Currier suggested earlier. Mr. Currier said if the case is denied for nine children, if they came back with an application for a smaller amount, or with a written document from the landlord that care will be exercised and the parking will be worked out better to ensure there is a workable situation on Kendrick Street, that is something that could be accomplished. Mr. Reppucci said that they can do three kids without any permission, so, if they want to establish an in-home day care, and start the wheels turning, they can do that with three. He said they can come back after they have a little experience, then the neighbors will have a little perspective on how the business has been going. He said that in-home day care’s can be extremely impactful to neighbors. Mr. Shaw said if they’re denied for nine children, they wouldn’t be able to come back with the same application. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 9 Mr. Currier said it’s possible for a Fisher vs. Dover assessment if they want to come back, if they can show that the neighbors are satisfied with how the day care is running, and it’s not impactful, it may be enough of a change to allow them to reapply. MOTION by Mr. Currier to deny the special exception application on behalf of the applicant. Mr. Currier stated that it is listed in the Table of Uses, the Board struggles whether or not there will be undue traffic congestion or unduly impair pedestrian safety. He said he feels that the Board feels that there would be a traffic concern on the very thin Kendrick Street, because of getting cars in and out of the parking spaces, so, the Board finds that there is a traffic concern with the proposed nine children, being that there is no day-care there now, it’s just two residences. Mr. Currier said he didn’t believe it will overload public water, drainage or sewer, or any municipal systems or any other regulations. Mr. Currier said getting back to the character of the neighborhood, with the thin street, the way it is now, with a two-family home on either side, that by having an in-home day care for nine children would be out of character of the neighborhood and street. SECONDED by Mr. Reppucci. Mr. Reppucci said that one of the requirements of a special exception is that it has to be a single-family residence. He said it doesn’t meet the criteria without the use variance approval for the two-family. Mr. Currier suggested to let that Motion rest for a moment. Mr. Currier said he wanted to recognize in the Motion that it is a two-family structure and that a special exception is only to apply to a single-family home without a variance being approved. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Reppucci said if the Board denies the area variance because it’s a two-family, there could be a challenge coming from that later, because it’s a stand-alone variance, and that criteria ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 21, 2010 Page 10 won’t change. He suggested tabling the variance, so the applicant can come back, and nothing is denied. MOTION by Mr. Currier to Table the variance request on behalf of the applicant, and it will be tabled until the applicant comes back. SECONDED by Mr. Reppucci. Mr. Falk asked if it will be tabled to a date uncertain. Mr. Currier said yes. MOTION CARRIED UNANIMOUSLY 3-0. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: August 10, 2010: MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes on file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Currier reminded the Board that there is the October 5th, 2010 ZBA training session, like in previous years. ADJOURNMENT: Mr. Currier called the meeting closed at 8:14 p.m. Robert Shaw, Clerk CF Taped Hearing