Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 28, 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 Ryan Williams 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 Housing Finance Authority (Owner) Scott DeSantis (Applicant) 22 Lawndale Avenue (Sheet 108 Lot 84) requesting variance to encroach 8 feet into the 25 foot required rear yard setback to replace an existing house on the same footprint. RA Zone, Ward 6. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the property is located in Central Nashua, and referred the Board to some pictures of the property. He said in the first picture, there is a mobile home trailer inside the premises, with siding/walls put around it. He said that there really isn’t any foundation. He said the reason they are here is to ask for a variance, as the rear ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 2 wall is encroaching 8 feet into the 25 foot required rear yard setback to put a foundation in, new walls, and put a dormer on top, and square off the house, and re-vinyl the whole house. He said at the present time, it’s half a house, and half a trailer. He said the property needs a foundation to meet the code, and the encroachment won’t be any further than what is existing. He said the existing foundation is not something that is recognized by the Building Code. Atty. Prunier went over all the required variance points of law. SPEAKING IN FAVOR: Dan Perelli, 20 Lawndale Avenue, Nashua, NH. Mr. Perelli stated that he is in favor of the variance. Leo Gaudette, 15 Fowell Avenue, Nashua, NH. Mr. Gaudette stated that he is in favor of the variance. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance application on behalf of the applicant. 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; 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, as, for many years, the 25 foot rear yard setback has been encroached upon by eight feet, there’s a proposal to keep that the same with a new and improved house, and the proposed house, per testimony, is a two-story single- family home. Mr. Currier said that per the testimony, the Board finds that the request is within the spirit and intent of the Ordinance. Mr. Currier said it will not adversely affect the property values of surrounding parcels, per testimony, it will actually enhance surrounding parcels because the property will improve substantially Mr. Currier said the request is not contrary to the public interest, and substantial justice is approved. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 3 SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 2. Roman Catholic Bishop of Manchester (Owner) Randy Turmel (Applicant) 65 Pine Hill Road (Sheet E Lot 2223) requesting the following: 1) use variance to allow elderly housing in the AI District portion of the property, consisting of single family detached units and two duplex units for a total of up to twelve units in the AI District; and, 2) variance to permit up to four elderly housing dwelling units per acre in the AI District portion of the property. AI & R9 Zones, Ward 1. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Ryan Williams – [RECUSED] Attorney Brad Westgate, Winer & Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate showed two maps of the property, indicating the AI and R9 zoning districts. He said the property is a 4.92 acre parcel, subdivided about a year ago from a larger parcel from the St. Stan’s complex. He said there are two buildings on the property, a function building and another building. Atty. Westgate said the plan is to develop a 17-unit 55 year and older community. He said that 15 of the units will be single- family detached dwellings, ranch style, one floor. He said that two units will be duplex design. He said the existing building to the north is being converted into two units, and a community center room. He said it will be a condominium form of ownership so the road and other improvements will be privately maintained. Atty. Westgate stated that about a quarter of the property is in the R9 district, about 1 1/3 acres. He said that the AI zoned portion is about 3 1/3 acres, and the back part of it is wetlands. He said that the AI zoned portion is not large for an industrial zoned property. He described the surrounding uses. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 4 Atty. Westgate said that they are requesting a use variance to allow the elderly housing, 55 years and over community in the AI district portion of the property. He said the R9 portion of the property does not need a use variance, as this use is permitted. He said the other variance is the density, the number of units per acre. He said the AI zone, especially the zoning matrix, is silent on density or units per acre, therefore, a variance is sought to have the same density in the R9 portion of 4 units per acre to match the AI portion. Atty. Westgate said that the Ordinance dictates that the units not be over 1,000 square feet, not counting unfinished areas and decks, and unheated spaces, basements. He said the houses would be approximately 20 feet in height to the peak roof height. Atty. Westgate said that if this lot were to be industrially developed, the only access to the property would be through the R9 section to get to it. He said it is distinctly unique in this respect, as there is no other property like this, with access through another zone. He said that Section 190-13 B of the Land Use Code states that in a split-zone setting, the property owner can elect to have the zoning regulations of the larger piece of property govern the smaller portion, so, the applicant can go just before the Planning Board to implement any AI district permitted uses, including the R9 portion, but decided on the proposed development, that would be compatible with the natural neighbors. Atty. Westgate went over the relevant points of law with respect to both the use and area variances. He stated that for the public interest, it is a residential use in a split-zoned property that is accessed through the residential neighborhood, and the split zoned portion in the rear has no connection or functionality to the balance of the AI district. He said it is a transitional piece, and the residential is a less intense use, and is sensible for this area. He said that the spirit of the ordinance is attained in that residential property is being developed adjacent to residential property. He said that the rear of the property is less important to the neighbors and what is along the street. Atty. Westgate stated that substantial justice will be served, the variances are not that significant, one is to fill out compatible development, and the other to allow uniform density. He stated that the use will not devalue surrounding properties, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 5 as the proposed use is elderly single family. He submitted letters of support, and a letter from a property appraiser. He said he is aware that the Airport Authority wrote a letter of concern. He said that the hardship, for using the Simplex standard, he said he’s already identified several special unique issues, such as the split zone, being accessed only through a residential sector, and being on the eastern side of the AI district, and not integral or accessible to the AI district, make this site unique. He said the property also abuts a railroad and wetland area as well. He said the property is not functional in an AI setting, as the front sets the character of the property. Mr. Reppucci said he didn’t understand the Airport Authority’s position on this request. He said they’re claiming in their letter that they are concerned about the noise that the people who’d live in these houses would be subjected to. He asked that in the future, if noise becomes an issue, will the airport be responsible to soundproof the houses in the area. Atty. Westgate said he didn’t think so, as everyone buying here knows the airport is there, and said that they want to make it a matter of record that this property has a certain proximity to the airport and the runways. He said it will be a given, and a known. Atty. Westgate said that, in rebuttal to their letter, that the airport is concerned about us protecting ourselves from ourselves, and from our abutters, versus, allowing compatible residential use for the protection of the Pine Hill Road residents. He said the applicant is willing to take the risk that proximity to the airport will have on the residential development that is proposed. He said that people will buy, knowingly, about the airport being nearby, and subsequent owners will buy knowingly. He said the proposal is sensible and an appropriate way to develop the land uniformly, with the surrounding neighbors. He said that this property is not in the airport core, it doesn’t support the tax base and usage for the airport. He said they will comply with the condominium documents, and all disclosure elements. Mr. Shaw said from the letter, you might infer that its noise, other items, safety, and planes flying overhead during landing and approaches, and the residents would constantly be exposed to low flying aircraft, he said the noise is one thing, and there ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 6 would be visual obstruction. He said it’s in the envelope of the runway approach, and the consideration of safety as far as if there were any crash or unfortunate incident, and wondered why the zoning district is pulled this far out to be consistent with that approach, but at the same time, with the safety factor, there are other structures in the AI zone already, and they’re occupied during work hours, or greater. He asked about the safety perspective, for having residential here. Atty. Westgate stated that if the Airport Authority had concerns about a safety perspective, it probably would have been discussed in far greater detail in the letter. He said if a plane is in trouble, going 150 mph, in a matter of seconds, there is a very large geographical area where a distressed plane could go down, and the safety issue is a generic concept. He said that today, all airports, and the land around them are heavily developed. He said to preclude any type of residential development here, where it’s clearly the type of use that is around here, is not reasonable. He said that two letters of support were given from abutters. Mr. Currier asked how long the Roman Catholic Bishop has owned the property. Atty. Westgate said he suspected they’ve owned it as long as it’s been the church, and part of the church complex. He said one deed reference puts it in the 1920’s, another is from the 1950’s. He said the airport has been around since the World War II timeframe. SPEAKING IN FAVOR: Jim Petropulos, Hayner, Swanson, Inc. 3 Congress Street, Nashua, NH. Mr. Petropulos handed out some information to the Board. He said the key note is that this is a transitional piece of property. He said there are physical limitations to the property, as Atty. Westgate described. He said they considered the best use for the land, with respect to the neighborhood. He said the Land Use Code allows 71 uses in the AI zone, not counting conditional uses. He said many of these uses could go in, just with a conditional use permit, over the entire property. He said the AI zone allows a 45 foot tall building, where the current proposal indicates a roof height of only 20 feet. He said the comparison between standard single family is ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 7 about 10 vehicle trips per day, versus elderly housing, which is 3.7 trips per day. He said it will be a good transitional use. Alderman, Ward 1, Kathy Vitale. Ald. Vitale stated that she has a letter of support for the request. She said she’s spoken with the developer, he went over it, and it looks like it’ll be a pretty good fit. Donald Doucette, 16 Robert Drive, Nashua, NH. Mr. Doucette stated that he’s lived here since the mid 1960’s, and there have been a lot of changes in the area. He said the noise is something that you get used to, and you know it’s there. He said for safety, no matter where you are, a plane in trouble can go down anyplace. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mr. Currier said the only opposition is the letter on record from the Airport Authority, which has been read already. Atty. Westgate said he had opportunity to go over the letter. Mr. Reppucci said that the applicant made a very compelling presentation on how this piece of property is uniquely affected by the zoning restriction, specifically, the access to it from Pine Hill Road, through the R9 piece of property. He said he doesn’t see the Airport Authority’s logic in not supporting this request. Mr. Shaw stated that this area isn’t one that the airport encompasses, even though it is in the flight path. He said that the proposal and the use of the land will enhance and, or support local property values, as opposed to going with an AI zoned development. He said it is on the edge of the other R9 zone, and there are many aspects of this plan that make it a good fit with the neighboring uses. Mr. Currier said he’s supportive of the application, and doesn’t disagree with the airport’s reason for not wanting it. He said there will be complaints to the airport in the future. He said it is important to limit the height of the roof to 20 feet, which is less that what is permitted in the AI zone. He said the 3.7 trips per day will cause much less traffic. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 8 MOTION by Mr. Reppucci to grant the use and area variances on behalf of the owner, taken together. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Reppucci said that by discussion of the Board, special conditions were found, that the access is from the R9 portion of the property, and the Board found that to be a special condition worthy of a variance. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance, it will not adversely affect property values of surrounding parcels, in fact, the perspective of other property owners in the area is that it will only increase their property value. Mr. Reppucci said it is not contrary to the public interest, there was overwhelming support by the people who are going to be most affected by it, and substantial justice would be done with a special condition that the structures will have a maximum of twenty feet in height to the peak of the roof, to approve both variances. SECONDED by Mr. Currier. Mr. Currier said that he wanted to add into the special condition for the Motion that with the proposal for elderly housing, for traffic, it is much less intense than the development that could otherwise be there, and therefore, is not contrary to the public interest. He said the Motion should say that it is for elderly housing. Mr. Reppucci said that he agrees with the Amendment. MOTION CARRIED UNANIMOUSLY 3-0. REHEARING REQUESTS: 1. 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. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 9 Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Ryan Williams Mr. Currier said in the request, for point number 4, what was described to the Building Department was an underground pump structure, and they said a permit wasn’t needed, but what is there is a very tall structure, that is 12, or 20 feet, and didn’t buy that it is just buried underground, he said it was reasonable that the Building Department initially said that they don’t need a building permit, and it was never made clear. He said he disagrees with point number 4, he said he didn’t think it’s a hardship to the applicant, he didn’t think it was described well to the Building Department. Mr. Williams agreed, and said the biggest issue is the potential height issue. He said the motion to deny the request spoke about the 19 foot plus height. Mr. Reppucci said his view of the presentation of height was that he fundamentally disagreed with their perception of what height was. He said that they presented it as if the building was a certain height, under the premise that after its backfilled with dirt around it. Mr. Currier said it was hard to determine exactly what the building height was, as a lot of measurements were discussed. He said the letter, in number 15, mentioned a wall and fence that is 10 feet in height, but that may need a variance. He said there really was no clarification of what the height is. Mr. Currier said what we saw out there, whatever the height was, was very large, so the issue of height, based upon the new information of a lower number, said he didn’t believe that it’s a substantial change, it’s still a very large structure, and not worthy for a rehearing request. Mr. Williams said even though we said 19 feet in height in the minutes, that it’s not even conclusively established that it is 12 feet, also, there is a question on how you calculate that height from. He said from the road, it looks a lot higher than 12 feet. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 10 Mr. Reppucci said that he thought the Board had some consensus about the 19 foot height. Mr. Shaw said he remembered the 19 foot height from one of the renderings, but there was some question by the Board that that height was valid. Mr. Reppucci said to backfill, and to go over the wall, is significant, and the building is only 14 feet from the property line, the slope wouldn’t be permitted. Mr. Currier said for point 5, you would think that the stop-work order was adhered to, and that the owner needs to do something about it. He said that there were repeated violations here, and the owner was well aware that there was a stop-work order, but just kept working at it. He said he didn’t agree with point 5, it’s not real relevant to rehearing the request. Mr. Shaw said the height was less compelling than the setback of the structure. He said even at 12 feet, it will be extremely significant, at 19 feet or 23 feet, or any number, but the actual position of the structure is more of an issue, and the view of it from the adjacent properties, and the imposition it would have on the neighbors. Mr. Reppucci said he thought the presentation of the height was distorted, and that their presentation of the height is not from ground level. He said in point 8, it says that the pump house is two feet below the ground level, and the remaining four feet of the walls will be covered by dirt, he said he didn’t agree with this. Mr. Currier said in point 13, the Board and the abutters had some initial concern about the potential noise, but didn’t think the applicant spoke much about it, and the Board didn’t weigh that into the consideration to deny the request. Mr. Currier asked if there was any procedural error, including improper notice, denying someone the right to be heard. Board members all said no. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 11 Mr. Currier asked if it was an illegal decision, in other words, did the Board fail to completely address each of the points of law required. Board members all said no. Mr. Currier asked if the request for rehearing contained any new information not presented or available to the Board at the original Public Hearing. Mr. Currier said some new height numbers were thrown out, but it is not compelling evidence to grant a new hearing. Mr. Williams said it was more the view that it would have to the neighboring properties. The Board members all said no. Mr. Currier asked if there is anything which could/would cause the Board to make a different decision. The Board members all said no. MOTION by Mr. Currier to deny the rehearing request on behalf of the applicant based upon the discussion and testimony that the Board just discussed. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. REGIONAL IMPACT: The Board did not see any items of Regional Impact. MINUTES: September 14, 2010: Mr. Reppucci suggested a change for Page 10, 2nd paragraph, Page 11, the first big paragraph, and Page 19, the section where it was a 2-2 vote and the motion fails, and it didn’t state an outcome. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 28, 2010 Page 12 Mr. Falk said he’d make the changes, and forward a copy of the approval letter to the Board for review. Mr. Reppucci said the minutes are incomplete until this can be reviewed. Further discussion ensued. MOTION by Mr. Shaw to Table the Minutes until further review SECONDED by Mr. Reppucci. MOTION CARRIED 3-1 (Mr. Currier) ADJOURNMENT: Mr. Currier called the meeting closed at 9:00 a.m. Robert Shaw, Clerk CF Taped Hearing