Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, October 26, 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 Bob Carlson (arrived at 7:20 p.m.) 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. Guy Tremblay (Owner) 5 Hutton Street (Sheet B Lot 3001) requesting special exception for a major home occupation for a one-person hair salon. RA Zone, Ward 6. Voting on this Case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Guy Tremblay, 5 Hutton Street, Nashua, NH. Mr. Tremblay stated that he is requesting a one-chair hair salon in his house; the use is listed in the Table of Uses. He stated that there will only be one person per hour, over a 35-hour period, six days. He said there will be no impact to public utilities, and the character of the neighborhood will not be impacted. He went over all the special regulations for a major home occupation, and stated that he meets all the criteria. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 2 He said he’s signed a lease for a space on Northeast Boulevard, but is also pursuing the home occupation as well. SPEAKING IN FAVOR: Letter from Cathy White, 90 Parnell Place, Nashua, NH. Mr. Currier read a letter of support into the record. Ray Dumas, 80A Harbor Avenue, Nashua, NH. Mr. Dumas stated that he is in favor of the proposed request, as his wife had a home beauty shop for 32 years, and it was always a benefit to the neighborhood. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the special exception application on behalf of the applicant. Mr. Currier stated that the special exception is listed in the Table of Uses, Section 190-47B. Mr. Currier stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, per testimony. Mr. Currier said the Board finds that the case will not overload public water, drainage or sewer or other municipal systems. Mr. Currier said that the special regulations are fulfilled, and there are no external changes to the house, and it will not impair the integrity or be out of character with the neighborhood. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 2. Jason & Christina Grant (Owners) 3 Hideaway Lane (Sheet G lot 145) requesting variance to encroach 4 feet into the 40 foot required rear yard setback to enclose an existing 12’x12’ deck with a three-season porch. R18 Zone, Ward 2. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 3 Ryan Williams Matt Erickson, 38 David Drive, Hudson, NH. Mr. Erickson handed out some information to the Board. He said that the owner is wishing to enclose an existing 12’x12’ open deck, and construct a three-season sunroom. Mr. Erickson said that the structure would encroach four feet into the 40-foot rear yard setback. He pointed the location out on the plot plan. He said to the rear of the property is the pet cemetery. He showed pictures of the existing deck to the Board. SPEAKING IN FAVOR: Mr. Currier stated that there are three letters of support from abutters. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the area variance 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 said there already is a deck there, it will be a same-sized room onto the deck. Mr. Reppucci said the request is within the spirit and intent of the ordinance, it will not adversely affect property values of surrounding parcels, neighbors are in favor of the request, the request is not contrary to the public interest, and substantial justice will be done. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 3. 28 Pond Street Realty (Owner) City of Nashua Department of Public Works (Applicant) 25 Pond Street (Sheet 16 Lot 33) requesting special exception to work within the prime wetland buffer of Salmon Brook to construct drainage ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 4 headwall and rip rap for the stormwater drainage system related to the Harbor Avenue Sewer Separation project. RB Zone, Ward 7. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Ryan Williams Jim Petropulos, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Petropulos stated that the City of Nashua is under an EPA Consent Order to separate sewer and drain water in this vicinity. He said the area is an urban location, primarily developed, and the sanitary sewer lines and the roadway drain lines are all connected together, so in rain events, flooding occurs. He said the ponding and puddling is very evident. Mr. Petropulos said the location is on Harbor Avenue from East Hollis Street, and Tyler St, Prospect Street, Bowers Street, East Otterson Street, New Street, Bowery Street, and Lyons Streets, Kehoe Avenue and Harbor Court are also included in this project. Mr. Petropulos said this project will disturb the roadway. He said this was recently done on Haines Street. He said it is a $3.7 million infrastructure project, expected to start in May 2011, and will take about 16 months to complete. He said it will be done in segments. Mr. Petropulos said the outlet for the stormwater is the low point, which is Salmon Brook and its associated wetlands. He said the outfall will be located just to the south of Pond Street on property owned by 28 Pond Street Realty, LLC. He said the outfall is a 60-inch reinforced concrete pipe that will extend out from Harbor Avenue, about 30 feet from the street, headwall will be constructed, and a rip rap apron will be built to the end of Salmon Brook. The apron will help to dissipate velocities, and slow the runoff off before it enters Salmon Brook. He said the easement will be fully fenced in. He said the project will not touch Salmon Brook, or any of the other wetlands in the area. He said it will impact 6,778 square ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 5 feet. He said they have received a positive recommendation from the Conservation Commission with stipulations. Mr. Petropulos went over the five points of law for the special exception, as well as the nine wetland special regulations. He said the use is allowed as a special exception, and they meet all the points of law that are required. SPEAKING IN FAVOR: Jean Walker, Deputy Manager/Engineering, Department of Public Works. Ms. Walker said that this is the last separation project driven by the Consent Decree that the City is under. She said they will continue to look at areas of localized flooding, this project has two benefits, one is the removal of localized flooding, as well as some benefits to the overall Consent Decree program. She said there may be other areas that will be looked at. Mr. Currier read over the Conservation Commission’s stipulations of approval. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: Raymond Dumas, 80A Harbor Avenue, Nashua, NH. Mr. Dumas stated that he is ok with the improvements, but is concerned that the project will take a year and a half; the roads will be torn up, and there will dust in the neighborhood. Mr. Currier said there will be an outfall for the stormwater drainage, in the parking lot. He said the disruption to the neighborhood will be analogous to what occurred in front of Subway and Walgreens on Main Street this past summer. He said it’s just the nature of the construction. SPEAKING IN FAVOR – REBUTTAL: Mr. Petropulos said that prior to construction, the City of Nashua will notify all the abutters to the project prior to the actual construction, and they will be able to answer more detailed questions. He said that Pennichuck and the gas company will be involved with the project, too. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 6 None. 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 stated that in the long term, the use will not create undue traffic congestion, or unduly impair pedestrian safety, it will help that tremendously by eliminating flooding of the area, and it will dramatically improve the drainage and sewer system in the area. He stated that it will not impact the public water, and the special regulations, both written and from oral testimony, are fulfilled. Mr. Currier said it will not be will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents, it will be helped out by separating the sewer and water. Mr. Currier said the Conservation Commission’s approval, with their stipulations, are included in the approval. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 4. Ranu & Rajesh Khanna (Owners) 9 Cherrywood Drive (Sheet C Lot 2595) requesting special exception to work within a 40- foot critical wetland buffer for yard maintenance, including fill, loam and seed, mulch and tree plantings – to mitigate a recent buffer violation. FUOD Zone, Ward 9. Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Ryan Williams Bob Carlson Rajesh Khanna, 9 Cherrywood Drive, Nashua, NH. Mr. Khanna said the project is a yard clean-up project. He said the rear yard was not very usable for the children to play, so it was leveled, with loam and seed, pebbles and mulch. He identified the lot in relation to the wetland buffer. He said when they did this project, they had no idea it was in violation of the buffer. He showed pictures of the rear yard. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 7 Mr. Khanna said he went to the Conservation Commission, and they approved the request, which includes a mitigation plan, and it was approved on October 5, 2010, with seven stipulations. Mr. Currier went over all the wetland special regulations, answered by the applicant, to the Boards satisfaction. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the special exception on behalf of the owner. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-112. Mr. Reppucci stated that the use will not create undue traffic congestion or unduly impair pedestrian safety. He stated that it will not overload public water, drainage or sewer or other municipal systems. Mr. Reppucci stated that the special regulations are fulfilled, it has been approved by the Conservation Commission with seven stipulations that the applicant has testified that they will comply with. Mr. Reppucci stated that the proposed use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. SECONDED by Mr. Carlson. MOTION CARRIED 5-0. MINUTES: October 12, 2010: MOTION by Mr. Currier to Table the Minutes to the 11-9-10 meeting. MOTION CARRIED UNANIMOUSLY 5-0. REGIONAL IMPACT: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 8 The Board did not see any items of Regional Impact. REHEARING REQUESTS: None. BY-LAWS: Lengthy discussion ensued about changing the By-Laws relative to a 2-2 and a 2-1 vote. MOTION by Mr. Reppucci to change the By-Laws so that if a 2-1 in favor or a 2-2 split vote occurs, the solution would be to Table the matter until a properly staffed Board can hear the case. NO SECOND TO THE MOTION. Mr. Williams said he’d prefer to see some language to work with it as a group. Further discussion ensued. MOTION by Mr. Currier to amend the By-Laws, it was proposed to Attorney Dave Connell, and he was ok when there are three members, if there’s one “no” vote, with that one “no” vote clarified, or if there’s two “no” votes that the nay votes are clearly articulated, and they serve as denial of the application. SECONDED by Mr. Shaw. Mr. Reppucci suggested that whatever By-Law is put forward, it should be approved by our present City Attorney. He said that the Board should take the two opposing By-Laws and send them to Attorney Bennett, and get his interpretation and guidance. Mr. Currier said that Mr. Reppucci should articulate his changes in writing, and propose both of the two to Corporate Counsel, and possibly have a meeting to answer questions in a round-table discussion, so we all know what the sense of the Attorneys office is. Mr. Reppucci said that would be good to have the Attorney’s input. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 26, 2010 Page 9 MOTION by Mr. Currier to Table his MOTION, and proposal, and provide it to Attorney Bennett. Mr. Reppucci said he’d copy Mr. Currier’s proposal, and write his, and write a cover letter to Attorney Bennett, asking him for his input on these two proposed changes to the By-Laws, and also copy all the Board members, and it should be sent to Attorney Bennett under consent of the Board. SECONDED by Mr. Carlson. MOTION APPROVED UNANIMOUSLY 5-0. Mr. Reppucci said that Attorney Connell mentioned that if there is information from the Historic District, or Conservation Commission, that the Board should have more than the approval letter, we should have the minutes of the meeting as well. He said that this is a good idea, to have the minutes as part of the record, and they should be in our package. Mr. Currier said the Conservation Commission meetings can be very long and involved with the wetland, he said he’d just prefer to look at the results. Mr. Reppucci said the Conservation Commission is a recommending body, their decision is not binding, and the Court would review the Zoning Boards record. He said it would just give a better record for the Court to review. Mr. Currier said that the Board can incorporate the Conservation Commissions minutes into the record. ADJOURNMENT: Mr. Currier called the meeting closed at 9:00 a.m. Robert Shaw, Clerk CF Taped Hearing