Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 A public hearing of the Zoning Board of Adjustment was held on Tuesday, November 23, 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 Marcia Wilkins, Planner I Mr. Currier explained the Board's procedures, normally, rules of the meeting are read into the record, but this doesn’t apply tonight, as there are no public hearings, just two rehearing requests, which are public meetings. REHEARING REQUEST: 1. 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. [From 9-21-10 ZBA meeting] Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Mr. Currier asked if there was a procedural error. The Board agreed that there was no procedural error with this request. Mr. Currier asked if there is any new information that could/would make the Board have a different decision. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 Page 2 Mr. Currier said one of the concerns that the Board discussed was the Kendrick Street abutter, who had concerns with the narrow street, and his building is right up to the property line, and the applicant is now stating that they wouldn’t have any parking on that street, it would be on Shattuck and Laton Streets. He said the request is also smaller, in that they are now asking for six children instead of nine. Mr. Reppucci said he asked the applicant if they would consider six children, and they said at the time, they didn’t want to because they needed to have nine. Mr. Currier said that the Board, at the original hearing, did ask if they’d consider a smaller number. He said that the applicant is willing to reduce the number. Mr. Reppucci said that he considered that a significant change. He said that the Board could just amend their decision to approve the six children. He said that the Board denied the special exception, and tabled the variance with the intent of not putting that huge burden on them. He said the Board could just amend the decision to approve six, and remove the variance from the table. Mr. Currier said he’d feel more comfortable having it re- advertised, and coming back to the Board as six. Mr. Shaw said the abutter was concerned about traffic and noise, and it wasn’t clear that he’d be comfortable with the reduced number, so it’s for the best that the case gets re-advertised. MOTION by Mr. Reppucci to grant the rehearing request, as there is a significant change in the application. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 2. 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. (FROM 9-14-10 PUBLIC HEARING) ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 Page 3 Voting on this Case: Jack Currier Rob Shaw Gerry Reppucci Mr. Currier said their first point was that a vote was taken on September 14th, and a written decision was failed to be issued. Mr. Reppucci said the written decision was sent out the next day. Mr. Currier agreed, it was sent out on the next day. Mr. Reppucci said the letter summarizes the reasons why the case was denied. Mr. Currier said point two said that there was no substantial evidence in the written record. He said that the letter was th sent out on the 15 , and was readily available. Mr. Currier said in point 2b, speaking to the uniqueness of the parcel. He said he didn’t see any new information in point 2b, it was debated in the meeting, the Board was split, two felt that the crane test was unnecessary, as you’d see the cell tower there, and two of us felt that it should be done, to see the impact to the neighborhood. Mr. Reppucci said that in his mind, the outcome of the crane test was that you’re going to see it, it’s 180 feet tall. He said that what “b” is speaking to is that the reason why it’s denied was that it’s out of character, and impair the integrity, based upon that it would serve no benefit to Nashua or the neighborhood. He said that “b” doesn’t say too much. Mr. Currier said in regards to the crane test, it’s words on a paper, that the Court will read, that sees big lots and big borders to neighboring properties, and a written argument that says this lot is unique and special in this neighborhood, and the impact will be very small, if at all. He said that he feels that the crane test is data, it is photographs showing the tower. Mr. Currier brought up 2c. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 Page 4 Mr. Reppucci said the burden is on the applicant to show substantial evidence that there is a lack of coverage. He said even the engineer’s statement that there isn’t adequate coverage wasn’t adequate. Mr. Currier said point 2c and 2d are about the same thing. He said that T-Mobile is relying heavily on the coverage map from their RF engineer. He said there was compelling evidence to the contrary that there is coverage here, as nearby residents showed that they had, and have, coverage. Mr. Shaw referred to the tower recently approved in southwest Nashua, where there was a lot of support because of the readily identified lack of service in that area, and many people came forward about that, and supported the need for the tower. He said testimony for the need of the tower here wasn’t heard for this case. Mr. Reppucci said they have to prove that to the Board, and it wasn’t presented to the Board, the need wasn’t demonstrated. Mr. Currier said that there is cell coverage by other carriers in this area, that was never disputed. He said he didn’t hear any evidence that the proposed antennas couldn’t be put on those towers that provided coverage. Mr. Currier said for paragraph “e”, he said there was certainly arguments that this tower was intended to serve the neighboring community. Mr. Reppucci said the letter mentioned the fact that he contacted the Town of Hollis. He said it wasn’t vague, he provided minutes of the November 10, 2009 application from T- Mobile. He said he had the three sets of minutes from the Town of Hollis, from 2007. He said that T-Mobile uses different attorneys and different engineers for each town, and not take a view of the area without considering a look at the City boundaries. He said it doesn’t make any sense for a tower to be just for one City, especially if it’s at a neighboring town border. Mr. Currier said for paragraph “f”, it looks as if this was already discussed, about the large lot. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 Page 5 Mr. Shaw said it looks like the same as paragraph “b”, it is just re-worded. Mr. Reppucci said it’s their choice to do a crane test before they come to the Board, and if they think it’s important, they can do their homework. Mr. Currier said for paragraph “g”, about the effects of towers with respect to health issues, he said this wasn’t taken into account with the vote, or decision. Mr. Shaw said the Board made it clear that wasn’t anything we would consider, and the Board doesn’t have control of what people will testify to. Mr. Currier said for paragraph 3, it looks as if it’s a rehash of what was said earlier. Mr. Reppucci said they need to demonstrate that the tower is needed for Nashua, and said he didn’t believe that they did that. He said it’s their burden to show us that it’s needed, and they didn’t show us in any believable way that this tower is intended to benefit Nashua. Mr. Currier asked if there was any procedural error, including improper notice, or denying anyone the right to be heard. He said the Board let everyone speak at length, as well as the applicant and their team. Mr. Shaw agreed. He said the denial letter was generated, and was available at City Hall. Mr. Currier asked if the decision was illegal, and did the Board address all the points of law required. The Board members all said that the points of law were covered. Mr. Currier asked if the request for rehearing contains any new information not presented or not available to the Board at the original public hearing. The Board members said no. Mr. Currier asked if there is anything that would/could cause the Board to make a different decision. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 23, 2010 Page 6 The Board members all said no. MOTION by Mr. Currier to deny the rehearing request, as the Board has discussed rather lengthy, the four questions that the Board considered, nothing was heard that would warrant a rehearing request. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. MINUTES: None. REGIONAL IMPACT: The Board did not see any items of Regional Impact. ADJOURNMENT: Mr. Currier called the meeting closed at 7:28 p.m. Robert Shaw, Clerk CF Taped Hearing