Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, January 25, 2011 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, AICP, 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 (which is currently not working). 1. Cotton Mill Square, LLC (Owner) 30 & 36 Front Street (Sheet 78 Lot 87) requesting the following: 1) special exception to work within the 75-foot prime wetland buffer of the Nashua River to redevelop the site by removing several existing structures and rehabilitating others, and constructing improvements including a river walk and parking areas; and, 2) variance for minimum lot frontage, 50 feet required - 18 feet proposed, and 3) variance for minimum lot width, 50 feet required – 26 feet proposed. GI/MU Zone, Ward 3. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Jim Petropulos, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Petropulos stated that Cotton Mill Square is formerly the Nashua Corp. complex, it is a 5.75 acre site with access off ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 2 of Front Street. He said the site contains two buildings, one is an eight-story brick building that was used to store cotton, and to the west is a 30,000 sq.ft one-story building that Nashua Corp. used to manufacture toner products. Mr. Petropulos said that the 5.75 acre site is substantially developed, with parking, loading and pavement areas throughout the site. He said it is adjacent to the Nashua River to the south, which has a 75-foot prime wetland buffer setback. Mr. Petropulos said that this property went before the ZBA back in 2006, but that plan didn’t go forward. He said that plan proposed 162 condominium units, in four buildings, and about 10,000 square feet of commercial space. He said in that case, they were all new buildings, and renovating the buffer. He said that project received approvals by the City boards. Mr. Petropulos said that his client wants to keep the existing 8-story cotton mill building, but to remove a 1-story 16,000 annex, and to remove the toner building. He said the current plan is to have 101 apartment units and about 4,700 square feet of commercial space. He said the building totals about 160,000 square feet of space. Mr. Petropulos said in doing the redevelopment of this site, there a piece of land to the west that could accommodate future development, and is about an acre of developable land that would remain. He said in doing this subdivision, they are also asking for variances for frontage and width, which will be discussed later, there will be some frontage on Front Street, and runs to the back for a future developable lot. He said the piece tonight is 3.4 acres. He said that they will be working in the wetland buffer, and removing some of the hazardous material behind the Cotton Mill building, and will be building a sizeable portion of the Riverwalk, part of the City’s Master Plan. Mr. Petropulos said the whole frontage along the River is about 92,000 square feet of land. He said there is about 42,000 square feet that already is paved, or has a building. He said when the redevelopment is done, there will be about 22,000 square feet that will be in the buffer, so it’s a reduction of 19,500 square feet less impact. He said the project has received a positive recommendation by the Conservation Commission. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 3 Mr. Petropulos went over the special exception points of law, as well as the wetland points of law. Mr. Shaw asked about the windows in the building, stating he remembered hearing that they weren’t suitable, or practical for residential use, because they are too high. Mr. Petropulos said the approach, and economy has changed, and they have taken a much harder look at the building, and hired a Boston architect, and convinced us that it can be done, there was a complete structural analysis done of the building, which was built in the early 1900’s. SPEAKING IN FAVOR: Attorney Morgan Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis stated that he is requesting the Board to grant two area variances, to create two lots out of one lot. He stated that the lot is a very unusual shape, and would have a very narrow frontage. He said the variances are for frontage and width. Atty. Hollis went over the variance points of law, and stated the same arguments for each variance. He said a lot of the points were mentioned earlier by Mr. Petropulos. Atty. Hollis said that any redevelopment of this property cannot be done without a subdivision, it is not a reasonable return on an investment. He said the direct abutter is in support of the request, as long as the access point and shared driveway is in place. Atty. Hollis said there are special conditions on the property is that it has less than 100 feet of frontage to begin with, and there is five acres of land. He said another unusual characteristic is the extensive length of frontage along the river, which is trying to be maximized with the City’s Master Plan, with residential activity, yet, it’s unreasonable to expect that one building occupy the entire property. He said there is removal of asbestos and other environmental cleanups that have to be done, in order to restore the old building, without additional investment opportunities. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 4 MOTION by Mr. Currier to grant the special exception request on behalf of the applicant. Mr. Currier stated that the use is listed in the Table of Uses, Section 190-119. Mr. Currier stated that it will not create undue traffic congestion or unduly impair pedestrian safety. Mr. Currier said they have met the nine criteria for a wetlands special conditions, per testimony. Mr. Currier stated that the Conservation Commission has approved this application, with four stipulations, is on file from their 1-4-11 meeting. MOTION by Mr. Currier to grant the area variances, with the special condition that there is a shared access for both lots. He stated that the unique, very old lot of record, that this is a reasonable request of the lot frontage and lot width in order to subdivide the lot, and continue with the development of the existing Cotton Mill, and the other lot further to the west for future development. He said that the five criteria for an area variance have been met by the written and oral testimony provided. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Currier to remove 101 Elm Street from the Table from the previous meeting. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Reppucci to re-open the Public Hearing to whatever degree Mr. Currier feels necessary. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 2. Anil & June A. Porbunderwala (Owners) 101 Elm Street (Sheet 97 Lot 130) requesting the following: 1) use variance to allow a beauty salon on the first floor; and, 2) variance ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 5 for minimum lot area, 3,264 square feet existing, 6,970 square feet required - to add one additional residential unit on the second floor. RC Zone, Ward 4. [TABLED FROM 1- 11-11 MEETING] Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Attorney Andrew Prolman, Prunier & Prolman P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prolman said that he wouldn’t get into all the details from the previous presentation at the last meeting. He said the discussion at the last meeting centered upon parking, and the number of parking spaces. Atty. Prolman stated that the neighbor at 99 Elm Street has agreed to sell a 15-foot strip of land in the back of the property, which will allow for four parking spaces, that will allow him to fully comply with the parking regulations. He submitted a plan to the ZBA members at this time. Atty. Prolman said that the new spaces comply with the regulations, they will be 9’x20’. Atty. Prolman said they still need the Use Variance, and the area variance, although, the additional land would make it that they’d need less land to ask for a variance from. He said according to the RC district, they would need 6,970 square feet, and previously, the application indicated that the site has 3,264 square feet, now, it will be 1,800 square feet more, so it will have 5,100 square feet, it is much closer to what the Code requires. Mr. Falk said that staff hasn’t had a chance to review the plan fully yet, and it is possible that they may need additional approvals. Mr. Reppucci said he feels comfortable and familiar with the parking issues, and the roles and responsibilities with the Zoning Board and Planning Board relative to parking. He said that the Board has to be comfortable with the intensity of the use on this site, without the specifics of how the parking will work out, that can be handled by the site plan review. He said he is satisfied with the plan. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 6 SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the Use Variance on behalf of the owner, to allow a beauty salon on the first floor. He stated that the Board finds that the zoning restriction as applied interferes with the reasonable use of the property, considering the unique setting in its environment, which is that its next to a school, there’s businesses right next door, and has a multi- year history of being used as a low-intense business use, without the stated issues that the Board is aware of, in terms of grievances to the abutters and the school. Mr. Currier stated that the beauty salon is a reasonable request, and within the spirit and intent of the ordinance, and the testimony indicated that the occupied building could increase property values, instead of a vacant building. Mr. Currier said that the request is not contrary to the public interest, and substantial justice is served. Mr. Reppucci asked about the land transfer issue. Mr. Falk said that staff hasn’t had a chance to review the revised plan, so any approval should be contingent upon that, in case other variances are needed. Mr. Currier said the Motion should also be contingent upon the 220 square foot office use on the second floor. He said the land transfer should be tied to both the Use and Area variances, based upon the plan submitted by Fieldstone Properties, dated January 25, 2011. He said the request is for the beauty salon and the office use. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Currier to grant the area variance on behalf of ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 7 the owner. He stated that 6,970 square feet are required, and oral testimony indicate that 5,100 will be provided, assuming that the land swap is approved. He said that the area variance for the land area will provide for four parking spaces. He said with the January 25, 2011 plan, this variance is needed to enable the applicants proposed use of the property, going from one parking space to four. Mr. Currier said that more parking spaces provided is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, and it is not contrary to the public interest, and substantial justice is served, with the special condition that the January 25th plan is incorporated and meets the criteria of the ordinance. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 3. River With Pebbly Bottom, LLC (Owner) 32 Lowell Street (Sheet 43 Lot 23) requesting variance from minimum driveway width, 9 feet required, 6.5 feet proposed, to construct a driveway on the right side of the existing structure. D- 1/MU Zone, Ward 3. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Paul Foden 3 1/2 Beard Street, Nashua, NH. Mr. Foden said he is requesting a driveway on the right side that would be 6.5’ x 20’ driveway, where 9 feet is the required width. He said it will give the tenants an off-street parking space, and increase the value of the property. He said the Historic District Commission already approved the request last night. Mr. Foden went over the points in his variance application. He said he’s trying to make the building functionable. He said the value of surrounding properties will increase, and has spoken with Lowell Street Automotive, the next door abutter. Mr. Reppucci asked how many units are in the building. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 8 Mr. Foden said there are two units. Mr. Currier asked about the white picket fence. Mr. Foden said he is requesting 6.5 feet, but it’s about 8.5 feet to the property line towards the automotive shop. He said he’s done research on different sized vehicles, a small, mid- sized and an oversized, and it’s in the application. He said that a small vehicle is less than 6 feet in width. Mr. Currier asked if the white picket fence is on the property line. Mr. Foden said he was not sure. Mr. Currier said that cars can’t park over the sidewalk. He asked if after a vehicle goes over the sidewalk, if it had twenty feet from the back of the sidewalk, because it seemed shorter than that. Mr. Foden said that the front of the vehicle would go past the front of the house by about five feet, so, its fifteen feet from the back of the structure to the beginning edge of the house. Mr. Currier said it probably wouldn’t work if someone were to pull in, and their front door is past the house, because it would hit the house. Mr. Foden said his thought is to have the nose of the vehicle abut the house as they pull up, and the nose of the vehicle be free, so the door would open before it got to the edge of the house. He said there is sufficient space lengthwise, the typical vehicle will fit with the nose after the beginning of the house, and the door can swing open. Mr. Reppucci asked how tall the fence is abutting the auto repair shop. Mr. Foden said it’s about three feet, and will not impair anyone’s visibility for driving. SPEAKING IN FAVOR: Steve Dennison, 34 Lowell Street, Nashua, NH. Mr. Dennison said he’s not really in favor or in opposition to the driveway. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 9 said he’s talked to Mr. Foden. He said that he wants the area very defined, the fence is one foot on my property, and has been that way for a long time. He said the fence belongs to Mr. Foden, but is on my property. Mr. Reppucci said in effect, the fence is his, because it’s on his property. Mr. Dennison said all he wants is a defined border. Mr. Falk said there is no setback on fences. Mr. Dennison said his main concern is that the fence is taken down, and it would be driveway abutting driveway. He said he wants to see the driveway line well defined. He said snow removal is very difficult on this street, it’s tight as it is, and doesn’t want the two driveways being combined. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Linda Register, 30 Lowell Street, Nashua, NH. Ms. Register said she owns a four-unit building, and it came with one parking space for the building, and it’s very narrow. She said that many cars have ruined her building with car doors. She said her concern is the driveway on the left side. Ms. Register said she is concerned about the proposed driveway on the left side. Mr. Falk said that the applicant is proposing a driveway on the other side, however, that request is not before the Zoning Board, as it meets the Ordinance. Ms. Register said she is concerned about the safety of the children on the sidewalk. She said when a car backs out, there could be children in the way. Mr. Currier said there’s a benefit to having a parking space on private property, even though they would have to back out over the sidewalk. He said he understands the concern. Further discussion ensued. SPEAKING IN FAVOR – REBUTTAL: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 10 Mr. Foden stated that he has no intention of bringing the value of the neighborhood down, he said he just wants to increase the functionality of the building. He said all the snow on the property will be plowed towards the rear, it will not go to the neighbor’s property. He said the safety of the driveway will be better, the car will have significant space to pull out and see any pedestrians in the sidewalk. He stated that the automotive shop’s concern about the fence is correct, he said he wants the fence there for his own protection and liability, and will keep it there. He said that all his snow will stay on his property. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Ms. Register asked about the driveway on the left side of the house. The Board reminded her that that driveway is not before the Board, just the one on the right side. Mr. Reppucci said that the distance from the edge of the house to the property line is really 8½ feet, so he actually has more space than he’s asking for. He said it’s such a minimal incursion into the setback, plus, it’s only the last five feet that is narrower than the 9 feet. He mentioned that there would be 2 curb-cuts, but there would also be 2 cars taken off the street. Mr. Falk said that he’s allowed 24 feet of curb-cut, but he will be required to get a curb-cut permit. MOTION by Mr. Reppucci to grant the variance on behalf of the owner. 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 stated that per testimony and discussion, it’s really 8½ feet that is available, so it’s a far more minimal incursion than the application is reflecting. Mr. Reppucci stated that it’s within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, there was testimony from an abutter that it would negatively affect her property, however, the Board considered that testimony and found that in fact it’s not enough to deny the variance. He stated that it is not contrary to the public interest, in fact it will aid in off-street parking in ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 11 this area, and substantial justice would be done. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. 4. Pamela N. & Jon E. O’Donnell (Owners) 45 Broad Street (Sheet 61 Lot 169) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit; and the following variances: 2) to encroach 13 feet into the 25 foot required rear yard setback, and 3) minimum open space, 50% required - 39% requested – to add a garage and accessory apartment onto an existing building. RA Zone, Ward 4. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Attorney Robert Welts, 29 Factory Street, Nashua, NH. Atty. Welts said that in 2006, the ZBA granted a request for a use variance to replace an existing hair salon with a commercial and residential use building, with the hair salon on the first floor, and the residence on the second floor, with a dimensional variance for the building encroachment. Atty. Welts said that the applicant moved into the new building on the site, however, the company constructing the building went into financial difficulties, and never completed the second floor residence, until another company completed it last month. Atty. Welts said the applicant is proposing to construct an attached 30’x22’ two car garage and an accessory apartment above the garage for the applicant’s elderly mother. Atty. Welts stated that the use is listed in the Table of Uses, Section 190-15, Table 15-1, Use Matrix. He stated that the traffic will not be affected, as indicated in attached letter by Richard Maynard. He stated that the accessory apartment will not overload any public utility use or municipal systems. He stated that the special regulations are met as well. Atty. Welts stated that there are two dimensional variances ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 12 being requested as well, one is to encroach 13 feet into the 25 foot rear yard setback, and the other is to reduce the open space to 39%. He stated that the variances will not be contrary to the public interest, because adding a garage and an accessory apartment with a footprint of only 660 square feet on a 17,000 square foot sized lot will not alter the essential character of the mixed residential commercial neighborhood, nor will it threaten the public health, safety or welfare of the public. Atty. Welts said the spirit of the ordinance is being observed, the house is approximately 53 feet from the rear lot line, and it exceeds the minimum distance between two residences in the RA zone. He said there is a vinyl solid fence, a picket fence in back, plus, the planting of the twenty arborvitaes along the back fence for privacy. He said there will still be 6,600 square feet of open space on the lot. He said that substantial justice will be done by allowing this use, and the proposed values will not be negatively impacted, either. He stated that the restrictions placed on the property do not impact the property, as they do not impact regular sized lots in residential neighborhoods, as this is a mixed commercial and residential area, with numerous uses, along with the railroad and the pending Broad Street Parkway. He said the unique, triangular shape of the property makes it impossible to locate the proposed addition on the site without some encroachment to the setback area. He said the use will still have an adequate buffer to the neighboring homes. Mr. Reppucci asked how many units are in the building now. Atty. Welts said that it is a single-family unit, it is about 1,600 square feet. Mr. Currier asked if the proposed unit exceeds 700 square feet, or 30% of the size. Atty. Welts said that it doesn’t. Mr. Currier asked about the Covenant, and it talks about accessory dwelling units, he said it should say an accessory dwelling unit, an in-law unit, so in the future it wouldn’t become an apartment. Atty. Welts said yes, it will be an in-law apartment. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 13 Mr. Currier asked if the proposed structure could be pulled forward. Atty. Welts said it would then be in the parking lot, it can’t be pulled forward. He said it’s on line with the current building, and they are requesting the same encroachment for the addition, it would be 12 feet away from the property line, a 13 foot encroachment. Mr. Reppucci asked where the owners live now. Atty. Welts said they live on Cabot Street. Mr. Reppucci asked if they are selling their house, and moving into this building. Atty. Welts said they are not selling that house. He said it is a condition of the approval that they must live in this structure. Mr. Reppucci asked if the applicants will be moving into this structure. Atty. Welts suggested that a condition can be made that they move in within 30 days. He said they would have been in earlier, except for the snow storms. Mr. Shaw asked about the new footprint, and it would be greater than 660 square feet, it would be about 850 square feet. Mr. Currier asked how the mother would access the unit upstairs. Atty. Welts said there are two choices, one is a stairway on the side of the building, there is an opening there. Richard Maynard, P.E., Maynard and Paquette, Nashua, NH. Mr. Maynard stated that his two letters are self-explanatory. He said there is already an outdoor staircase that has to be covered for fire and safety codes. He stated that the doorway that services this unit would be the same one that services the new building addition. He stated that the Broad Street Parkway is right across the street from the subject property, and this entire section of Broad Street is de-facto commercial and industrial, especially once the Parkway comes through. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 14 Mr. Maynard said this has to go before the Planning Board, and the owners must occupy this unit before then. Mr. Reppucci said if the special conditions are met, it must be approved, and if they’re not, it must be denied. He said he needs to be convinced that in items 2 and 3 of the accessory dwelling criteria, that this is an accessory dwelling. He said it’s really a variance request, in order for this to be a special exception, it would have to be a one-family dwelling. He said in number 3, it shall not alter the single-family appearance. Atty. Welts said that he and City staff said that it’s a one- family dwelling, and the Board allowed a hair salon in the bottom floor, like a home occupation. Mr. Reppucci asked if it is a single-family dwelling, or a mixed use property. Atty. Welts said the City told him that it’s a single-family dwelling. Mr. Falk said it’s a single family zone, and it’s a mixed use building. He said it’s not a multi-family, not a triplex, not a duplex, not an elderly housing, just by process of elimination, it’s a single family, it’s one meter, and one family lives there, it just happens to have an accessory hair salon in it. Mr. Currier asked about the grass paving. Mr. Maynard said it is a grid work type system, that allows grass to grow through it, and it will be a grass surface, and it will allow for a turnout, and visitor parking, or overflow parking. Mr. Reppucci said in the 2007 minutes, it states that the site isn’t suitable to be used for a single family residence. He said that he didn’t agree with the Planning Department’s view that this is a single family residence, and can’t come through as a special exception. Atty. Welts said the code is different now, and our best interpretation is that it’s a single family house. Mr. Reppucci asked how it is taxed. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 15 Atty. Welts and the Owners stated it is taxed as a single family house. Mr. Reppucci stated that it’s perfectly clear language, and it should be a variance, he said that procedurally, it should be a variance. Mr. Shaw said the language states that it has to be the only accessory dwelling, and it is a one-family dwelling. He said the addition doesn’t change the fact that it looks like a residential unit, and it still would look like a single family unit. He said that with the garage addition, it still would look like a large colonial or garrison style home with an addition. Mr. Shaw asked if there was any ability to turn the addition in a way to allow the garage access to the back of the parking lot, or to make the driveway somewhat shorter, and to reduce the amount of pavement. Mr. Maynard stated that they wanted to keep the residential part separate from the parking lot, which is why the driveway is located at this point, and side-loaded. He said that to have two oversized garage doors facing the parking lot would not be architecturally pleasing. He said they need all the parking in the main lot, on busy days, all the spaces are filled. He said they’ve tried to do about eight different configurations, and the proposed one works the best, and has the least impact, and will allow for the building to look good. Mr. Shaw said he questioned the amount of parking in 2006, and would like to see less pavement there, but the nature of the business is that they are busy. Mr. Maynard said that the Ordinance is not correct with the number of parking spaces for salons, it used to be correct in the old code. Mr. Currier agreed with Mr. Shaw’s opinion about the placement of the garage, and thought it would minimize the incursion. Mr. Maynard said they have to consider the accessway on the side of the building on the right, it would go into both of the units. He said the proposed configuration works best with ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 16 aesthetics, overall impact, and also, didn’t think that an “L” shaped building wouldn’t look well. Mr. Reppucci asked what is on each floor of the existing building. Mr. Maynard said the salon is on the first floor, and the residential unit is on the second floor, and once you are inside the building, there is no internal access between the floors. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Susan Jimenez, 21 Berkshire Road, Nashua, NH. Ms. Jimenez said she was misled on what the building would look like, and was told that the trees wouldn’t come down She said she used to see all trees and the sky when she moved in. She said she looks out her window, and all she sees is this huge white building. She said she was misled, and inexperienced, and said the building is huge, and wants her view to be saved. She said she feels like she has no privacy. She said her expectation was that it didn’t look like what it is now. She said the value of her property has been decreased. SPEAKING IN FAVOR – REBUTTAL: Atty. Welts said in 2006, the owners approached Ms. Jimenez, and showed them the plans, and all four abutting neighbors were in favor of the plan, and they proceeded. Atty. Welts said that the owner found some invasive weeds were removed from the site, and they’ve tried very hard to make the place look presentable. He said they planted 20 trees, to try to give Ms. Jimenez some privacy and something nice to look at. He said the trees are about 4-5 feet high, but will grow rapidly, and will be above the 6-foot high fence. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Currier said he’s heard from the testimony that the applicant is willing to plant trees, and asked if will be any value. Ms. Jimenez said yes, if they can grow up to 20 feet in height, as that is what was expected, she said she expected to see just a little bit of their roof at the top. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 17 Mr. Reppucci said we’re being asked to consider that there is a two-story building, with the first story being 1,560 square feet, which is used commercially. He said that the second floor is 1,500 square feet, which is smaller than the first floor, so more than 50% of the building is being used as a business, with one living unit over it. He said that the Board is being asked to look at it as a single-family house, with an accessory use. He said that the application is really for a mixed use building, and they’re looking to add a garage and an apartment over. He said he believes it should be a variance request. Mr. Shaw said the last time they were here, it was advertised as a use variance to replace an existing hair salon with a mixed commercial and residential use building, with hair salon on first floor, and a residence on the second floor. Mr. Shaw said he has a lot of concerns about the intensity of the use, but also the testimony of the impact by the abutter, and it may add to the imposition of the large structure by the rear yard setback, and we wouldn’t be serving the abutter well, and it would be going against the spirit and intent, as we know what is going on with this area, and didn’t feel that he could support it on that basis. Mr. Reppucci said if the applicant is in compliance with the regulations of a special exception, we must approve it. He said he wants to withhold his opinion on the case until the applicant gives testimony on a variance request in its entirety, which they have the right to do. Mr. Shaw said for criteria number 5, having a large structure encroaching into the rear yard setback, does not meet that test. Mr. Reppucci said he would feel much better about this if it were presented as a variance. MOTION by Mr. Reppucci to deny the special exception on behalf of the applicant because it doesn’t meet the special conditions associated to an accessory dwelling unit, and the Board doesn’t feel that it’s a single-family dwelling, and can’t be handled as a special exception. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 18 MOTION by Mr. Reppucci to Table the variances, therefore, the Board is not putting any burden on them, with the Fisher vs. Dover case. He said if they choose to come back with a variance for the use, it can be considered then. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 5. DWA Hollis Properties, LLC (Owner) 502 West Hollis Street (Sheet E Lot 83) requesting variance to exceed maximum wall height, 6 feet permitted – up to 12 feet proposed - for a 95-foot section of a retaining wall. R9 Zone, Ward 5. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Elmer Pease, P.D. Associates, Auburn, NH. Mr. Pease said they are requesting a variance for a portion of a retaining wall that is located in the no-cut buffer zone. He stated that at a recent meeting, the Zoning Board granted access into the zone to repair damages. He said that the Code Section is 190-44 for fences. He said the wall in question is a retaining wall, it was originally designed in order to provide ADA access for a walkway and a clubhouse and a sports court. Mr. Pease said from property line to property line, there is a forty-foot grade difference, and that is why there is a 6-12 foot wall height. He submitted some photos of the wall to the Board. Mr. Currier asked if the wall is a structural wall. Mr. Pease said that the wall has been engineered, and it is not considered a wet wall, every four feet it has a geo-grid that is tacked down and compacted and inspected. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 25, 2011 Page 19 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance on behalf of the applicant. He stated that the variance is needed to enable the applicant’s proposed use of the property, the wall is already there, it is stable, and there was no testimony that it is negatively impacting anyone who can see it, but it is necessary for the productive use of the land. Mr. Currier stated that it is within the spirit and intent of the ordinance, there will be no impact to property values of surrounding parcels, it is not contrary to the public interest, and substantial justice would be served by permitting this already existing wall. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: None. REHEARING REQUESTS: None. ADJOURNMENT: Mr. Currier called the meeting closed at 10:25 p.m. Mr. Robert Shaw, Clerk CF Taped Hearing