Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 8, 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 Ryan Williams 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. Public Service Co. of New Hampshire (Owner) 1 Jackson Square and L & B Lock Street (Sheet 41 Lots 1 & 24) requesting special exception to work in the 75-foot prime wetland buffer of the Nashua River to install monitoring wells. GI Zone, Wards 3 & 7. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Ryan Williams - RECUSED Mike Lotti, Innovative Engineering Solutions, Waltham, MA. Mr. Lotti said that this request is a continuation of a project that was approved by the ZBA two years ago. He said that there are some contaminated properties, and there is some residual contamination on site, so they need to install four additional monitoring wells within the buffer zone of the Nashua River. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 2 said the Conservation Commission approved the case, as well as the State. He said there will be no change of use on the property, it is still the power transmission right-of-way. He said that no structures will be built, it will just be the monitoring wells at four different locations, with three 2-inch PVC wells in the ground, so the only thing that anyone would see would be a 4-inch diameter piece of steel sticking out of the ground, with a locking cap on the top of it. Mr. Lotti said each location will take 2-5 days to complete, and they will be drilled to depths up to 100 feet below grade. He said they will return semi-annually for the next 4-5 years to collect samples for input into a database for the area. Mr. Lotti said they will not be damaging or affecting the wetland or the buffer in any way, this is a temporary disturbance to the buffer zone. Mr. Currier read the three stipulations of approval from the Conservation Commission. He also went over the nine special regulations of approval. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the special exception request on behalf of the applicant. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-112. Mr. Reppucci stated that it will not create undue traffic congestion or unduly impair pedestrian safety. Mr. Reppucci said that they will not overload public water, drainage or sewer or other municipal systems. He stated that the special regulations are fulfilled, the wetland special conditions are all met, it was approved by the Conservation Commission with three stipulations. Mr. Reppucci said it is four separate locations, with three wells at each location, for a total of twelve wells. Mr. Reppucci stated that the minutes of the Conservation Commission meeting are put into the Zoning Board’s record if ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 3 this case ever gets to Court. Mr. Reppucci said it will not impair the integrity or be out of character with the neighborhood, nor be detrimental to the health, morals or welfare of the residents. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 2. Anibel C. & Maria E. Sousa (Owners) 14 Kenmare Road (Sheet B Lot 842) requesting variance to encroach 5 feet into the 30 foot required rear yard setback to enclose an existing 12’x12’ open deck into a three-season porch. R9 Zone, Ward 8. Voting on this case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Anibel Sousa, 14 Kenmare Road, Nashua, NH. Mr. Sousa said he wants to erect a three-season porch on top of an existing deck in the rear of the house. Mr. Currier went over the variance points of law with the applicant, to the Boards satisfaction. Mr. Reppucci asked if there will be any plumbing or heating in the room. Mr. Sousa said there will not be any plumbing or heating. Mr. Reppucci asked if it will have a foundation, or will be built on the deck. Mr. Sousa said it will be built on top of the deck. SPEAKING IN FAVOR: Michael Law, Better Homes, Haverhill, MA. Mr. Law said it will be structurally sound, and will be one story in height. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 4 Mr. Shaw said the distance from the rear property line to the house is 37 feet, so, to add on to the structure, only 7 feet is available without encroaching into the rear setback of 30 feet. He said it is limiting, and asked if there were any other options. Mr. Law said the house is a basic ranch style, the deck will be 12’x12’, in order to give the applicant additional space, the only other option would be to make it wider, but it wouldn’t give them much room, it would only be 7 feet wide. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. 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 the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice would be done. Mr. Reppucci said that the porch must meet all the definitions of a three-season porch by Code, and that it will be a single story in height. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 3. Pheasant Lane Mall FB, LLC (Owner) 310 Daniel Webster Highway (Sheet A Lot 737) requesting variance to exceed maximum wall sign area, 150 square feet allowed – 268 square feet requested. GB Zone, Ward 8. Voting on this case: Jack Currier Rob Shaw ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 5 Ryan Williams Gerry Reppucci Tom Gianni, ImageOne Sign Company, Croydon, PA. Mr. Gianni said they are representing a two-story store that will occupy approximately 95,000 square feet, at the Pheasant Lane Mall. He stated that the frontage of the store is 187’ – 2”. He said that the Code allows for 1.5 square feet per each 100 feet of frontage, for a maximum of 150 square feet. Mr. Gianni said the sign matches the store, it’s an anchor store in the mall, and the space has been vacant for about five years. He said that if the store was subdivided into two spaces, each tenant would be allowed a 150 square foot sign, and the proposed sign is 268 square feet. He said the proposed use is an anchor tenant, and is taking up a lot of space, he said that Sears has a large elevation with three walls for signage, and their signs greatly exceed the Code. He said that Target also has large signage on two elevations, and three signs total, and JC Penney also has large signage. He said that Home Depot and Costco also have very large signs as well, and the mall sits down in elevation from Daniel Webster Highway. Mr. Williams asked to confirm if there will be any signs on the sides of the building. Mr. Gianni said they are requesting only one sign, facing Daniel Webster Highway. Mr. Reppucci asked how the sign fits in, size-wise, with the other anchors in the mall. Mr. Falk said that Costco is in excess of 300 square feet, if not larger, and the proposed sign is similar in size to the other big-box stores, and it will look consistent with other signs nearby, and in the mall itself. Mr. Currier asked if the proposed sign takes signage square footage away from the restaurants that are proposed on either side of Dicks. Mr. Falk said no, the restaurants have their own frontage, and they will be afforded their own signs based upon their building frontage. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 6 SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. 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, the sign will be is consistent with other signs on similar properties in the mall, and the mall is set lower than the road level, and it wouldn’t make any imposition on Daniel Webster Highway. 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. He stated that it is not contrary to the public interest, and substantial justice would be done. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 4. J & C Realty Trust (Owner) Barlo Signs for the Nashua YMCA (Applicant) 505 West Hollis Street (Sheet E Lot 1387) requesting the following variances: 1) to allow an off- premises ground sign; 2) to allow one additional ground sign on a lot where two ground signs exist; and 3) to exceed the maximum ground sign area for ground signs, 150 square feet is allowed, 160 square feet proposed. PI Zone, Ward 5. Voting on this case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 7 MOTION by Mr. Currier to Table case #4 to the February 22, 2011 meeting. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 5. Shane R. & Kristi Tumpney (Owners) James Ducharme (Applicant) 32½ - 36 Summer Street (Sheet 44 Lot 78) requesting the following variances: 1) Proposed Lot 3: minimum lot width, 60 feet required, 50 feet proposed; and 2) Proposed Lot 4: minimum lot width, 60 feet required, 50 feet proposed. [REHEARING GRANTED 11-9-10] RB Zone, Ward 3. Voting on this case: Jack Currier Rob Shaw Ryan Williams Gerry Reppucci Attorney Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said he objects to moving forward without a full Board. He pointed out the two lots on a map. He said that the lots meet all the dimensional frontage and density requirements of the zoning ordinance. He said the density and frontage is met for both lots. Atty. Prunier said the request is for the lot width, which is required to be larger than the frontage, the width needs to be 60 feet, and 50 feet is existing. He handed out a package of information to the Board. He said it’s for lot 3 and 4 that the variance is needed for. He said that besides this issue, all other requirements of the zoning ordinance are met. He said they want to build two single family units. He went over the tabs in the package that he handed out. Atty. Prunier said he believes that the width requirement was put in the ordinance to address lots on cul-de-sac streets. He said he didn’t think the width requirement makes sense. Mr. Reppucci asked why the width requirement is in the ordinance. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 8 Mr. Falk said it’s been in the ordinance for decades, and most likely, was put in to address lots around a cul-de-sac, and most of the cul-de-sacs are in the western portion of the City, west of the Everett Turnpike. Mr. Currier asked if the street is being planned for any widening. Atty. Prunier said that one of the requirements will be sidewalks, which is an issue with the Planning Board, it may be an off-site improvement that will have to be made. Mr. Williams asked about the history of the consolidation of the lots and the tax treatment of the lots. He asked at what point the tax treatment changed. Atty. Prunier said that they did a title search on the property. He said that they purchased various lots from various people. He said there is a mortgage on a portion of the property that doesn’t have any frontage. He pointed out two pieces of property on the map, and had a caveat on them, also, there was an attempt to obtain a veterans exemption, because there were two tax bills. He said in 1963, there were two tax bills, in 1964 it was put into one lot. He said it was a piecemeal puzzle that was put together. He said he wasn’t sure how the houses were built without frontage. Mr. Currier said it looks like the evidence shows that three lots were purchased, 78, 79 and 80. He said that Exhibit C and D speak to that, and that the current owner knew he was buying three lots. He said that the owner bought something, and then there’s this surprise, that is beyond reasonable expectation, and that is a hardship. Shane Tumpney, 38 Frost Rd, Tyngsboro, MA. Mr. Tumpney said they closed on three lots, there were three tax bills, on 32 Summer Street, 36 Summer Street and 32½ Summer Street, and the bank gave two mortgages, the first one encompassed everything. He said he got one tax bill, and said he had no idea that the lots were separated. Mr. Currier said there is a tax lot 78, 79 and 80. Mr. Williams asked what lots were combined in the caveat. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 9 Mr. Tumpney said he believes that lots 78 and 79 were combined. Mr. Currier asked if there were any other options considered for these lots for development. Mr. Tumpney said the best bet for the neighborhood would be single family houses. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ed Gagnon, 20 Kendrick Street, Nashua, NH. Mr. Gagnon said he lives just north of this property. He said the police were called about 12 times last year for this property. He said the neighborhood is overcrowded, some of the lots are postage stamp sized. Mr. Williams asked how he would feel if a multi-family building was approved and constructed. Mr. Gagnon said he’d be more concerned with multi-family going there, he said he’d prefer single-family. He said the road is very narrow. Linda Huske, 9 Shattuck Street, Nashua, NH. Ms. Huske said she lives immediately north of Mr. Gagnon’s driveway. She said it is a very contained and protected area, it was surrounded by many trees at one time. She said that after Mrs. Dube left, she noticed a change. She said there have been disturbances, kids partying, people arguing, domestic issues, police cars coming, and people racing up and down Kendrick Street. She said she is concerned about more people living here. She said that other people in the neighborhood are concerned about this, and could bring in a petition signed by at least twenty signatures of neighbors against this proposal. She said they are concerned about more noise and traffic. She said that Kendrick Street is very narrow. She said the area is very condensed, and there will be more people and traffic. Mr. Williams asked how she would feel on a multi-family building being put there. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 10 Ms. Huske said she would not like to see that, there are too many in the area now. Diane Sheehan, Alderman Ward 3. Ald. Sheehan said she is speaking for many constituents. She said that the lot has already been chopped up in pieces, and in looking to see what you would rather have, three single-family homes or a multi- family building, it’s not a true question. She said that two houses are allowed legally without a variance. She said there are setbacks for a reason. She said there is no hardship, perhaps there’s a civil matter with the title company. She said there are density rules for a reason, and this is one of the places where it’s a problem, so if we keep making exceptions, the next guy gets it too. She said there is a concern about cramming more houses in on a narrow, broken-down road, and it’s one-way, it’s basically a path. She said the Board should hold this to its legal limit. SPEAKING IN FAVOR – REBUTTAL: Atty. Gerald Prunier, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said they want to make the property very nice, they have already fixed up one of the buildings very nicely. He said they are trying to clean up the area, and to put up something the abutters will like. He said the only thing they are asking for is two minor variances for the lot width, the frontage is there, the density is there, and all the other dimensional requirements are met. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Linda Huske, 9 Shattuck Street, Nashua, NH. Ms. Huske said in regard to the two houses that have not been fixed up, there would probably be no objection to three single-family homes on those lots, if they tore down the two existing ones on the lot that are in deplorable condition. Mr. Reppucci said this case is much simpler than it appears. He said it is strictly a width variance. He asked if there is an unnecessary hardship on this applicant by strictly applying the ordinance. He said there is an unnecessary restriction placed on the property, because when there’s a restriction placed on a property, there is always a way that the City can explain why it is placed there. He said that staff has said that the width has to do with cul-de-sac lots, which is a reasonable explanation. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 11 He said he believes that there is an unreasonable restriction on these lots. He said the impact of adding one house is completely negligible. Mr. Currier said he doesn’t believe that an owner gets penalized by the width requirement, he said the owner gets a bonus by not having the frontage to be as wide. He said he feels that the lot width is an important criteria. He said that Kendrick Street is a perfect example of a crowded street, and the other streets are also crowded, therefore, he didn’t think that by allowing relief in the size of the lot by the width. Mr. Shaw said a majority of the lots in this area are less than the minimum requirement, and didn’t think a lot with 50 feet in width would be inconsistent with a majority of the lots in this area. He said a lot of the lots are about 5,000 or 5,500 square feet in size. Mr. Williams said he was uncomfortable with the hardship issue, and wanted to see if there is any unique nature to this property. Mr. Reppucci said that the spirit and intent of the ordinance for the lot width was to accommodate curved lots. He said that the literal application of the ordinance, on these specific lots, which are straight lots with 50 feet of frontage. He said he feels comfortable with the lot width on curved lots. Mr. Shaw said there is just over 180 feet of frontage, so it may be possible to carve up the three lots to meet the width. Mr. Currier said that most every zone has a lot width and frontage requirement, and the frontage is less than the width. He said he feels that by allowing a lesser frontage, people are already getting that as a bonus. He said it increases as you go up in the larger sized lots. Mr. Reppucci said the neighborhood would be better with the single-family units instead of the multi-family units. Mr. Falk said mathematically, the three lots do have the area, and the frontage. He said he’s not sure whether the lot width would be met for the three lots, as the width is measured from the front yard setback, which in this zone, is 10 feet. He said that if you measure the width, going across the three lots, it ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 12 looks like it may be a little bit short of the required 180 feet. He said it looks like the lots pinch back from the frontage, so it looks like they may have a little less than 180 feet of width for the three lots. He said the side lines are not perpendicular to the frontage, they pinch in somewhat. Mr. Williams asked about the 3,500 square feet of land for a multi-family unit, as shown on the plan. Mr. Falk said that is an old number, as the previous Land Use Code required that much land. He said that with the new Land Use Code, it would require 6,222.8 square feet of land per unit for multi-family. He said the way that is derived is by dividing 7 units into an acre, which is 43,560 square feet. He said it changed in January, 2006. Mr. Williams said he didn’t feel that there is a hardship on this lot. Mr. Reppucci said they’ve heard testimony that there is a tremendous amount of trouble there, with noise, gang activity and terrible tenants. He said that we want people to come in, buy the properties, and rehabilitate them, so this is the goal to improve the property and redevelop it. Mr. Shaw said the width, at the front yard setback, for the three lots, is about 175-176 feet, due to the trapezoidal shape. He said there is a large number of surrounding properties that all have very similar lot configurations, and didn’t think that carving up these lots is by any means inconsistent with the neighborhood, or with the feel of the other homes around the corner. Mr. Currier said in looking at the proposed width, it is 17% less than what is required. Mr. Shaw said it is a really small amount of relief that is being asked for. Mr. Currier said he struggles with Kendrick Street being what it is, it is a substandard street. Mr. Shaw said that those lots have access to a lot more usable yard, based upon how the street is configured, as the pavement is laid out on the other side of the right-of-way, so, in some ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 13 regard, it adds some significant extra 1,800 square feet. Mr. Reppucci said if this is approved, the Planning Board will still be taking a hard look at what is required for that street in order to accommodate what we may allow by variance. He said the City will be looking at this, as well as the Planning Board. Mr. Williams said if they get three votes, there should be some sort of contingency about the issue of the access. He said the ZBA still considers traffic. He said he cannot rationalize a hardship in this case. MOTION by Mr. Currier to table the request to the February 22, 2011 meeting. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: January 11, 2011 MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. REHEARING REQUESTS: None. ADJOURNMENT: Mr. Currier called the meeting closed at 9:11 p.m. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 8, 2011 Page 14 Mr. Robert Shaw, Clerk CF Taped Hearing