Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 22, 2011 at 6:30 PM in the Auditorium at City Hall. Rob Shaw, Chair, conducted the meeting. Members present were: Rob Shaw, Chair Gerry Reppucci, Vice Chair Jack Currier, Clerk Ryan Williams Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Shaw explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Shaw 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. Shaw also explained procedures involving the timing light (which is currently not working). 1. 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. [TABLED TO THE MARCH 22, 2011 MEETING] POSTPONED TO THE APRIL 12, 2011 MEETING. 2. James W. & Jennifer A. Leary (Owners) 40 Langholm Drive (Sheet C Lot 397) requesting variance to encroach 4 feet into the 30 foot required rear yard setback to enclose an existing 12’x16’ deck. R9 Zone, Ward 9. Voting on this case: Rob Shaw ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 2 Gerry Reppucci Jack Currier Ryan Williams James Leary, 40 Langholm Drive, Nashua, NH. Mr. Leary stated that they have a small portion of the deck that encroaches into the rear yard setback, and it’s an existing deck that’s been there for 35 years. He said that the plan is to screen it in, to enjoy it without mosquitoes and bugs. He said it really isn’t visible, and a lot of the neighbors have the same type of structures in their rear yard. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance on behalf of the applicant. Mr. Currier stated that the variance is not contrary to the public interest, per testimony, there are many other homes with similar structures, and it is within the spirit and intent of the ordinance to allow a minor encroachment like this. Mr. Currier said that substantial justice will be granted because the property owners will get to enjoy their back yard as the neighbors do. He said there was no expert testimony, but the Board finds that this request will not negatively impact property values. He said the house is unique, in that the way it is angled on the lot. Mr. Currier said a special condition is that the porch will be one-story. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. 3. Thomas & Christine Mirabito (Owners) CBS Outdoor (Applicant) 59-61 Bridge Street (Sheet 40 Lot 19) requesting the following: 1) Appealing decision of Administrative Officer that a nonconforming billboard damaged in a storm may be reconstructed, and/or the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 3 following variances: 1) to exceed maximum area, 75 square feet allowed, 400 square feet requested, and 2) to exceed maximum height, 30 feet allowed, 38’-5” requested. GI Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Ryan Williams The Board briefly discussed the timeliness of the appeal, as well as the substantive matter of the appeal. Attorney Elizabeth McCormick, Cleveland, Waters & Bass, P.A., Concord, NH. Atty. McCormick stated that they are representing CBS Outdoor. She said that CBS has maintained a legally nonconforming billboard, and in February of 2010, a terrible winter storm caused irreparable damage, to the extent that the Fire Department asked us to take it down. Atty. McCormick said that after the sign was taken down, CBS contacted the City and asked what needed to be done to reconstruct the sign. She said it was an informal inquiry, and believed they would fall under Land Use Code Section 190-120, and what transpired after that, in their mind, was informal email correspondence. She said that there was one by Mr. Falk that suggested that they apply for a variance, but they didn’t believe it to be a final administrative decision. Atty. McCormick said that in January, her office wrote a letter asking for direction on how to proceed further, and at that time, still didn’t believe that a final decision had been rendered. She said that they were told that the decision was final last March. She said as far as the timeliness goes, they were in a reasonable time, according to RSA 677:5 says. Mr. Williams said it also says a reasonable time, as provided by the rules of the Board. He said the ZBA By-Laws have a 30-day appeal provision in the By-Laws. Atty. McCormick said they were within the thirty days. Mr. Williams said the issue is whether the email by Mr. Falk ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 4 constitutes an administrative decision. He said the language in the statutes is problematic, as an administrative decision doesn’t have any language like in the Administrative Procedures Act, where it needs to have a clause dictating the right to an appeal. He said it is defined as any decision involving construction, interpretation or application in terms of the Ordinance, which is fairly broad, and could encompass an email stating that they would need a variance. Atty. McCormick said it was their understanding that it wasn’t a final decision, which was why they continued to pursue other methods after. She said they are also here for a variance as well. She said they thought the email was just an informal inquiry, and there may have been some misunderstanding. Mr. Reppucci asked if they believe the sign is a structure, and the Code that covers structures covers this entity. Atty. McCormick said yes. Mr. Reppucci asked if the sign served any other purpose beyond being a sign. Atty. McCormick said no, it just served as a billboard. She said a sign is a structure. Mr. Reppucci said even if the sign falls under Section 190-120, there’s very specific language about the requirements for signs in Nashua. He asked Atty. McCormick if the Board should not consider the sign ordinances, and just consider the structure ordinances. Atty. McCormick said that the sign section speaks to ordinary repairs and maintenance, which, in this case, we didn’t fall under, it wasn’t ordinary repairs and maintenance, and the more specific section that applied, because the sign is defined as a structure, and the ordinance speaks to nonconforming structures can be replaced and restored. Mr. Shaw said in Mr. Falk’s email of March 19, 2010, there seems to be a pretty clear statement, after the citing of the Land Use Code, the statement of “therefore, you would require a variance to replace the sign”, a message was delivered, a decision was rendered by Staff, saying that a variance was required, along with the applicable section of the Land Use Code. He asked if ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 5 they felt that that was a formal decision. Atty. McCormick said they didn’t feel that was a final decision on their part, it was more for CBS to figure out what it needs to do in their next steps, and it wasn’t to ask for a formal opinion. She said she didn’t feel that an email was a formal decision. Mr. Currier asked about Section 190-110, why C and D, with the 50% rule and rationale is behind this section. Mr. Falk said that this section has been in the ordinance for decades, and the intent is that if you have a nonconforming sign, you can do some repairs, but if more than 50% of the value of the sign is damaged, then, you’d be making a new sign, so the Code allows for some allowance for minor repairs. Atty. McCormick said that what happened to the billboard was an act of God, and should fall under Section 190-120. She said if the storm did not happen, the sign would still be there. Mr. Currier said it looks like the poles were like telephone poles, and said that as time goes on, the wood gets weaker and weaker, and at some point, the wind would knock it over. He said that it was part of the natural deterioration of a very old sign. SPEAKING IN FAVOR: Mr. John Mahoney, CBS Outdoor. Mr. Mahoney said they do regular maintenance of the sign, and the catwalks weren’t on it originally, but now OSHA requires them, so, there have been some changes to the sign. He said the structure probably wasn’t 50% destroyed, but the Fire Department said it needed to come down due to the way it was leaning. He said the wind shear broke the pole right in the middle, it wasn’t really deteriorated. He said he’s never seen a billboard come down like this in an act of God. Atty. McCormick said that Section 190-120 was the part of the Code that they relied upon, and assumed they had the right to come forward and reconstruct the sign, and want to go forward with the appeal. She said the sign is a structure, the sign was nonconforming, and believes that 190-120 is the proper section to review this matter. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 6 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Carter Falk, Deputy Planning Manager, City of Nashua, NH. Mr. Falk said this was a nonconforming sign that was damaged due to an act of God, everyone agrees upon this. He said that staff reviewed this under Section 190-110C. He said this section deals with nonconforming signs, and saw that the sign damage came under this section, as it directly relates to what had happened. He stated that Section 190-120 deals with any nonconforming structure, like houses, decks, sheds, garages, or other buildings, in which the Code does allow for them to be rebuilt within a certain time frame, depending on what zone it is in. He said that staff does consider a ground sign a structure, but staff believed that the issue at hand was a sign, and there is a section directly in the Sign ordinance that addresses nonconforming signs, and that this should be the section that is applicable. Mr. Falk stated that he send two emails, dated March 17th and March 19th, and believed that the emails were pretty clear that we identified a code section and gave a direction on how to proceed, with a variance, and that it was our final decision. Mr. Falk said that he, as well as the others in the office, are asked for answers or decisions every day, sometimes several a day. He said that some of the answers given are verbal, others are in an e-mail form, and some are in letter form. He said that in most cases, it is an email that becomes a final administrative decision, or answer. Mr. Falk stated that in the ZBA By-Laws, number 15, states that someone has thirty days to appeal the decision of an administrative officer. He said that his email dated March 19, was, in fact, staff’s response, or answer, to their question, and therefore, they would have thirty days from that letter to ask for an appeal. He said that the appeal came about a year later. Mr. Williams stated that an appeal must be timely, or else we can’t consider it. He said that in this instance, according to 676:5, it specifically says that such appeal shall be taken within a reasonable time as provided by the rules of the Board, and the applicant concedes that our By-Laws specifically say that its 30 days from the date of the decision, so, the question is, whether Mr. Falk’s email constitutes a decision. He said ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 7 that 676:5 II, a decision of the administrative officer for purposes of starting the clock is any decision involving construction, interpretation or application of terms of the ordinance. He said that an email can absolutely constitute an administrative decision of the officer. He said that in Mr. Falk’s email, it didn’t contain a notice of the right to appeal, he said it wasn’t persuasive. He said the Administrative Procedures Act requires agency decisions to have notices of appeal rights, but didn’t think it applied to municipalities, so it’s a moot point. He said it’s a procedural issue, it’s not timely, and he said the Board doesn’t even need to reach the substantive question, whether or not the interpretation was accurate. Mr. Currier said he believed that the email was sufficient, and rather in depth, but thought it was sufficient, and email communication is written, and was comfortable that it was a reasonable communication. Mr. Reppucci said he agreed with what Mr. Williams said. He thought that the Board should address both the timing issue and the appeal issue, in case it gets to court. Mr. Williams said the Board should only address the timing issue. Discussion ensued by the Board members. MOTION by Mr. Reppucci to deny the administrative appeal, and to uphold staff’s decision. Mr. Reppucci stated that the Board finds that the appeal of the administrative decision is not timely, and beyond the reasonable time that would have allowed the Planning Department’s position to be appealed to this Board. He stated that the Board collectively feels that the appeal window conforms to the thirty day window that the Board applies to conventional appeals, and the application is beyond that, and the Board will not speak formally to the appeal to the content of the appeal, based upon the fact that it’s not timely. Mr. Reppucci stated that there was lengthy discussion by the Board, and consensus on the Board, although not unanimous, that the position of the Planning Department, the merit of their position was well-founded, although that is not addressed in this motion. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 8 Mr. Shaw said there should be some language in the motion about the email that was sent by Mr. Falk. Mr. Reppucci said that specifically, the Board’s decision that the appeal is not timely is referenced from an email from Mr. Falk, the Deputy Planning Manager for the City, to the applicant, dated March 19, 2010, that states specifically, that the applicant would need a variance to replace the sign. He stated that the Board believes that this is ample notification to the applicant that the Planning Department’s decision was that a variance was needed. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Shaw said that now the Board will address the variances requested, as advertised. Atty. McCormick stated that the billboard will not be contrary to the public interest, the sign was there for over thirty years, and if not for the storm, it would still be there. She said the sign is going to be rebuilt in the same location, same size and shape as the original sign. Atty. McCormick said the sign will not affect the public health, safety and welfare, and reconstruction of the sign will not be contrary to the public interest. Atty. McCormick said that granting of the variance will be in keeping with the spirit of the Code, an outdoor advertising sign is expressly permitted in this zoning district. She said it will not have an electronic message, or any flashing words, blinking, or animation. Atty. McCormick stated that substantial justice would be done by granting the variance, the Code contemplates the reconstruction of nonconforming structures under Section 190-120, where an act of God takes down a structure. Atty. McCormick stated that the sign was lawfully existing for thirty years, it was not offensive, and it would be very unjust to disallow CBS to reconstruct their sign. Atty. McCormick said the values of surrounding parcels will not ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 9 be diminished, if the storm didn’t come that day, the sign would still be there. Atty. McCormick said the hardship test is not meant to be overly restrictive, and to not deprive people of constitutional protection, and the interpretation of the ordinance must be tempered, in the right to maintain and utilize property. She said that reconstruction of the billboard is reasonable under the circumstances. SPEAKING IN FAVOR: Letter in support from abutter was submitted to CBS Outdoor (staff never received the letter). SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to grant the variance requests on behalf of the owner and applicant. Mr. Williams stated that the Board finds that granting the variance requests will be 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 will be done. Mr. Williams stated that an undue hardship will be suffered by the applicant in denying the variance, for the reasons discussed by the Board, namely, the way that the Code will apply in the unique circumstances of this particular case, given the fact that there was a significant act of God that caused the structure to fall over. Mr. Williams said that a special condition of the variance is that the applicant guaranteeing that they’ll comply with all other requirements of the Code with regards to signage. SECONDED by Mr. Currier MOTION CARRIED 3-1 (Mr. Reppucci). MISCELLANEOUS: REGIONAL IMPACT: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 22, 2011 Page 10 The Board unanimously did not see any cases of Regional Impact. MINUTES: March 8, 2011: Mr. Currier and Mr. Shaw identified corrections that needed to be made, one was a 4-0 unanimous vote to approve the minutes, not 5-0, the other was that Mr. Shaw concluded the meeting. Mr. Falk said he’d make the corrections. MOTION by Mr. Currier to approve the minutes, with the corrections mentioned, and to waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0-1 (Mr. Williams abstained). REHEARING REQUESTS: None. The Board discussed their concern about how many times an applicant can keep postponing their request. Mr. Falk said he’d contact the applicant, explaining that the Board fully expects this case to go forward, or else it may be withdrawn, and fees paid again. Mr. Shaw said that sometimes, the Board has some uncontrolled dialogue, he said he’d like to see a more orderly meeting, and have members be recognized by name before speaking, not to make it so rigid, but to work towards a more orderly meeting. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:26 p.m. Mr. Jack Currier, Clerk CF Taped Hearing