Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 10, 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 Rick Johnson 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. Mr. Shaw introduced a new Member, Rick Johnson. 1. C. & E. Leger Irrev. Trust (Owners) 34 Nagle Street (Sheet 102 Lot 81) requesting variance to exceed major home occupation square footage for an in-home day care approved on 3-12-96, 420 square feet allowed – 484 square feet requested. RB Zone, Ward 6. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Claude Leger, 34 Nagle Street, Nashua, NH. Mr. Leger said it is his wife’s daycare, and he did all the measurements for the drawings that were submitted. He said that they are looking to move her pre-existing daycare, which has been licensed for about ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 2 17 years, to move it into the garage. He said the daycare operations will not be expanded, it is just being moved. He said that she is licensed for nine children, and it won’t change with this plan, they just want to give their daughters some more room inside the house. He said that there will not be any more kids or traffic going to the house. Mr. Williams asked what time the children can go out and play. Mrs. Leger said 10:00 am. Mr. Williams said that they are compliant with the conditions of the original special exception. 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 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 was discussion that no one is opposed to this, and it’s a minor incursion. 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, it is not contrary to the public interest, and substantial justice will be done. Mr. Reppucci said it is approved with all the previous conditions that existed stay in force. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 5-0. 2. Hollis Crossing Condominium Association (Owner) Gary Flaherty (Applicant) 250-296 Bartemus Trail (Sheet F Lot 4) ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 3 requesting special exception to work within the 40-foot critical wetland of Bartemus Brook to remove approximately twenty-seven trees. R40 Zone, Ward 1. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Gary Flaherty, Hollis, NH. Mr. Flaherty said they would like to remove 27 trees, of which 23 are pine trees. He said a lot of the pines are multi-branched. He said that several winters ago, during an ice storm, several branches came down, and one hit the building. He said that a lot of children play outside, and the reason for removing them is mainly for health and safety concerns. Mr. Shaw said that the case went before the Conservation Commission, with four stipulations. Mr. Flaherty said that the stipulations are fine. Mr. Shaw went over the nine wetland special criteria. Mr. Flaherty responded to the satisfaction of the Board members. SPEAKING IN FAVOR: David O’Sullivan, Hollis, NH. Mr. O’Sullivan said that he is in favor of the request, it will clean up the land. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant. Mr. Reppucci said it is listed in the Table of Uses, Section 190-112. He stated that it will not create undue traffic congestion, or unduly impair pedestrian safety. Mr. Reppucci said it will not overload public water, drainage or sewer or other municipal systems, he said that the special ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 4 regulations are all fulfilled, it was approved by the Conservation Commission with four stipulations that the applicant said they have no problem complying with. Mr. Reppucci stated that it will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents. Mr. Reppucci said that for special conditions, the minutes of the Conservation Commission meeting should be included in the record. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 3. City of Nashua (Owner) AVSG, LP (Applicant) 9-11 Riverside Street (Sheet 75 Lot 17) requesting use variance to allow a Compressed Natural Gas (CNG) station with associated site improvements. PI Zone, Ward 5. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Mike Manning, AVSG LP, Boston, MA. Mr. Manning said a year ago, they began the process of working with the City. He said they design, build and construct and install CNG stations. He said it is the same gas that you use for heating, cooking, drying, and it is being used as an automotive fuel. He said the Mayor has been investigating using CNG for quite some time. He said they will be transitioning the City’s fleet, beginning with the trash trucks and the bus fleet. He said they’ve signed an agreement with the City to construct this facility. Mr. Manning said the gas is already in lines in the street. He said his company has been doing this since 1992, they’ve built a network of CNG stations throughout New England, primarily in Massachusetts. He said they are one of six companies who do this. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 5 Mr. Manning read his application, with the points of law, into the record, to the Boards satisfaction. Mr. Johnson asked how leaks are remediated. Mr. Manning said that all the piping is seamless stainless steel tubing throughout the station. He said the compressors have a service life of about 15 years, and the chances of a leak are fairly small. He said staff monitors the equipment on a regular basis. Mr. Johnson asked how it is remediated if it does leak. Mr. Manning said they’d send a technician, usually it’s fixed with a wrench on a fitting. Mr. Johnson asked if the City has sufficient resources to handle a leak. Mr. Manning said it’s their responsibility, they are operating the station independently of the City, even though it’s on City property. He said they have a 15-year agreement with the City. Mr. Reppucci asked how much noise the compressors make. Mr. Manning said that the compressors do make noise, but the compressors are in a package, and it’s in a closure with three walls, and they will have sound compression in them. He said the noise will be dampened. Mr. Manning said that CNG stations are open 24/7, all year long, and are unmanned. He said they’ve talked to the Fire Department about the unmanned situation, and they don’t have any problems with it. He said that all the drivers will be trained, and it’s a safe process to use the fuel. Mr. Manning said that CNG is much more economical fuel, and is going to save the City a lot of money. Mr. Reppucci said the City of Nashua Fire Department has the ability to make the site safe immediately in an emergency with their response. Mr. Manning agreed, he said there will be a firefighter’s key box on the outside of the equipment area. He said they could ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 6 open the gate, and shut down the system completely. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to grant the variances on behalf of the applicant. Mr. Williams stated that application will be within the spirit and intent of the ordinance, it will have no adverse affect on surrounding property values, it will not be contrary to the public interest, and substantial justice would be done by granting the variance, and, owing to the unique circumstances of this property in relation to the other available sites within the City, there are special circumstances that would make it a hardship to not grant the application. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY. 4. Murphy Drive, LLC, Unit 3 (Owner) Abbeyfeale Realty, LLC (Applicant) 12 Murphy Drive (Sheet 140 Lot 60) requesting use variance to allow a 6,500 sq.ft restaurant, with 140 seats and a 500 sq.ft wine boutique, in a space formerly occupied by a furniture retail/showroom in a 97,100 sq.ft multi-tenant building in the PI zone, where 75% of the existing uses may not be listed under the “industrial and manufacturing” category. PI Zone, Ward 9. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that this building was originally going to be a two-story building for Teradyne, and the second story got torn down, now, it is a multi-tenant ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 7 building. He said the proposed restaurant will be 6,500 square feet, located in the front of the building, opposite the highway side. He said the entire building is just under 100,000 square feet, so they are using a little over 6% of the building. He said the previous use was W.B. Mason, who recently moved out. He said that the restaurant will have a wine-oriented restaurant, it will have a 500 square foot area, where you can take wine home. Atty. Prunier said the whole area around Northeastern Boulevard has changed, there are other eating establishments, such as TJ’s Deli & Catering, Boston Billiards, Domino’s Pizza. He said that this building has had a difficult time trying to get tenants in there, it is off the main road. He said there are a mix of uses in the building, there is a Holistic Care Center, GM Roth. Atty. Prunier said that the use will not be contrary to the ordinance, in that there are other eating establishments in the area. He went over the other variance points of law. Mr. Currier said he had a hard time with the hardship, as the PI zone is supposed to be for park industrial uses. He said the Board would be giving away park industrial space. Atty. Prunier said that they wouldn’t be giving away park industrial space, as it could still be used for park industrial space in the future. He said they are providing a service in the park industrial area. He said that it will still be zoned PI, and the inventory of PI zoned land remains. Mr. Johnson asked if we grant the variance, is it only for that entity? Mr. Williams said it runs with the land, but if the restaurant goes out of business, another restaurant could use the space. Mr. Falk said that if the restaurant goes away and another one hasn’t moved in within a year, then the use variance would be null and void. Mr. Williams said the building is unique, in that it has so many uses in it. Atty. Prunier said they’re only using 6,500 square feet. He said that most all park industrial users need over 10,000 square ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 8 feet, so, it’s a very small footprint that they are using. He said it’s a good use of the building, and it will provide services. He said a good restaurant in the zone will allow for people to have some services right in the area, instead of driving long distances. Mr. Currier disagreed that a restaurant is needed in the Park Industrial zone to feed employees. Mr. Shaw asked about signage. Atty. Prunier said they would have whatever signs are allowed in the PI zone. He said it’s possible that a part of the off- premises sign could be used as well. Mr. Shaw said that it appears that many of the existing electronic changing message signs do not meet the ordinance. Atty. Prunier said that GM Roth has control of the sign. Mr. Falk said that the restaurant can use a blank tenant panel from the ground sign, or, if GM Roth allows it, they could have a text message shown on the electronic changing sign for certain times of the day. SPEAKING IN FAVOR: Richard Maynard, PE, Maynard & Paquette, East Pearl Street, Nashua, NH. Mr. Maynard stated that the site was designed for a two-story, 187,000 square foot building, but only one story exists, so there is twice as many parking spaces as necessary. He said the projected traffic is significantly less. He stated that 25% of the building can be non-industrial type uses. Mr. Reppucci asked if Staff determined the percentage of industrial and manufacturing space in the building. Mr. Falk said it was Staff’s opinion that less than 75% of the building is made up of uses in the industrial and manufacturing use. Mr. Maynard said it’s rare to have an industrial use going into 6,500 square feet of space. He said there just aren’t a lot of industrial users that would want this small space. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 9 Barb Tremlett, owner Holistic Health Care Center, 12 Murphy Drive. Ms. Tremlett said it would be nice to have another different use in the building, and this restaurant will offer a high quality dining experience. She said there is a nice variety of users in the building, and that this restaurant will be a nice fit. Christopher Riendo, Manchester, NH. Mr. Riendo said he’s the general manager of the proposed restaurant. He said that their concept is quite unique, and it will have a great relationship with the existing wine-makers located all over the world. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Johnson asked what is going on in Unit 1. Mr. Falk said it is vacant, there was a permit for an indoor children’s recreational use, but they never went forward with the plan. He said there are no permits submitted for another use. Mr. Currier asked, from the submitted chart, which uses are, or are not, PI uses. Mr. Falk said that Unit A is an office use, and doesn’t fit in, as it’s an office use. He said the WB Mason is the subject area. He said the Holistic Health Care is not, they came before the Board for approval. He said that Vascular Technology is a permitted use, and Unit D-1 is a permitted use. He said that Bosch Articulating Papers possibly could be. He said that Translucent Language writes software for different languages. He said that the warehouse vacant space is unknown, and GM Roth is a contractor’s shop with a retail showroom. He said that Staff believed that about half of the building is made up of the permitted uses. Mr. Reppucci said that by having a full building gives a better appearance, and makes the other businesses prosper. He said that the people involved with the restaurant have put a lot of money into the site. Mr. Shaw said that the Board has already approved many non-PI type uses in this area, and it’s been this way for the past ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 10 fifteen or more years. He said there is a lot of mixed usage in the area. Mr. Johnson said he didn’t see any abutter issues, or on any residents, and didn’t see any noise issues, and thought it is better that they are going on the front side rather than the back side of the building. He said the restaurant, being smaller in size, is not taking a lot of space where a permitted PI use could go. He said the owner is trying to get industrial in the building, but hasn’t had much success. Mr. Currier said that no residences get notified of this use, since none of them are abutters. Mr. Reppucci said that all the abutting industrial uses did get notified, and none of them came to the meeting with concerns, either. MOTION by Mr. Reppucci to grant the use variance on behalf of the applicant. Mr. Reppucci stated that the zoning restriction as applied interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environment; no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property, and the variance would not injure the public or private rights of others. He said the Board was not unanimous, but a majority believed the hardship was met. Mr. Reppucci stated that it meets the spirit and intent of the ordinance, that area, by discussion on the Board, has expanded out of PI use in many areas, and appears to be prospering by allowing that. Mr. Reppucci stated that it will not adversely affect the property values of surrounding parcels, there was no testimony one way or another on that, it is not contrary to the public interest, and substantial justice will be done. SECONDED by Mr. Williams. MOTION CARRIED 4-1 (Mr. Currier) MISCELLANEOUS: REGIONAL IMPACT: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 10, 2011 Page 11 The Board unanimously did not see any cases of Regional Impact. Mr. Falk said that Staff notified the Town of Merrimack for Cases 3 and 4. MINUTES: April 26, 2011: MOTION by Mr. Reppucci to approve the minutes as presented, and to waive the reading, and place the minutes in the file. Mr. Williams said for Case #3, he said that abutting properties have changed to commercial use strikes at the heart of Fisher vs. Dover. Mr. Currier said on Page 3, he said that he and Mr. Reppucci were in agreement on the garage being two stories, and that it is very close to the abutting property and in the setback, yet there was no testimony against that. SECONDED by Mr. Williams. MOTION CARRIED UNANIMOUSLY 3-0 (Mr. Shaw and Mr. Johnson abstained) REHEARING REQUESTS: None. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:20 p.m. Mr. Jack Currier, Clerk CF Taped Hearing