Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 24, 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 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. 1. 300 Main Street Realty, LLC (Owner) Appledore Engineering (Applicant) 300 Main Street (Sheet 17 Lot 21) requesting special exception to work within the 75-foot prime wetland and prime wetland buffer of Salmon Brook to replace two 10- foot diameter culverts. GB/MU Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Brad Mesquita, Appledore Engineering, Portsmouth, NH. Mr. Mesquita stated that the project is a re-approval from 2003 from the ZBA, he said it’s the same project, with the same culverts. He said they’ve gone before the Conservation Commission, and have received their State wetlands permits. He said the owner did not go through the originally approved work, and there are further degradations of the side slopes, and erosion issues. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 2 He said they are proposing something very similar to last time, there will be two 10-foot culverts, replacing what was there with a higher grade culvert. He said the two original tubes have rotted out, and they’re not connected. Mr. Mesquita said they have made the culverts shorter, they have pulled them back. He said they have received a positive recommendation from the Conservation Commission, and they have gone through the nine special regulations. He pointed out on a map where they encroach into the wetland buffer. Mr. Mesquita went over the nine special wetland criteria, to the satisfaction of the Board members. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the special exception on behalf of the owner. Mr. Currier stated that the use is listed in the Table of Uses, Section 190-112. He stated that it will not create any undue traffic congestion or unduly impair pedestrian safety, there is no impact on overloading the public water, sewer, drainage or any other municipal systems, if anything, it will help keep the flow of Salmon Brook as it should be. Mr. Currier stated that the nine special criteria have been met per testimony, and the request will not be out of character, or be detrimental to the health, morals or welfare of residents, it will be a benefit to the nearby residents. Mr. Currier stated that the applicant has agreed to the April 15th letter from the Conservation Commission with four stipulations. Mr. Reppucci asked about including the Conservation Commission meeting minutes into the record. AMENDED MOTION by Mr. Currier to have the Conservation Commission meeting minutes added to the record of this case. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 3 SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 2. Nicole D. Vignola (Owner) 102 Lund Road (Sheet 105 Lot 161) requesting variance to encroach 3 feet into the 6 foot required left side yard setback to maintain a detached 22’x24’ garage. R9 Zone, Ward 6. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Nicole Vignola, 102 Lund Road, Nashua, NH. Ms. Vignola said she had a canvas garage that collapsed this winter, so that this garage is replacing the old one, it’s the same size, just different material. Mr. Reppucci said the older structure place. He asked if she knew that she had to come before the City to do it. Ms. Vignola said no. Mr. Reppucci said that subsequently, the City put a stop-work order on the property. He said that the City has ordinances that require people to obtain permits on structures, or possibly, variances, in which the hardship and other points of law must be met. Mr. Shaw said that the applicant needs to go over the application with the relevant points of law, especially why the structure needs to be placed only three feet from the property line, instead of six feet. Ms. Vignola said her house is pushed over, and if the garage is moved over three feet, there will only be a foot and a half between the garage and the house. Mr. Reppucci asked if the company who erected the garage pulled a permit. Ms. Vignola said no, they are from out-of-state. She said she ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 4 told them that they are replacing the existing structure, and they went ahead. Mr. Reppucci asked if she consulted the City at all. Ms. Vignola said she didn’t call the City, just some contractors that she knew. Mr. Currier asked about a footer and a frost-wall. Ms. Vignola said it’s on a concrete pad, it’s the same size as the garage. Mr. Reppucci asked if the other garage got a permit. Ms. Vignola said no, she said she was told that since it was portable, that a permit wasn’t necessary. She said it was about 12-13 years ago. Mr. Johnson said in looking at the photo of the property, showing the trash can, and it appears as if there is much more distance than what was mentioned. Ms. Vignola said it’s about 5½ feet. SPEAKING IN FAVOR: Amy Tennucci, 39 Ferry Road, Nashua, NH. Ms. Tennucci stated that it provides protection for her three children, and if it’s moved over, there will not be sufficient space. She said she’s just replacing a canvas garage with something more attractive. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Reppucci said any applicant has a burden to follow the rules and comply with them. He said he hasn’t been convinced that the applicant has followed the rules. Mr. Johnson said there needs to be a fire safety and evacuation review, and that should be looked at during a building review. He said if the case is approved, the process will still be followed for safety issues. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 5 Mr. Reppucci said when people do things before getting approved, they are not being taxed or assessed for improvements on their property, and it isn’t fair, it’s the principle. Mr. Currier said it would be beneficial to go out and review the distance between the house and the garage again. Mr. Shaw said there was a structure up there for 13 years, and there wasn’t any testimony against it tonight. He said he didn’t see anything compelling that it is negatively impacting the surrounding neighborhood, or encroaching on anyone else’s use of their property. MOTION by Mr. Shaw to grant the variance on behalf of the applicant. Mr. Shaw stated that the structure is still a temporary type of structure, albeit of greater significance than the one that was in place for the past 13 years. Mr. Shaw said that the structure is going to continue the usage of a garage on the property, and by testimony, by placing the garage structure closer to the dwelling will negatively encroach upon the access and egress from the dwelling. Mr. Shaw said issuing the variance will continue to allow the applicant continued use of the garage structure, there is no testimony stating that it will negatively impact property values of surrounding parcels, no indication that it will affect the public interest, and substantial justice will be done. NO SECOND. MOTION FAILED. MOTION by Mr. Currier to Table the case for two weeks, to allow the Board to review the element of hardship on the land in regards to moving the garage three feet over. SECONDED by Mr. Reppucci. Mr. Reppucci said they’re only tabling it to make a determination on the true impact of moving the garage may be, it will not be a Public Hearing, only a Public Meeting. MOTION CARRIED UNANIMOUSLY 4-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 6 The Board discussed the order of the Agenda with cases three and four. They said that they understood that the applicant wanted the special exception to go first, and then the appeal of the administrative decision. Mr. Reppucci said that this is a legal argument, and the case shouldn’t even come before the Board. He said that they are looking to have a permitted use on the property. He said he would feel much better if the Board had a position from the City Attorney’s Office. Further discussion ensued. Attorney Brad Westgate, Winer and Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate said they’d be happy to go with either case first. 3. Pennichuck Corporation (Owner) Pennichuck Corporation & North Concord Street Properties, LLC (Applicant) 200 Concord Street (Sheet 51 Lot 8) appeal of administrative decision that the current special exception to allow a water tank on Sheet 51 Lot 8 must be amended to allow use of the remainder of the lot for an elderly housing development, or to allow subdivision of the existing easement area from Lot 8 into a utility lot, a permitted use in the zone. RA & R18 Zones. Ward 3. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis stated that this is an appeal of Section 190-136, the decision of an administrative officer. Atty. Hollis stated that Pennichuck has been under a purchase and sale agreement for over five years. He said that his client has been proposing this for quite some time. He said that staff commented from a tech review meeting that the case would have to go back to the Zoning Board, because there was a previous special exception. He said there was no letter written, it was just a note on a document circulated for comment on a site plan application. He said it wasn’t a decision. He said he met with ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 7 the City, had a conference with Staff, and then Staff met with the City Attorney. He said that a request for a formal decision was made, and then a decision was made on April 13, when staff determined that any development for a use other than a water tank will require an amendment to the original special exception. Atty. Hollis stated that the Planning Staff has determined that the case must return to the Zoning Board. He said that the old special exception minutes reflect limited discussion, but there were no conditions of approval. He stated that the plan presented in 2004, at the time of special exception, dealt only with a small section of the land, because no one was looking at the rest of the property, it was only the area under the easement. He stated that it was not the intent to restrict the remainder of the property owned by Pennichuck Water Works. He said there was no mention of restricting the lot for the future. He said the future of the lot was undecided. Atty. Hollis pointed out a picture of three water tanks located in residential neighborhoods, Shakespeare Road, Rivier College, and Kessler Farms. He stated that the tanks are not out of character with the neighborhood. He said that the location of the tank will not be out of character with the surrounding uses. He said he didn’t see any authority to get this case back to the Zoning Board. Further discussion ensued. Mr. Reppucci asked if they got any legal authority from the City on this, to restrict the use of the property and make you revisit the special exception. Atty. Hollis said no. Atty. Hollis said that the water tank is coming out as a separate utility lot, so it will have its own lot, so, the abutting residential use will be a permitted use. He stated that the other water tanks co-exist amongst residential developments. He said that the Planning Board will evaluate the plan to ensure that the uses are compatible. SPEAKING IN FAVOR: Atty. Brad Westgate, Winer and Bennett, 111 Concord St, Nashua, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 8 NH. Atty. Westgate pointed out some pictures of tanks at Shakespeare Road, Rivier College and Kessler Farms. He said that the minutes of the 2004 Zoning Board meeting, state that there is very little discussion about the buffering or screening for the water tank, there is some about screening the water treatment facility. He said the only statement is from the applicant, in the application about installing sixty or so blue spruce trees right in proximity to the tank. He said that clearly there was a need to screen adjacent to the tank. Mr. Currier asked where the proposed housing development is in relation to the water tank. Atty. Westgate indicated the location of the elderly housing on the map. He pointed out the wetland buffer lines, and the Sasaki line. The units are basically going between the tank and Concord Street. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Dan Richardson, 70 Berkeley Street, Nashua, NH. Mr. Richardson commended the Zoning Board on their due diligence and their service to the City. Carter Falk, Deputy Planning Manager, City of Nashua, NH. Mr. Falk said he believed that a lot of the arguments tonight are legal in nature. He stated that there have been numerous cases that have returned to the Board for amendments to previously approved cases, and identified them and the reasons why they came back. Mr. Falk said that this plan, originally approved in 2004, now has significant changes being made to it, and stated it was Staff’s belief that it should come back to the Board for review. He said they know it’s a permitted use, but thought that the overall approval is now different, and it should be reviewed. Mr. Falk stated that the decision that was made by Planning Staff was made on February 16, when we had our Technical Review meeting. He said that comments were made available to the Engineering firm that drew up the plans, so they were aware that the case needed to come back to the Zoning Board. He said that staff also received a letter from Atty. Hollis that he wanted further clarification on the decision. Mr. Reppucci asked in all the other cases, they had special ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 9 conditions applied to them, and they had to come back, where, in this case, there were no special conditions, the special exception that was approved, they’re not looking to modify it at all. He said they’re looking to develop around that original special exception. Mr. Falk agreed, but in all those previously mentioned cases, there were changes to the original approval, just like in the proposed case, even though there were no special conditions for the remainder of the lot, it is still a change to that original case. Mr. Reppucci asked if the City Attorney’s office had any input into the Staff decision. Mr. Falk said that Staff did receive a lengthy letter, but it listed scenarios either way, whether it could or didn’t need to come back to the Board. Mr. Currier said that there was a time when staff said “on or about” a date when the decision was made. He asked if it was a written decision. Mr. Falk said he believed that it was an e-mail, and comments sent back after the Technical Review meeting to the Engineering firm that did the plans. Mr. Currier asked where the treed buffer is located. Mr. Falk pointed it out on the map. He said that some trees will be removed in this area, and some additional grading work being done. He said the buffer will be altered. Mr. Reppucci asked if the original approval mentioned the buffer. Mr. Falk said it wasn’t a special condition, but it was discussed in the testimony that there would be a treed buffer around the tank. Mr. Shaw stated that for these timeline issues, that Planning Staff decisions should be put into a letter or memo on City letterhead, so the time lines can be documented. Dan Richardson, 70 Berkeley Street, Nashua, NH. Mr. Richardson ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 10 said he’s concerned about Emergency planning, as one of the targets for terrorists these days is water supplies. He asked if there is any Emergency planning review for safety purposes. Mr. Falk said there really isn’t any “Emergency Review” per se, but every structure must meet all applicable City codes, such as zoning/building/housing/fire codes. SPEAKING IN FAVOR – REBUTTAL: Atty. Hollis stated that with the time frame issues, he said they struggled with the date as presented by Staff, as the date they mentioned is a technical review date by Planning Staff, it is a checklist item, and there was a note on the checklist saying that an amendment to the original special exception would be required. He said it’s not an opinion that is published anywhere, or put up on the board, or kept in any official record book. He stated that all the previous cases that came back to the Board, the applicant, by their own admission, came back for an amendment, but they were changes to the original special exception. He said that although many trees will be taken down, there will be replacement trees, actually, there will be an increase in the number of trees. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No One. MOTION by Mr. Reppucci that there is no substantial change to the original special exception granted in 2004, and that the Board is overturning the administrative decision, and finding that this application doesn’t have to be revisited by the Zoning Board. SECONDED by Mr. Johnson. MOTION CARRIED 3-1 (Mr. Currier). 4. Pennichuck Corporation (Owner) Pennichuck Corporation & North Concord Street Properties, LLC (Applicant) 200 Concord Street (Sheet 51 Lot 8) requesting to amend a special exception for a water tank previously granted by the ZBA on 11-23-04 in order to allow the portion of the lot which is under easement for the water tank to be subdivided as a separate utility lot, and to acknowledge ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 24, 2011 Page 11 that the remainder of Sheet 51 Lot 8, whether or not a separate utility lot is created, may be developed in accordance with the Land Use Code. RA & R18 Zones. Ward 3. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson MOTION by Mr. Reppucci to TABLE the request to the June 28, 2011 meeting. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REGIONAL IMPACT: The Agenda for the next meeting was not prepared, as the application deadline still had remaining time to submit. MINUTES: None. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:05 p.m. Mr. Jack Currier, Clerk CF Taped Hearing