Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 9, 2011 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Vice Chair, conducted the meeting. Members present were: Gerry Reppucci, Vice Chair Jack Currier, Clerk Ryan Williams Rick Johnson Bob Carlson Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Reppucci explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Reppucci 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. Reppucci also explained procedures involving the timing light. 1. Susan S. Carr (Owner) 35 Ashland Street(Sheet 60 Lot 49) requesting variance to encroach 10 feet into the 20 foot required front yard setback (on Plymouth Avenue) to construct a detached 16’x32’ shed. RA Zone, Ward 2. [TABLED FROM THE 7-26-11 MEETING] Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson MOTION by Mr. Currier to take the case off the Table, and resume the public hearing. SECONDED by Mr. Williams. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 2 MOTION CARRIED UNANIMOUSLY 5-0. Scott Carr, 35 Ashland Street, Nashua, NH. Mr. Carr stated that he obtained signatures from three of the four abutters. He said he has some drawings regarding the floor plan and the height, and presented them to the Board. He said the shed would follow the fence near Plymouth Avenue, and it will encroach 10 feet into the 20 foot setback. He said the shed will be painted and will have siding, and it will match the house. He said they will be planting five or six 7’-8’ tall arborvitaes shrubs there, so the shed will be very camouflaged. He said he’s been in contracting for thirty years, and said it’s the most convenient spot for the shed on the property. Mr. Currier asked if there was a consideration to design it so that it wouldn’t encroach into the setback, or, just adding onto the garage. Mr. Carr said it would be a $35,000 project, as opposed to a $3,500 project, and it’s just not in the budget. SPEAKING IN FAVOR: Melissa Mills, 29 Ashland Street, Nashua, NH. Ms. Mills said she lives right across Plymouth Avenue. She said it’s pretty camouflaged and didn’t see any problem with it. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Carlson asked if the shed would be built on stanchions, or on a cement pad. Mr. Carr said it would be built on blocks. Mr. Carlson asked if he stores a vehicle or a construction vehicle on the site. Mr. Carr said no, it’s for his children, and they need the space. Mr. Reppucci stated that the wall already constructed appears to be right on the street. He stated it looks like another building, more like a house than a shed. He stated the setbacks ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 3 are defined to keep structures from being constructed in this way. MOTION by Mr. Williams to approve the request on behalf of the owner. Mr. Williams stated that granting of the variance 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 granting the variance will do substantial justice, and not granting the variance will result in undue hardship to the property owner for the reasons discussed in the public hearing by the Board, and in so granting, there will be a stipulation that the natural vegetative buffer and the fence shall be maintained as long as the encroaching structure continues to exist on the property. SECONDED by Mr. Carlson. MOTION CARRIED 4-1 (Mr. Reppucci). Mr. Johnson stated that he has a personal relationship with someone from the World Academy, and there is no issue, and feels that he is free and clear to hear the case without prejudice. 2. Gary E. & Kathleen H. Nelson (Owners) World Academy (Applicant) 138 Spit Brook Road (Sheet B Lot 76) requesting variance to allow a portion of a proposed parking area to encroach into the 20 foot required front yard setback. R18 Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Jim Petropulos, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Petropulos said it is a private school, with about 6 acres, in the R18 zone. He said the school was built in the 1980’s, and is a K-8 grade school, plus infant care. He said there are approximately 220 students and 64 staff members. He said there is a shared access with the Grace Lutheran Church. Mr. Petropulos said they school is proposing an expansion to the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 4 facility, which would be an addition to the front and a gymnasium. It will add ten classrooms, and it will all be internally connected, and the purpose is to meet the growing needs of the school. He said there will be a front drop-off area with fourteen parking spaces in front of the additions. He said they are also proposing a 32-space parking area behind the building, and, a new playing field. Mr. Petropulos said the front drop-off is vital to the school, and it leads to the front doors of the school. He said there will be two very small areas of the front parking that would encroach into the front yard setback, as identified in the drawings, and it will impact about six parking spaces. Mr. Petropulos described the right-of-way configuration of Spit Brook Road, and identified that there was some widening and straightening of the road, which left a unique situation for the front property line at the site. He said there are two different impact areas, one of which was impacted by the Spit Brook Road widening. He said they took a 100-foot wide right- of-way for a two-lane road, typically, it’s only 50 feet. Mr. Petropulos went over the variance points of law. He said they’ve gone over the proposal with all the abutters, and they are all fine with it. SPEAKING IN FAVOR: Ken Silvernail, Vice President, Grace Lutheran Church. Mr. Silvernail said he is on the Council, and the Council felt moved to write a letter in support for this proposal, and submitted it to the Board. He said there was a lot of communication with the School, and supports the variance. 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 needed to enable the applicant’s proposed use of the property, given the special conditions of the property the property, which has an unusual right-of-way boundary line, as shown on the plan, and their need to have reasonable parking in the front requires two nicks into the front yard setback, also, the stone wall and ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 5 trees are unique to the property, and that provides the spirit and intent of the setback and the aesthetic front view, 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. Currier stated that the use 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 will be served. SECONDED by Mr. Williams. Mr. Williams asked if it’s a stipulation that the rock wall be maintained. Mr. Currier said no, it’s just a special condition that helps mask the incursion into the front. MOTION CARRIED UNANIMOUSLY 5-0. 3. Jorge Gomez (Owner) 118 Vine Street (Sheet 98 Lot 16) requesting variance to encroach 4.5 feet into the 6 foot required side yard setback to maintain an existing 8’x12’ shed. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Louann Fornataro, Architect, 196 Main Street, Nashua, NH. Ms. Fornataro said it’s a mixed use neighborhood, with multi family, commercial, single family uses. She said the lot is fenced with a relatively new 6 foot high fence. She went over all the variance points of law. She handed in a corrected plot plan, and handed it out to the Board, it shows a revised fence in the rear of the house, against the east property line. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 6 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to approve the request as presented. Mr. Williams stated that granting of the variance 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 granting the variance will do substantial justice, and owing to the unique circumstances of the property, not granting the variance would result in an unnecessary hardship to the applicant. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 4. Roland & Joyce Brito (Owners) 5B Berkeley Street (Sheet 47 Lot 93) requesting amendment from a variance approved by the Zoning Board on March 23, 2010, to remove stipulations #1 & #2, thereby allowing the structure to remain a two- family building. RA Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Mr. Reppucci explained the Fisher v. Dover Supreme Court case. He read the text verbatim from the case. Mr. Williams said he believes that the Board should consider the Fisher v. Dover case. He said the Board has essentially a motion for reconsideration, they are requesting the exact same relief, to have the conditions removed. Mr. Currier said he didn’t believe the Fisher v. Dover case applies, because the Supreme Court states that ZBA’s can place stipulations on applications, and thought it would more apply in a denial, or coming back with the same case. He said that this case was an approval, with a stipulation. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 7 Mr. Carlson said that he disagrees with the application of Fisher v. Dover, because we’ve heard numerous requests at the WSMN property for workforce housing, and the Fisher v. Dover question was never raised to the applicant, and the request was somewhat different each time. He said that many other proposals, for the same property, have come before the Board. Mr. Reppucci said that Fisher v. Dover is based upon a denied application that was re-applied for, and this isn’t that. He said the Fisher v. Dover case can apply whenever we decide it does. Mr. Williams said that the Fisher v. Dover case is concerned with the finality of the case, not whether or not it was denied or approved. He said the issues of this case were decided with finality at the original application, they had a 30-day window to appeal the decision, and they didn’t do that. Mr. Carlson said there are cases, for example, at malls, where something is decided, and they come back years later. Mr. Reppucci said what about a day-care, say they get approved for watching 6 children, and they come back years later and now want 9 children, that wouldn’t be a Fisher v. Dover, it would just be a consideration to that new request. He said that this application changes significantly, because the density changes. Mr. Williams said he wanted to hear testimony from the applicant. Mr. Reppucci said there’s no reason or requirement to advertise it, and it shouldn’t be done in the public hearing, and the training literature says it should be done in the public meeting, it’s our Board’s decision whether or not the application is substantially different. Mr. Carlson asked how the property is taxed, and asked if people can just change their minds. He said that the mall has been before us numerous times, just for signage. Mr. Currier said that it’s fair game to weigh in on the Fisher v. Dover. Further discussion ensued about the Fisher v. Dover issue. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 8 MOTION by Mr. Reppucci to apply the Fisher v. Dover on this case, in the public meeting, and decide whether or not to go forward with this application. SECONDED by Mr. Currier. MOTION CARRIED 3-2 (Mr. Carlson and Mr. Johnson opposed). Mr. Reppucci asked if the application is substantially different, or there is a substantial change in the neighborhood. He said it is substantially different, in that the original application requested two dwellings, the request to modify the previous finding increases that by 50%, which is a substantial change, and the case should be heard. Mr. Currier said the Board should hear it, it is substantially different, and it’s fair for the Board to reconsider stipulations. MOTION by Mr. Reppucci to hear the case, as the Board considers the application substantially different, the Board did consider Fisher v. Dover, and consider the request substantially different, and will hear the case. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Reppucci said, in response to the application, that he recused himself from the case. He said he did not recuse, he abstained from voting on the case. Joyce Brito, 5 Berkeley Street, Nashua, NH. Mrs. Brito asked if all the information be incorporated by reference from the March 2010 meeting. She said the new house is coming out nice, and it fits in well with the neighborhood. She said they’ve met and fulfilled all the other requirements on the limitations on the house size, and location of the garage, and the shared driveway issue, also, added a sidewalk and buried electric lines. Mrs. Brito said at the original hearing, the request was for a variance from the lot width, 75 feet was required, and 68 feet was existing. Mrs. Brito said they’ve had 26 showings on the property, and the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 9 feedback has been consistent, and there’s only been interest if it’s a two-family dwelling. She said it’s historically been a two-family for 100 years, and was built that way. She said that several design professionals have looked at it, and said that it’s too cost prohibitive, and the time and expense involved will make it not feasible from a design layout. She submitted a letter from a design firm that addresses the negative impact of converting it, from an architectural, structural and historic element. She identified pictures showing the living room, structural columns, pantries, and other elements of the home, showing that each floor is identical. She said to alter the home, there would be major structural changes, and all of the people who have looked at the home. She said they have a vested interest in the neighborhood, and plan to stay here. She said they feel like they are being penalized for an unreasonable condition unrelated to the new property, and would like to see the condition removed. She said they will continue to upgrade the property. Mr. Williams asked how long the property has been listed for. Mrs. Brito said since the beginning of May, and they have had 28 showings. She said they’ve had one major price reduction. Mr. Reppucci said that a couple abutters reluctantly went along with the original request, because the presentation was that the two-family would be changed to a single-family. Mrs. Brito said they thought at the time, that it wouldn’t be difficult to do it, but contractors have said otherwise. Mr. Williams asked what the logistical difficulties are to convert the structure into a single-family structure. Mrs. Brito said that multiple people have looked at it, and she said that you don’t see a two-family of this quality and architectural detail. She said it will take major renovations. She showed the pictures of inside the house. Discussion ensued about the interior of the house. SPEAKING IN FAVOR: Roland Brito, 5B Berkeley Street, Nashua, NH. Mr. Brito said they’ve asked a reasonable price for the home, and they’ve ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 10 reduced it. He said they don’t want to reduce it too much, as it will affect the property values of the other homes in the neighborhood. He said the new house meets the design intent on Berkeley Street. He said the existing house was built and always used as a two-family house, and has all the characteristics of a two-family home. He said the house would have six bedrooms. Mr. Reppucci said that at the original hearing, one of the best and most-respected land-use attorney’s represented the case. He said they got approval, built the single-family house, and then decided to look at the two-family and found it was incredibly difficult and expensive to convert. He said that the original house is being marketed as a single-family. Pat Clancy, 151 Amherst Street, Nashua, NH. Ms. Clancy said the Brito’s made a mistake by saying they would alter it into a single-family. She said it can be converted, but it will cost prohibitive. She said it is purely a two-family, and it will be about $75,000 in renovations, especially considering the age of the house. Mr. Reppucci asked how many shared driveways in single-family houses there are in the north end. Ms. Clancy said there is one at 9 Berkeley Street. Mr. Reppucci asked how much of a detriment on the value would sharing a driveway be on two single-family houses in this neighborhood. Ms. Clancy said it wouldn’t necessarily decrease the value. Mr. Williams said he saw that the property was listed as a single-family with an in-law. He asked about the process for an in-law. Mr. Falk said that all in-law apartments, also called accessory dwelling units, must apply for a special exception before this Board, and meet all the criteria. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Bob Trabucchi, 7 Berkeley Street, Nashua, NH. Mr. Trabucchi stated he’s been friends with the Brito’s ever since they moved ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 11 in, and likes the new house they built. He said he’s against removing the stipulations, and it would reduce property values. He said their original plan was bought off by the neighbors to reduce the density, and the property doesn’t support it being a two-family structure any more. He said this would negatively impact the property values, and asked that the stipulations remain. Philip Kaplan, 6 Berkeley Street, Nashua, NH. Mr. Kaplan gave a letter from a neighbor, who lives in the adjacent home, the green house, Maryann Pleatas. He said it will crowd things too much with it being a two-family, and the kids have no place to play, except on the driveway. Dan Richardson, 70 Berkeley Street, Nashua, NH. Mr. Richardson said that the Board cannot discuss financial matters with respect to hardship on a property. He said if it’s allowed to go to a one-family, and a two-family, there would be three families, where there is one there now. He said that this is the first day that he became aware of this issue coming before the Board. SPEAKING IN FAVOR – REBUTTAL: Joyce Brito, 5B Berkeley Street, Nashua, NH. Mrs. Brito said that when they came before the Board, they didn’t intend to be the people in the new house, as they were living in Colorado at the time. She said they didn’t look closely at the feasibility until well into the project. She said to convert the home will sacrifice many of the architectural details and the look of the home. She said the effect on the neighborhood, by dropping the price to sell it, is not good for the neighborhood. She said the density will not change dramatically. She said to convert the home will be very cost-prohibitive, and will be a detriment to the look and functionality of the home, and the way it was designed. She said the listing says that it’s a potential in- law. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Bob Trabucchi, 7 Berkeley Street, Nashua, NH. Mr. Trabucchi said he is friends with the Brito’s, and said that the Board has a tough decision to make. MOTION by Mr. Williams to suspend the rules to allow additional ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 12 testimony by Mrs. Brito. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 5-0. Mrs. Brito said they’d be willing to put a notice of condition with the Registry of Deeds that the two-family can be sold only as an owner-occupied property, and if it doesn’t sell, they’d retain ownership of the two-family only if they lived next door. Mr. Currier said he’s struggling with the fact that they’d have to change the house with the financial numbers that have been discussed. He said there is a big difference between a single- family and a two-family house, and a two-family is more intense. Mr. Williams said that when the Board granted the variance, he said he agreed with the applicant in that it was a good plan, because the house was going to be converted to a single-family. He said he couldn’t support the fact that after the house is built, to change such a critical stipulation that was the basis of supporting the original request. Mr. Reppucci said he cannot support the request, as there was a deal made between the property owner and the neighbors. He said the neighborhood bought off on their request, and now they want to take it back, after they got the single-family house that they wanted. He said the house will sell tomorrow, if the price is right, and that having a shared driveway on Berkeley Street will affect the property value. Mr. Johnson said he has an issue with the density, and the extra traffic. Mr. Currier said that owner-occupied properties tend to be better upkept than non-owner occupied properties, and was very swayed by the density-neutral proposal of the original request. Mr. Reppucci said the applicant was well-represented at the original application. MOTION by Mr. Reppucci to deny the request, after consideration and testimony discussed by the Board this evening. SECONDED by Mr. Williams. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 13 MOTION CARRIED 4-1 (Mr. Carlson). 5. Pheasant Lane Realty Trust (Owner) Red Robin (Applicant) 310 Daniel Webster Highway (Sheet A Lot 737) requesting variance to exceed maximum wall sign area, 74.9 square feet existing, 97.5 square feet permitted, one additional 64.5 square foot wall sign proposed. GB Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Tim Sullivan, Barlo Signs, Hudson, NH. Mr. Sullivan said they are asking for an additional 64.5 square foot internally illuminated wall sign. He said they have a permit for a 74.9 square foot sign, and the aggregate would be a total of 140 square feet, where 97 square feet is allowed. Mr. Sullivan stated that because it’s on the Pheasant Lane Mall site, when, in fact, the wall faces Dan Chan Street, and it has a larger frontage. He said that this frontage cannot be seen from Daniel Webster Highway, its blocked by other buildings, and it’s set back far. He said they’d like the Board to consider the second frontage as it’s main frontage, thus, giving a site aggregate of 146 square feet, and allowing the subject sign. Mr. Sullivan went over all the relevant variance points of law. He said it’s a commercial property, a permitted use, and the restaurant is not part of the internal food court. Mr. Reppucci asked if the proposed signage is consistent with the rest of the mall area. Mr. Falk said it is, and numerous other stores in this region have been granted variances for additional wall sign area. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 14 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to approve the request as presented. Mr. Williams stated that granting of the variance 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 granting the variance will do substantial justice, and owing to the unique circumstances of the property, considering the unique situation of the mall, and the topography there places the mall at a lower elevation of Daniel Webster Highway, and the spirit and intent of the ordinance is to prevent a clustering of signs, and not granting the variance would result in an unnecessary hardship to the applicant. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0-1 (Mr. Currier abstained). 6. Erie Trestle, LLC (Owner) Phyllis & Benjamin Cardinale (Applicants) 2 Erie Circle (Sheet D Lot 318) requesting variance to encroach 3 feet into the 25 foot required front yard setback to construct a 10’x24’ screened porch. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Phyllis Cardinale, 2 Erie Circle, Nashua, NH. Ms. Cardinale handed out some pictures of the house, and neighborhood. She said they want to add onto the house, to enjoy additional living space. She said the neighborhood has small homes, with sheds, and it will fit right into the neighborhood. Mr. Reppucci asked if they had gone through the property owner for approval. Ms. Cardinale said they have received the landowners approval. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 15 Benjamin Cardinale, 2 Erie Circle, Nashua, NH. Mr. Cardinale said that the Board approved their request. 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 applicant. 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 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 use 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 will be served. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 7. Albert J. & Patricia O’Donnell (Owners) 14-16 Beech Street (Sheet 82 Lot 30) requesting the following variances: 1) to maintain three driveways totaling 52 feet in width – 24 feet allowed; and 2) to allow a driveway 12 feet from an intersecting right-of-way – minimum of 50 feet required - to maintain an existing driveway. D-1/MU Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Albert O’Donnell, 39 Nottingham Drive, Nashua, NH. Mr. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 16 O’Donnell said it is a 4-unit building, that he has owned for over 25 years. He said he wants to request a variance on two driveways, totaling 52 feet in width. He said the first driveway is 24 feet wide, it is the one closest to West Hollis Street. He said that the middle driveway is 17 feet wide, and it holds two vehicles, and the tenants also have to drive over the curb. He said that the third driveway is not in question, as it has been grandfathered, and there is no curb there. Mr. Reppucci asked if he just wants to maintain the three driveways, totaling 52 feet in curb-cut width. Mr. O’Donnell said yes. Mr. O’Donnell said he gave some pictures of the driveway areas to Staff, which are in the package. Discussion ensued about the work that the Department of Public Works will do in the roadway. Mr. Currier asked if when he bought the property twenty-five years ago, were the asphalt driveways there. Mr. O’Donnell said that they were, they were in poor condition, and they were re-surfaced about twelve years ago. Mr. Currier said that it is a safety issue to not have driveways within the first fifty feet on an intersection, and asked if there have been any concerns with tenants backing out. Mr. O’Donnell said it is a one-way street, so, if they back out, there is only traffic coming from one direction. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Williams to grant the variance request on behalf of the owner. Mr. Williams stated that granting of the variance is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 17 is not contrary to the public interest, and granting the variance will do substantial justice, and owing to the unique circumstances of the property, considering the reasons mentioned in the public hearing and meeting, not granting the variance would result in an unnecessary hardship to the applicant. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 5-0. 8. White Duck Realty, LLC (Owner) 168 Daniel Webster Highway (Sheet A Lot 786) requesting the following variances: 1) to exceed maximum ground sign area, 150 sq.ft permitted, 220.5 sq.ft proposed; and, 2) to exceed maximum ground sign height, 40 feet permitted, 42 feet proposed – both requests to remove a 71.5 sq.ft portion of the existing sign, and replace it with a new 142.5 sq.ft sign. HB & GI Zones, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Ryan Williams Rick Johnson Bob Carlson Gerald Prunier, Prunier & Prolman, P.A. 20 Trafalgar Square, Nashua, NH. Atty. Prunier handed out some pictures to the Board. He identified the location of the shopping center. He said that the sign has multiple tenants, and serves the tenants in the building on the northerly side, as well as the proposed furniture store. Atty. Prunier said the top part of the sign, that says Halloween Outlet, will be taken down, and replaced with the proposed sign for Ashbrook Furniture. He said the sign underneath it will stay as is. He showed pictures of similar sized and style signs in the area, for IHOP and Applebees, and for the Tulley dealership. Atty. Prunier said the subject building has been vacant for over four years, and there was a furniture store there before. He said the location of the building is set below the roadway. He said there is a sign facing the exit ramp coming from Hudson, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 18 but they want to attract traffic from Daniel Webster Highway. He said the building is about 500 feet in the rear. He went over the variance points of law. Mr. Williams asked if Atty. Prunier has a copy of the letter from JEMM Property Management about the sign, and that increasing one portion of the sign will diminish and detract from the remainder of the sign, and will be a detrimental impact to the value of the property. Atty. Prunier said that he didn’t think it’s right, and they’re entitled to a certain square footage. He said that the sign is critical to the business, and the increased size sign will be better for the public to know he’s down there. Mr. Currier asked if the bottom portion of the proposed sign, with the Sealy Posturepedic, Simmons names will be a changing sign, or will it be a fixed sign. Atty. Prunier said it’s not an electronic sign. Mr. Reppucci asked if the brand name portion of the bottom of the sign were removed, the top portion would be the same size as what’s there now, and it may be conforming. He said in the examples of the other signs, there are no brand name items, it just lists the business names. He asked if they are contributing to the cost of the sign. Atty. Prunier said no, it’s just to inform the general public of what is being sold there. Shok Granpuria, Owner, 168 Daniel Webster Highway, Nashua, NH. Mr. Granpuria said he is the owner of the property, and said that he wants to make a point that they sell mattresses as well as furniture. He said the companies at the bottom of the sign do not contribute to the cost of the sign, and he said there may be other mattress names up there, such as Certa. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: John O’Donnell, JEMM Property Management, 166 Daniel Webster ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 19 Highway, Nashua, NH. Mr. O’Donnell said his plaza has TownFair tire and the Weathervane Restaurant. He said there is a declaration, a recorded document, that was established in 2001, and the sign is intended to be split 50/50. He said that it’s a tough economy, and there is a lot of vacant space, and one of the issues has always been signage, and said that the current sign is the maximum allowed by the Code, unless a variance is requested. He said they have six tenants when the property is full. He said the Furniture World site has the top portion of the sign, which is more preferable, and if that sign is to be made bigger, it will be harder for our tenants to be successful. Mr. Reppucci asked if the Board granted the request, if they would like a proportional additional size of the sign. Mr. O’Donnell said they would. SPEAKING IN FAVOR - REBUTTAL: Atty. Prunier said that signage is very important, and the adjacent owner could apply for additional signage as well, via a variance. Mr. Williams asked if the sign is owned by the Furniture World site, and through a reciprocal easement agreement, that the other tenants are allowed to use a part of the sign. Atty. Prunier said that they get a certain amount of square footage. Mr. Williams said the Board may be leaning towards the fact that it would be un-equitable to let one of the property owners increase the size of the sign, and everyone else to stay the same. He asked if his client would be willing to give up some of that increase, to share with the other tenants. Atty. Prunier asked the Board to Table the request to allow for an opportunity for both parties to meet and resolve the issue of the percentages and sizes of the sign. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. O’Donnell said that the reason why the declaration was established was that Mar-Di Development owned the entire property at one point, and when they sold 168 Daniel Webster ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 20 Highway in 2001, in order to protect the integrity of 166, that this declaration had to be established. He said they want to be reasonable in this process. Mr. Reppucci said that this request is a lot of signage. Mr. Currier said he wasn’t persuaded, he said he needs a compelling reason for each sign, and didn’t see the need for a 15½’x9’ sign. He said he couldn’t support this request. Mr. Williams said he’s leaning towards tabling the request, he said that perhaps a little more signage may do the property good, but said that there are some unique circumstances with the topography of the property. He said that Tabling the request may help because the sign that is proposed would change, if the equation is changed, and the sign at the top is getting bigger, and thought it may look better if the sign had a more uniform body to it, so that one tenant doesn’t have a massive, disproportionate sign with a lot of little signs underneath it. Mr. Johnson said it would be fair for them to meet, and come back and let it be fair for everyone. MOTION by Mr. Johnson to Table the request to the August 23, 2011 meeting. SECONDED by Mr. Williams. Mr. Reppucci said that this is a discussion between the parties as to how they are to divide up the additional square footage on the sign. He said he wanted to make sure that the Board hasn’t decided upon whether the increased size is even appropriate. Mr. Currier said he’s not favorable to the increased signage, but will listen to what they have to offer at the next meeting. Mr. Williams said the applicant is free to decrease the size of the sign. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Currier against Motion) MISCELLANEOUS: REGIONAL IMPACT: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 9, 2011 Page 21 The Board did not see any cases of Regional Impact. MINUTES: July 26, 2011: MOTION by Mr. Currier to approve the minutes as presented, with no corrections. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:48 p.m. Mr. Jack Currier, Clerk CF Taped Hearing