Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 13, 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 Rick Johnson 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. Paul J. Pennell (Owner) 70 Farmington Road (Sheet A Lot 531) requesting the following variances: 1) minimum lot frontage, 75 feet required – 40.57 feet requested, and 2) minimum lot width, 90 feet required – 52 feet requested – both requests to subdivide one lot into two lots. R9 Zone, Ward 7. PER LETTER FROM THE APPLICANT, THE CASE IS POSTPONED TO THE SEPTEMBER 27, 2011 MEETING. 2. Susan & Steven Weintraub (Owners) 10 Damon Avenue (Sheet 49 Lot 209) requesting the following variances: 1) to encroach 4 feet into the 6 foot required side yard setback, and 2) to encroach 4 feet into the 6 foot required rear yard setback, to construct a 12’x15’ shed. RA Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 2 Steven Weintrab, 10 Damon Avenue, Nashua, NH. Mr. Weintrab stated that they are requesting to build a 12’x15’ shed. He said the existing shed is falling down, and has insect damage. He said it sits two feet off the property lines, and it is in the lower back part of the yard. He said the proposed location is the optimal spot, as there are trees, and the yard is small. Mr. Weintrab said there is only one good place to put the shed, giving the tree location and the constraints, to put it six feet from the property lines would not be the best place, as the shed would need to be smaller, and would take up more space in the rear yard. He said almost all the neighbors have a garage and shed, and want relief from the Board to place the shed two feet from the side and rear property lines. Mr. Weintrab said the existing shed is an eyesore, and the new shed will increase the property values. He said many of the neighbors are supportive to the request, except for the neighbor at 5 Bell Street, who is present to voice their concerns. Mr. Currier asked to review the submitted pictures. Mr. Weintrab explained the viewpoint and described each picture. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Yolanda Gutherz, 5 Bell Street, Nashua, NH. Mrs. Gutherz said that most of the garages on Bell Street have been there for over fifty years, and many of them do not have permits, as they are so old. Mrs. Gutherz the shed would be too close to the property line, and it could impact the sale of their house. Mr. Reppucci said that the only issue before the Board is that the applicant is requesting to place the shed within the six- foot setback on the side and rear property lines, and he has the right to put the shed there, he is just asking for a variance to encroach upon these setbacks. Mrs. Gutherz said whether it’s two, four or six feet, they understand that they’ll see it no matter what. She said that ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 3 two feet is too close, it’s right up to the fence. She said there will be debris collecting there, and leaves. Fredric Gutherz, 5 Bell Street, Nashua, NH. Mr. Gutherz said they’ve lived there for 55 years. He said the shed would only be two feet from the property line, it would be very close, and it would be hard to maintain that area, or clean leaves or debris out. Mr. Currier said the two foot distance is a reasonable space to clean leaves out, and to maintain it. Mr. Gutherz said it’s too narrow of a space. Mrs. Gutherz said the view is totally different from Bell Street. Mr. Currier said that the applicant has the right to the shed, they are only asking for relief to place it four feet closer to the property line. He said the view, whether it’s 2 or 6 feet away, will be virtually the same. Mrs. Gutherz said she understands it will be there, but wants it to be six feet away. SPEAKING IN FAVOR – REBUTTAL: Steven Weintrab, 10 Damon Avenue, Nashua, NH. Mr. Weintrab said he understands the neighbors concerns. He did ground down some stubs, and cleared the site, but had no intention of building the shed without a permit. He said no matter what the setback is, the neighbor will see it. He said their garage goes right up to the property line. He said with the 2 foot setback, he can fix and maintain the back of the shed. He said the difference between 2 feet and 6 feet is minimal, and it will make the best use of the rear yard. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Yolanda Gutherz, 5 Bell Street, Nashua, NH. Mrs. Gutherz said that a neighbor helped clean out the back of the garage area. MOTION by Mr. Currier to approve the request on behalf of the owner. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is to remove ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 4 an existing deteriorating shed and replace it with a new 12’x15’ shed in the right rear corner of the property. He said that the special conditions of the property is that there are a variety of sheds and accessory structures and garages in the neighborhood, particularly abutting the property that are closer to the property line than this, and the Board finds that the 2 foot setback is reasonable to maintain, and will allow the applicant to have a contiguous back yard for the family use. Mr. Currier stated that the encroachment is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, the shed is replacing a deteriorating one, it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Johnson. MOTION CARRIED 3-0. 3. Richard G. & Debra J. Archambault (Owners) Unique Perspectives, LLC (Applicant) 16 Parker Drive (Sheet C Lot 369) requesting variance to encroach an additional 4 feet into the 40 foot required front yard setback, 28 feet existing – to construct a 4’x7’ overhang over front door. R40 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Richard Archambault, 16 Parker Drive, Nashua, NH. Mr. Archambault said that they’re three houses from the State border. He said the house was built in 1968, and the front steps were pre-cast concrete, they look horrible, and are falling apart. He said they want to create an overhang over the landing, not over the entire set of steps. He said the foundation is 45 feet. Mr. Currier said it looks as if it will be in the character of the neighborhood. Mr. Archambault said the house is set up high, and there is a lot of ledge in the rear. He said that the space next to the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 5 house is an old accessway. He said the steps, from all the water going on them, just crumbled away. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Johnson to grant the variance on behalf of the owner. Mr. Johnson stated that the variance is needed for appropriate use of the property, and active use of the property, and the conditions of the property are commensurate with the design, and the design is commensurate with the neighborhood, it is very practical, and will help with runoff, it is a minor incursion into the setback. Mr. Johnson said it complies with the spirit and intent of the ordinance, it will not adversely affect property values, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 4. Carol H. Hallowell (Owner) 6 Cardiff Road (Sheet B Lot 835) requesting variance to encroach 20 feet into the 20 foot required front yard setback to construct a detached 16’x24’ garage. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Carol Hallowell, 6 Cardiff Road, Nashua, NH. Ms. Hallowell said she wants a 16’x24’ garage on the property. She said she wants to encroach the full 20 feet into the 20 foot setback, and the primary reason is that it could be tied into the existing driveway, and be close to the house. She said the property has two very large oak trees that they want to preserve, especially ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 6 the one in back of the portable garage. She said there is no way to avoid going into the 20 foot setback, and don’t want to put the garage in the middle of the back yard. She said they live on a curve, and there is a twelve-foot distance between the street and the property line, so the garage will be placed at least twelve feet back, and it won’t impair anyone’s vision coming around the corner. Ms. Hallowell said the garage would look like other structures in the neighborhood, it will be wood, and will look like the house. Mr. Currier asked about the shed. Ms. Hallowell said it is a small shed, 8’x10’ on the back corner, and it would probably be moved somewhere else to keep the tools in. Mr. Currier said if the proposed garage is where the shed is, there would be a lesser incursion into the setback, and it could be tied right into the driveway. Ms. Hallowell said it could go back a little bit, there isn’t a lot of room there, maybe 5 or 6 feet. Mr. Currier asked where the garage door would be located. Ms. Hallowell said it would be on the 16 foot wide portion, facing onto the street. Mr. Currier stated that the driveway would have two openings, at the corner, and a proposed driveway in front of the new garage. Ms. Hallowell said they’d pull the garage as far forward as they can, so the existing driveway that comes in would be widened out. Mr. Currier asked what the total width of the driveway would be, as there would be three driveway entries. Mr. Reppucci said they’re allowed 24 feet in total width. Mr. Reppucci asked if there is a permit for the temporary garage. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 7 Ms. Hallowell said no, she didn’t know she needed one. She said it’s been there for about three years. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. Mr. Reppucci said that they can have two 12-foot curb-cuts, and cut the driveway, and have a driveway going straight into the garage, if it were turned towards Cardiff Road, so it’s turned 90 degrees, facing the front. He stated that if the garage were re-oriented, they could adjust the driveway accordingly. Mr. Currier said the Board isn’t one to re-design proposals, and said that the request is a large incursion, and suggested the possibility of an attached garage. He said the Board cannot consider financial hardship with variances, the Board only considers land use issues. Mr. Reppucci said that it appears that there are other options in this case, and other locations where the garage could be placed, and there are other options with the driveway. He said the Board is strictly looking at land use issues. Mr. Johnson asked if 4 and 10 Cardiff received notifications. Mr. Falk said that they did, as well as a few other abutting properties. Mr. Currier said he’s struggling with the land use of this, with the 20 foot encroachment, and said there are other options. Mr. Reppucci said he thought that it may have a negative aesthetic look, with the house facing one way, and the garage facing another way, it would be a detriment. He said that the house already has an addition and a porch, and that would be where the garage would conventionally go. He said the garage could be placed facing Cardiff Road, swung back in, it would be at least eight feet closer into the property. He said the garage could be moved closer to the house, and maybe it would still encroach, but it would be much less. He said he would be ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 8 inclined to table the request to allow the applicant a chance to reconsider the design, and make it more conforming. Mr. Johnson agreed. Mr. Currier said the property line is further back from the street than what the Board normally sees, and you never know when the City may need to widen the road for a drainage swale, and is concerned that if the City needed to pick up the land for some utility purpose, it would be difficult for a car to back out of the garage. Mr. Reppucci said they’d need a variance if they want the driveway to exceed the twenty-four foot driveway curb-cut. Mr. Reppucci asked the applicant which date they would prefer it to go on, either the next meeting of September 27th, or the first meeting in October, October 11th. Ms. Hallowell said the next meeting, September 27th. MOTION by Mr. Reppucci to Table the request to a date certain meeting date, September 27, 2011, to allow for re-design of the garage. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 5. Belans, Inc. (Owner) ViewPoint Sign & Awning (Applicant) 42 Main Street (Sheet 43 Lot 94) requesting the following variances relative to a proposed ground sign: 1) to exceed maximum ground sign height, 10 feet permitted, 14’-2” requested; and, 2) to encroach 3 feet into the 10 foot required front yard setback (on Canal Street); and, 3) to encroach 15 feet into the 25 foot setback from an intersection. D-1/MU Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Shaun Donovan, ViewPoint Sign and Awning, Northboro, MA. Mr. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 9 Donovan stated that the proposed sign encroaches upon the front setbacks. He said that one of the main reasons is that there is a parking lot there, and if the sign met the setbacks, it’d be right in the parking lot. He said they want to exceed the maximum ten foot height to get the sign above the tree branches, to give it more of a view. Mr. Donovan said that the pylon sign, from a marketing point of view, will allow for increased business and revenue for the store. Mr. Currier asked about the need of the sign, being in a downtown location. Mr. Donovan said that the local people know where the store is. He stated that for people out-of-town, it will be very helpful. He said that the franchisee is obligated to have customers find the store, and their research lends itself to increased exposure to the location. Mr. Currier asked about the Historic District approval. Mr. Falk said they did receive Historic District Commission approval two months ago. Mr. Donovan said that about every ten years, Dunkin’ Donuts revises their image and signage. He said the sign has a new icon with the coffee cup, and the sign is made out of PVC aluminum, but it’s made to look wood-like, with goose-neck lighting fixtures, also, it’s not internally lit. He said there are other examples in Cape Cod. Mr. Currier asked how this sign will co-exist with the trees with the higher sign. Mr. Donovan said there will be eight feet to the bottom of the sign, and it’s in a parking lot. He said it’s a practical height off the grade, and the sign is a standard layout for the company, and at 14 feet, its reasonable considering the neighborhood. He said that the sign is an image upgrade. SPEAKING IN FAVOR: No One. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 10 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; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, the location is within the Historic District, and they approved the sign, and substantial justice is served. Mr. Reppucci stated that the special conditions of approval are that all requirements by the HDC shall be adhered to, and incorporated into this meeting. He stated that the sign is externally lit only. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. REHEARING REQUESTS: 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. REHEARING REQUEST WAS SUBMITTED BY ABUTTER AT 4 PLYMOUTH AVENUE. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Mr. Reppucci asked if there was any procedural error, including improper notice or denying anyone the right to be heard. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 11 All the ZBA members said “no”. Mr. Reppucci asked if it was an illegal decision, in other words, did the Board fail to completely address each of the points of law required. All the ZBA members said “no”. Mr. Reppucci asked if the request for rehearing contain any new information not presented or available to the Board at the original Public Hearing. Mr. Currier said there is, he said the Board spent a lot of time understanding what prompted the stop-work order to have them come before the Board, and the Board didn’t know if there was support or concern coming from the neighborhood. He said that he feels that the rehearing request is genuine, and feels that the abutters are lay people, and feels that the Board should give the abutters justice by rehearing the case. Mr. Johnson said they didn’t come because they didn’t think the Board would grant the variance. He said that if they couldn’t make it, then why didn’t they submit something. Mr. Currier said that the applicant asked them to sign something, and in the letter, it said “my husband said no”, that they weren’t in agreement with the shed. Mr. Reppucci said it’s new information that could have been provided prior to the Board’s decision. Mr. Reppucci stated that there’s an error in the draft minutes, he said he voted against the request, and the minutes state that it was a unanimous approval. He said he has an issue with the fact that, when listening to the minutes, the applicant stated that there were no issues, yet, the abutter across the street did not want to sign the petition supporting the shed. He said that the neighbor, the Carr’s, knew about this case, and were not in support of it. Mr. Johnson said he believes it’s the abutter’s responsibility to make their case, and not just have the assumption that the Board will deny the case. He said he’d support going for a rehearing. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 12 Mr. Currier said that if the Board grants the rehearing request, it doesn’t mean that the case would be denied, it just means that it would be heard again. He said there are enough questionable elements, and perhaps it’s better to err on the side of caution and rehear it. Mr. Reppucci said that there has to be a very compelling reason to overturn a decision. He said that the person that is making the appeal to hear the case has to provide a compelling case to cause the Board to overturn. He said the bar is set much higher, and said that this case meets that. MOTION by Mr. Currier to grant the rehearing request from the Board’s August 10th, 2011 Public Hearing, in which the Carr’s were granted a variance to encroach 10 feet into the 20 foot required front yard setback. He said the Motion is to rehear the case, based upon question #3. He said it states that if the rehearing request contains any new information not presented or available to the Board at the original public hearing. He said there is new information that is here tonight that the Board did not have at that meeting, and that would or could cause the Board to make a different decision. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases for Regional Impact. MINUTES: August 9, 2011 and August 23, 2011. Mr. Reppucci said there is some language that he wishes be added to the August 9, 2011 minutes, in which Mr. Falk has. He said there is a notation of a 5-0 unanimous approved vote, however, it was 4-1 with Mr. Reppucci against. Mr. Falk said he would make the appropriate changes, and the minutes will be sent back to the Board. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 13, 2011 Page 13 MOTION by Mr. Reppucci to approve the August 23, 2011 minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Falk said he sent to the Board, via email, some correspondence about the annual training that is done with Attorney Dave Connell, it will be on October 4, 2011, here at City Hall, Room 208, at 7:00 p.m. He said that if the Board has any topics or issues to discuss, to let him know so that they can be forwarded to Attorney Connell as soon as possible. Mr. Reppucci said that according to RSA 673:3A, there should be six hours of training furnished by the Office of Energy and Planning. He said he will raise the issue that we are not in compliance with the State Statute for the six hours of training. Mr. Johnson asked where the average citizen goes to obtain information about building permits. ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:00 p.m. Mr. Jack Currier, Clerk CF Taped Hearing