Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 27, 2011 at 6:30 PM in the Auditorium at City Hall. Rob Shaw, Chair, conducted the meeting. Members present were: Jack Currier, Clerk Rick Johnson Bob Carlson 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. 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. Voting on this case: Rob Shaw Jack Currier Rick Johnson Bob Carlson Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that he objects to going forward without a full Board. He stated the lot is probably the largest lot in Farmington Acres, it’s almost two acres altogether. He said one lot would have 1.22 acres, and the other lot would have 0.7 acres. He stated that in the R9 zone, the minimum lot size is 9,000 square feet, so both of these lots would be over three times the minimum size. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 2 Atty. Prunier said the property is bounded by a railroad track, and a Public Service easement that is 100 feet wide. He said that one of the lots will have the proper frontage and width, and the other lot needs a variance for frontage and width. He said that after the lot width, the lot opens up to be very wide. Atty. Prunier said that the tennis court will be removed, and a house will be built there instead, outside of the Public Service easement. He said that the house will be constructed outside of the easement. Mr. Currier asked if the driveway is going to be moved, as it straddles the proposed lot line. Atty. Prunier said it would stay there, they’ll discuss with Planning staff to see how they’d like the entrances to these lots, it could be a joint entrance, with a V, or it could be separate. He said they are flexible with how it will be oriented. Mr. Currier asked to confirm if the house would be out of the easement, and also out of the setbacks. Atty. Prunier said that the lot is so large, it will meet all of the dimensional requirements, except the frontage and width. He said the house will sit back pretty far. He said the lot is served by all city utilities. Mr. Currier asked what could be built, or put, in the easement. Atty. Prunier said only something that can be moved, like those portable sheds, or a deck perhaps. He said it can’t be anything that interferes with their easement. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mike Hearn, 21 Eastbrook Drive, Nashua, NH. Mr. Hearn said that his lot is 0.87 acres, it is a large lot, and it abuts the subject lot. He showed the Board some pictures. He said he is concerned about the topography, and there are low spots. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 3 identified a picture from 2007 in which the water in the rear yard was waist high. He said that from hurricane Irene, the water was knee deep in some areas. He said the building lot that is proposed would be in these low-lying areas, and there could be a lot of fill to elevate the structure to an acceptable height, and being in a FEMA zone X area, the concern is that there will be more runoff from their property onto ours. Mr. Currier asked if the lot is a wetland. Mr. Hearn said it is not. Mr. Carlson asked if the house is insured in a floodplain. Mr. Hearn said it is insured in a floodplain. Mr. Carlson asked how what the lot elevation is above water. Mr. Shaw said that it is about ten feet, according to the drawing. Mr. Shaw stated that there is a letter from Ellen Curelop, and stated that she is not in favor of the request, because of the driveway entry and access at the corner, and that the house should be placed at least 45 feet from the right-of-way. Mr. Shaw said the house would be at least 45 feet back from the right-of-way. SPEAKING IN FAVOR – REBUTTAL: Atty. Prunier said he appreciates Mr. Hearn’s concerns, and said it’s not the intent to have him suffer any type of water problems. He said it is the requirement of subdivisions that there is no runoff going to a neighbor’s property. He said they’d have to solve any issues with water runoff, to the Planning Board’s satisfaction. He said that the lot is in the FEMA X zone, and it’s not in a floodplain. He said the house could be placed 113 feet back, and that per ordinance, there cannot be any runoff onto Mr. Hearn’s property. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Hearn said that the drainage structure was put there 30-40 years ago. He said that by putting another house here will be ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 4 taxing the drainage beyond what it is designed to do. Mr. Currier said the letter in opposition mentioned the driveway, or the potential location of two driveways on a curve. He said that he didn’t see this issue as problematic, or a public safety danger, or traffic problem. He said the house will also be set back pretty far from the right-of-way. He said that if this request is approved, it will not negatively affect the neighbor’s property with the runoff. Mr. Johnson said he needed a better understanding of the water situation isn’t going to be worsened as a result of raising the elevation to build a house. Mr. Currier stated that Atty. Prunier testified that Mr. Hearns water situation will not be made any worse. Mr. Falk said that the Planning Board sees this issue all the time, with all sorts of subdivisions, and they always address the drainage and runoff situations. Mr. Carlson said that Mr. Hearn shouldn’t be burdened to defend his property, or seek relief. He said the Board cannot, by passing this, create an injury. He said the property could flood, and that’s bad. Another scenario is that the property might not flood, and that’s good. He said the third thing that could happen is that the property could flood and Mr. Hearn would have to seek relief, and that’s bad. He said that Mr. Hearn will be affected in a negative fashion if this is passed. Mr. Shaw said there is already a documented situation, and said that Mr. Hearn’s property is already subjected to flooding issues now, and maybe it won’t be any worse than from 2006 or 2007. He said that the remediation that could be required as part of the subdivision approval from the Planning Board could have a positive benefit by eliminating the issue that currently exists with the flooding. 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 for two lots instead of one. He stated that there was testimony about the flooding concerns, the Board knows that there is occasional flooding concerns on the back portion of these adjacent properties, and given the testimony of the professional ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 5 engineer that designed this, it will not make flooding situation for particularly Mr. Hearn’s property any worse, it will be the same or better. Mr. Currier said that the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels. He said that the flooding concerns could be ameliorated by this proposal, because the grading could be changed, or the water could be removed quicker, so there is the opportunity for the abutter that this development will make the flood situation better. Mr. Currier said that the request is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Shaw. Mr. Johnson said if the Board knows that there are potential flood issues, and we knew the process, we collectively listen to whatever advice the applicant is given, that a P.E. would be involved, and asked if cases where P.E. design has been considered or developed before something is brought to the Board, especially when it comes to the public interest. Mr. Currier said more times yes than no. He said the submitted plan is not stamped by a P.E. Mr. Carlson said it would be in the best interest of the developer to come with a P.E. plan, he said we see plans stamped on a regular basis from attorneys with plans showing everything. He said it’s not been done with this case. Mr. Currier said he’s sensing discomfort, he said the Board has the ability to have, at the applicant’s expense, a plan done so that Mr. Hearn’s concerns would be addressed. Mr. Carlson said Mr. Hearn is in a position where a neighbor will do something that will adversely affect his property values, and would be contrary to his public interest. MOTION by Mr. Shaw to suspend the rules to take additional testimony from the applicant and the abutter. SECONDED by Mr. Currier. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 6 MOTION CARRIED 3-1 (Mr. Carlson). WITHDRAWAL OF MOTION TO GRANT by Mr. Currier. Atty. Prunier suggested that this matter be tabled for 30 days, two meetings from now, to get our Engineer to look at the water situation, and provide Mr. Hearn with a plan, and pay for his having it looked at by his Engineer of choice. Mr. Shaw said it would be the October 25, 2011 meeting. Mr. Johnson asked if there would be any expense by Mr. Hearn. Atty. Prunier said there would be no expense incurred by Mr. Hearn, and the whole idea would be to solve the problem that exists there at no expense to Mr. Hearn. Mr. Hearn said he is comfortable with the plan. MOTION by Mr. Currier to table this matter to the October 25, 2011 meeting, to have it reviewed by a professional engineer, and to afford Mr. Hearn, the abutter, the opportunity to review that and have an independent review at the applicant’s expense if he so desires. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. 2. 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. [TABLED FROM THE SEPTEMBER 13, 2011 MEETING] Voting on this case: Rob Shaw Jack Currier Rick Johnson Bob Carlson Carol Hallowell, 6 Cardiff Road, Nashua, NH. Ms. Hallowell said at the last meeting the garage was oriented so that it was encroaching 20 feet into the 20 foot setback. She said the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 7 revised plan shows the garage re-oriented towards the front of the house. She stated that now the encroachment is a 6 foot encroachment, and it would leave approximately 27 feet from the curb to the beginning of the garage at the closest point. She showed where it would be placed from the submitted picture. Mr. Currier said he was relieved when he got the package, with the revised plan but understands that a tree may need to be removed. Ms. Hallowell said they may need to take down two trees. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance on behalf of the owner. Mr. Currier stated that the encroachment is an 8 foot encroachment into the 20 foot front yard setback to construct a detached 16’x 24’ garage, to be constructed in the configuration as presented on the revised plan. Mr. Currier said that the 8 foot encroachment is needed for the applicant’s proposed use of the property, which is to add a garage. He said that part of that garage addition, the existing un-permitted portable shelter will be removed as testified. Mr. Currier said it complies with the spirit and intent of the ordinance, because it allows this corner lot to have a garage. The Board finds that the garage, as compared to the portable shelter, will probably enhance the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 3. BAE Systems Information & Electronic Systems Integration, Inc. (Owner) Meridian Land Services, Inc. (Applicant) 90 Canal Street (Sheet 41 Lot 78) requesting special exception to work within the 75-foot prime wetland buffer of the Nashua ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 8 River to replace two existing light poles with taller poles. GI Zone, Ward 3. Voting on this case: Rob Shaw Jack Currier Rick Johnson Bob Carlson Mr. Johnson said he is a former employee, but it’s been a long time removed, and has no issues hearing the case. Tim Ferwerda, Meridian Land Services, Milford, NH. Mr. Ferwerda stated that they want to replace two existing light poles that are in the wetland buffer. He identified the parking lot and the location of the poles. He said the original plan indicated 30-foot tall poles, and now they are installing them at 25 feet tall. Mr. Ferwerda said the proposal was presented to the Conservation Commission on September 6th, and there is a favorable recommendation. Mr. Shaw went over the special wetland conditions with the applicant, and all the responses were answered to the satisfaction to the Board members. Mr. Johnson asked if the City has a lumens restriction for the light poles. Mr. Falk said yes, and they cannot exceed 0.2 foot-candles at the property line. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Johnson to grant the special exception on behalf of the applicant. He stated that the use is listed in the Table of Uses, Section 190-112. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 9 Mr. Johnson stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, in fact it enhances both. Mr. Johnson said the use will not overload public drainage, water, sewer or other municipal systems, and that the special regulations are fulfilled, it was approved by the Conservation Commission, and they have agreed to adhere to the stipulations of their 9-6-11 meeting, there are three conditions, and that the use 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. Shaw suggested that for the special conditions, there was testimony that the Conservation Commission minutes be incorporated as part of the Motion. AMENDED MOTION by Mr. Johnson to include the Conservation Commission minutes are incorporated into the Motion. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 4. New Nashua Properties, LTD., 238 Amherst Street (Sheet E Lot 305), City of Nashua, “L” Charron Avenue (Sheet E Lot 2137), and Roman Catholic Bishop, 65 Pine Hill Road (Sheet E Lot 2223) (Owners) Nashua Airport Authority (Applicant) requesting special exception to work within the 40-foot critical wetland and wetland buffer of Colerain Brook to remove tall trees in the approach to Runway 32. HB, AI and R9 Zones, Ward 1. Voting on this case: Rob Shaw Jack Currier Rick Johnson Bob Carlson Armand Dufresne, Senior Airport Planner, Gale Associates, Bedford, NH. Mr. Dufresne stated that the airport recently received approval to relocate the runway, and the result of that relocation is that new properties enter into the airports ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 10 approach pass, so, this project is to clear tall trees. He identified the parcels that have the tall trees on the map. He said that they’d like to clear trees in the wetland and the wetland buffer. He said most of the trees to be removed are in the buffer, which altogether is 1.72 acres. He said the Conservation Commission gave them a favorable recommendation on September 20th, with four stipulations. Mr. Dufresne stated that they’re clearing about 1.72 acres of wetland buffer, and less in the wetland. He said it’s not being clear-cut, they are only taking down selected trees and there is very little damage to the land itself. He said the area where the tree was located is all repaired, and the stubs will be left in place. Mr. Shaw went over all the nine special regulations with the applicant, all answered to the Board’s satisfaction. SPEAKING IN FAVOR: Mr. Royce Rankin, Airport Manager. Mr. Rankin said that this is the last sliver of work to be done prior to starting the project. He said they have been awarded the full funding for the project, and the work will be done earlier than had planned. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to grant the special exception on behalf of the applicant. Mr. Currier stated that the use is listed in the Table of Uses, Section 190-112. Mr. Currier stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, and all the other tests of law have been met per testimony and discussion, also, the nine special regulations have been met. Mr. Currier said that they will abide by the four stipulations of approval by the Conservation Commission from their September 20, 2011 meeting, all in support of the new runway and the funding on the project. He stated that the minutes of the Conservation Commission meeting are incorporated into the record. SECONDED by Mr. Johnson. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 11 MOTION CARRIED UNANIMOUSLY 4-0. 5. William M. & Nancy J. Sawyer (Owners) Andrew Sawyer (Applicant) 1020 West Hollis Street (Sheet D Lot 191) requesting the following variances: Proposed Lot 191: 1) minimum lot width, 130 feet required – 105 feet proposed; Proposed Lot 191-1: 2) minimum lot frontage, 105 feet required, 98.95 feet proposed, 3) minimum lot width, 130 feet required, 98.95 feet proposed; and 4) minimum lot area, 40,000 square feet required for a proposed lot to be serviced by an individual sewage disposal system – 32,098 square feet proposed – all requests to subdivide one lot into two lots. R30 Zone, Ward 5. Voting on this case: Rob Shaw Jack Currier Rick Johnson Bob Carlson Mr. Shaw stated that variance #2, as advertised above, is not necessary and will not be considered. All the other requests are on the Agenda. Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the owner is trying to subdivide the lot so his son can build a house next door. He said that both of the lots would be much larger than most all the lots in the neighborhood. He said the lot frontages meet the requirement, and both lots would need variances for the lot width. He said that both of the lots have water, and there is a requirement for 40,000 square feet for individual septic system, he said the lot has a little over 32,000 square feet. Atty. Prunier handed out a package to the Board members. He said that exhibit 1 is a petition signed by all the abutters that they are in favor of the request. He said that exhibit 2 indicates a survey done about the surrounding abutting lots, and most all the lots are about 15,000 square feet. He said there’s a mobile home park, and they are all on septic. He said that exhibit 3 shows the frontages of nearby lots, and the 4th exhibit shows that the septic design has been approved by the State of ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 12 NH, and the 5th exhibit is a letter from a realtor indicating that putting in a new single-family home will not adversely affect the values of the other nearby homes. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Currier to grant the variance on behalf of the applicant. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is to subdivide to create a second lot. He said there is an approval dated August 12, 2011 from the NH DES, stating that there is ability to have a septic system there, and it is supplied by Pennichuck Water Works, and the Board is persuaded by the testimony of all the abutters that they don’t have any concerns with the request, from either a density or environmental point of view. Mr. Currier stated that the request is therefore within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, there is a letter from a real estate professional attesting to that, and the request is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Carlson. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases for Regional Impact. MINUTES: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 27, 2011 Page 13 August 9, 2011 and September 13, 2011: MOTION by Mr. Currier to approve both sets of minutes, waive the reading, and place the minutes as presented in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Falk said that the annual training is on October 4th, 2011, here at City Hall, in Room 208, from 7:00 – 9:00 p.m. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:15 p.m. Mr. Jack Currier, Clerk CF Taped Hearing