Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 A public hearing of the Zoning Board of Adjustment was held on Tuesday, October 11, 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. Ellen R. Barr (Owner) Shepherd Residential Construction (Applicant) 5 Dinsmore Street (Sheet 64 Lot 184) requesting variance to encroach 6 feet into the 25 foot required front yard setback to construct a roofed breezeway between an existing nonconforming house and garage. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Jonathan Shepherd, Shepherd Residential Construction. Mr. Shepherd stated that both the house and garage are nonconforming with respect to the front yard setback. He said the proposed breezeway addition is going in the front yard setback. He said the drawings are pretty self-explanatory, and they’re just filling in an area between the house and garage, but it’s in the back. Mr. Falk said that the owners have applied for, and received ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 2 building permits for other work that’s been done on and in the house. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. 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 have a breezeway between the detached garage and the house. He said they’re both pre-existing structures, with no impact to the abutters. Mr. Currier said that the request is within the spirit and intent of the ordinance to allow the breezeway within the setback, it will not adversely affect the property values of surrounding parcels. Mr. Currier said that the request is a benign addition to the house, it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 2. Frank & Kathleen Santaniello (Owners) 34 Wethersfield Road (Sheet B Lot 613) requesting variance to encroach 6 feet into the 20 foot front yard setback to construct an 8’x12’ shed. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Frank & Kathleen Santaniello, 34 Wethersfield Road, Nashua, NH. Mr. Santaniello said the yard is fenced in, and they want to put the shed 14 feet from the street, on the inside of the fence. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 3 He said there are several pictures that the Board has, that shows the proposed location. He said the shed will allow for much more reasonable accommodations to put lawn furniture in. He said the steps that go to the basement are very steep, and it’s tough taking everything up and down. He said the shed is new, and about 6 feet tall. He said the peak of the roof of the shed would be just over the fence, and it will be 8’x12’ in size. Mr. Reppucci read a letter into the record that Mrs. Santaniello submitted from her doctor’s office, saying that she cannot lift heavy objects. SPEAKING IN FAVOR: Lee Newcombe, 32 Wethersfield Road, Nashua, NH. Mr. Newcombe said that he is in favor of the shed, as it will be behind the fence. 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 to enable the applicants proposed use of the property, given the special conditions of the property, which is limited space, and the benefit sought by the applicant is reasonable to pursue. Mr. Johnson said that the request is within the spirit and intent of the ordinance, it will not adversely affect property values, and there will be minimal view, basically the peak of the shed upward. Mr. Johnson said the request is not contrary to the public interest, as testified in support by one of the abutters, , and substantial justice is granted in approving this variance. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. 3. 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 ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 4 construct a detached 16’x32’ shed. RA Zone, Ward 2 [REHEARING]. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Scott Carr, 35 Ashland Street, Nashua, NH. Mr. Carr stated that they want to encroach 10 feet into the 20 foot setback to construct a 16’x32’ shed, facing Plymouth Avenue. He said that this request has already been heard, and was granted approval by this Board. There was a rehearing granted, and now it’s starting again. Mr. Carr said the shed will be well constructed, and it will match the home, the color, roof and trim. He said they’ll enhance the already existing landscaping, with a taller fence, more plant materials that will completely vanish the wall from Plymouth Avenue. Mr. Carr said that closely built homes with sheds, decks and miscellaneous cars, within reason, are a fact of life. He said that this is the fabric of the neighborhood. He said there are numerous homes that look out at sheds or garages. He said that the proposed shed is 80 feet away, across the street, and it’s not taking away a beachfront view from the neighbor. Mr. Carr said that the shed will cause no hard to the general public, it’s not blocking any roadway views, it’s behind the fence, and covered by trees. Mr. Carr said the shed will not diminish the property values of the surrounding properties, there are thousands of sheds throughout the City, and this shed alone won’t diminish anyone’s values. Mr. Carr stated that his hardship is that the yard is very limited, due to the property angles of the lot and house, and the location of the shed makes it convenient to access the existing garage and driveway. He said the 20 foot setback does not serve the purpose of the restriction in a fair and reasonable way, because the City has no use for that land that the shed would sit on. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 5 Mr. Carr stated that this is the best possible location for the shed, due to the close proximity of the driveway and the existing garage. He said the other areas of the back yard are not suitable for the shed, due to the existing mature trees and shrubs that would have to be cut down, or drastically cut back. Mr. Reppucci stated that this application is starting from scratch, and the process that is going forward is that it was originally approved by the Board, and there is a 30-day window that allows for an appeal of those decisions, and the Board found that the rehearing request was legitimate, and met the time frame, and the Board granted the rehearing. He said that one of the rules is that if there is any new information that the Board didn’t have at the original decision, then the Board can vote to rehear the case, which is what happened in this case, and it was voted to get re-heard in its entirety. Mr. Currier said he’s never seen such a large shed, especially one so far in the front yard setback. He said that most every shed the Board considers is much smaller. Mr. Carr said that Reeds Ferry builds sheds that are 16’x32’. Mr. Currier said he sees the shed as something different, because it is so large. Mr. Reppucci stated that the size of the shed is large, and it may be looked upon differently in the neighborhood, instead of a normal sized shed. Mr. Currier asked if a smaller shed could be built, that is less impactful. Mr. Carr said that the 32’ length is the most practical, but said since this case has taken so much time, he said he may reconsider the length. Mr. Currier stated that at the original hearing, he asked about attaching the shed onto the house, and there were some financial figures mentioned, such as $3,500 for the shed, and $35,000 for the garage. He said that the Board cannot consider financial issues. Mr. Carr said to connect it will be significantly more money, as ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 6 a foundation will be involved, and the corner of the garage is only 10 feet from the 20 foot setback, so a variance will be needed nonetheless. He said it’s just not in the budget. SPEAKING IN FAVOR: No One. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Lora Kaley, 4 Plymouth Ave, Nashua, NH. Mrs. Kaley asked if the setback is from the street, or the property line. She said that she didn’t mind the Carr’s building a shed, but thought that a 16’x32’ shed is way too big, and too big for the neighborhood, and will decrease the value of the homes in the neighborhood. Mr. Reppucci said that the violation of the setback is in relation to the shed’s location towards the street, it’s not the size of the structure, so he’d need the same variance if he was building a shed that is smaller, the variance is only for the location of the shed in the setback. Mrs. Kaley said if it were a smaller shed, it wouldn’t be as visible, the 32 foot length is just too long. She said there are other places in his rear yard that the shed could go in. She said an 8’x16’ shed wouldn’t be a problem, but the proposed shed is the size of a garage, it’s too large. She said he started this process, and it took them three weeks to figure out what he was doing, and once the side wall went up, that’s when the question was raised to City Hall about what was going on, and it was only then that a building permit and variance was applied for. Mr. Reppucci asked why they didn’t come to the first public hearing. Mrs. Kaley said she didn’t want to come and appear before the Board, until she saw it on tv the next day. She said she doesn’t understand why it needs to be so big. Mr. Reppucci said that the applicant did explain what was going to be inside it, and a portion of the shed would be for his daughter’s artwork. He said that a good-faith explanation was already given. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 7 SPEAKING IN FAVOR – REBUTTAL: Mr. Carr said it’s none of the neighbors business what is stored in the shed, he said they have motorcycles, artwork, yard work, and other belongings. He said he’s not totally opposed to downsizing the shed, but could downsize the walls to lower the impact, it could be reduced from eight feet, and the roof would even be lowered, and could take off a few feet from the length of the shed. He said the arborvitaes will be green all winter long, as they are not deciduous, and wants the privacy as well. Mr. Reppucci asked about the possibility of moving the shed in 5 feet. Mr. Carr said that the neighbors depth perception, at the distance they would see it, will not change by us moving it in 5 feet. Mr. Reppucci said the Board wants to understand the boundaries of compromise, so that something can be fashioned that works. Mr. Carr said he wants a final decision on this, he said he’d drop the wall size down, and keep a four or five pitch roof. He said he could live with a six and one-half foot wall, probably seven feet would be good, that’s dropping down a whole foot. Mr. Reppucci said there would be an 8 foot long room for storage. He asked about a 24-foot shed. Mr. Carr said he’d have to turn it on an angle, and it would be “L” shaped. He said by doing this, it will be substantially more costly to do so. Mr. Reppucci asked how difficult would it be to just move the shed? Mr. Carr said it is on blocks, it can be done, but it would be very difficult. Mr. Johnson asked if there will be electricity in the shed. Mr. Carr said yes, it will have lights in it. Mr. Johnson asked if it will have plumbing and sewer in the building. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 8 Mr. Carr said no. Mr. Johnson said in photo #4, it shows the wall on the right, and the picket fence on the left. He asked if there were trees taken down, as it looks like there are stumps left. He asked if the area is going to be replanted. Mr. Carr said he doesn’t have to remove the stumps to plant additional materials. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Lora Kaley, 4 Plymouth Avenue, Nashua, NH. Mrs. Kaley said she has no problem with the compromise as the Board suggested. She said if Mr. Carr is going to do what he said he’s going to do, she has no problem with it, lowering the walls, and moving it a little bit. Mr. Reppucci asked how she would feel if the length was brought down from 32 feet to 24 feet. Mrs. Kaley said she’d have no problem with that. Mr. Reppucci asked how she’d feel with the ten foot setback if the wall and length were reduced. Mrs. Kaley stated that she’d like to see the shed moved in, but will go with what the Board decides, but it would be better further from the road. She said as long as the fence goes up, that will be even better. Mr. Reppucci said that the fence is not part of the variance application, and is not under the Board’s purview. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant. He stated that the variance is needed to enable the applicants 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 through discussion on the Board, the special conditions will be listed at the bottom of the application. Mr. Reppucci stated that the use is within the spirit and intent ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 9 of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice will be done. Mr. Reppucci said the variance is approved with the following changes: 1. The encroachment is limited to a 5 foot encroachment into the front yard setback. Mr. Reppucci said that the following are special conditions of approval: 1. That the wall height will not exceed 7 feet. 2. That the length of the structure on the Plymouth Avenue side will not exceed 24 feet. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Reppucci stated that this is a completely new decision, and there can be another rehearing, because this is a different approval, and there could be another rehearing because there could be another aggrieved party. 4. Maria Von Doellinger & Elias Ferreira (Owners) 2 Greenwood Drive (Sheet B Lot 1566) requesting the following: 1) special exception to allow a major home occupation for an in-home day care for 12 children; 2) to amend a special condition from the March 11, 2008 Zoning Board meeting to allow for living space (day care) above a previously approved garage, and, 3) to exceed the maximum area of a day care, 420 square feet allowed – 616 square feet proposed. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Maria Von Doellinger, 2 Greenwood Drive, Nashua, NH. Ms. Von Doellinger stated that she’s been a daycare provider since 1989. She stated that she used to be licensed for nine children. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 10 Elias Ferreira, 2 Greenwood Drive, Nashua, NH. Mr. Ferreira stated that the day care would be 616 square feet, it is the size above the garage. He said the room would be great for the children. Mrs. Von Doellinger said they built a lot of shelves and other improvements upstairs. Mr. Reppucci said he listened to the 2008 variance request, to originally build the garage. He said a stipulation of that approval was specifically that there was to be no living space above the garage. He said that they’re in serious violation from that approval by the Board. He asked the applicant if he’s aware of the violation. Mr. Ferreira said the letter said that there is to be no livable space above the garage, but thought it meant something different, not the storage space. Mr. Reppucci asked if there is a kitchen and bathrooms and plumbing up there. Mr. Ferreira said yes, there is a kitchen, plumbing and a bathroom. Mr. Currier said when it was originally approved, he said there was a space to walk between the house and garage, and thought the request would be less impactful if it were connected. He said the approval letter said that there would be no living space above the garage. Mr. Reppucci asked when that space was developed with a kitchen, and when did the construction occur to turn the storage space into livable space. Mr. Ferreira said at the end of August, this year. He said his mother-in-law broke her hip, and had to move in. He said that no one has lived up there, it’s just going to be for the daycare. Mr. Currier asked where that she’s been doing day care. Ms. Von Doellinger said they used to have it out of 4 Greenock Lane, with 9 children, it was an operating daycare. She said ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 11 she takes care of special needs children, and has a foster child. Mr. Currier said it looks like the driveway is always full, with at least three vehicles. He said the Board looks at traffic congestion and pedestrian safety, and said that traffic there can get congested, and said it’s not the best location for day care drop offs, as it’s a treacherous intersection, near the school. Ms. Von Doellinger said that the parents all come at different times of the day, and there’s never more than two cars there at one time. Mr. Ferreira said it’s busiest after 6:00 p.m., that’s when cars speed, and there is a police officer nearby. Mr. Reppucci said he’s never seen an attached garage that is only attached on the second floor, and asked if there is an opening from the garage into the house. Mr. Ferreira said that the countertops and sheetrock was just put in. Mr. Reppucci asked if the garage was built, completely abutting the house, with no opening. Mr. Ferreira said that is correct, at the time, they didn’t need an opening. Mr. Reppucci said that this is a significant violation from what was approved. He said the Board approved a detached garage, and this one is attached, and it’s attached to the second floor, rather to the first floor. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. The Board discussed the building/land use permit with respect to what was applied for and approved by the Board, versus the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 12 permit, detached or attached, and the stipulation of no living space over the garage. Mr. Reppucci called up Ms. Von Doellinger to specifically ask how many children were being watched in the house. Ms. Von Doellinger said three children, for about five years. Mr. Reppucci said she can do that by right. Ms. Von Doellinger said she’s been busy because of the foster care. Mr. Currier said it’s optimal if an applicant comes forward with a lower number of children, and twelve children is a lot. He said he’d prefer to see an operation that is smaller, and demonstrates success, and move up. Mr. Johnson said the application is for 12 children. Mr. Reppucci said the Board should consider whether the unapproved living space being used for living space is ok. Mr. Johnson said it is. Mr. Currier said it is acceptable. He said the garage is there, and is willing to consider the living space above the garage. Mr. Reppucci said he’s acceptable with it. Mr. Johnson agreed. Mr. Reppucci stated that the Board has to explore the day care above the garage. He said the difference between six kids and twelve kids in the day care is a lot. Mr. Johnson said he’s looking at the relevance of the day care issue in comparison to the in-law unit. Mr. Reppucci stated that the people in charge of the day care need to be able to supervise the children both inside and outside, and there is additional parking needs. He said the application indicates that there will be one employee per shift. He said the perception that one employee can watch twelve children on the second floor with a play area outside, with some ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 13 of them being infants, it seems inconceivable that that is manageable. He said he’d be reluctant to approve that. Mr. Reppucci said if he were looking to approve this request, he’d only be looking at six children. He said if they can demonstrate that six children works well, and it’s not an impact to the neighbors, they can always come back at a later date and request additional children. Mr. Johnson asked if there’s anything that restricts day care from being on the second floor of a building. Mr. Falk said that no matter what, it would have to meet all the building code requirements for access to the second floor, and there would be other State of New Hampshire issues, and fire code regulations as well. MOTION by Mr. Reppucci to take a 5 minute recess for a water break. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Currier asked about the egress issues from the second floor. Mr. Reppucci said that there are agencies that will make sure that it is covered, the Fire Inspectors, the Building Department and the State. Mr. Johnson would accept that. He said he is focusing on the issue at hand, and would accept a stipulation that the daycare would have to comply with all licensing agencies criteria. Mr. Reppucci said he’d feel comfortable with the safety issues. Mr. Currier said that twelve drop-offs and pickups a day is a lot, and would feel more comfortable with six. Mr. Johnson said that during his site visit, he witnessed some evidence of car staggering with drop-off and pickup times. Mr. Currier said that the Board should discuss the area variance about the size of the day care. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 14 Mr. Reppucci said as far as the breakdown of the space, if there is an in-law going over the allowed space in the basement, and they were 100 square feet over, what will they do with the extra space. He said that applies here, he said he can’t see limiting how much of that space they’ll use, he said if it’s approved, they should use the space as it is. Mr. Johnson agreed, they should use what they have. MOTION by Mr. Reppucci to grant the requests on behalf of the applicant. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-47B, 190-36B. Mr. Reppucci stated that the first request in this application is to amend a special exception condition from the March 11, 2008 Zoning Board meeting, which restricted that no living space can be over the garage. Mr. Reppucci said that the Board is going to amend that special condition to allow living space over the garage. Mr. Reppucci said that the second motion, for the variance request for the day care center, that the request is granted for the extra square footage, 420 square feet allowed, 616 square feet requested.. Mr. Reppucci said that the third piece of this request is the special exception to allow a major home occupation for an in- home day care. He said that the application is for twelve children, he said that the motion is to approve six children. Mr. Reppucci stated that for the area variance, it 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 said 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, and substantial justice is done. Mr. Reppucci said that included in the motion is the fact that the structure exists, and is there, and that the Board is going to allow it to be used as it’s built. Mr. Currier said that he’d like to clarify it, as it’s the space ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 15 over the garage, and wouldn’t like to see a future expansion back into the house. Mr. Reppucci agreed, and said that the purpose of the area variance is strictly for the purpose of the day care. SECONDED by Mr. Johnson. Mr. Reppucci said that no other use of this space above the garage is permitted. Mr. Johnson asked that if a future owner wanted an in-law apartment, all the infrastructure is there to allow it. Mr. Reppucci said that this approval is specific to just this day care, he said any future use will have to come back. Mr. Reppucci said that all local, State and Federal guidelines and rules are complied with, with no exceptions, 100% complied with. MOTION CARRIED UNANIMOUSLY 3-0. The Board opened up the Public Hearing to talk with Mrs. Von Doellinger, and Mr. Reppucci explained what was approved, and the reasons why. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases for Regional Impact. MINUTES: September 27, 2011: MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes as presented in the file. SECONDED by Mr. Johnson. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 11, 2011 Page 16 MOTION CARRIED UNANIMOUSLY 3-0. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:30 p.m. Mr. Jack Currier, Clerk CF Taped Hearing