Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 14, 2012 at 6:30 PM in the Auditorium at City Hall. Rob Shaw, Chair, conducted the meeting. Members present were: Rob Shaw, Chair Gerry Reppucci, Vice Chair Jack Currier Rick Johnson Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Shaw explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Shaw explained how testimony will be given by applicants, those speaking in favor or in opposition to each request, as stated in the Zoning Board of Adjustment (ZBA) By-laws. Mr. Shaw also explained procedures involving the timing light. NOTE: Tape quality for the meeting is poor. 1. AS-VR Realty, LLC (Owner) 420 Amherst Street (Sheet H Lot 485) requesting the following: 1) Use variance to expand a non-conforming use to permit multiple uses including retail sales of general merchandise, convenience goods, discount and limited price items, items and services commonly found in supermarkets, wholesale clubs, pharmacies and department stores, wholesale and retail construction industry supplies and service, food and entertainment providers commonly found in shopping centers including but not limited to, banks with or without drive-thru, restaurants, travel agencies, financial services providers such as brokerage, insurance, investment and real estate services and cinema, all the foregoing without limitation or restriction to size, subdivision rights or development area; and the following area variances, all within 300 feet of the front lot line: 2) to allow a front setback of 10 feet – 30 feet required, 3) to allow a side yard setback of 7 feet – 30 feet required, 4) to allow a rear yard setback of 20 feet – ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 2 50 feet required, 5) to allow a maximum building height of 60 feet – 45 feet allowed, 6) to allow 5 building stories – a maximum of 2 are permitted, 7) to allow a minimum of 10% open space – 20% required – all requests to run concurrent with the Site Plan approval in effect as of the granting, also, 8) to remove a previous ZBA stipulation that the front lots cannot be subdivided from the whole lot; to allow service providers commonly found in retail shopping centers, including but not limited to, banks, pharmacies, financial services, real estate sales and services, cellular phone sales and services, travel agencies, etc. AI Zone, Ward 2. [TABLED FROM THE JANUARY 11, 2012 MEETING] Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Mr. Falk said that the applicant has submitted a revised scope of their request. He said that in the letter indicates that item’s “B” and “D” contain the revised request. Attorney Gerald Prunier, Prunier & Prolman, P.A. 20 Trafalgar Square, Nashua, NH. Atty. Prunier said they’ve revised their request from the original advertisement, as shown in items “B” and “D”. He said that in “B”, a lot of it has already been granted by the Board, the new request is just to add banks. He said they still want the 1995 variance to exist; they just want to add the reference to the bank. He said that in the AI district, banks are permitted uses, with a superscript #1, as long as 75% of the uses are in the industrial or manufacturing category. Atty. Prunier said that the hardship has been proven on many occasions by the Board. He said the soils have had a problem, and there have been a lot of changes along Amherst Street throughout the years. He said that the AI zone really doesn’t fit for this property, as you can’t access the airport directly from this lot. Atty. Prunier said that the spirit of the ordinance has been granted, the bank is an allowed use in the AI district, as long as it meets the 75% rule. He said the request is not contrary ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 3 to the public interest, and substantial justice will be done, as this use is already located in this area of Amherst Street, and the property values will not be negatively impacted, as there is a bank directly across the street. Atty. Prunier said that they feel that this site should be a General Business district, and they are going to be petitioning for a rezoning. He said they want to use the dimensional requirements for the GB zone for this lot. He indicated that on the plot plan, there is a future taking by the State of New Hampshire for additional right-of-way. He said that they are taking the setback requirements from the right-of-way, as if it were already taken. Mr. Reppucci said at the last meeting, the Board granted #8. He said the long history list prepared by Mr. Falk doesn’t include the stipulation about the front lot. He said the list starts from 1982. Mr. Falk said the stipulation was discussed at the last meeting. He said it was from an old copy of a site plan, and had a reference that the ZBA placed that stipulation that the front lots will be landscaped. He said the list prepared for the Board was only building permits, certificates of occupancies, variances, special exceptions. He said he didn’t put it on the list. Mr. Reppucci asked why the Board didn’t get an application that includes the intended design on the property. He asked why the Board is just getting the request to put the bank there, but not the actual bank. Atty. Prunier said that they don’t have a specific bank right now. He said that they put a conceptual bank with a drive- through on the plan, so that the Board could see how it may fit on the front lot. He said the footprint shown is a typical footprint. Mr. Currier said in Item “D”, what the 300 foot front lot line refers to. Jim Petropulos, Hayner Swanson, Inc, 3 Congress Avenue, Nashua, NH. Mr. Petropulos stated that the original request contained eight items. He said those requests were focused on the front part of the property, from the Amherst Street right-of-way line, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 4 300 feet across the front of the property, it was seeking relief from the front of the property. He said the reduced request is essentially the depth from the Amherst Street right-of-way back into the property. Mr. Shaw said for the new item B, they want to recapture and preserve the 1995 variance, but, besides what’s listed from before, he asked if banks are the only additional use added to the list. Atty. Prunier said yes. Mr. Johnson asked about the language that states that it’s without limitation or restrictions to size, or development area, whereas, the variance in 1995 states no limitation to floor area, and asked about the impact with these statements. Atty. Prunier said the 1995 variance referred to the Building 19 building, not to the front part. Mr. Falk said that this language was included in the Use Table for retail use, the Code used to list retail uses up to 10,000 square feet in size, and there was another category that had no limitation to floor area. He said that this particular distinction is not in the new Ordinance. Mr. Shaw confirmed that the setback requests are consistent with the GB Zone. SPEAKING IN FAVOR: Ned Gordon, Property Owner, Boston, MA. Mr. Gordon explained how the language in the advertisement changed, to be a lesser request, by removing language. He stated that for the use variance request, they submitted the plan showing the location of a conceptual bank, with the setbacks of the GB Zone. Mr. Reppucci said he didn’t see why it’s so important to grant variances on dimensions or setbacks, prior to seeing the actual literal thing that would go there. Mr. Gordon said that one reason is that they don’t want to come back to the ZBA later. He said they want a GB use here; there are numerous other GB uses along Amherst Street. He said they want to be really clear that a bank could go here in the front. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 5 He said they realize that there is a detention pond, and want to stay away from it. He stated that the bank is proposed in the corner of the lot, to allow for proper visibility to the lot in the back. He said the proposed bank will allow a similar character to what’s all up and down Amherst Street. Mr. Currier asked how long AS-VR has owned the property. Mr. Gordon said 6 or 7 years, he said it was an in-house transfer, but the Gordon family has owned the property since 1986. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Barbara Pressly, Alderman At-Large. Ald. Pressly said she opposes the vagueness of the application, she said it’s very confusing. She said that expansions of non-conforming uses are frowned upon. She said she hopes that the project goes to the Conservation Commission before the ZBA makes their decision. She said this is an extremely sensitive site, and didn’t know how the Board can make a decision based upon a vague application. Mr. Reppucci said that in response to the comment about expansions of non-conforming uses, case law has said the opposite, that expanding non-conforming uses is far more permissible than it’s been in past years. He said that there is nothing before the Board about wetlands this evening. Peggy Trivilino, 14 Profile Circle, Nashua, NH. Ms. Trivilino said that this is a sensitive area, as there are critical wetlands to the south. She described the wetlands in the area. Mr. Reppucci asked if she is on the Conservation Commission. Ms. Trivilino said she is, and is representing herself, and is concerned about the environment. Mr. Reppucci said if the applicant, in the future, applies for a special exception to work in a wetland buffer, he asked if she shouldn’t have an unbiased opinion prior to a hearing. REBUTTAL IN FAVOR: Atty. Prunier stated that all developers today are concerned ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 6 with the environment. He said that he and Mr. Petropulos know this site as much as anyone, and will comply with the rules. REBUTTAL IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Currier said the use of this lot for a bank is reasonable. He said he is still struggling with the wetland issues, and is not sure of any special circumstances. Mr. Reppucci said the bank is still hypothetical, and is not sure of the design. He said it’s not clear that the Board is not rezoning the property, and doesn’t feel comfortable with the dimensional variances, and stated that it is beyond the scope of what the Board can do. He said he thought they are moving towards a rezoning of the land, which is the proper way. He said he felt that the Board would be circumventing that, if the Board were to grant the setback changes. He said he could only consider the dimensional variances if they were associated to a bank with drive-thru’s, similar to a design that was presented. Mr. Johnson said his concern is that the Board is chartered to grant relief, if certain criteria are met. He said, in conjunction to Ald. Pressly’s concern about the vagueness of the application, how to go forward with this. He said that the GB zoning designation is a more appropriate zone. He said the more appropriate venue is to petition for a rezoning, and stated that the setback and dimensional variances seem like back-door legislation. Mr. Shaw agreed with the other Board members comments. He said that this area is functioning like a GB; it’s not consistent with the AI zone. He said he’d be willing to grant the dimensional variances if it is stipulated that it’s for only a bank with a drive-through, and give them some narrow focused relief. Mr. Johnson said he believed that the dimensional request is above the Boards charter. Mr. Reppucci said the presenters are very credible, and are regulars here before the Board. Mr. Reppucci said that it looks like the Board is ok with the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 7 bank use, but may be split with the dimensional variances. He suggested that perhaps the Board could table the dimensional requests, if so, they’re not denied, and there’s no Fisher vs. Dover issue. He said if they’re tabled, a piece of this application could be supported, and leave the door open for the applicant in the future if they do come back with it. He said that the request isn’t specific enough to grant relief for the setbacks. Mr. Reppucci said that if there is a plan submitted in the future for a bank on the front lot, if there is a proposed wetland buffer encroachment, the applicant will have to go to the Conservation Commission for approval, and then a special exception before our Board. MOTION by Mr. Currier to approve the use variance request on behalf of the applicant, as stipulated in the letter dated February 13, 2012, as Item “B”. Mr. Currier stated that it is a variance to expand nonconforming use to permit multiple uses including retail sales of general merchandise, convenience goods, discount and limited price items, wholesale and retail construction industry supplies and banks with or without drive- thru, without limitation or restriction to size or development area. He said that the Board finds that the inclusion of the bank is not a great incursion, or any way different of substance than what is already there. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Currier to table the dimensional requests, as identified in the February 13, 2012 letter as Item “D”, which is a variance to allow within 300’ of the front lot line, Minimum Front setback of 10’ where 30’ is required, and side setback of 15’ where 30’ is required. He said the motion is to table, due to the split opinion of the Board, as to whether this somewhat hypothetical application warrants the incursion into the front and side yard lot. He said it is tabled to potentially facilitate the applicant to act on that, or modify that motion in the future. Mr. Falk asked if it is tabled to a date certain. Mr. Reppucci suggested if it were to be tabled to a time where ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 8 the Board receives a specific application. He said it will have to be re-advertised anyways, if we do get a specific application. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 2. Damon W. & Janna D. Miller (Owners) Lorette Gagnon (Applicant) 5, “L” & 13-13¾ Stevens Avenue (Sheet 85, Lots 49, 77 & 47) requesting variance to encroach up to 9” into the 6 foot required accessory structure setback, to maintain an existing 17’x20’ shed. RC Zone, Ward 4. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Damon Miller, Stevens Avenue, Nashua, NH. Mr. Miller said that the pictures submitted indicate that there are large trees that are right up against the structure, and it cannot be moved, also, the encroachment is a maximum of nine inches. Mr. Shaw said that the Board is familiar with the property from the previous application. Mr. Johnson thanked the applicant for looking at all the possible options. 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 said that the variance is needed to enable the applicant’s proposed use of the property, it is a benefit to the applicant and will not bother the neighbors, and given the special conditions of the property; and the benefit sought by ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 9 the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. He said that the cost to remove the trees is prohibitive. Mr. Johnson 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, and substantial justice is being done. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 3. Nashua Assembly of God Church (Owner) NJC Realty Holdings, LLC (Applicant) 91 Farley Road (Sheet I Lot 47) requesting the following variances: 1) to encroach 12 feet into the 40 foot required rear yard setbacks from Open Space Conservation lot for proposed lots 1-22, and 2) minimum lot area, 40,000 square feet required for individual sewage disposal systems – between 11,000 and 22,000 square feet requested, for proposed lots 1-30. R30 Zone, Ward 1. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Attorney Jeff Zall, 221 Main Street, Nashua, NH. Atty. Zall identified the exhibits that were handed out to the Board. He said that the lot has 28 acres, and pointed it out on the map, located in the far northwest corner of Nashua, bordering Hollis, it’s an isolated piece of land. He described the recent history with Bishop Guertin High School. Atty. Zall said that the applicant is going with a Conservation Subdivision. He said the homes would be 1,500 to 2,000 square feet in size, two or three bedrooms each. He said the Conservation Subdivision allows for clustering, and reduced sized lots. He said that the minimum lot sizes do not apply in Conservation Subdivisions. He said the property is an oddly- shaped lot, with minimal frontage on Farley Road, and goes back about 350 feet, and it’s a large rectangular lot. He said that ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 10 40% of the lot needs to be open space, which it meets. Atty. Zall said that the rear yard setbacks are being proposed to be reduced for 22 of the 30 lots, from 40 feet to 28 feet. He said the second request is to reduce the minimum lot size for a Conservation Subdivision, the proposed lots would have between 11,000 and 22,000 square feet for individual septic disposal systems, where 40,000 square feet is required. Atty. Zall said he has a letter from the St. Pierre’s, stating that they are in support of the proposal. He said that the Church of Christ has sent an email in support of the proposal. Atty. Zall said that in order to maintain the 40% open space, they need to reduce the rear yard setbacks on these 22 lots, to 28 feet. He said the land behind each lot would be Conservation land, open space, with no structures built there, so, the effective setback from the house to the rear lot line is well over 40 feet. He said the Open Space has to be a separate lot. He said that all five of the variance requirements are met, and he described them to the Board. Atty. Zall said that Land Use Code Section 190-223 requires that lots with on-site septic disposal systems must have 40,000 square feet of land. He said this proposal cannot go forward with this. He said that the City Health Department has written a statement that they have no objections to the proposed lot sizes. MOTION by Mr. Reppucci to grant the applicant an additional five minutes to complete the presentation. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. Atty. Zall said that DES regulations indicate that they could conceivably build 75 two-bedroom houses, or 50 three-bedroom homes. He said that based upon the State statute, the subdivision complies with the lot sizes. He said that all five of the variance criteria are satisfied with the proposed lot sizes, and went over them with the Board. Mr. Currier asked that if the Conservation area is open to the public. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 11 Atty. Zall said that there will be walking trails, and it will be open to the public. Mr. Currier asked if the applicant wasn’t seeking relief for the lot sizes, how many homes could be built there. Atty. Zall said that the Ordinance is flexible enough to allow cluster lots, reduced sized lots. He said you can put in 30 condominiums. He said that it could also be done with shared septics, which was the initial idea, but changed to individual systems. He said that if they’re shared, there could be maintenance issues. Mr. Currier asked if the intent of the community well is to be fenced off. Atty. Zall said that you can’t have a septic system within the radius, by State law. Mr. Currier said he’s struggling with the 12 feet into the 40 foot setback, that is a lot of encroachment, it’s over 25%. He said it may be difficult to enforce. Atty. Zall said that the buffer behind the lots is ample room to give the homeowners adequate protection in the back yards. He said there will be walking trails back there, and they could put into the covenants on the open space lot that the walking trails will be set back from the rear lot line at least 12 feet, so that people will not be walking within the 40 foot setback area, so that is a method of protection. Mr. Shaw said that for Lots 2 and 22, it doesn’t appear as if could be met. Atty. Zall described where the access to the Conservation area is on the other side of the property, so there wouldn’t need to be access down on that lower part by Lot 2. Mr. Reppucci asked if a few less houses could be built, they wouldn’t need the setback variances, and asked how many homes would be built. Atty. Zall said they still need the 40% open space conservation land. He said there is a big buffer in the back, and although ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 12 they could reduce the size of the subdivision down substantially, to not require the minimum lot size requirement. Mr. Reppucci asked if this property were on public water and sewer, they wouldn’t need the minimum lot area request. Atty. Zall said yes. Mr. Shaw asked about parking near the well-house, to access the Conservation land. Atty. Zall said that they haven’t addressed that with the Planning staff yet. SPEAKING IN FAVOR: Joseph St. Pierre, 93 Farley Road, Nashua, NH. Mr. St. Pierre said he has no issue with it. He said the only item he can think of is the cars headlights going through the tree-line into his yard, he said he’d like to see a fence there along his property line. He said it’s the best plan he’s seen in the 23 years since he’s lived there. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said if they had public sewer, they wouldn’t need the request. He said they are proposing a system that is adequate and everybody agrees upon it. Mr. Johnson said the City of Nashua is an abutter, and asked Mr. Falk if they had any comments. Mr. Falk said no. Mr. Currier said he’s struggling with the amount of encroachment into the rear yard setback. He pointed out on Land Use Code page 190:106, it shows two drawings, one a conventional, and one a conservation subdivision, where the homes are clustered closer together, and there is public land. He said he didn’t feel that the design accomplishes this, as there is a little bit of land where the well is, but didn’t see anyone utilizing the land around the homes. He said he didn’t feel that it meets the spirit and intent of the Ordinance. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 13 Mr. Reppucci asked if the intent is to have conservation land around the development. He suggested taking four or five of the houses away, so there would be additional conservation land, and asked how different the site would look. He asked if they reduced the number of lots, would it change the conservation area at all, and would people be able to go in and utilize the extra land. He asked if the public access to the conservation land would be any different. Mr. Currier said it looks as if no one has a problem with the septic. Mr. Falk said the design meets the State law, and the Environmental Health Department has no objections to it. Mr. Shaw said that having only 28 feet of a rear yard, and then having the transition area be used, when the rear yard is so narrow. He said he is concerned, as the lots are small, and the back yards are small, with the encroachment. Further discussion ensued about the Conservation land area. MOTION by Mr. Reppucci to approve the second portion of the request first. Mr. Reppucci said for the minimum lot area, 40,000 square feet required for individual sewage disposal systems – between 11,000 and 22,000 square feet requested for proposed Lots 1-30, the motion is to approve the minimum lot area variance, it’s 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 use is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, there was no testimony for or against it, it is not contrary to the public interest, there was no discussion in a negative way, and the discussion of the Board was such that if this were on public sewer, this request would not be before us, and substantial justice would be done. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 14 MOTION by Mr. Reppucci to approve the first portion of the request, a variance to encroach 12 feet into the 40 foot required rear yard setbacks from open space conservation lot for proposed Lots 1-22. 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 discussion on the Board was that if this were strictly enforced, it would have minimal difference on the outcome of the application, therefore, the Board sees that restriction is unreasonable in this specific application. 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, there was no testimony for or against it, it is not contrary to the public interest, there was discussion on the Board that there may be dissenting views that it is, and substantial justice would be done. Mr. Shaw asked that the Motion have language about the uniqueness of the property, and the adjacency to the conservation area. Mr. Reppucci said that part of the reason why the Board finds the restriction is that this specific property location is surrounded by conservation land. Mr. Johnson said there should be a special condition about lighting going to the neighbors yard, and there should be a stipulation about this. Mr. Shaw said it should state that it’s adjacent to the 93 Farley Road property. AMENDED MOTION by Mr. Reppucci that the applicant satisfy Mr. St. Pierre’s request for shielding from lights from in and out of the traffic way, as agreed to by the owner. SECONDED by Mr. Johnson. MOTION CARRIED 3-1 (Mr. Currier). ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 15 MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: None. MINUTES: December 13, 2011: MOTION by Mr. Reppucci to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0-1 (Mr. Johnson abstained). January 24, 2012: MOTION by Mr. Reppucci to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. OTHER BUSINESS: By-Laws: Mr. Shaw stated that the date of the footer in the By-Laws should be updated. Mr. Falk said that staff would update the footer date. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:45 p.m. Submitted by: Mr. Jack Currier, Clerk. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 14, 2012 Page 16 CF Taped Hearing