Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 28, 2012 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 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. James & Donna Brown (Owners) 6 Arrow Lane (Sheet B Lot 282) requesting variance to encroach 4 feet into the 6 foot required right side yard setback, to maintain an existing 14’x20’ shed. R9 Zone, Ward 6. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson James Brown, 6 Arrow Lane, Nashua, NH. Mr. Brown said the variance they are seeking does not affect the character of the neighborhood, it blends in with the neighborhood, the lots are less than one-fifth acre sized lots, and since they’re small lots, there is not much room for the sheds. He described the location of the shed on the lot. He said if it were in the middle of the lot, it wouldn’t be optimal. Mr. Brown said there have been recent sales of homes in the neighborhood, all with sheds, and they haven’t affected the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 2 property values. Mr. Currier asked how long the shed has been there, and why it’s coming to the Board at this time. Mr. Brown said it’s been there for about eight years, and he said he got a letter from the City. Mr. Falk said the Assessing Department saw that the shed didn’t receive a permit, and they were sent a letter to obtain compliance, or a variance. SPEAKING IN FAVOR: Mark Frost, 10 Arrow Lane, Nashua, NH. Mr. Frost said the shed abuts his property, and has no concerns with the shed. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the variance request on behalf of the owner. Mr. Reppucci said the advertisement was for a 20’x14’ shed, but its 10’x14’, and since it’s a smaller shed, it doesn’t need to be re-advertised. Mr. Reppucci said that the variance is needed to enable the applicant’s proposed use of the property, and given the special conditions of the property; 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, and substantial justice is being done. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 3 2. John J. Flatley Company (Owner) 100-300 Innovative Way (Sheet A Lot 798) requesting special exception to work within critical wetlands and critical wetland buffers to construct a 180-unit residential apartment complex. RC Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson James Petropulos, Hayner Swanson, Inc, 3 Congress Street, Nashua, NH. Mr. Petropulos said the project name is Tara Heights, and will be 180 residential apartments. He said the property is part of the Nashua Technology Park, and described the property location. He said the overall site is almost 400 acres in size, and is zoned both Park Industrial and RC Residential. Mr. Petropulos said the property in question is a twenty-acre tract, located towards the middle of the overall site. He said there have been dozens of meetings by the property owner about the project, and the vision for the site is a mixed-use development. He said in 2010, a rezoning was put forth to allow for multifamily homes to be located on this property. Mr. Petropulos said they are proposing to extend Research Drive, which is a private road, into the twenty-acre site. He said there will be five three-story buildings, totaling 180 units, with over 300 parking spaces, a clubhouse, and a pool. He said the site is currently wooded, and there are two intermittent water courses that run through the site. Mr. Petropulos said their special exception request is to impact three areas of wetlands, and he described their locations and characteristics, two of which are roadway crossings. He stated that there is about 8,000 square feet of wetland being impacted, and 32,000 square feet of buffer area being impacted. He went over the five criteria of law for a special exception, as well as the nine special wetland conditions. He stated that they have already received a favorable recommendation from the Conservation Commission, with four stipulations of approval. SPEAKING IN FAVOR: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 4 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. Mr. Johnson said that the request is listed in the Table of Uses, Section 190-112. Mr. Johnson stated that the use will not create undue traffic congestion, or unduly impair pedestrian safety. Mr. Johnson stated that the use will not overload public water, drainage or sewer or other municipal systems. Mr. Johnson stated that all special regulations are fulfilled; the request was approved by the Conservation Commission at their 2/21/12 meeting, with four stipulations of approval. He stated that they also meet the nine special wetland conditions, and that the use will not impair integrity or be out of character with the neighborhood, or be detrimental to health, morals or welfare of the residents. SECONDED by Mr. Reppucci. He said that the Conservation Commission minutes should be incorporated into the record as well. Mr. Johnson agreed. MOTION CARRIED UNANIMOUSLY 3-0. 3. M and S Limited Partnership (Owner) Henley Enterprises, Inc. (Applicant) 504 Amherst Street (Sheet H Lot 60) requesting variance to exceed maximum wall sign area, 150 square feet allowed – 314 square feet requested. GB Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Attorney Bernard Campbell, Beaumont & Campbell P.A., Stiles Road, Salem, NH. Atty. Campbell said the site has been a ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 5 Valvoline Instant Oil Change for several years. He said they are doing some re-branding of signage, and to upgrade the site. He described the new proposed tower as 82 square feet, but the sign company computes it at 62 square feet of signage. He said the major part of the upgrade is the “red band” which is the largest wall sign, even though the sign display portion on it is much smaller, not including the band space, the whole sign package is just under 150 square feet, but a lot of the empty “band” space is much more. Atty. Campbell went over the variance points of law, as identified in the application. Mr. Currier asked if the facade could be removed, as a lot of the 314 square feet is the band façade, as the next business in there, should Valvoline leave, would have an immense amount of vested signage. Atty. Campbell said the band is currently about two feet in width. He said the proposal, at this portion of Amherst Street, is consistent with many other businesses sign packages. He said that the actual sign display areas, there are four, including the tower, the words Instant Oil Change, a second smaller logo, and the State Inspection sign, which is existing, he said that these don’t exceed 150 square feet. Mr. Currier said there’s been conversation about the 314 square feet, and that it should only be for this design, which would relieve future Board members or City Staff. He thought that a possible stipulation could be for this design, and this design only. Atty. Campbell said that is agreeable for a stipulation. SPEAKING IN FAVOR: Barry Gluck, Henley Enterprises. Mr. Gluck said that Valvoline owns about 800 stores, between franchises and corporate-owned stores. He said they are doing a re-branding, a new image for Valvoline, and showed a picture of one. He said that this store is one of the highest volume stores, and is very important to the company to upgrade the look of the store. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 6 No one. Mr. Reppucci said it’s kind of unusual that the red stripe counts as signage. Mr. Johnson said he supports the issue of the text being only a portion of the overall square footage requested. Mr. Currier said he is concerned about the proliferation of the size, being double what the Code allows, he said he couldn’t support it without a stipulation, and feels that it’s within the Boards right to stipulate the approval for a specific design. He said the proposed design is only for Valvoline, at this date, and because of the large amount of un-lettered decorative façade, it is persuasive that it’s not a normal sign request. He said the approval could be for this design only. MOTION by Mr. Currier to approve the variance request on behalf of the applicant. Mr. Currier said that the special condition that the 314 square feet applies to the sign that’s proposed as designed for the Board tonight, and the reason why the Board is approving the sign at 314 square feet is that a large amount of the sign is non-lettered and decorative façade. He said the Board doesn’t find a hardship to run in the land that would apply to other designs of signs in the future, therefore, this approval is only for this sign, without much lettering and the large decorative façade percentage. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; 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, and substantial justice would be done with the special condition. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 7 4. Paul M. & Scott Levesque (Owners) 1081 West Hollis Street (Sheet D Lot 68) requesting the following variances: 1) to exceed maximum wall sign area, 6 square feet allowed – 174 square feet proposed; and 2) to exceed maximum number of wall signs, 1 allowed – 2 proposed on existing canopy over gas pumps. R30 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Peter March, NH Signs, Londonderry, NH. Mr. March said the station is currently a Citgo, since about 1983. He said the site is in need of an upgrade, and the canopy is proposed to be made vertical, it’s a mansard-roof looking structure now. He said they are adding Gulf signage to both sides of the sign canopy. He said the Gulf logo is about 31 square feet, the lettered part. He said the station is located on a curve, and at one time the ground sign was relocated further back to allow for roadway work. He said the station is somewhat difficult to see. Mr. March went over the relevant variance points of law. He said the light from the canopy doesn’t affect the abutters. He said the current canopy is outdated, old-fashioned, and the one proposed is found at most stations across the country. He said it will allow the station to be identified as a Gulf station. He said the sign will not be out of character with the neighborhood, if anything, improving the station and adding the Gulf brand image will improve the neighborhood and will not impair the property values. He said the building, landscaping and signage will all be upgraded. He said that over one hundred customers have signed a letter stating that they are in favor of improving the look of the station. Mr. Johnson asked about the lighting of the sign. Mr. March said it will be fluorescent lighting, internally illuminated. Mr. Currier said that J-Dons is the only gas station west of the highway, almost by Pepperell, and said everyone who travels on ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 8 that road knows where it is. Mr. March said that since the ground sign is somewhat off the road, and being on the curve, it’s a little hard to see. Mr. Currier said the trees also block a lot of the site, from both directions. SPEAKING IN FAVOR: Brian Toomey, Owner/Operator of J-Don’s. Mr. Toomey said he owns the business, not the land. He said from the east side of the store, that land is owned by two different people, and on the west side, it is owned by the owner of the main part of the land, so it is up to other people for tree removal or pruning. He said he’s been doing a lot of cleaning and trying new product lines, the store’s image was going down, and said his goal is to keep customers and upgrade the building inside and outside. Mr. Reppucci asked about the Tedeschi Foods request a few years ago. He said the organization against that request was very large. He said that the owner of J-Dons said that this portion of West Hollis Street should be preserved the way it was, old- school Nashua. He asked how this compares. Mr. Toomey said it will still be J-Dons, with a Gulf brand. He said he understands that Gulf is a big business, but it’s just a brand image, nothing is changing inside the store. Mr. Reppucci said that a few years ago, there was a petition with something like four hundred signatures, stating that the history of Nashua will be devastated if that development is allowed. He said he’s concerned, that the people who were opposed to another property being developed, now see the benefit of developing their own land, and there are a hundred people in favor now. Mr. Toomey said the prior business, Tedeschi Foods, was adding traffic flow next to the landfill, and it was a reconstruction of the whole area, with a brand new site, and wasn’t zoned for it. He said the current request is just an upgrade to an existing business, and only for a sign. Mr. Currier said he’s struggling with the internally lit sign, and said it will be a beacon in the night, and out of character ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 9 with the neighborhood. He said an externally lit sign would be much softer. Mr. Toomey said he’d be ok if the sign isn’t lit. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mike Atkins, 1086 West Hollis Street, Nashua, NH. Mr. Atkins said he’s lived there for about 15 years. He said one concern is that the sign is inconsistent, as single-family homes are right nearby. He said his second concern is that it is unnecessary, it’s been in continuous operation for decades. He said his third concern is that it will be detrimental to the neighborhood, and property values. He said it will look like more of a commercial, strip-center district. He said he lives right across the street. Mr. Currier said the sign isn’t growing, they’re just putting a sign on the two edges of it, the narrower edges. Mr. Falk said the sign is going from a mansard-roof look, to a more traditional rectangular shape. Mr. Currier said the signs would be on the ends of the sign. SPEAKING IN FAVOR – REBUTTAL: Mr. March said he has a diagram that will explain the sign, he said the only part that is lit is the logo part on each end. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. Mr. Currier stated that he is uncomfortable with an internally lit sign, it will be out of character with the neighborhood, it will put out a lot of light, and is not needed for a successful business. Mr. Reppucci said he’s concerned about property owners not supporting other businesses requests, and then coming to the Board for their own request. He said that person after person spoke against any big business coming to West Hollis Street, and the primary speaker was the owner of the subject property. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 10 Mr. Johnson said he concurs with Mr. Currier, he said a lit sign won’t be missed, and it would be out of character. Mr. Currier said there are some big differences between this request and the Tedeschi request. He said that the high-volume Tedeschi or a Mobil On The Run would be a huge change to the neighborhood, and didn’t see that the additional signage on the canopy would be a great change to the neighborhood, as the J- Don’s store is still there. He said he’s not in favor of the internally lit sign. MOTION by Mr. Currier to Table the request to the March 13, 2012 meeting, it will just be the Public Meeting. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 5. Richard C. & Suzanne P. Raisanen (Owners) 11 Lamb Road (Sheet B Lot 239) requesting the following variances, Proposed Lot “A”: 1) minimum lot frontage, 120 feet required - 27.94 feet proposed, 2) minimum lot width, 150 feet required – 29.89 feet proposed; Proposed Lot “B”: 3) minimum lot frontage, 120 feet required – 20 feet proposed, and 4) minimum lot width, 150 feet required – 20 feet proposed – all requests to subdivide one lot into three lots. R40 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Mr. Reppucci stated that there was a letter submitted by a neighbor, asking for the case to be tabled in their absence. Atty. Hollis stated that he was aware of the letter, and didn’t have any objection to tabling the case if that’s what the Board decides. After brief discussion, the Board decided to go ahead with the Public Hearing. Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis said he objects to going ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 11 forward with only three members. He handed out a memorandum supporting his testimony. He said the subject lot is 2.83 acres total, it was created in 1957, when it was subdivided from an abutter to the west. He said there is a plan in the HCRD 1508, which identifies the lot. He said the proposal is to create three lots, each of which would be greater than the minimum size of 40,000 square feet in the R40 Zone. He said two of the lots would have inadequate frontage and width, and that is the reason for the four variances. Atty. Hollis identified how the property would look with the two proposed lots, and showed how each would have adequate size for a house and garage. He stated that they’d have a shared driveway, which would be twenty-four feet in width. He said they could build a 50-foot wide public road to the back, and subdivide off of the public way. Atty. Hollis said the variance isn’t contrary to the public interest. He stated that the objectives of the zoning ordinance is to maintain the character of areas of the City according to their use. He said the proposal is preserving that character, as it’s residential. Atty. Hollis stated that the proposal is preserving the health and welfare. He stated that for the neighborhood character, the existing zoning district is R40, and across the street, it’s R18, which are smaller lots. He said the proposed lots meet the minimum area requirements. He said there are a series of flag lots just up the street, there are four of them, and one of them is one door down, all created by variance, and the Board found hardship in each of them to grant. Atty. Hollis said the public health, safety and welfare will not be affected, sewer and water are available to the area. He said the ITE traffic standards show that ten vehicle trips per day are standard for single family homes, therefore, there will be twenty additional trips per day. Atty. Hollis stated that the proposed use will observe the spirit and intent of the ordinance. He said that this proposal will observe the spirit and intent, and the homes will be constructed, leaving plenty of space. Atty. Hollis said that substantial justice will be granted. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 12 said that the Courts say that weighing the harm of enforcement of the ordinance harm the owner, the harm to the owner versus outweighing any gain to the public. He stated that the owner owns the largest lot, as shown in Exhibit A and B, and poses a burden on the owner, not shared with other property owners, because it’s an unusually shaped lot and it’s also the largest. Atty. Hollis stated that the request will not diminish the values of surrounding properties. He said there are large, estate sized lots in the area, and after the request is granted, it will remain the same, and there will be no houses visible from the street. He said that the neighbors on either side of the subject lot built their houses very close to the side property lines, as shown in Exhibit D. He said the lot has been long-established. He said it’s unfair and unrealistic of the neighbors to say that “their back yard” is being impacted. Atty. Hollis said that on Exhibit B, the quality of the homes in that area, and the size of the lots, are consistent with the proposed lots, and houses. He said there will not be any adverse affect to the property values, or the other homes in the neighborhood. Atty. Hollis said that owing to the special conditions that distinguish it from others, there is no fair and substantial relationship exists between the purposes of the ordinance provisions and the application of the property. He said it is a unique and special lot, it is the largest lot in the area, as shown on Exhibit C plan, it has a shorter frontage than the back rear lot line. He said the lots will be over 40,000 square feet, with adequate spacing, and there is plenty of space to put a house in. He said the proposed use is reasonable. He provided pictures of the road visibility, and a sketch of the proposed driveway. Mr. Currier asked if a public road could be built here, instead of a driveway, what would be the advantage of it. Atty. Hollis said a public way would require fifty feet. He said there’s sufficient width to do this, he said the advantage is that it would be City owned and maintained. He said the disadvantage is that it’s not the best place to have a public way. He said it’s a better idea to have a private driveway, it will be safer and more appropriate. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 13 Mr. Currier said the traffic here is difficult, it’s busy, hilly, and the sun is in driver’s eyes. He said he didn’t support the previous flag lot requests on this street. He said he didn’t think it’s in the public interest to allow more density. Atty. Hollis said the Board, on three previous occasions, has found hardship with these nearby flag lots. He said they’re proposing only one additional driveway, and Police Department reports indicate that accident rates have not increased due to the other flag lots. Mr. Reppucci asked if there’s any other flag lots that have been divided into three lots in the area. Atty. Hollis said there are none. Mr. Reppucci asked if going to two lots is a reasonable request, as it would be a far less imposition on the abutters. He said that by dividing this into one flag lot, instead of two, would be a more reasonable request. He asked if this would be considered by the property owner. Atty. Hollis said yes. He said in Exhibit C, to the right of the yellow colored lot, the first variance and second variance were flag lots already. SPEAKING IN FAVOR: Richard Maynard, Maynard & Paquette, 23 East Hollis Street, Nashua, NH. Mr. Maynard said a driveway is more preferable over a public street, which would have full pavement, sidewalks, curbing, etc. He said a private driveway is much less impactful to the environment, it would have less asphalt, and would be more in character with the area, and would be less intrusive. He said there’s plenty of sight distance, there’s over four hundred feet in either direction from where this common driveway would be, which exceeds the criteria of two hundred feet. Mr. Currier asked to confirm the acreage, 2.31 vs. 2.81 acres. Mr. Maynard said the number has been repeated many times, from Assessor’s records to real estate agents. He said it’s not uncommon for their number to be incorrect, especially since it’s been carried from decades ago. He said they’ve done a real ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 14 survey, and have done many other surveys nearby, and there are plenty of property bounds in the area, it’s well documented. He said their number is based upon a real survey. He said they stand behind their 2.83 acre figure, it’s been recorded at the Registry. Mr. Currier asked about the wet areas, and the drainage. Mr. Maynard said the whole area slopes down, in a diagonal manner, way beyond the hill. He said there are many methods to help this, with infiltration under the ground perhaps. He said they are not going to cure a neighbor’s problem, they will not aggravate it, though. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: Harriet Lemery, 9 Lamb Road, Nashua, NH. Ms. Lemery said she is opposed, as another street is not needed off of Lamb Road, and do not need more flag lots. She said this request will destroy a good residential area, the 5 Lamb Road lot, after it was approved, they have built nothing there, it’s a total mess of trees and rocks. She said when they bought the lot fifty years ago, it was 1½ acres long, so, the house was built in the middle of the lot. She said her husband bought an acre on the other side, so that’s why her house is located on the side of the lot. She said the traffic is bad. She said the proposed driveway is at the crest of the hill, it’s a bad location. She said she is going to have her land re-surveyed. Dennis Stevens, 9 Byron Drive, Nashua, NH. Mr. Stevens said he owns 5 Lamb Road, two lots to the east of 11 Lamb Road. He said he is opposed to the application. He said he purchased 5 Lamb Road due to the size of the lot, the buffer area and it’s location. He said he also likes the rural zoning. He said his frontage is 19.47 feet at the property line. He said the proposed lots are about 40,000 square feet, and his is 71,000 square feet. He said the proposed lot size meet the ordinance, but they are smaller than the lots in the area. He said if the flag “pole” section is taken out, where the driveway would be, and the lots would be about 35,000 or 36,000 square feet. Mr. Reppucci asked if Mr. Stevens was involved with the process of creating his flag lot. Mr. Stevens said he was not. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 15 Susan Guisto, 12 Lamb Road, Nashua, NH. Ms. Guisto said she objects to the request. She stated that she lives on the other side of Lamb Road. She said the area will be less valuable with this request. She said she was concerned about the impact to the public utilities. Attorney Thomas Jay Leonard, Welts, White & Fontaine, 29 Factory Street, Nashua, NH. Atty. Leonard said he is representing Mr. Seigel, 3 Lamb Road, who is in opposition. He passed out some information out to the Board. He showed what the tax map looked like in 1994. He said the orange colored lot was the first variance granted, it was the first flag lot. He said it’s a very odd-shaped property, and consisted of over five acres of land, it was subdivided into two lots, each with over sixty feet of frontage. He said the current request is a normal shaped lot, and is trying to create an odd-shaped lot. Atty. Leonard said the green lot, the Simard property, has an odd shape, and the variance request was a joint effort by the neighboring 40,000 square foot lot and the green one, to create an odder-shaped lot to accommodate what was on the ground, there were no new driveways or buildings. It is also a very large lot. Atty. Leonard stated that the lot immediately west of the orange lot is the third variance created by the Board, it did create a flag lot, but the flag lot on that case was 1.6 acres. He said this is 5 Lamb Road. Atty. Leonard said there have been many changes in the zoning laws with respect to variances, with use and area variances especially. He stated that the third variance, the one that created 5 Lamb Road, was the only real flag lot created by a variance. He stated that all the other lots had problems to begin with, with their shape. Atty. Leonard said that the only variance that created a lot that is a problem was the result of the Boccia v. Portsmouth, when the Court allowed for a difference in the legal definition and requirements for a variance. He said that standard no longer applies, as Boccia is no longer true, it is mandated that a variance is the Simplex standard now. He said there is no lesser standard for an area variance then there is for a use variance. He said there is no precedent. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 16 Mr. Reppucci asked, of all the flag lots, did his client buy 3 Lamb Road, or own the flag lots before they were created. Atty. Leonard said he bought 3 Lamb Road after it was created, he tried to buy the whole lot, but it wasn’t possible. He said that flag lot existed as a remnant of the subdivision, it didn’t get created in the same way as the proposed request. Mr. Reppucci asked if his clients lot existed, and then 1½ Lamb Road was created, or were they created at the same time. Atty. Leonard said they existed together, and were created by a subdivision, based upon an odd-shaped lot, with excessive land area. He said that the legal requirements are not met for a variance, there are substantial differences in the land area of the previously approved lots. Mr. Reppucci said that the frontage and width are the only things that are lacking in this request. He said the other lots had the exact same requests, which was a lack of frontage. Atty. Leonard said they are different, you have to look for special conditions on the property. He said the other lots had existing poorly shaped lots with minimum frontage; that is the difference. SPEAKING IN FAVOR – REBUTTAL: Atty. Hollis stated that he wanted to show the Board a plan of record, #1508. He said it was 1957, when this lot was created. He said that this plan shows nearly exactly the same dimensions as Mr. Maynard’s plan, as 2.85 acres, and it was done by a Surveyor named Mr. Trombley. He said that Mr. Maynard’s plan shows 2.83 acres. Atty. Hollis said there may have been some misunderstanding about the traffic, the ten cars per day per house is the traffic standard. He said they aren’t creating a hazard by introducing an additional ten cars per day per house, for a roadway that is not operating at a failure level. Atty. Hollis said he has objections for the two other owners of flag lots, Mr. Seigel objected to Mr. Stevens lot being created, now, Mr. Seigel is objecting to Mr. Raisanen’s proposal. He said it makes no sense that these other owners are complaining, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 17 there is adequate space. He said he handled two of the previous three cases, and all were decided under different standards. He said the lot in question is unique. Mr. Johnson asked about emergency access. Atty. Hollis said the minimum frontage requirement is to make sure that there is adequate emergency access. He said in this case, it isn’t relative, there won’t be a house in the front where you can’t get access to it. He said there will be a 24- foot wide paved driveway, which is the width of a City street going back there. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Atty. Leonard said that the City has made a conscious decision that they don’t like flag lots, one of the reasons is the difference between public street access and a long driveway. He said with a long driveway, it’s not known if it can handle heavy trucks, fire trucks, etc, and bad weather, and there is a reason why the City requires public road frontage. He said the burden that arises from the condition of the property, not from the plight of the owner. He said the self-created hardship applies automatically when someone buys a property, and knows the rules. Mr. Reppucci said the nearby flag lots all got variances for the same thing, it’s hard not to see that the hardship would not apply in this case. He said these other lots benefitted from the same request. Mr. Currier said he didn’t find hardship the last time this case came before the Board. He said that he agrees that this is a self-created hardship. Mr. Reppucci said the Board, in the past, has found exceptions for frontage requirements in this area. Mr. Currier said for the public welfare, it’s a busy collector road, facing east/west with topography, and the sun in drivers eyes. He said he’s struggling with the relief of frontage. He said that he finds subdividing from one lot to three lots very different from one lot into two lots. He said the Board shouldn’t be designing the plan. Mr. Reppucci said a more acceptable idea would be to go from one ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 18 lot into two lots. Mr. Johnson said that the proposed driveway, and to look at past decisions, and the willingness of the applicant to accept a two lot divide instead of three, it is more consistent with previous Board decisions, and would support two lots, not three. Mr. Currier said the Board doesn’t have a plan for the two lots. Mr. Reppucci said the only issue before the Board is frontage and width. Mr. Falk said each of the two lots have applied for both frontage and width variances. Mr. Reppucci said the Board could table the request, and provide a plan showing two lots, and it could come to our next meeting. Mr. Currier said to have a public hearing would be appropriate. Mr. Johnson stated that if there is going to be substantial change to the plan, there should be public hearing, to allow for abutters having different comments to speak about it, and both sides can address all the issues. MOTION by Mr. Currier to table the request to the March 13, 2012 meeting, because the Board is not finding adequate support to pass a motion on the plan as proposed, which is to subdivide one lot into three lots. He stated that the Board is open to the idea of one lot into two lots, but since it’s a different plan, the Board wants to give the applicant the opportunity to present such a plan without a re-application fee, but with a full public hearing. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 28, 2012 Page 19 The Board did not see any cases that are Regional Impact. MINUTES: None. OTHER BUSINESS: ADJOURNMENT: Mr. Shaw called the meeting closed at 10:40 p.m. Submitted by: Mr. Jack Currier, Clerk. CF Taped Hearing