Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 13, 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. 1. 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. [TABLED FROM 2-28-12 MEETING]. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson MOTION by Mr. Reppucci to remove the case from the Table. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 2 Mr. Shaw said that when this case was tabled at the last meeting, it was with the understanding that the Public Hearing was over, and it will just be the Public Meeting. Mr. Shaw said he reviewed all the material for the case, and is ready to deliberate and discuss the request. Mr. Currier said he is favorable to the request, as the business has been here a long time, it’s a corporate sign that is proposed as well, but it’s a distinct situation. He said he’s not favorable to an internally lit sign. Mr. Reppucci said that from the Tedeschi case, this applicant strongly stated that this area should not be introducing big business, and stated that this area is old-school Nashua, and shouldn’t have any expansion. Mr. Johnson said he shares the same view as Mr. Currier. Mr. Shaw said the signage is minimally different from what is there now. MOTION by Mr. Currier to approve the variance request on behalf of the owner. Mr. Currier said that the variance is needed to enable the applicant’s proposed use of the property, it’s a service station, staying the same size, and it pre-dates zoning, the signs would be on either side of the canopy, for a non- illuminated sign is within the intent of the ordinance to allow the owner to continue his business there. Mr. Currier 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. Mr. Reppucci said that the neighbor across the street was concerned about the lighting of the sign. He said if it’s an externally lit sign, there isn’t much control of the lighting. Mr. Falk said that lighting cannot exceed 0.2 foot-candles at the property line. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 3 AMENDED MOTION by Mr. Currier that the light not be directed across the street. MOTION CARRIED 3-1 (Mr. Reppucci). 2. 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. [TABLED FROM 2-28-12 MEETING]. Mr. Shaw said that the Board has an amended plan. MOTION by Mr. Reppucci to remove this case from the Table, and have the Public Hearing again. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis stated that there is a revised plan, after the applicant agreed to change the plan from a total of three lots into two lots. He said that the Board would be open to the idea of one lot into two, and wanted to give the applicant the opportunity to present the application, and a plan, for a new Public Hearing. He said the plan has been submitted Atty. Hollis said they removed the line that split the rear two lots. He stated that the original frontage of the lot hasn’t changed, the only thing that changed from the original application is the line. He said that the prior application for the four variances is being withdrawn, and in its place are two ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 4 lesser variances, as indicated on the Addendum, one is a width of 48.89 feet, where 150 feet is required, and one for lot frontage of 47.94 feet, where 120 feet is required. Atty. Hollis said there are five points of law, and wanted to bring forward into the record for this hearing everything that was said in the last hearing, with the exception of modifying the application. Atty. Hollis said the application is not contrary to the public interest. He said in the original application, the argument was that the impact was minimal. He said the request is even less minimal now, it will have one new driveway, with one new home. He said the lot itself will be 1.91 acres, previously, each lot would be about 40,000 square feet. He said the lot is more than adequate size. Atty. Hollis said the request is no threat to public safety, the ITE standards indicate ten vehicle trips per day per house. He said there is adequate vision for length of sight, it is about 400 feet, and you can see in both ways coming out of the driveway. Atty. Hollis said for the spirit of the ordinance, the new lot has plenty of width going upland. He said theres no change to the left, and there is more than 300 feet of width to the rear, so, the spirit and intent provides adequate space between homes, adequate frontage at 48 feet, it’s nearly the size of a public way, and meets the public safety requirements. Atty. Hollis stated that the proposed use will result in substantial justice. He indicated that there is no harm to the general public if this is to be granted. He described 5 and 3 Lamb Road. He said there will be no change in value of the real estate, there is a letter stating as such. Atty. Hollis said the hardship criteria has two items. He said that the two lots, due to their size, is a reasonable use, and is in character with the other lots on the street. He said all five points of law are covered. He said that the original application is withdrawn with prejudice. He said that their argument is that two lots is a reasonable use. Mr. Currier asked about a self-created hardship, the purchaser bought the lot with knowledge, he is a regular builder and knows ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 5 by right he’s allowed one house. Atty. Hollis agreed, he’s a purchaser with knowledge of the zoning ordinance, just as anyone who owns land. He said the property, as a result of its uniqueness, does the imposition of the ordinance have a fair or substantial relationship with the general purpose of the ordinance, and the specific application. He said it’s not the old style variance hardship criteria, where any reasonable use, you’re not entitled to a variance. He said the criteria now is first, is it a unique parcel. He said it has the widest rear lot line of any lot up there. He said the lot is the largest up there too. He said these two criteria make the lot unique. He said that owing to the special conditions, no fair and substantial relationship exists, and the proposed use is reasonable. He said they meet the two prongs for the hardship. Mr. Reppucci pointed out the map with the green and orange colors on it. He asked about the green lot, Lot 3003 and if a variance changed the lot lines. Atty. Hollis said the original subdivision was in 1992, and the variance on this lot was in 1999. Mr. Reppucci asked about the orange lots, 2270 and 3026. He asked if these two lots were ever connected to Lot 90. Atty. Hollis said he didn’t believe so. Mr. Reppucci said the orange lot was left like it is, relatively useless land. Atty. Hollis said it was created in 1977, and subdivided from the Holt Farm. Mr. Reppucci asked about lots 238 and 241. Atty. Hollis said they are combined to be one lot, he said he wasn’t involved with this lot. He said Exhibit C in his packet shows the lots. SPEAKING IN FAVOR: Richard Maynard, Maynard & Paquette, 23 East Pearl Street, Nashua, NH. Mr. Maynard said the previous meeting, access to ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 6 this lot was discussed. He said it would be twelve feet of pavement for a single lot. He said that is a substantial public benefit, to have a single driveway privately maintained, as opposed to a public road, city maintained, with 24 feet of pavement, curb, gutter, lighting, etc. He said there is no purpose to require a public road to one single-family lot. Mr. Reppucci said that at the last meeting, it was discussed that there needs to be a 200 foot sight distance for safety, and that there was 400 feet, and wanted a more complete explanation. Mr. Maynard stated that sight distance is prorated with the speed limit on the road. He said the basic assumption is that there is a 30 mph zone, will require a 200-foot sight distance. He said the 400 foot standard is more for highways, where the speed on the road is 55 mph, and that is the maximum sight distance. He said the subject lot has 400 feet, which meets the minimum requirement. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: Ken Siegel, 3 Lamb Road, Nashua, NH. Mr. Siegel said he wasn’t the beneficiary of any subdivision on 3 Lamb Road, in fact, he said he tried to buy the adjacent lot, which is 1½, but they already had a contract out on that lot, and it wasn’t for sale. He stated that lot size alone does not create a hardship. He said that Mr. Raisanen is a purchaser of knowledge. He said he opposed the 5 Lamb Road application as well, and thought it was changing the character of the neighborhood. Kevin Maloney, 15 Lamb Road, Nashua, NH. Mr. Maloney said he’s lived there since 1998. He had a letter submitted at the last meeting, addressing his concerns. He said they bought here due to the rural character of the neighborhood. He said they question the lot sizes that the applicant has proposed. He said that public safety is also a problem, there is a lot of traffic, it is heavier than it should be. Mike Albergo, 8 Lamb Road, Nashua, NH. Mr. Albergo said he lives across the street from 9 Lamb. He said that all the neighbors are against the plan. He said the traffic is bad, and it’s against the character of the neighborhood. He said there isn’t an adequate sight line. Gerald Lemery, 9 Lamb Road, Nashua, NH. Mr. Lemery said there’s ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 7 no hardship in the request, he said the hardship will be for the neighbors, if this is approved. He said the traffic, and the short distance is not safe for drivers. Harriet Lemery, 9 Lamb Road, Nashua, NH. Mrs. Lemery said she’s lived here for 50 years. She said she’s in the process of having the lot re-surveyed, she didn’t agree with their numbers. She said another flag lot would disrupt the character of the neighborhood, and another driveway will not be safe, cars come down the hill too fast. Dennis Stevens, 9 Byron Drive, Merrimack, NH, and 5 Lamb Road, Nashua, NH. Mr. Stevens said he’s opposed to the plan. He said he didn’t believe the physical characteristics of the property can support two lots. He said one of his questions, particularly on 5 Lamb, is which way to face the house. He said the terrain of his lot made the driveway access very difficult. He said that the Fire Department made him install a ladder-truck turnaround in the front of the driveway. He said if this is supported, the Board should look at the number of curb-cuts. He said his lot has a 50-foot no cut buffer zone. He said they shouldn’t allow any special exceptions for in-home businesses, as that will create even more traffic. He said that prior Boards’ decisions should be used to educate, and learn from, for future cases. Chris Maloney, 15 Lamb Rd, Nashua, NH. Mrs. Maloney said when they bought their lot, they were careful to not impinge upon the neighbors. He said the proposed lot does not have the proper frontage or width for another house. She said the abutting lots are all single lots with one home on them. She said just because other lots were granted variances, it doesn’t mean that everyone should else. She said the property values will decrease if this is approved. Mr. Reppucci asked if she had a professional appraisal relative to the property values. Mrs. Maloney said that Catherine Drive had values that went down. Attorney Jay Leonard, Welts, White & Fontaine, 19 Factory Street, Nashua, NH. Atty. Leonard said he is representing Ken Seigel, 3 Lamb Road. He said his assumption is that the record from the last meeting is incorporated into this meeting. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 8 said that they believe that there is a self-created hardship. He said that case law is such that if you buy a piece of land, knowing what the dimensions are, and that area and dimensions can’t be the basis of your hardship, unless you can somehow demonstrate that there are physical constraints to the property that amount to a hardship. He said there has to be some physical attribute that justifies the applicant from not going through the typical required subdivision. He said a brook or river that prevents a subdivision road from being constructed, that may be a hardship in the land, it’s not just the shape of the land and the area, it’s the physical limitations of the land, special conditions require physical differences from the rest of the land that surrounds it, it’s not just acreage or shape. Atty. Leonard said that each one of the prior variances had a physical constraint with the land, the only exception being 5 Lamb Road, that was brought up when the standard for variances was different from what it is today, it was the Boccia case standard. He said that the Boccia standard has been abandoned by State Law, the Legislature decided that it was too confusing, and they took it right out of the law. He said we are back to the more difficult standard. He said that reasonable use is not enough. He said it’s now that you have to have a reasonable use, and special conditions to prove hardship. Atty. Leonard said they can’t do it on reasonable use alone. He said there are clear cases in the courts, there has to be physical limitations on the land. Atty. Leonard said that the City of Nashua has elected to not allow flag lots. Mr. Reppucci said he disagreed about the flag lots. He said when the Board grants a variance for a flag lot, it becomes zoning law. He said it’s not an exception to the law. He said the City has allowed flag lots. Atty. Leonard said it’s not necessarily zoning law. He said there is a difference between a legislative decision and a quasi-judicial decision, the Board grants variances under different circumstances. He said the Boards approvals aren’t binding on all future cases. Mr. Reppucci asked if the character of the neighborhood is consistent with flag lots, as in this area, in this subdivision, there are several. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 9 Atty. Leonard said the law says that you have to have uniqueness, and good faith. SPEAKING IN FAVOR – REBUTTAL: Atty. Hollis asked the Board to look at Exhibit B from his package. He said the map shows all the addresses and lot numbers. He said the Board has to consider in its deliberation what has occurred in this area. He said the Belanger v. Nashua was a case that involved a house on South Main Street that wanted to be converted into an office, and the Board said that they knew that many other properties around them converted, but they denied it anyway. He said they went to the New Hampshire Supreme Court, and the Court said that the Ordinance must recognize what has occurred in the neighborhood, and the Board must recognize what is out there. Atty. Hollis said he disagreed about the issue of the argument of hardship. He said the statute changed, and it eliminated the law with regard to area variances. He said that there is a new law, the old law about hardship is gone. He said there are three requirements, you have to show it’s unique, and you have to show that the ordinance doesn’t have any fair and substantial relationship, and you have to show that the proposed use is reasonable. He said the alternative argument is that you can’t use it for any other purpose. Atty. Hollis said there is a case about a self-imposed hardship is in fact a hardship. He said it can be a legitimate reason for hardship. He said whether the application came from a current, or prior owner, the issue is the land. He said the proposed use is reasonable, a second driveway is being proposed. He said they can put two driveways on a lot, it’s lawful. He said the issue is one driveway, for one house on 1.91 acres. He said the size of the lots nearby are very consistent with the proposed lot. Atty. Hollis said on one of the previous cases, there is no mention at all about a brook, or anything discussed about it. He said there was mention that the lot size of the proposed lot is not accurate, he said he has a copy of a survey that is recorded with the Hillsborough County Registry of Deeds, Plan # 352. He said they’re not making up anything, and the survey was done by a registered surveyor. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 10 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Atty. Leonard said that the statute specifically requires literal enforcement will result in an unnecessary hardship. He said they’ll just rely on the Board’s good sense. Mr. Currier said he’s still sitting unfavorable to the application. He said that traffic in this area can be dangerous, and there is validity in not allowing flag lots, with topography challenges, on a road with a curve and hill. He said the testimony of the traffic is credible. He said the abutting properties, at 9 and 15, are not flag lots. He said the house that is proposed will be an impact to the abutting neighbors. He said he didn’t think it meets the criteria for a variance. Mr. Reppucci said no one is going to put a road back there for just one house, but, they could. He said if they put a road back there, even 9 Lamb Road could subdivide, as they’d have road frontage back there. He said for the character of the neighborhood, it’s very reasonable for the Board to say that the character of this area is to have smaller frontage lots. He said it seems equitable that what this owner wants to do is a reasonable use of the property, considering the changes to this area in recent years. He said a lot of the people testifying, like 15 Lamb, have bought property after the other flag lots were built. He said the proposed use is reasonable. Mr. Shaw said that putting a road in for a second lot is reasonable, even though it may not be feasible from a financial standpoint, and it would address some of the traffic issues. He said there is an allowed way to turn this property into two lots, and have a subdivision with a cul-de-sac for the proposed lot. Mr. Reppucci asked if a fifty-foot wide right-of-way would be much less intrusive than a twelve-foot wide driveway. Mr. Shaw said possibly, when you consider a driveway turnaround for a fire ladder truck. He said with a City road, there will be more control. Mr. Currier said if this case is not approved, no one will drive by it a few years from now, and comment on how this case wasn’t approved, as the land was not rendered useless, and it will ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 11 remain a viable, consistent house lot, just like it has been from it’s origination. He said it isn’t any hardship to the owner as they already have one house. He said there already is reasonable use of the property. Mr. Johnson said that the traffic is tough here. He said he took a long look at the traffic, but said it is a separate problem, and is not an issue. He said the issue is with respect to the land, and said that the applicant has revisited the proposal, and has reduced the requested variances to two, and didn’t see a reason to deny the request. Mr. Reppucci asked if they alter the existing driveway, and make just one driveway going to both properties, would others be more supportive, if there was just one driveway, and no additional entry points. He said that adding a driveway is really no impact. Mr. Currier said that they’re still adding a house, with traffic. He said it is directly not within the spirit and intent of the ordinance, and the extra traffic does matter. He said it also goes against the public interest. Mr. Reppucci said that one extra house shouldn’t be measurable enough of a change to alter the public interest. He said that one house shouldn’t disrupt the neighborhood as proposed. Mr. Reppucci said there were only lay people saying things about the property values. He said there weren’t any substantial reports on the property values. He said you really can’t tell what the property values will be until you see what will be built there. He said that nothing has convinced him that the property values would go down. Mr. Shaw said that the area in back of the flag is quite substantial, three hundred feet across the back, and two hundred thirty feet back. He said a buffer zone could be created, and it would go a long way to helping property values. Further Discussion ensued by Board members. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant. Mr. Reppucci read the revised advertisement, one variance to have a lot width of 48.89 feet where 150 feet is required, and the other variance to have 47.94 feet of lot ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 12 frontage, where 120 feet is required, as shown in the amended drawing from Maynard & Paquette dated February 29, 2012. Mr. Reppucci 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 the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, we had testimony that people perceived that it would, but the professional presentation by the applicant was that it wouldn’t. Mr. Reppucci stated that the request would not be contrary to the public interest, it is consistent with other variances on similar properties in the same subdivision, and by granting the variance, substantial justice would be served. Mr. Reppucci said the special condition would be the same for as approved and submitted on the variance approvals for 5 Lamb Road, a 20 foot vegetated buffer around the rear of the new lot. SECONDED by Mr. Johnson. MOTION FAILS, 2-2 (Mr. Shaw and Mr. Currier). MOTION by Mr. Currier to deny the request for the two-lot subdivision as amended. Mr. Currier stated that the lot, as is, with a single-family home on it, gives reasonable use, and finds that the traffic is substantially difficult at this portion of Lamb Road, it is contrary to the public interest to permit a flag lot here, the standard frontage should apply, as this area of Lamb Road is different from the area where the other flag lots are located. Mr. Currier said that per testimony of abutters about the large back yards that the direct abutters have, that there would be a decrease of property values of a house behind a house. SECONDED by Mr. Shaw. Mr. Shaw said that having a flag lot here would be less ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 13 consistent with the abutting lots. He said there is still reasonable use of the property, and it could be subdivided with a City road by right. MOTION FAILS 2-2 (Mr. Reppucci and Mr. Johnson). Mr. Reppucci said there is a diverse view on the 2-2 vote. He said he believes that the Board has not reached a decision, and failing to approve a motion does not render it denied. He said a denial has to occur by a majority vote of the Board. He said an approval has to occur with three affirmative votes, and neither occurred at this meeting. He said that he believed that this case is not resolved, and is not automatically denied. He said as far as he’s concerned, the item is tabled. Mr. Currier said the case was deliberated by the Board, and they don’t have the three votes for approval, therefore, it is denied. Mr. Johnson said he believes that you need three affirmative votes to pass a request. He said it is denied, in his view. MOTION by Mr. Currier to consider the case as denied, based upon the lack of an approval. SECONDED by Mr. Shaw. MOTION CARRIED 3-1 (Mr. Reppucci). 3. Matthew J. & Karen A. Perault (Owners) 23 Twilight Drive (Sheet C Lot 903) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit, and; 2) variance to exceed maximum area of accessory dwelling unit, 700 square feet allowed – 1,267 square feet proposed, to construct a 34’x38’ addition to existing structure. R30 Zone, Ward 5. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Matthew Perault, 23 Twilight Drive, Nashua, NH. Mr. Perault ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 14 said that the living space will be two bedrooms and two bathrooms, it is necessary for medical reasons for his in-laws. He said there will be a lift for a future elevator. He reviewed the application, and went over the special exception and variance points of law. He said the accommodations will be handicapped accessible. He said they won’t be going into any setbacks. Mr. Shaw went over the accessory dwelling special regulations with the owner, to the satisfaction of the Board members. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the special exception on behalf of the owner. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-32. Mr. Reppucci stated that the use will not create undue traffic congestion, or unduly impair pedestrian safety. He said that the use will not overload public water, drainage or sewer or other municipal systems. He said that the special regulations are all fulfilled, per testimony. He stated 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 residents. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Reppucci to grant the area variance on behalf of the owner. Mr. Reppucci 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 the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, no testimony was given ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 15 either way, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 4. City of Nashua (Owner), Department of Public Works (Applicant) 2 Sawmill Road (Sheet 5 Lot 26) requesting special exception to construct a 551 square foot building addition to existing pipe gallery room, adjacent to the secondary digester. GI Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson William Keating, DPW, Wastewater Engineer. Mr. Keating said this will be a small addition, adjacent to the secondary digester. He said it will be 551 square feet. Mr. Keating stated that this is for a minor upgrade to the overall system, and the secondary digester. Mr. Keating went over the special exception points of law to the Board’s satisfaction. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-15, Table 15-1. Mr. Reppucci stated that the use will not create undue traffic congestion, or unduly impair pedestrian safety. He said that the use will not overload public water, drainage or sewer or other municipal systems. He said that the special regulations are all fulfilled, per testimony. He stated that the use will not impair the integrity, or be out of character with the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 16 neighborhood, or be detrimental to the health, morals or welfare of residents. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 4. Gregory S. O’Brien (Owner) 19 Luke Street (Sheet 138 Lot 112) requesting variance to exceed maximum accessory use area, 40% permitted – 53% requested, to install a 9’x17’ in-ground swimming pool. R9 Zone, Ward 1. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Mr. Greg O’Brien, 19 Luke Street, Nashua, NH. Mr. O’Brien stated that this pool will replace an above-ground pool and deck that was removed last fall. Mr. O’Brien went over the points of law to the Boards satisfaction. Mr. Currier asked about the carport structure, and if it counts towards the accessory use area percentage. Mr. O’Brien said he has a shed, and a carport for the camper, and the pool. He said the carport is not attached to the house. Mr. Falk said the carport is included in the percentages for accessory use area. Mr. Currier said that you really can’t see the pool from the street, and it’s important that none of the abutters are in opposition. Mr. Falk said it’s about the size of one parking space. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: No one. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 17 MOTION by Mr. Johnson to grant the area 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, 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. 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, no testimony was given either way, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. 5. Phyllis & Jeffrey Adams (Owners) 7 Carmine Road (Sheet 138 Lot 477) requesting variance to encroach 1 foot, 9 inches into the 10 foot required left side yard setback to construct a 14’x24’ home addition. R9 Zone, Ward 1. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Mr. Jeffrey Adams, 7 Carmine Road, Nashua, NH. Mr. Adams said that his application speaks for itself, and didn’t have anything additional to add. He said that they’ve spoken to the abutters, and all are in favor. Mr. Currier said that it’s just the edge of the addition that encroaches 1 foot, 9 inches. Mr. Adams said that the lot is irregularly shaped. Mr. Shaw said it’s a very minor incursion into the setback, and the lot is somewhat trapezoidal in shape. Mr. Currier said it would be difficult to construct the edge of ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 18 the addition to meet the setback, with the way the house is oriented on the lot. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to grant the area 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, 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. He said that the actual incursion is 1 foot, 9 inches. Mr. Johnson stated that the request is within the spirit and intent of the ordinance, the lot is an irregular shape. He stated that it will not adversely affect the property values of surrounding parcels, no testimony was given either way, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases that are Regional Impact. MINUTES: February 14, 2012: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 13, 2012 Page 19 MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place the minutes in the file. Mr. Reppucci said he notified Mr. Falk of a change to who made a motion, and it was changed by Mr. Falk. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. OTHER BUSINESS: ByLaws: Officers of the Board signed the ByLaws. ADJOURNMENT: Mr. Shaw called the meeting closed at 10:10 p.m. Submitted by: Mr. Jack Currier, Clerk. CF Taped Hearing