Zoning Board of Adjustment

EXPANDED DRAFT MEETING SUMMARY THIS IS NOT AN OFFICIAL TRANSCRIPT OF TAPE RECORDED PROCEEDINGS THE INFORMATION CONTAINED HEREIN HAS NOT BEEN REVIEWED OR APPROVED BY THE ZBA ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, April 10, 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 J.P. Boucher 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. CMI Leasing Corporation (Owner) Brox Industries, Inc. (Applicant) 40 Groton Road (Sheet D Lot 6 & 7) requesting special exception to work within a 40-foot wetland buffer to construct an 8-foot wide bituminous concrete Class “B” walking trail, along the Groton Road right-of-way, associated with the Southline Woods Conservation Subdivision. R40 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Richard Maynard, Engineer, Maynard & Paquette Engineering, 23 East Pearl Street, Nashua, NH. Mr. Maynard said the trail is ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 2 associated with the Southline Woods Conservation Subdivision, for 34 detached single-family homes. He stated that the Class “B” trail is to be run from the Hadley Woods subdivision, along Groton Road right-of-way, to the City’s Southwest Park, aka Yudicky Farms property. He identified it, and the general neighborhood, on the map. Mr. Maynard said there are several wetlands in very close proximity to Groton Road. He said the buffer to these wetlands is 40 feet. He said that in three locations, they will need to work within the buffer. He said the wetlands are very close to Groton Road, and some of the wetland buffer goes into Groton Road. He pointed out the three locations where they will be working within the buffer. Mr. Maynard said that no wetlands will be disturbed from the project. He said the disturbance within the buffer would be about 13,516 square feet. He said that the walkway has been located to minimize the amount of fill and disturbance, but also to keep it a reasonably safe distance away from the Groton Road travelway. He said they’re a minimum of eight feet away, and in some spots, ten or twelve feet away from the pavement. Mr. Maynard said that the Conservation Commission has taken a site walk, and has voted to recommend approval of the trail with three stipulations, as has been submitted. He went over the special exception points of law and the nine special points. SPEAKING IN FAVOR: Jim Naro, 6 Mystic Court, Nashua, NH. Mr. Naro said he’s very favorable to the project. He said for the people who live in Hadley Woods, it will be a safe manner in which to access the trust land area. He said the trail will be nice to have. He said he didn’t see any negative impacts with the trail. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Richard Abbott, 74 Groton Road, Nashua, NH. Mr. Abbott said there will be a lot of trash/debris on the trail, and is concerned that the debris will go into his yard. Mr. Reppucci said that the Zoning Board’s role is limited in this request, it’s only to review what impacts will be in the wetland buffer; that is what the special exception is for. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 3 said other issues are best left to the Planning Board. Mr. Falk said that notifications will all be sent out prior to the Planning Board meeting. SPEAKING IN FAVOR – REBUTTAL: Mr. Maynard said that the sidewalk that is proposed will be no different from any other one in the community. He said it will have normal foot and bicycle traffic; there won’t be anything abnormal about it. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. MOTION by Mr. Currier to approve the special exception request on behalf of the applicant. Mr. Currier said that the request is within the table of uses, Section 190-112. He said the written and oral testimony tonight, indicates that there will not be any undue traffic congestion, or unduly impair pedestrian safety, in fact, it will enhance both of those by keeping the pedestrians and the bicycles away from the traffic, it’s a tough road for pedestrians and bikes right now. Mr. Currier said it will not overload public water, drainage, sewer or other municipal systems. He said that the special wetland regulations are met, all 9 of them, by testimony and in the application, they are fulfilled. He said the plan will be in character with the neighborhood, which has a lot of trails in that general area. Mr. Currier said the minutes from the Conservation Commission and their three stipulations, which the applicant testified that they’d adhere to, and will be included. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 2. David Rioux (Owner) 21 Ferry Road (Sheet 58 Lot 160) requesting variance to encroach 19 feet into the 20 foot ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 4 required right side yard setback to construct an attached 19’x24’ home addition. R18 Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Matt Erickson, Erickson Construction, Hudson, NH. Mr. Erickson said the owners would like to add a garage to the right side of their home. He said in the R18 zone, there is a 20-foot side yard setback. He said the house is 20 feet from the side yard property line. He pointed out some pictures of the property for the Board. Mr. Erickson said on the side, there is a paper street, originally laid out for the subdivision, but it was never built. He said the church parking lot extends to the back of the paper street. He showed pictures of the area to the Board. He showed pictures of the proposed elevations of the garage, and a plan view showing the size of the garage. He indicated on the plot plan where the paper street is in relation to the Rioux’s property. He indicated other properties in the neighborhood that received variances for similar requests. Mr. Reppucci asked, with respect to the paper street, if there would ever be a need by the City to connect McCoy Avenue and Ferry Road. Mr. Erickson said the streets were laid out when the property was originally subdivided, but, as it was developed, the street wasn’t needed. Mr. Currier said that when the Board of Aldermen deem that a paper street is not worthy to be developed forevermore, the law states that the street is divided in half, and abutters on either side get half of the street, and it’s deeded over. Mr. Erickson said the process of extinguishing the right-of-way is long and involved, and the owner does not appear to be leaning in that direction. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 5 Mr. Falk said for paper streets, owners on either side would obtain half of the right-of-way. He said streets become “paper streets” when a road is platted for a subdivision, and it is not built on for a minimum of 20 years, so its shown on a plan, but never developed. He said the process isn’t difficult to do, but the Ward Alderman, the Board of Aldermen and the Board of Public Works, as well as the Department of Public Works must all approve the request, as well as all the abutting property owners. He said the area is fairly well developed, and said he didn’t see the need for the City to develop the road, as it is, it’s substandard, as it’s only 40-feet wide, and the current right-of-way width is 50-feet. Mr. Johnson asked if the Ward Alderman was alerted to this case. Mr. Falk said all the Aldermen get notified, plus, their Ward is listed for each agenda item. He said if they have concerns, they can bring it up to staff. Mr. Boucher asked if the church was aware of this request. Mr. Falk said that they were notified, as they are an abutter, and Mr. Erickson stated that they don’t have any issues with the request. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Falk said that the Rioux’s would have to obtain about 3,400 square feet of land, which would be their half of the right-of- way. He said not only would they own it, but would have to maintain it, and pay taxes on it. He said a lot of people do not want to own portions of old paper streets, because of this very issue, they just apply for variances instead. He said that their addition is not going into the paper street, either, so there’s no need for them to acquire it. Mr. Johnson asked about the risk of supporting this request, should the City ever wish to develop the street. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 6 Mr. Falk said it is a low risk, and there are some paper streets in the City that are one hundred years old. He said in this instance, there doesn’t seem to be a public need to completely develop and build the road, further, the cost to develop this road will be a lot of money, and usually developers pay it. He said in this location, the area is built out already. Mr. Johnson asked Mr. Rioux, given the risks discussed in the testimony, he asked if the risks are acceptable in respect to the application. Mr. Rioux said it is, he said he’s chatted with the neighbors, including the church, and he assured him that the church has no plans to ever develop the property behind us and by the parking lot. He said he feels very comfortable moving forward with the request. Mr. Currier asked if he called his Ward Alderman about the request. Mr. Rioux said he did not, but said he would be happy to contact the Ward Alderman about it. Mr. Currier said that the neighborhood is pretty stable, but the church could change hands, and a new buyer could sell off the land and develop the street. Mr. Boucher asked, should the garage be built, and later down the road the street is built, if it would be an issue with it being more of a problem. Mr. Reppucci said if the Board grants the request, and if the street is developed the way it’s laid out to be developed, there would be a situation where there would be a one-foot setback for the garage, rather than twenty feet. He said the road could be developed just as it’s laid out. He said in looking at the neighborhood, it’s extremely unlikely that the road is built. Mr. Johnson said the City has 30 days to appeal the decision, if they want. He said that the owner is accepting the risk, as well. Mr. Currier said he wasn’t comfortable with the incursion in the paper street. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 7 MOTION by Mr. Reppucci to grant the 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 said that by testimony, the applicant, even with the encroachment, is still unable to build a two-car garage, it’s going to be a wide one-car garage. He stated that the Board doesn’t see this as an incursion into a paper street, when there’s no incursion into the road right-of-way, it’s not going into it, it’s just encroaching into the setback. Mr. Reppucci said 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, the Board discussed at length the options for the applicant to pursue, for the abutters taking possession of the paper street, and by discussion on the Board, the Board felt that they still have the option to do that. He said that through testimony from the Planning Department, it is extraordinarily unlikely that the paper street will ever be developed. SECONDED by Mr. Boucher. MOTION APPROVED 3-1 (Mr. Currier). 3. NH B II LLC (Owner) 472 Amherst Street (Sheet H Lot 136) requesting variance to allow an electronic message center on a proposed new ground sign. AI Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Dick Berg, Kay Gee Signs, Auburn, MA. Mr. Berg said he’s representing CB Richard Ellis. Mr. Berg said there is an existing sign on the left side of the driveway, and because of the obstruction of the view from the abutting property, and the danger when exiting the driveway, that they propose to move the sign to the other side of the driveway, giving a better vision ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 8 to oncoming traffic. Mr. Berg said the other issue with the property is that the site is very narrow, and goes far back, so it’s very difficult to see any of the tenants in the back, therefore, the new sign will allow for greater business identification. Mr. Berg said the message center is only a one-color, and there are message centers existing on some nearby properties, and there’s one across the street. He said across the street they’re allowed by right, but this property is zoned Airport Industrial, and they’re not permitted. He said the message center can advertise the companies to oncoming traffic. Mr. Reppucci asked if the sign will be similar to a CVS, where they have just a black background and the red lettering and that’s it. Mr. Berg said yes. He said it will have one color, and no moving graphics. Mr. Johnson asked about the sign near the Walgreens by Target, and if Mr. Bergs company installed that sign. Mr. Berg said it wasn’t their sign. Mr. Reppucci said that the electronic sign needs to follow the guidelines in the ordinance, like the 5-second rule in which to change the text. Mr. Berg said they would be in compliance with the ordinance. Mr. Falk said if the Board approves the request, the applicant must fill out an affidavit stating that they will comply with the ordinance. Mr. Berg said he does all the training, and would ensure that the customer who is doing the programming, will be well aware of what the rules are. Mr. Falk said the affidavit is basically just a copy of the Code section, but the property owner and the sign company must sign it, indicating that they will comply with the ordinance. Mr. Boucher asked to confirm that the “472” sign on the right ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 9 side of the driveway will be eliminated. Mr. Berg said that that the existing pylon sign will be removed. Mr. Boucher asked about the smaller identification sign, and what will happen to it. Mr. Berg said they don’t have any plans for that sign, it’s going to stay as it is. Mr. Falk said that sign is a directional sign, and it can’t be read from the public right-of-way. Mr. Currier asked who the other tenants of the building are. Mr. Berg said Airgas is one, but said he’s not aware of anyone else in the building. Mr. Currier asked about the other tenants. Mr. Falk said that the building is a multi-tenanted building, it was built and designed that way. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to grant the request on behalf of the applicant. Mr. Johnson 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. Johnson stated that the use is within the spirit and intent of the ordinance, and it conforms with the surrounding neighborhood, even though there are different zoning districts. Mr. Johnson stated that the use will not adversely affect the property values of surrounding parcels, the Board had no ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 10 testimony to anyone opposing the request. Mr. Johnson said it is not contrary to the public interest, and substantial justice is served. Mr. Johnson said for a special condition, the owner must comply with signing the EMC affidavit. SECONDED by Mr. Boucher. MOTION CARRIED 3-1 (Mr. Currier) MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases that are Regional Impact. MINUTES: March 27, 2012: MOTION by Mr. Reppucci to approve the minutes with the proposed amendments suggested at the bottom of page 3, by Mr. Currier, and to waive the reading, and place the minutes in the file. Mr. Falk said he would make the changes as requested by Mr. Currier. SECONDED by Mr. Johnson, as amended. MOTION CARRIED UNANIMOUSLY 4-0. OTHER BUSINESS: The Board briefly discussed ZBA training. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:50 p.m. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 10, 2012 Page 11 Submitted by: Mr. Jack Currier, Clerk. CF Taped Hearing