Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 8, 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 Rick Johnson Jack Currier J.P. Boucher David Creed 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. Patti S. DiMeglio (Owner) 6 Yorkway Drive (Sheet D Lot 247) requesting variance to exceed maximum accessory use area, 40% permitted, 54% requested - to construct a detached 24’x24’ garage. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed Patti DiMeglio, 6 Yorkway Drive, Nashua, NH. Ms. DiMeglio said the garage will have a pass-through for another vehicle to get in the back yard if need be. She stated that she meets the side yard setback, and is ten feet away. She said that her variance request is only for the 40% accessory use area, because the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 2 house is small. She said the garage will be to the right of the house, and it will be detached. Mr. Currier asked if the garage will have any plumbing. Ms. DiMeglio said it will not. She said it will have electric, for a light and an opener. Mr. Reppucci asked if the living space includes the garage in the house. Mr. Falk said it only includes the interior living space. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Jackie Carolan, 8 Yorkway Drive, Nashua, NH. Ms. Carolan said that their concern is that they’d be looking out their windows at a big new white garage. She said they were attracted to their house due to the space between the houses. She said she wants to make sure that the hedge is high enough to see some greenery. She said that the existing arborvitaes are small. Mr. Reppucci said that there are no setback issues, the garage is fine where it is. He said the variance request is only for the accessory use area. SPEAKING IN FAVOR – REBUTTAL: Ms. DiMeglio stated that she didn’t mind putting some taller arborvitae in. She had some trees removed, and when they were doing so, some smaller hedges got damaged, and two very old mature bushes were damaged, and it looks messy. She said she wants to replace them with mature hedges. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. MOTION by Mr. Currier to grant the request on behalf of the owner. Mr. Currier stated that there is a stipulation that the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 3 garage is a one-story garage, and that it will have no plumbing, and the space above will be used for storage only. 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. Currier stated that the use is within the spirit and intent of the ordinance, it is a small house, and if the garage were attached, they wouldn’t need the variance; the use will not adversely affect the property values of surrounding parcels, actually it may increase property values. Mr. Currier said it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 2. Don Allen Investments, LLC (Owner) Wicked Twisted Bar & Grill (Applicant) 38 East Hollis Street (Sheet 35 Lot 91) requesting variance to exceed maximum wall sign area, 48.1 sq. ft existing, 52.1 sq. ft permitted – an additional 65.3 sq. ft requested. D-1/MU Zone, Ward 4. Voting on this case: Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed Don Reid, Barlo Signs, Hudson, NH. Mr. Reid said that the sign proposed would be on the front, parallel to East Hollis Street. He said that the entrance to the building is on the east side of the building. Mr. Reid said that if a vehicle is travelling westbound on East Hollis Street, you can’t see the entrance to the restaurant until you are past it. He said there is a small tenant sign on the ground sign, but it is insignificant as far as proper identification to the use. He said they’ve looked at the sign ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 4 from all different angles, and it’s in the public interest to put some identification on that side of the wall. Mr. Reid said that the entrance does not face the street, it faces the side parking lot. He said that it will be a great opportunity for the business to have a sign on the side. Mr. Reppucci said that the application is very thorough and complete. Mr. Currier said that the existing wall sign is very noticeable. He said that the proposed sign is almost right next to the pylon sign. He said he didn’t see a notable need to have the proposed sign, and asked how the proposed sign will really help. He asked where the patrons park. Mr. Reid said that there are parking spaces on the street, and there is a small designated area for parking. He said there’s a large, nice sign there now, and asked why a smaller sign couldn’t be put in the front. He said he’s struggling with the need for the proposed sign. Mr. Reid said that this is an active parking area and business area, and said that the proposed sign will help indicate exactly where they are. Mr. Currier asked if they thought of moving the existing sign to the front. Mr. Reid said no, that sign is very important to be over the main entranceway. He said that taking into account the commercial nature of the area, the proposed sign is an appropriate way to identify the business, and it fits into the neighborhood. Mr. Johnson asked if the sign will be illuminated. Mr. Reid said it will be internally illuminated with fluorescent lighting. Mr. Reppucci said the problem is the westbound traffic, and stated that he doesn’t see how the proposed sign will help the business, as westbound traffic will be past the building before they see the sign. He said that a projecting sign from the building may be more helpful, than a wall sign. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 5 Mr. Reid said that one of the prohibiting factors of that is the location of the sign, where it would project, a lot more structural support would need to be done to the building to support the sign. He said the cost to do a sign like that is prohibitive for the applicant. Mr. Boucher said the sign would try to catch the westbound traffic, and would also grab the eastbound traffic. Mr. Reid said that one of the things that is important is to create an entrance so that you get the effect of entering the business. He said the sign on the side of the building is much more straightforward than the main entry sign, which is a main feature sign. He said the proposed sign will complete the identification package. Mr. Currier stated that he believed that to relocate a wall sign is a relatively easy and inexpensive matter. Mr. Reid said it generally is, but the wall will need repairing, which could be involved. He said to relocate the main entry sign isn’t the way to solve the issue. SPEAKING IN FAVOR: Don Dumont, Building Manager, 38 East Hollis Street. Mr. Dumont said that they recently went to the Planning Board, and it was noted that this space may have some hardship, being on the corner with no door and window. He said that Headlines, across the street, did the same type of sign, and it helped to identify the business, and their sign helps a lot. Mr. Dumont said that the pylon sign that is there is very limited, the size is what is allowed by the City, and isn’t large, and the City wanted landscaping around it. He said that eventually, the landscaping will cover the sign. He said that when the trees bloom, it will be even worse. He said that he wants the tenant to stay and thrive, and the sign is presentable and will help his business. Mr. Currier asked about the required parking. Mr. Dumont said it’s a D-1/MU Zone, and there is no required amount of parking spaces. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 6 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci stated that he didn’t believe that the proposed sign will accomplish the goal of showing that the business is there. He said that even if they do notice the sign, they’d be past it before they see the entry door. He said he’s not opposed to the sign, and could support it, but said a projecting sign may be a better type of sign, as people would see it better. Mr. Johnson asked if they could erect a projecting sign. Mr. Falk said that projecting signs are allowed in the D-1/MU Zone, however, the largest size could be ten square feet. He said that there are several projecting signs on Main Street. Mr. Johnson said that at night, if you’re looking for a bar & grill, you need to see where it is, also, this area is commercial and has a lot of internally illuminated signs, therefore, is supportive of the sign. Mr. Creed asked if they could move the sign already there to the front. Mr. Falk said they could, the ordinance allows a maximum size for a wall sign, and it has to be within their building space area. Mr. Creed said they can’t exceed the 52.1 square foot maximum size, so, they’re asking to double the existing square footage. He said the new sign may or may not help them, but this is a big breach of the rule. Mr. Boucher said he agrees with what the applicant is looking for, he agreed with the proposed sign facing East Hollis Street. He said the applicant has hired a sign company who is an expert in the field, and they state that it will work for them. MOTION by Mr. Johnson to grant the request on behalf of the owner. 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 ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 7 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 given the surrounding area and consistent with other signs in the area, the use will not adversely affect the property values of surrounding parcels, actually it may help business and keep the building occupied. Mr. Johnson said it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Boucher. Mr. Reppucci asked if the Motion could be amended so that they are allowed to internally light the sign. Mr. Johnson accepted. MOTION CARRIED 3-2 (Mr. Currier and Mr. Creed). 3. Suzanne M. Goyette Revocable Trust (Owner) 166 Amherst Street (Sheet 61 Lot 148) requesting the following additional variances from ZBA approval on 1-10-12: 1) minimum open space, 50% required – 40% proposed; 2) to encroach 25 feet into the 25 foot required front yard setback (on Milford Street) to allow for parking spaces; and, 3) to encroach 10 feet into the 25 foot required front yard setback (on Amherst Street) for a building addition. RA Zone, Ward 4. Voting on this case: Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed Attorney James Tamposi, 91 Amherst Street, Nashua, NH. Atty. Tamposi said they have submitted two renderings, one of a cape- style building, and one was a colonial-style. He said they are going with the cape-style building. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 8 Atty. Tamposi said that they had to re-work their originally approved plan. He said that due to the small area in the back yard, it became necessary to put the parking in at a diagonal angle, and because of that, and the inability to turn around, a one-way entrance was needed. He said the entrance is on Amherst Street, exiting onto Milford Street. He said that the building envelope, due to the 25 foot front yard setback, is applicable to both Amherst Street and Milford Street. Atty. Tamposi said that in looking at the building envelope, the house is largely outside the building envelope. Mr. Reppucci asked how many parking spaces were shown on the original plan. Atty. Tamposi said there were eight, and the current plan shows six. Mr. Currier asked if the house and garage is going to be torn down. Atty. Tamposi said the house will stay, they are renovating it, the encroachment is no more than what currently exists. SPEAKING IN FAVOR: Jack Shroeder, Shroeder Construction. Mr. Shroeder said it’s a cape style house now, with no dormers on the front. He said two dormers would be added to the front, and a shed dormer added to the back, and the peak of the roof would remain the same. Mr. Currier asked about the existing garage area, and what will happen to it. Mr. Shroeder stated that the existing garage area will be made slightly larger. Atty. Tamposi said that the remodeled structure will fit in nicely to the neighborhood, and will be an asset to the area. Mr. Currier asked what the additional requests are for this evening. Atty. Tamposi said there are three variance requests, the use of the land was approved previously, and the area variance ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 9 previously applied for is being requested again, but the case is slightly different. Mr. Falk said there is now a variance for open space. Paul Goyette, Northeast Planning Associates. Mr. Goyette said they are going to replace the entire fence along the property line of the abutter in the back. He said the one there now is dilapidated. He said they are going to be doing some landscaping as well. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Dennis Hogan, 6 Milford Street, Nashua, NH. Mr. Hogan said that his concern is that he didn’t know what the aesthetics of the property will be. He said he is concerned about the parking and access. He said he didn’t want to see commercial traffic on Milford Street, it is a residential zone. Mr. Reppucci stated that he believed that the new traffic and parking pattern is better, and safer. He said ultimately, it will be up to the Planning Board to approve the site plan. Mr. Currier stated that he believed that exiting onto Milford Street is a better situation because the cars won’t have built up any speed coming out of the driveway, whereas if the flow was the other way, cars would be taking a left onto Milford Street, and it could block egress. Mr. Reppucci suggested that Mr. Hogan go to the Planning Board and raise the traffic issues with them. SPEAKING IN FAVOR – REBUTTAL: Atty. Tamposi stated that he has no additional rebuttal to add. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Hogan said he did not have any additional concerns to add. MOTION by Mr. Boucher to grant the variance requests, all taken together, on behalf of the owner. Mr. Boucher stated that the variances are 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 ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 10 other method reasonably feasible for the applicant to pursue, other than the area variances. Mr. Boucher stated that the use is within the spirit and intent of the ordinance, the use will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Creed. Mr. Johnson suggested that a fence be erected and maintained by the applicant for the benefit of 1 Milford Street, a stockade fence. Mr. Currier suggested that, per testimony, the applicant will be using the cape-style design. Mr. Boucher said that these amendments to the Motion are fine. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: 1 Lamb Road: Mr. Reppucci asked if Mr. Creed had an opportunity to review the original hearing. Mr. Creed stated that he did on audio and has reviewed the case in its entirety. Mr. Reppucci said that Mr. Boucher also reviewed the case in its entirety. Mr. Johnson stated that he is also prepared to vote on the request. Mr. Currier asked if the Board is within the 30-day window to hear the case this evening, he thought that Mr. Shaw should sit on the case. Mr. Reppucci said the original decision on this case was on March 13, 2012, therefore, the appeal had to be filed prior to ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 11 April 13, 2012. He said that the Board has the responsibility to hear this case before May 13, 2012. Mr. Falk said that there are five voting members, and everyone is familiar with the case. Mr. Reppucci said that based upon the dates of the previous meetings, the Board will continue with the request. Mr. Reppucci asked if there was any procedural error, including improper notice, denying someone the right to be heard, etc. Mr. Currier said he didn’t believe there was, he said the Board was very accommodating to all those who spoke, and even gave extra time. Mr. Reppucci agreed. Mr. Creed said there was no procedural error. Mr. Johnson said that for point 7(b), on page 2, it states that if there are two votes in a tie, it must be continued until the tie is broken. Mr. Reppucci asked if he was looking at the State Statute. Mr. Johnson said it didn’t have a significant outcome on the case, as it says that the case should come back. Mr. Reppucci said it has a huge impact on the case. He said that the Board can re-consider its decisions, and change them in whole or in part, and modify what the Board decides. He said that the Board had no affirmed motion, both were failed with 2-2 votes. He said that then the Board proceeded to make a motion on whether or not the motion to deny, or the failure to get an affirmed motion to approve constitutes a denial. He said that vote was 3-1 in favor, therefore, it constituted a denial. He said he thinks that is a procedural error. Mr. Johnson said that he didn’t think the Board did justice in the case. Mr. Creed said that they’re asking the Board for approval to a request, and the applicant needs an affirmative “yes” from the Board to do it. He said if they don’t get the affirmative yes, ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 12 then the answer has to be “no”. Mr. Currier said that he agrees with Mr. Creed’s interpretation. Mr. Reppucci read RSA 674:33, in which it states that if there are not three votes, the decision is not automatically denied. He said this has been an on-going issue with the Board. He said the Board should just approve, or not approve a rehearing. Mr. Reppucci said that Mr. Johnson and he are of the opinion that there was a procedural error. He said that Mr. Currier was of the opinion that there was not. Mr. Creed said that he didn’t believe that there was a procedural error. Mr. Johnson said that he based his decision on page 2, point 7(b). Mr. Boucher said he believes there was, based upon the previous discussion. Mr. Reppucci asked if it was an illegal decision, in other words, did the Board fail to completely address each of the points of law required for the special exception and/or variance. Mr. Creed said no. Mr. Johnson said no. Mr. Boucher said no. Mr. Currier said no. Mr. Reppucci said he did think it was an illegal decision. He said primarily, he thought the Board made an error in coming to a determination that adding one single-family residence to that area was going to affect traffic, he said that the standards don’t allow us to do that. He said to introduce one single- family residence into an approved street doesn’t rise to the level that can constitute an issue, and that was part of the discussion and decision. He said that “illegal” is a strong word. He said he thought the Board miss-interprets that rule, that the guidelines that the Board follows was improper. He ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 13 said a better word would be “improper” rather than “illegal”. Mr. Reppucci said another thing he thought was a that there was discussion that it was out of the character of the neighborhood, and about flag lots, where there are some right in the area, therefore, thought the decision was improper, and that the Board made an error in judgment, not in legal fact. Mr. Creed stated that if the standard is “illegal”, then the standard is not “improper”, and if the Board made a mistake or an error in judgment, it is the Board’s judgment to make, that is the Boards charge. He said that for the Board, the standard is “illegal”, and is the decision illegal, and it is not. Mr. Reppucci said that the Board’s review of that kind of information is far less subjective, and far more objective, he said the Board is greatly restricted in how we interpret those things. He said he doesn’t want the public to think that the Board broke the law, it’s just a difference of opinion in how some Board members interpret it more subjectively than others. Mr. Boucher said he’s struggling with the word “illegal”, but said the main point he got hung up on was the traffic. Mr. Currier said for the flag lots, there are ones on the street, but not on these two abutting properties, and both those abutters spoke against the flag lots on how they’d impact their privacy. He stated that for the additional curb-cut argument, by putting in another house it would generate additional traffic, and the traffic was only one component of the overall picture. He said he disagreed with the rehearing request on the issue of traffic. Mr. Reppucci asked if the request for rehearing contain any new information not presented or available to the Board at the original public hearing. Mr. Johnson said he’s looking at the traffic data, that was not afforded in the first testimony. Mr. Currier said it’s the applicant’s testimony, they did speak to it orally, their case doesn’t prevail, and then offers more traffic data. He said in this case, the applicant had a seasoned repeat customer to speak about traffic, and then comes back with even more in the rehearing request, so, it’s ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 14 inappropriate for them to bring back more data. Mr. Creed said the question is what is considered new evidence. He said the evidence needs to be substantial, or qualitatively different, to be new information. He said that he didn’t see the new traffic information as qualitatively different than anything originally presented, and, viewed it as the applicant has the duty to bring all the information they need to, or can, and they failed to do so. He said the applicant had all this information at the time of the meeting. Mr. Reppucci said that his view of it is, that traffic not a Zoning Board issue, it’s a Planning Board issue, the only way that it comes into play into a Zoning Board decision, is if there’s a significant danger, or something so significant that it’s contrary to the health and safety of the public. He said he believes that the Board looks much deeper into cases involving traffic than he feels is proper. He said that the applicant had a professional engineer, and that engineer testified to the Board that it would have negligible effect on the traffic, and that the addition of one residence is insignificant. Mr. Currier said that the traffic issue was the most minor reason for his denial. He said a much larger reason was the intrusion of the existing large lot neighborhood with a flag lot. He said that he believes that traffic is fair game in the Boards judgment to weigh into a decision. He said that traffic was one of many issues discussed that night, and stated that it’s inappropriate to bring the whole case back for something that wouldn’t have made a difference in the vote of Mr. Shaw and himself. He said that Mr. Maynard testified on the traffic, it’s just another set of data by another professional on traffic issues. Mr. Johnson said the speed of vehicles on the road is an enforcement issue, and that was one of the contested points. He said the other was the introduction of traffic from one additional home, which is a judgment call. Mr. Creed said that he didn’t believe that the request for rehearing contains new information that was not available or presented at the original public hearing, and believes that traffic was discussed and considered, and this is more traffic data, and an expert witness talked about traffic, so this isn’t ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 15 new information. He said on question number 3, there is no new information. Mr. Reppucci said that the Board can challenge professional testimony, its well within the purview of a Board member to hear professional testimony that is not rebutted by other professional testimony, and use their own good sense and judgment and experience to say that they don’t agree with what was said, and to have the experience to back it up. Mr. Reppucci asked if there is any new information not presented or available to the Board at the original public hearing. He said that Mr. Currier states no. Mr. Creed said no. Mr. Johnson said yes. Mr. Boucher said yes. Mr. Reppucci asked if there’s anything that would/could cause the Board to make a different decision. Mr. Creed said that on any given night, there could be different members, which could produce a different result, and didn’t see any new information, and didn’t see a procedural error, and didn’t see enough to change the decision. Mr. Johnson said he sees a procedural error from question 1, part 7(b) in the letter, but for that, will continue to vote as though it was not denied. Mr. Johnson stated that if the Board didn’t have an even number of members, the decision would have been made, and there wouldn’t be the 2-2 vote. He said he believes that this is an error. Mr. Reppucci stated that if the Board finds that any of these four items are not met by a majority of the members, then the case will be reheard. Discussion ensued about the ramifications of a 2-2 vote. Mr. Reppucci said that for question 4, Mr. Currier is a no. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 16 Mr. Johnson said yes for question number 4, there is something that would/could cause the Board to make a different decision. Mr. Creed said no for question number 4. Mr. Boucher said yes. Mr. Johnson asked how the Board recognizes what he believes is a procedural error. Mr. Currier said the Board needs to consider the four questions in total. He said if the case comes back, he questioned what it would get the Board, besides a potential different line-up. Mr. Reppucci asked to confirm that if the Board found even one of the four questions to having three members for granting a rehearing, the rest of them are a moot point and the rehearing is granted. Discussion ensued from the ZBA members about whether to grant a rehearing in part or in whole, and the ramifications of a 2-2 vote. MOTION by Mr. Currier to deny the rehearing request, that the Board is not going to hear any new data on the case, it will be the same facts and opinions that have been discussed from a large amount of the neighborhood, and the applicant, and the only thing that will be new taken into testimony is the traffic report, so there’s essentially no new information before the Board tonight. He said if the Board re-hears the case, the Board is essentially allowing the applicant to have another bite of the apple, which is what the Board does not want to do. He said the safety valve is that they can go to Superior Court, and the issue can be put to rest. He said the Board will not hear anything new by dragging the neighborhood and the applicant out again. SECONDED by Mr. Creed. Mr. Reppucci said that he believed that there were procedural errors in the last hearing, and thought it was a mistake to consider the application denied with a 2-2 vote, and considering that a denial. He said he believed that it was an illegal decision, and that the Board contemplated and considered in their discussion on denial evidence that did not rise to the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 17 level of information that constitutes a reason for denial, such as traffic and the driveway, and considering a flag lot inconsistent with the neighborhood, when there’s others approved nearby. Mr. Currier said that Mr. Shaw read into the record that three affirmative votes are needed to overturn. He said the traffic report was a minor concern, and wouldn’t change his vote. Mr. Creed said he didn’t believe that there was a procedural error at all, because the legislative body that created the Zoning Board also set forth the rule that an applicant has to have three affirmative votes. Mr. Reppucci said the need for three affirmative votes is a statutory requirement in the State of New Hampshire, the Ordinance in Nashua is completely separate and different from that. He said that the Ordinance in Nashua states that if you have a quorum of three voting members present, the case must go forward, it doesn’t speak to how a determination is made. Mr. Creed said that regardless, they didn’t get three affirmative votes, anything after that is irrelevant, so there is no procedural error. MOTION FAILS 2-3 (Mr. Reppucci, Mr. Johnson and Mr. Boucher). MOTION by Mr. Reppucci, that after lengthy discussion, that the Board finds that a rehearing is granted based upon a majority opinion that there was a procedural error that occurred during the first hearing, there is new information in the rehearing request, those two things the majority of the Board thought were so. He said that also, based upon a voting member at the original hearing, that he feels that he made an error and wants to remedy that. He said he recommends that the Board hears the case in its entirety. SECONDED by Mr. Johnson. Mr. Currier asked to clarify who feels that the traffic report is new relevant information that would cause a change in the outcome. Mr. Reppucci asked how many members thought there was new information in the traffic report. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 8, 2012 Page 18 Mr. Johnson said yes. Mr. Boucher said yes. Mr. Reppucci said yes. MOTION APPROVED 3-2 (Mr. Creed and Mr. Currier). Mr. Falk said that the applicant has to pay the fees again, and submit a new application, and the process starts all over again. He said that Staff won’t put the case on the agenda until this occurs. He said there isn’t a 30-day time frame. Mr. Reppucci said the last decision is voided, it’s like it never happened. REGIONAL IMPACT: The Board did not see any cases that are Regional Impact. MINUTES: April 24, 2012 Meeting: Mr. Reppucci pointed out a correction, and Mr. Falk had it taken care of. MOTION by Mr. Johnson to approve the minutes as noted, with the changes. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 4-0-1 (Mr. Currier abstained). ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:51 p.m. Submitted by: Mr. Rick Johnson, Acting Clerk. CF Taped Hearing