Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 22, 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, Clerk Rick Johnson J.P. Boucher David Creed 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. Sharon J. Chase (Owner) 105 Shore Drive (Sheet E Lot 528) requesting special exception to maintain an existing sunroom and deck in the 75-foot prime wetland buffer of the Nashua River. R9 Zone, Ward 5. Voting on this case: Rob Shaw Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed – (not voting) Gary Flaherty, 335 Broad Street, Hollis, NH. Mr. Flaherty said that in 1997, Ms. Chase had an existing deck made into a sunroom, with a surrounding four-foot wide deck, and the contractor who did the work did not obtain a building permit ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 2 from the City. He said that this was noticed from some aerial photos, and the owner is here applying for the permit now. Mr. Reppucci said that the Board has a copy of the approval letter from the Conservation Commission, with one stipulation of approval, that the honeysuckle will be removed. Mr. Flaherty said it’s already done; there were just a few plants. 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 190-112. Mr. Reppucci stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, as nothing is changing. He stated that it will not overload public water, drainage or sewer or other municipal systems, special regulations are fulfilled, the Conservation Commission’s special wetland conditions are all being met, and 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 the residents. Mr. Reppucci said that the Conservation Commission letter dated April 12, 2012 references this application, with one condition of approval to maintain the property by pulling out the invasive honeysuckle in the area, and per testimony of the applicant, the owner has already done this. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 2. Aaron T. Reagan (Owner) 9 Newbury Street (Sheet 20 Lot 90) requesting variance to encroach 4 feet into the 6 foot ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 3 required side and rear yard setbacks to construct a 10’x16’ shed. RB Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Rick Johnson Jack Currier David Creed J.P. Boucher – (not voting) Aaron Reagan, 9 Newbury Street, Nashua, NH. Mr. Reagan stated that they are looking for permission to erect a reasonable sized shed in the back yard; they have a growing family and need storage for lawn equipment. He said if the shed were to meet the setbacks, it would fall right in the middle of the yard, and would limit use of the yard. He pointed out the proposed location on a lot survey. Mr. Currier said he visited the property, and concurred, that many other properties nearby had similar structures right near the property line. Mr. Reppucci asked if it will have plumbing or electricity. Mr. Reagan said just electricity for lights. He said it won’t have any plumbing. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to grant the variance 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 applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than the area variance, especially given the size of the lot within the neighborhood, it is appropriate. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 4 Mr. Johnson stated that the use is within the spirit and intent of the ordinance as there are similar sized sheds in the neighborhood, 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. Mr. Johnson said the shed cannot be used for living accommodations, and kept to one level. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 5-0. 3. Michael J. & Nancy T. Harrahy (Owners) 7 Pond View Circle (Sheet G Lot 680) requesting variance for minimum lot width, 150 feet required, 59 feet proposed, to subdivide one lot into two lots. R40 Zone, Ward 2. Voting on this case: Rob Shaw Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed – (not voting) Attorney Gerald Prunier, Prunier & Prolman, P.A. 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that the existing lot is 14+ acres. He said they want to subdivide the lot into two lots, one would be 1.40 acres, and the other lot would be 13+ acres. He pointed out the location of where the house would be built, which is limited due to Pennichuck’s restriction for the conservation zone. Atty. Prunier said that the lot meets all of the dimensional criteria except for the lot width, where 59 feet is proposed, and 150 feet is required. He said this would be approximately the largest lot in the City of Nashua, and will allow the owner a reasonable use of the property. He said only one house would be added. Mr. Currier asked about the 300 foot Pennichuck buffer line, and why it’s there. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 5 Atty. Prunier stated that it’s the nearby Pennichuck Brook in the area, and Pennichuck put the restriction of 300 feet from the high water mark. Mr. Currier asked where the driveway would be located. Atty. Prunier pointed out on the map where the driveway would be placed. Mr. Currier asked about restrictions on the 300-foot buffer area. Atty. Prunier said that you can’t build in it, but you can have utility crossings and road crossings. Mr. Currier said if it’s a 300-foot vegetated buffer width, and no vegetation removed within the buffer, he asked what the criteria of the buffer is, and if it’s a 300-foot vegetated buffer, and the driveway would go in there, he asked how it would work. Atty. Prunier said they have to stay out of the buffer. He said a driveway can be put in there, in fact, it will be out of the 300 foot buffer. He said the lot is serviced by public water and sewer. Mr. Reppucci said the only thing before the Board is the variance to allow a 59 foot width, where 150 feet is required. He said if there is to be a future problem with the buffer, they’d have to come back. Atty. Prunier said they’d have to go before the Conservation Commission, and Pennichuck’s Board, it would be quite an ordeal to get the restriction lifted. Mr. Currier said that the testimony tonight is that there is no issue with the buffer, and said if there is a motion to grant the request, is in favor of language that the approval is solely for the lot width. Mr. Shaw said that the proposal doesn’t seem to fit what the original proposal was for this subdivision. He said that the proposal is adding something that is very different from the rest of the lots. ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 6 Atty. Prunier said the acreage is very large, at 13 acres, and it’s only one single-family home, on 13 acres. He said the house would be located in the only area a house could go in. Mr. Currier asked if this street came in before or after the 300-foot Conservation easement buffer came in. Atty. Prunier said it came in after, the land was sold by Pennichuck, and they put the restrictions on the land back then. He said that this is a reasonable use of the property. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Boucher said that even though he is employed by Pennichuck, he is here as a resident and the outcome of the case has no benefit to him either way, and can vote on the case without any bias or any conflict of interest either way. Mr. Johnson said he questioned where the driveway would be located, but there are no abutters here expressing concern. He said the only item the Board is voting on is the 59 foot width. He said there are trees in the proposed lot area, and since there are no objections from abutters, said that he’d support the request. Mr. Reppucci said the conservation area and the buffer is not before the Board, it’s only the lot width criteria. If there becomes a time that the buffer is encroached upon, they’ll have to address it before the Conservation Commission first. Mr. Shaw said he’s not in favor of the request. He said this was part of an original subdivision, and the opportunity was there to consider how this property could have been carved up. He said it’s a 14+ acre parcel, and one more home added, and the placement of the house relative to the property being subdivided and the house next door, that house is very close to the property line. He said there also could be a reduction in property values. He said he wasn’t sure that the spirit and ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 7 intent of the ordinance is to squeeze every last building lot into a parcel or subdivision, and didn’t see it as fitting or compelling reason to support the request. Mr. Creed said he’s not voting on the case, and said he is concerned about property values. He said he was surprised that no abutters showed up to the meeting. Mr. Currier stated that he thought the applicant didn’t speak to any of the abutters. MOTION by Mr. Reppucci to suspend the rules to allow for additional testimony. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Atty. Prunier said that they did speak to the abutters directly. He said they didn’t necessarily say they were in favor of the request, but when asked if they had any questions or opposition to the request, they said no. Mr. Currier said that someone came in late to the meeting, at this point, the Board discussed whether or not to re-open the public hearing. Mr. Johnson said there is a safeguard, which is the 30-day appeal process. MOTION by Mr. Currier to re-open the public hearing. SECONDED by Mr. Shaw. MOTION FAILED 3-2 (Mr. Reppucci, Mr. Johnson and Mr. Boucher against Motion). Mr. Currier stated that he won’t be supporting the request, as the subdivision was laid out and it didn’t anticipate adding additional density. Mr. Reppucci said that when the subdivision was laid out, the rules for hardship were much stricter. He said twenty years ago, this may have been the wrong thing to do based upon the ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 8 hardship standards, but now, the standard is whether it’s a reasonable use of the land. Mr. Boucher said there was no testimony from abutters either for or against, and said that in looking at the neighborhood, said he didn’t find their request unreasonable with today’s standards. Mr. Johnson said he concurs with Mr. Boucher. Mr. Shaw said that it’s his opinion, in that approving this, it may negatively impact the property values of surrounding properties. MOTION by Mr. Reppucci to grant the variance on behalf of the owner. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than the 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 discussion on that, and some Board members feel that it will, and this motion is based upon the idea that it will not adversely affect property values, it is not contrary to the public interest, and substantial justice is served. Mr. Reppucci stated that the Motion is intended to speak specifically to the requested variance before the Board, and nothing more, it’s not intended to leave any implication that the Board approve/not approve of any other special exceptions or requirements brought forward from this land and the development of this property. SECONDED by Mr. Johnson. MOTION CARRIED 3-2 (Mr. Shaw and Mr. Currier in opposition). MISCELLANEOUS: REHEARING REQUESTS: ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 22, 2012 Page 9 None. REGIONAL IMPACT: Mr. Falk stated that there is still an extra week, so the agenda is not quite ready yet. He said there are two cases for the next meeting, neither of which would be Regional Impact. Mr. Currier brought up the property recently approved on Farley Road, with the issue of regional impact. Mr. Falk said that the neighboring town was notified before the Zoning Board meeting, and when it was going to the Planning Board, the Town of Hollis said they were not notified that the case had regional impact. He said the issue was resolved. Mr. Falk said that he would provide the Board with more information relative to regional impact. Further discussion ensued. Mr. Currier asked if in the times where there is an extra week between meetings, that Mr. Falk could email the agenda to the members. MINUTES: None. Mr. Reppucci passed out information/documents to the Board members produced from his research over the last few years relative to a 2-2 vote, and how motions are approved or denied. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:17 p.m. Submitted by: Mr. Jack Currier, Clerk. CF Taped Hearing