Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 12, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, June 12, 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. Louis Delpidio (Owner) Andrea Pearce (Applicant) 14 Curtis Drive (Sheet C Lot 778) requesting variance to exceed maximum accessory use area, 40% permitted – 49% proposed – to construct a 10’x24’ detached screened porch. R40 Zone, Ward 9. Voting on this case: Rob Shaw Gerry Reppucci Rick Johnson Jack Currier David Creed J.P. Boucher – (not voting) Andrea Pearce, 14 Curtis Drive, Nashua, NH Ms. Pearce stated that her family has lived in the home for 19 years, and said she recently acquired it. She said the plan is to build a screened- Zoning Board of Adjustment June 14, 2012 Page 2 in porch alongside the pool, because after the sun goes down, there are a lot of insects and they can’t use the pool. Mr. Currier asked about the porta-shelter, and what will happen to it. Ms. Pearce said it’s a temporary structure, which has all the items in the cabana that were lost in the storm last winter, and it’s all being re-constructed at this time. She said once the new structure is built, the porta-shelter will be removed. She said the structures under construction will be done in about a week. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the variance application 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, it is not contrary to the public interest, and substantial justice is served. Mr. Reppucci said that a special condition is that the temporary garage structure be removed upon completion of the screened-in porch. SECONDED by Mr. Creed MOTION CARRIED UNANIMOUSLY 5-0. 2. Richard C. & Suzanne P. Raisanen (Owners) 11 Lamb Road (Sheet B Lot 239) requesting the following variances: 1) minimum lot frontage, 120 feet required – 47.93 feet Zoning Board of Adjustment June 14, 2012 Page 3 proposed; and 2) minimum lot width, 150 feet required – 47.93 feet proposed – both requests to subdivide one lot into two lots. [REHEARING] R40 Zone, Ward 9. Voting on this case: Rob Shaw Gerry Reppucci Rick Johnson Jack Currier J.P. Boucher David Creed – (not voting) Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis said that the property is located west of the intersection of East Dunstable Road and Lamb Road. He said the property is 2.83 acres in size, and has a single family home located on it. He said it was created in 1957 by a subdivision plan of record at Plan #1508. Atty. Hollis said the property has 197.93 feet of lot frontage, although it has 200 feet of frontage by deed. He said the width is about 230 feet, more or less, at the width mark, and the rear lot line is 300 feet long. He said it’s zoned R40, with a minimum 40,000 square foot lot. He said across the street it is zoned R18. Atty. Hollis stated that the request is to create two lots, but the minimum frontage requirements for R40 are 120 feet, and they only have about 200 feet, and the minimum width is 150 feet, and they only have about 230. He said the lot size is well in excess of the minimum requirements. Atty. Hollis passed out a bounded exhibit, and went through the Exhibits. He said that the exhibits show two scenarios, with the driveway on either one or the other side of the lot, and it makes no difference to the applicant which one is approved. Atty. Hollis pointed out the location of the other flag lots along the street, and identified the frontage that they have, and their driveways. Atty. Hollis said that in granting the request, it will not be contrary to the public interest. He said it will not be contrary to the neighborhood, it will not threaten public Zoning Board of Adjustment June 14, 2012 Page 4 safety, it will not injure the public welfare, and it will not injure the rights of others. He said the proposed lot size meets the ordinance, and it won’t overcrowd the land with only two houses on 2.83 acres. He said the proposed lots will be between 75,000 and 80,000 square feet in size, depending on final subdivision numbers. He said from the street, there will still be only one driveway. He said adequate access for fire and police up the driveway will exist. He said the request will not alter the essential character of the neighborhood, as shown in Exhibit B. Atty. Hollis stated the request will not threaten public health, safety or welfare. He said questions have been raised in past hearings about traffic issues, the ITE standards state that each single family house produces ten vehicle trips per day. He said the traffic study is enclosed, as Exhibit D. He said the study indicates that the speed limit is 25 mph, and in the vicinity of the approach grades, are approximately +5 going uphill and -9 going downhill. He said the site distances are more than adequate from either of the proposed driveway options, 280 feet looking down to the left, and 400 feet looking to the right. He said the new site distances are 316 and 400 for the new driveway. He said the AASHTO site distances for stopping requirements for safety only require 232 feet and 287 feet, so, the proposed plan exceeds that. Atty. Hollis said that the proposed use will observe the spirit and intent of the ordinance, and substantial justice will be done, the Board has to balance the harm to the individual versus the harm to the public, and there really is not harm to the public, except stopping one house, so, there is harm to the applicant. He said it won’t diminish the values of the property, there is an opinion in Exhibit H from a realtor that says by adding one more house, on this size lot, will not adversely affect the property values. Atty. Hollis stated that the property is unique, and it meets the hardship, based upon its shape, and it is the only property of this shape in this area. He said the lot stands alone, and doesn’t serve any real or substantial purpose to keep it as is, there is more than adequate room for an additional house. SPEAKING IN FAVOR: Richard Maynard, Maynard & Paquette, Nashua, NH. Mr. Maynard Zoning Board of Adjustment June 14, 2012 Page 5 said the property is more than adequate for two dwelling units, as it is 2.83 acres in size. He said there are three different scenarios in which the property could be developed, one has a cul-de-sac. He said that the two proposals with the shared driveway will not adversely affect property values. He said a cul-de-sac lot, with additional paving and more impervious surfaces will not be good for property values. He said a cul-de-sac plan with more pavement, less green space, more storm water runoff, and more cost to the City to plow and maintain, it’s better and more beneficial to develop the lot with a shared driveway. He said that substantial justice would be done by allowing one additional house, and substantial justice would not be served by requiring that a cul-de-sac be put in where a driveway can do the same thing, and it’s a substantially better idea, and plan. He said with the cul-de-sac, there is less land to address the stormwater runoff, and it would be worse for the neighbors. Mr. Reppucci said the best plan would be to leave the existing house where it is, and to put the driveway on the other side, leaving two driveways. He said it will not affect the volume of traffic going in and out of the two structures. He said it would be safer to have two driveways, so that the idea of having traffic going out of and into a driveway at the same time would be avoided. Mr. Maynard said that idea isn’t high on their priority list. He said it would only be adding one more trip per peak hour, it’s very insignificant as far as traffic volumes and considerations are concerned, as it’s most likely pretty rare where a car would be coming and going at the same time. He said the proposed driveway would be 24 feet wide, so it’s ample room for two cars. He said the driveway on either side would meet and exceed all the standards from AASHTO. Mr. Shaw asked why the two driveway options are being shown. Mr. Maynard said it’s to give the Board a choice, depending upon what the abutters say. He said the plans are very similar, and it’s subjective on the driveway locations. He said that one of the plans, the house would have to be re-located. Suzanne Raisanen, 15 Catherine Street, Nashua, NH. Mrs. Raisanen stated that their intent is for their children, not to Zoning Board of Adjustment June 14, 2012 Page 6 buy it and sell it. She said they didn’t purchase the property to just sell it and make a profit. Jennifer Raisanen, 11 Lamb Road, Nashua, NH. Ms. Raisanen said as far as the traffic goes, she said she’s never had a problem pulling out of her driveway, or turning in. Richard Maynard, Maynard & Paquette, East Pearl Street, Nashua, NH. Mr. Maynard stated that on Page 3 of the traffic report, conclusion number 1. He said the existing driveway location has less sight distance than the proposed driveway. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ken Seigel, 3 Lamb Road, Nashua, NH. Mr. Seigel asked why we’re here again for this issue. He said that Mr. Raisanen is a developer, with substantial knowledge. He said his intention is to come before the Board for relief. He said the traffic is an issue, it is at a significant grade change, and visibility is very challenging. He said when he bought his home, he tried to buy the lot next door. He said he didn’t see the reason why hardship should be found in this case. Mr. Shaw said that there is an option to appeal the Board’s decision, should the Board choose to grant the rehearing. Harriet Lemery, 9 Lamb Road, Nashua, NH. Ms. Lemery said the previous owner was very proud of her yard, and her home and privacy. She said that they would lose their privacy if this case is approved, as a house would be in their back yard. She said the neighborhood is quiet, although the traffic sometimes is going 40 mph. She said sometimes there is a lot of noise coming from the property later at night. She said if they put the driveway between her and the existing house, and put a house out back, it will be right in the back yard. Chris Maloney, 15 Lamb Road, Nashua, NH. Mrs. Maloney said they are short on their lot width and lot frontage. She said the original owner was very concerned with the wildlife. She said that this property was originally laid out the way it is, and that’s how it was surveyed, and it should stay that way. She said that there is a ravine on one side, and water runs down into their property. She said there are over 9,000 cars a day going on Lamb Road, and the traffic report doesn’t show exactly what goes on, as it is hilly, and the sun gets in driver’s eyes. Zoning Board of Adjustment June 14, 2012 Page 7 Kevin Maloney, 15 Lamb Road, Nashua, NH. Mr. Maloney stated that way too much time has already been spent on this request. He said his opposition to the subdivision have already been expressed. He said his concerns about safety on Lamb Road have been discussed by many people in the neighborhood. He said the voices of the abutters have been heard. He said the 1-hour traffic survey by Pernaw and Company in no way depicts the traffic conditions on Lamb Road, and this has been expressed to the Board by the abutters. He said the traffic information explained by Maynard & Paquette was from 2007, which is somewhat irrelevant, since it’s over five years old. He said the letter from Keller Williams should be discredited, because Raisanen and Keller Williams do business together. He said any building in back of his yard will be a problem, no matter how nice it is, the only thing he said he wants to see is woods, animals and nature. He submitted a letter from a real estate agent to the Board. Dennis Stephens, 9 Byron Road, Merrimack, NH and 5 Lamb Road, Nashua, NH. Mr. Stephens said the home for 5 Lamb Road is permitted, and construction is still pending. He said 5 Lamb Road is also a flag lot, and has extensive woods on all sides of it. He said the Nashua Fire Department requires that the driveway be built to accommodate the largest vehicle, and in this case, it’s a ladder truck. He said his lot will have a turn-around, either a cul-de-sac or a hammerhead, at the end of the driveway. He said that this isn’t shown on their plan. He said if the case is approved, the Board should make a special condition that they have no in-home occupations. Gerald Bernier, 10 Lamb Road, Nashua, NH. Mr. Bernier said that Lamb Road has a crown on it, as you approach the intersection, and you cannot see cars in the intersection, or cars waiting to come through the intersection. He said cars are going somewhat fast, and it’s tough to get out, and when you do, cars are coming down the hill fast. SPEAKING IN FAVOR – REBUTTAL: Attorney Hollis said that no one wants any development in their back yard. He pointed out Exhibit “C”, which shows the relevance of submitting the variances. He said that every variance stands on its own. He said that the impact of the variances are what everyone later has to live with. He said Zoning Board of Adjustment June 14, 2012 Page 8 that this request, if approved, would co-exist with other lots out there, which are flag lots, back lots. He said that the Zoning Board has found that having a limited frontage in these other four situations was not contrary to the spirit and intent of the ordinance. He said that neighborhoods have to expect change over the years, and the only change to this area will be one additional single-family house. He said the Board must weigh one additional house’s traffic, and it won’t threaten public safety. Atty. Hollis said as far as the competing realtors, they’re going to say what their opinion is. He said that he’s looked at the evidence from the City of Nashua, and no tax evaluation dropped after any variance for the other nearby flag lots. He said the proposed case will not change the character of the neighborhood, nor will it threaten public safety. He said that in Exhibit “B”, it will not change the character. He said the property is unique. He said the Board is required to find relief where there is an unfair an unreasonable burden placed by the Ordinance. Mr. Currier asked what Atty. Hollis thought of the competing appraisals of the property. Atty. Hollis said that Mr. Raisanen and his company and Mr. Turmel are not business partners. He said that Keller Williams is a fairly large realty organization, with an office in Nashua, and that’s the firm that Mr. Turmel works for. He said that other people besides Keller Williams sells Raisanen Homes. He said he knows nothing of Mr. Warhola. He said that the Board should look at the real estate letters as just opinions. He said that these are big lots, they’re over 75,000 square feet, with buffers. He said that the case also has to go to the Planning Board for a subdivision. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Seigel said he didn’t like the fact that the applicant had three different proposals on the bulletin board, as the conversation leads itself to the Board choosing the one they like the best. He said he didn’t even think that the developer would ever build the proposal with the cul-de-sac. He said there is reasonable use right now, as the property has a single- family house on it. He said the applicant knows what the rules are, and stated that the hardship is self-created, as they are a Zoning Board of Adjustment June 14, 2012 Page 9 person of knowledge. He said there will be a decreased value of property in the neighborhood. He said there should not be relief granted in this case. Mr. Currier said he is not supportive of the application. He stated that the rehearing request stated that the Board didn’t address the correct hardship criteria, and is glad the Board is discussing the Simplex criteria, with respect to property values, as there are competing real estate appraisal letters. He said that Simplex talks about the owners right to develop, so long as there is no diminution of abutting properties, and that the proposed use does not injure the public or private rights of others. He said there are competing appraisals, and said that he falls squarely on the side that property values will go down, as these are large lots with large back yards. He said a flag lot will not be beneficial since the lot on the other side is not a flag lot. He said that universally, all the abutters were against the case as they felt that traffic was difficult, as the speed of cars is 40-45 mph. Mr. Reppucci said he disagrees that we have two appraisals before the Board. He said they are not appraisals, they are not statistical analyses. He said they are complicated. He said they are general opinion letters. He said the increase in traffic is not relevant to the Board, when deciding land use. He said the real question is whether the land has a right to relief, to have a second house. He said the added traffic is negligible, and also, it’s a Planning Board issue. He said the traffic is inconsequential in deciding a land use issue. He said there is no relevance on whether someone, like the owner, knows the Code, or is a developer, he said the real question is whether the property is entitled to relief. He said there are multiple flag lots right up the street, and previous Zoning Board decisions have found them to meet the points of law. He said the proposal with adding one additional driveway is the best alternative, and not to have one shared driveway. Mr. Creed stated that the fundamental role of the Zoning Board is to grant relief to parties when the enforcement of the Ordinance creates a hardship. He said he is persuaded that there is no hardship created. He agreed with Mr. Reppucci in that the real estate letters are just opinions, and not appraisals. He said all the neighbors and abutters agree that their property values will go down, and thought that the request would be contrary to the public interest, and most if all of the Zoning Board of Adjustment June 14, 2012 Page 10 neighbors are here opposing the request. He said the property is being used in a reasonable manner, and in an economically beneficial manner, one in which suits his stated purposes. He said even though he’s not voting on the case, he’d be opposed to it. Mr. Johnson said with the subdivision, it would not bring either lot under the 40,000 square foot minimum area, if it were approved. Mr. Reppucci said in 2005, the Court, in the Chester Rod & Gun Club, v. Town of Chester, in that decision, they defined the public interest. They said for a variance to be contrary to the public interest, it must unduly and to a marked degree, violate the basic zoning objectives of the zoning ordinance. He said the variance would have to alter the essential character of the neighborhood, or threaten the general welfare of the public. He said there are already four flag lots right in the neighborhood, and didn’t see that the request would alter the essential character of the neighborhood by adding one more home. Mr. Boucher said he feels for the abutters. He said that change is difficult in neighborhoods. He stated that one abutter, at 9 Lamb Road, is concerned with the disturbance in the back yard. He said that he is familiar with traffic on the street. He said that the Board is not considering an undersized lot, and the zoning is not being changed. He said he’s supportive of the request. He said that builders don’t build homes that don’t fit into a neighborhood. Mr. Currier said 9 and 15 Lamb Road are not flag lots. Mr. Boucher said that no one knows what the future will be with property values, there is no physical statistical data that proves that property values will be less. Mr. Currier said that the Board members should state whether the property values will be diminished or not. Mr. Boucher said in his opinion, having seen the property, that a house added, with improvements made to the house in the front, that it will not diminish the property values. Mr. Johnson said that the Board has not seen anything that has factually pointed out that there will be either an increase or Zoning Board of Adjustment June 14, 2012 Page 11 decrease in property values. Mr. Shaw said there wasn’t conclusion as to whether they didn’t go up as much as other properties, so it was inconclusive, but the intent of the testimony was that there wasn’t an observed diminution of property values. Mr. Reppucci said the Office of Energy & Planning has an extensive program on this topic. He said that it says that the ZBA should not be overly concerned about the third element of unnecessary hardship, meaning property values. He said unless there is convincing evidence that there will be a significant decrease in surrounding property values, or some clear harm to public health, safety and welfare of the variances granted. He said it also refers to the Chester Rod & Gun Club, he said that what they’re really saying is to not speculate on this, unless there is convincing evidence that property values will be diminished, it’s not something we should look at and make an arbitrary decision and say that property values will be diminished. He said it tells us the opposite, it tells us to look for evidence that shows that, or not consider it. Mr. Shaw said the testimony was supportive of the property values going down, and said that the opinions are competing. He said he believes that 9 Lamb Road and 15 Lamb Road will have diminished property values. He said the cul-de-sac plan is one where a variance would not be required. He said it might be more intrusive, as far as impervious surface, but if there was a City street there, it would have greater control to the traffic entering and exiting. Mr. Reppucci stated that the applicant is pointing out that a variance for their requested subdivision is far less intrusive than what they could do by right. He said it’s almost like they’re looking out for the neighborhood by asking for a lesser intrusive development. Mr. Shaw said that even though there are many other flag lots in this immediate neighborhood, he stated that their presence and the way they’re set back in, and not visible from the road, it’s not something that is detectable with the nature of those flag lots. He said he doesn’t see this with the present proposal. Mr. Reppucci said that he couldn’t see how this request is out of character with the neighborhood, since there are two other Zoning Board of Adjustment June 14, 2012 Page 12 flag lots right nearby, and one of them touches the subject property. MOTION by Mr. Reppucci to grant the variance request 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. He said there would be no other way to develop this land without this subdivision, and without getting relief on the two requests. 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, Board members supporting this motion believe that there is no demonstration adequate to show that property values of surrounding parcels would be adversely affected. He stated that it is not contrary to the public interest, Board members supporting this motion would believe that the Board is allowing the least intrusive solution to the problem of dividing this lot, and the solution that they’re allowed to do by right would be far more contrary to the public interest, and what the Board is allowing; and, substantial justice is served. Mr. Reppucci said the motion is to allow the applicant these two variances with no specific specification on what solution they choose to use, they can do whichever one they see fit, they’re advocating the original plan, and said that it’s the least impactful solution. Mr. Shaw said it’s either of the two proposed plans with the flag coming in from the left side or the right side of the property. Mr. Reppucci agreed, the motion is to grant the two variances, with no other restrictions than the present laws require. Mr. Shaw asked about a stipulation about a no-cut buffer. Mr. Reppucci said no, it’s more of a Planning Board issue, and that is the place to lay out that issue, and it’s beyond the Zoning Board’s purview. Zoning Board of Adjustment June 14, 2012 Page 13 SECONDED by Mr. Boucher. MOTION CARRIED 3-2 (Mr. Shaw and Mr. Currier). REGIONAL IMPACT: The Board did not see any cases that are Regional Impact. MINUTES: May 8, 2012 and May 22, 2012. MOTION by Mr. Reppucci to approve both sets of minutes as presented, waive the reading, and place the minutes in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:55 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing