Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 24, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, July 24, 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 David Creed J.P. Boucher 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. Richard & Diane Sadoski (Owners) 3 Loop Avenue (Sheet C Lot 230) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit; and the following variances: 2) to encroach 23 feet into the 25 foot required right side yard setback, 3) to exceed maximum area of accessory dwelling unit, 700 sq.ft allowed, 984 sq.ft proposed, and 4) to exceed the maximum floor area for an accessory dwelling unit, 30% allowed – 41% proposed – all requests to construct an 18’x24’ attached two-story addition. R40 Zone, Ward 5. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson Zoning Board of Adjustment July 24, 2012 Page 2 David Creed Diane & Richard Sadosky, 3 Loop Avenue, Nashua, NH. Mrs. Sadosky said they’ve talked to all their neighbors, and they are in favor of the request. She said the reason why they are asking for the special exception is that their son and daughter- in-law have been living with them the past 2 years, and they’re sharing a kitchen. She said the new addition will allow for better living arrangements within the house and addition. Mr. Shaw said there are three dimensional variances as well. Mrs. Sadosky said the kitchen is on the side that the addition would be built on. She said the other side of the house, it goes up three stories, plus, there is a pool on that side of the property. She showed the Board some pictures. Mr. Sadosky said they wouldn’t have access to the house if they built the addition on the other side of the house. Also, Loop Avenue wasn’t finished through to Parker Drive. He said that it would be hard to access the addition or even to have access to a garage on that side. He said the garage will be a benefit in inclement weather, so that no one slips and falls outside. Mrs. Sadosky said that she has another letter of support from another neighbor, all the neighbors get along very well. Mr. Shaw asked if they could speak to the points of law relative to the special conditions for an accessory dwelling unit. Mrs. Sadosky said that her and her husband would live in the in- law apartment. She said it would work out will with the living arrangements inside the house, and to have another kitchen. Mr. Shaw went over the accessory dwelling unit points of law, and Mrs. Sadosky said they meet all of the criteria. Mr. Creed asked if the structure is going to be like a two- family house. Mrs. Sadosky said that the interior will not be cordoned off, or walled in so that you can’t go from one unit to the other. She said that the nature of the house is that it will still look like a single-family home. Zoning Board of Adjustment July 24, 2012 Page 3 Mr. Currier asked about the square footage. Mrs. Sadosky explained that the house is a cape, so there is space on the second floor that you cannot count. Mr. Falk explained how staff calculated the square footage. He said that there is space by the eaves where square footage is not calculated. He said they came up with just under 1,000 square feet of size. Mr. Currier asked about a 1998 Zoning Board case in which the pool was requested in the wetland buffer, and there was a statement that the pool couldn’t be placed anywhere without being in the 75-foot wetland buffer, he thought that was an erroneous statement. Mrs. Sadosky stated that there is a 100-foot review board, and said that there wasn’t a place in the back yard to put the pool without it being in the buffer zone. Mr. Falk said he gave the Board a drawing showing the wetland area, and said that the addition is not within a wetland buffer, rather, it’s over 100 feet away. Mr. Johnson asked about a part of the building that could be rented out, where there is complete privacy. Mr. Falk said that staff doesn’t review rent receipts, or if anyone is paying to live there. He said most all accessory dwelling units are family members. He said these buildings are not looked upon as two-family units, as they get a different type of building review. He said they don’t have to have a wall, or a floor completely separating the units. He said that what makes the in-law apartment is the second kitchen. Mr. Shaw said there can be rent, but it’s all within the family relationship. He said that the Board doesn’t ask to see it. Mr. Reppucci said it’s common that there is some separation and privacy in the accessory dwelling unit, and there’s not a restriction to do it if they so choose. Mr. Falk said a lot of times, it’s just a bedroom door, or an interior door or hallway. He said the intent is not to go outside and around the building to get into the accessory Zoning Board of Adjustment July 24, 2012 Page 4 dwelling unit. Mr. Currier asked about the 18-foot wide addition, and asked if it’s a skinny two-car garage. Mrs. Sadosky said yes, it’s like a 1½ car garage. She said they couldn’t make it any wider, as there is already an encroachment. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Shaw said that there were several letters of support that are included in the record, from abutters and neighbors. MOTION by Mr. Reppucci to grant the special exception request on behalf of the owner. Mr. Reppucci stated that the request is listed in the Table of Uses, Section 190-15, Table 15-1, #3, and 190-16, Table 16-3, and 190-32 (B)(1). Mr. Reppucci stated that the use will not create undue traffic congestion or unduly impair pedestrian circulation. He said it will not overload public water, drainage, or sewer or other municipal systems. Mr. Reppucci stated that the special regulations will be fulfilled, and it will not impair the integrity or be out of character with the neighborhood, or be detrimental to health, morals or welfare of residents. He said it also requires three variances, and provided they are approved, the motion is to grant. Mr. Reppucci said that under the special exception special conditions, by testimony, all the special conditions will be satisfied, provided the variances requested will be accommodated. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Reppucci to grant the variance application on behalf of the owner. Mr. Reppucci stated that the variances are Zoning Board of Adjustment July 24, 2012 Page 5 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 variances. 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. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: Rehearing request from Ken Siegel, 3 Lamb Road: 1. 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 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. Mr. Shaw identified the four criteria that the Board must go over for a rehearing request. Mr. Shaw asked if there is any procedural error, including improper notice, or denying someone the right to be heard. Mr. Currier said everyone had their time to speak, and said there wasn’t. Mr. Shaw said he didn’t believe that there was any procedural error. Mr. Shaw asked if it were 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. Reppucci said he believed it was not an illegal decision. Zoning Board of Adjustment July 24, 2012 Page 6 Mr. Shaw said the rehearing request seems to raise that as a point, but it’s just the abutter not agreeing with statements made. Mr. Reppucci said the items raised are subjective, and he just doesn’t agree with the things we did. He said that he thought that he’s wrong on some of his assumptions about what we must do. He said he didn’t think the scope of the items he’s raising is out of line, he just didn’t agree with them. He said the whole process of a rehearing is to allow the Board to correct mistakes we feel we made, so as to resolve issues before they go to Court. He said that he believed the Board did everything legal and proper. Mr. Creed said that he was one of the most vocal opponents of this case. He said that he believes that the decision was not illegal, the Board properly made a decision, and properly considered everything, and followed the rules, and did what we were supposed to do. He said he didn’t feel that the decision was illegal. He said he didn’t feel that the Board should grant a rehearing. Mr. Shaw said at this point, the Board doesn’t see anything in Point #2 that could cause a rehearing. Mr. Shaw asked if the request for rehearing contains any new information not presented or available to the Board at the original Public Hearing. Mr. Reppucci said he didn’t see anything new. He said there might be something new, but said his observation was no. Mr. Currier said that for Point #4, Mr. Siegel said that 5 Lamb Rd has a mandated buffer area. He said that he feels that the buffer area is a right of this Board, however, others feel that it is a Planning Board issue. He said he feels that if the Zoning Board feels that the buffer is needed, it’s within our right to do so, because sometimes the Planning Board doesn’t have the ability to do that. He said that when we have rehearing requests, it’s an opportunity for us to correct our mistakes, and to weigh if there is new information. He said that he believed that the Board was heavily persuaded by the flag lots up the hill, and how they are currently developed. He said that the buffer was debated a lot, and it could be relevant Zoning Board of Adjustment July 24, 2012 Page 7 new information, and it’s worthy to rehear it. Mr. Reppucci said he’s of the opinion that the people who are concerned about buffer zones, that the proper venue for them to use is to go to the Planning Board and present that information to them, and they can implement buffers on the approval for the plan as they see fit. Mr. Currier said a reasonable vegetated buffer along the back goes a long way, and wished the motion included that, because it would be a fairer motion. Mr. Reppucci said he’s struggling to see how the buffer on the other lot constitutes new information, he said the suggestion that there’s new information out there, or the story behind the buffer zones on 5 Lamb Road is eye-opening to the Board, doesn’t constitute new information, the Board should only look at what’s before us, and what’s included in the application. Mr. Johnson said the Board could make that decision to add the buffers, but it may not have been relevant or pertinent to the case. He said the Board should not be setting any precedence by considering adding buffer zones to the cases we get. He said while 5 Lamb Road has a buffer, it’s not directly related to the case that we have considered, we are here to grant relief, and didn’t see that just because 5 Lamb Road has a buffer, it’s just not that significant. Mr. Boucher said that he was thinking exactly what Mr. Johnson just said. He said in the rehearing request, he was looking for something substantial to read for the rehearing, but didn’t see anything. Mr. Shaw asked if anyone is of the opinion that the rehearing request does contain new information not presented or available to the Board at the original public hearing. Mr. Currier said he believes there is new information. Mr. Reppucci said no. Mr. Johnson said no. Mr. Boucher said no. Zoning Board of Adjustment July 24, 2012 Page 8 Mr. Shaw asked if there is anything which would/could cause the Board to make a different decision. Mr. Johnson said no. Mr. Currier said that four people already have said no. He said that he believes that there is new information that the Board hasn’t nailed down, which would/could cause a different decision. Mr. Boucher said no. MOTION by Mr. Reppucci to deny the rehearing request as submitted by Mr. Ken Siegel. Mr. Reppucci stated that the members who support this motion support the premise that there were no procedural errors, and there were no improper notices, and denying someone’s right to be heard. Mr. Reppucci stated that Mr. Siegel’s reference that #5 in his letter, that the comment would be significant if was true, he said that the homeowners in attendance were not allowed to all voice their opinion on whether this was in fact a beneficial outcome, of the three homeowners that were asked, one would rather have a subdivision, and neither of the two were clear on what they wanted, and I was never asked at all. He said that he didn’t think it’s true that people weren’t given the opportunity to be heard, he said everyone had their opportunity to speak according to the Boards rules and bylaws, and if they wanted to voice an opinion about that, they didn’t need to be asked by the Board to do it, they could have just done it. He said that just because we asked one person a question, and didn’t ask other people the same question, that doesn’t translate into denying someone the right to say their opinion on it. Mr. Currier said he’s in agreement with numbers 1 and 2, and would prefer that the motion said unanimously the Board agreed on numbers 1 and 2. Mr. Reppucci said it was unanimous that there were no procedural errors, there was no improper notice, denying someone the right to be heard, and it was unanimous that it was a legal decision, it was not an illegal decision, the Board did not fail to completely address each of the points of law required for a special exception or a variance. He said on the next item, there was some disagreement of people voting for this motion agree that there is no new information in this request for Zoning Board of Adjustment July 24, 2012 Page 9 rehearing, there was a dissenting voice on that, but people supporting the motion feel that there is no new information on the rehearing request. He said that for number 4, stating if there is anything that would/could cause the Board to make a different decision, he said the same people who supported number 3, support number 4, in that there would be no new opinion. He said the motion is to deny the rehearing request. SECONDED by Mr. Johnson. MOTION CARRIED 4-1 (Mr. Currier). MISCELLANEOUS: REGIONAL IMPACT: Mr. Falk said the Agenda is not finalized. He said that the next meeting, there are three cases, and he didn’t see any of them being of regional impact. MINUTES: June 12, 2012 and July 10, 2012: Mr. Reppucci mentioned on Page 11 of the June 12th minutes, the second paragraph at the end, he thought it should be reworded. Mr. Currier said that he’d like to see the verbatim exact language. Mr. Falk said he’d listen to the tape, and revise it accordingly, with the exact language that was said. MOTION by Mr. Johnson to approve the minutes with the corrections as discussed, waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 5-0. July 10, 2012 Minutes: MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place the minutes in the file. Zoning Board of Adjustment July 24, 2012 Page 10 SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:00 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing