Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 14, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 14, 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, Clerk Rick Johnson David Creed 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. Butch Jake & Rosa L. Kwan (Owners) 46 Amherst Street (Sheet 62 Lot 3) requesting variance for minimum lot area, 12,445 sq.ft required, 8,715 sq.ft existing – to convert a single- family home into a two-family home. RB Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson David Creed JP Boucher Rosa Kwan, 43rd Avenue, Woodside, NY. Mrs. Kwan said the request is to convert a single-family house into a two-family house. She said her son no longer lives at the location. She said the two rents will assist in paying the mortgage. Zoning Board of Adjustment August 14, 2012 Page 2 Mr. Reppucci stated that they cannot use any financial situations for the points of law. He said that they Board cannot consider anything financial for the points of law. Mrs. Kwan said if the rents were lower, it would help provide for affordable living for two units. Mr. Reppucci asked how long the house has been empty for. Mrs. Kwan said they had renters in there four years ago, and now, it’s been empty for three years. SPEAKING IN FAVOR: Alfredo Kwan, Woodside, NY. Mr. Kwan said the house is empty. He said they don’t want to sell the house, as they’d lose a lot of money. He said if they have two units, they’ll earn more income to maintain the structure better. Mr. Creed said that there is no detailed plan to review, and said that the Board shouldn’t be able to consider this request until a better plan is submitted. Mr. Kwan said he worked in New York City for over 25 years, and it would be fine there. He said he was a Chief Estimator in the City for 25 years. Mr. Creed said from what he’s seen and heard so far, the idea to go from a one-family to a two-family came from a realtor. Mr. Kwan said it’s his idea, he said that the realtor had nothing to do with the idea. He said the tenants that were in the house four years ago was a disaster, as the neighbors will attest. He said they had to evict them, they had parties all the time, and abused the property. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mary Gorman, 44½ Amherst Street, Nashua, NH. Mrs. Gorman asked the Board to deny the application. She said zoning is to prohibit overcrowding, and that is what the proposed request will do. She said the lot needs to be 12,445 square feet, and it only has 8,715 square feet. She said that when the tenants were there in the past, they ruined the comfort and tranquility Zoning Board of Adjustment August 14, 2012 Page 3 of their home. She said they suffered due to the actions of the tenants, and the inaction of Mr. Kwan to address the irresponsible behaviors of his tenants. She said the partying, loud music, noise at all hours of the night, and people urinating in the yard occurred regularly, and they called the police eleven times, and showed the Board the sheet, of which fifteen calls were serviced to 46 Amherst Street. She said that other neighbors have called, too. She said they notified Mr. Kwan, and he never responded Mrs. Gorman said there is no justification to grant the variance, and there is no hardship in the land. She said the points of law are not met, and the neighborhood is already overcrowded. She said his behavior as an absentee landlord threatens the stability and tranquility of the neighborhood. She said the request should be denied due to the overcrowding of the neighborhood. Kathleen Willey, 48 Amherst Street, Nashua, NH. Mrs. Willey said she submitted a letter in opposition as well. She said they are concerned that the house cannot support two families, and the area is too small, and the parking would be insufficient. She said they are concerned that the landlords don’t live here, and problems keep mounting, and it becomes a Code issue. She said if the back yard area is used for parking, there wouldn’t be a place for children to play. Ed Mooney, 44½ Amherst Street, Nashua, NH. Mr. Mooney referred to his letter that the Board previously received. He read the letter into the record. SPEAKING IN FAVOR – REBUTTAL: Alfredo Kwan. Mr. Kwan said that the 44½ Amherst Street is called that because the lot was subdivided, and that’s why there is a house in the back. He said the lot in the front was divided into two lots. He said they’re trying to maintain a good relationship with the neighbors. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. Mr. Currier said he’s struggling to find support for this application, and thought that most all the houses on Amherst Zoning Board of Adjustment August 14, 2012 Page 4 Street have been established for a very long time, as many have granite slab foundations, and pre-date zoning. He said that he feels as if it’s an overcrowded situation. Mr. Creed said that financial considerations are not a part of this Board’s purview for review of the application. He said that the plans were very well drawn up, but done by Mr. Kwan himself. He said the plans show two instances of the exterior being changed, yet their application makes frequent reference to the fact that no exterior change will happen. He said the application itself is a bit premature in the sense that it’s not ripe for consideration. He said the Board doesn’t have any definite plans. Mr. Reppucci said he’s concerned about the abutters with the bad experiences, it has greatly impacted them. He said that the house can be rented out again tomorrow, and a bad tenant could live there if they’re using it as a single family home. He said on a positive note, if a two family home were approved, it would be brought up to code, so that would be favorable. He said he can’t support the application because we’re dealing with an absentee landlord who has neglected the property for many years. He said it didn’t make sense that the owners claim that they have financial hardships, but haven’t even rented the place in three years, and the house has deteriorated. He said the abutters concerns are well-founded, and cannot support it. Mr. Johnson said the request is contrary to the public interest, based upon the traffic, density, and in this location and this case, cannot support the application. Mr. Boucher said he may have looked at this differently, if there wasn’t the situation with the impacted neighbors. He said their testimony weighs heavily in this case, and agrees with previous statements, and is contrary to the public interest. MOTION by Mr. Johnson to deny the request on behalf of the owners. Mr. Johnson stated that the hardship is not met, outside of financial. He stated that for the spirit and intent of the ordinance, it is not warranted. He said it may not adversely affect the property values, but it could have other impacts. He said it is contrary to the public interest, primarily for density, and building locations, traffic flow, and the busy nature of Amherst Street, and it does not fit the criteria that it must not be contrary to the public interest, Zoning Board of Adjustment August 14, 2012 Page 5 and approving this variance would be contrary to the public interest, and substantial justice would not be done. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 5-0. 2. Julie A. & Thomas M. Fetters (Owners) 2 Bishop Lane (Sheet B Lot 473) requesting variance to maintain a driveway 28.2 feet from an intersecting right-of-way – minimum of 50 feet required. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson David Creed JP Boucher Julie Fetters, 2 Bishop Lane, Nashua, NH. Mrs. Fetters said they bought the property in 2000, the houses around here are basically starter homes. She stated that the addition is out of the power line easement. She said they were unaware of the setback of the driveway to the intersection. Mr. Reppucci said that there are two drawings, and asked for an explanation of the changes. Mrs. Fetters stated that the first one just showed the driveway staying in the original location. Mr. Reppucci said that the original drawing shows the new garage, with the garage doors oriented towards Northeastern Boulevard. Mrs. Fetters said that plan was just for the building permit for the construction to be done. Mr. Reppucci said it would have implied that a new driveway would be needed to swing around into the new garage. Mrs. Fetters said that they didn’t know about the Code, or the need for the variance, so it wasn’t addressed. Mr. Boucher asked about the traffic on Bishop Lane. Zoning Board of Adjustment August 14, 2012 Page 6 Mrs. Fetters said one house doesn’t drive, and it is a very short street. Mr. Boucher confirmed his knowledge of the traffic with the applicant. Mr. Reppucci said that the paving company should have known that you can’t install a new driveway within fifty feet of a street intersection. Mr. Currier asked if staff has received any feedback from DPW. Mr. Falk said they were aware of the request, but staff did not get any comments back. Mr. Creed asked if the driveway would cause a risk of being rear-ended off of Northeastern Boulevard. Mrs. Fetters said they usually always use exit 4, they rarely go up to exit 5. Mr. Boucher said he’s in support of the proposed request, and stated that there is a driveway on Stafford Street that is even closer, and there are no traffic issues there. Mr. Reppucci said there is a clear line of sight, and they should be able to stay in their travel lane. He said it doesn’t seem like a problem. He said the applicant’s testimony about them not knowing about a variance was credible, and didn’t see any reason to deny the request. Mr. Currier said the street is low volume, but Northeastern Boulevard has a lot more traffic. He said he agrees with the line of sight not being a problem for the driveway. He said he believes that the ordinance requirement was not known to the applicant/owner, and that’s how they got to this point. Mr. Johnson said he noticed there were other driveways close to an intersection in this general location. He said he didn’t see an issue with this request. SPEAKING IN FAVOR: No one. Zoning Board of Adjustment August 14, 2012 Page 7 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the variance on behalf of the owners. Mr. Boucher 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 in some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Boucher stated that 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, and substantial justice is served. SECONDED by Mr. Johnson. Mr. Reppucci said he didn’t understand what the easement to the power company allows them to do. Mr. Boucher stated that just like the easement we saw in the south end, when they were going to replace poles, they want the air space to maintain the main distribution lines. He said they want clear access, and that’s the intent. Mr. Currier agreed, and said his neighbor has an easement for sewer, they can put a driveway across it, but no structure. MOTION CARRIED UNANIMOUSLY 5-0. 3. Jacqueline Rodriguez (Owner) 51 Monroe Street (Sheet 103 Lot 83) requesting variance for minimum lot area, 12,445 sq.ft required, 6,300 sq.ft existing – to convert a single- family home into a two-family home. RB Zone, Ward 6. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson David Creed JP Boucher Zoning Board of Adjustment August 14, 2012 Page 8 Tom Deary, 7 Bates Drive, Nashua, NH. Mr. Deary stated that he is a friend of the owner. He said when she bought the house, she bought it as a two-family, but didn’t realize it wasn’t legal. He said she’s been paying taxes on it as if it’s a two- family. He said it’s an upstairs/downstairs building, each floor is the same layout. He said the neighbors have no issue with the request. Mr. Deary said that this issue came about when the owner wanted to separate the electric from upstairs to downstairs, and he asked Gagne Electric to pull the permit, and it was noted that the use wasn’t approved. Mr. Deary said the driveway can fit four cars. He said there’s a back deck that goes up to a rear entrance, and a front entrance for the upstairs unit. He said there will be no change to the exterior of the building. Mr. Currier stated that the application lists it as an in-law apartment, and the testimony was that it’s a two-family, at least in taxes. Mr. Deary said he wasn’t involved in buying the house, he said she bought the house under the assumption that it was a two- family house. He said the previous owner had used it as an in- law apartment, and a neighbor confirmed that as well. Mr. Boucher asked if the previous owner asked for permission for an in-law apartment. Mr. Falk said they never asked for permission for either an in- law apartment or a two-family. Mr. Creed asked how long if the City knew about this. Mr. Falk said the City was unaware, they had this use for quite a while. Mr. Deary said the owner bought it about 11 years ago, but he didn’t know what it was before that. Mr. Reppucci said when it was sold as a two-family, he asked if there was any personal knowledge of that. He said he didn’t know how it was sold as a two-family, if it’s recorded as a Zoning Board of Adjustment August 14, 2012 Page 9 single-family in the Registry of Deeds. Mr. Boucher said that some real estate agents list a property as a two-family, without doing the proper research according to the records. Mr. Falk said that Planning staff doesn’t check MLS listings, or anything associated with what a real estate company has to sell a house, and compare them to our records, or what they pay taxes on. He said if the electrical contractor didn’t come in to apply for the electric permit to separate the electric, the internal use of the property could have kept going as it is for ten or fifteen years. Mr. Creed asked if the Board is estopped from ruling on this application, because the City has made a decision, and the Courts won’t care whether it’s the Zoning Board versus the Planning Department versus the tax revenue. Mr. Reppucci asked if the property owner is actually paying taxes as a two-family. Mr. Deary said the owner is paying taxes as a two-family, but didn’t have any documentation with him. Mr. Creed asked if the owner could get proof of payment of taxes or a title search within a reasonably quick timeframe. Mr. Deary said yes. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Currier said in 1988, there was a permit for an additional bedroom, bathroom, living room, for grandparents. He said a C.O. has a note that the property is to remain as one dwelling unit. Mr. Creed said he wants to see proof, there is too much unsubstantiated testimony, the Board has asked some significant Zoning Board of Adjustment August 14, 2012 Page 10 questions of the applicant. He said he didn’t think the Board can make a decision either way, until further proof is submitted. Mr. Reppucci said that twelve years ago, you couldn’t have a two-family with one electrical service with one service in the house. He said if you have a two-family, you have to have them separately metered. He said if they’ve been paying taxes as a two-family since they’ve bought the property, that’s the thing that triggers deception. He said you should know if you’re paying taxes on a single-family or a two-family house, because the tax rate is higher for a two-family. Mr. Johnson said putting aside the testimony about the taxes, where the house is located, given the traffic, and the other testimony that the driveway holds the proper amount of vehicles, and asked if the tax situation is that relevant that it determines the outcome of the case. Mr. Currier said it’s a tight lot. He said there’s not a lot of room on this property to go from an in-law to a two-family. He said if it’s been a legal two-family, operating as a two-family, paying taxes as a two-family. He said it’s a tight lot, but if they’ve been paying taxes as a two-family for the last twelve years, maybe the request could be supported. Mr. Johnson asked if there would be substantial justice in granting the request, putting all the tax info aside. Mr. Reppucci said the Board has to look at the intent of the person who owns the property. He said the City could be being deprived of revenue over the past twelve or so years, and they’re entitled to the money. He said if the person has been paying taxes as a two-family, he said he’d be very confident that they were doing something wrong. Mr. Johnson asked if the Board is depending too much on the tax issue. Mr. Creed said it’s not within the spirit and intent of the ordinance. He said the ordinance is there to prevent this from happening. He said the Board’s job is to enforce the ordinances. Mr. Reppucci said the applicant should be prepared to speak Zoning Board of Adjustment August 14, 2012 Page 11 about the property, and the applicant didn’t have formal evidence to show that they have paid taxes as a two-family, he was just told by the owner. He said they applicant needs to confirm how the taxes have been paid. Further discussion ensued. MOTION by Mr. Creed to Table the application as advertised. Mr. Creed stated that it is tabled to the next meeting so that evidence may be presented that substantiates or disproves the testimony regarding taxes and other such issues. He said it’s tabled to a date certain of August 28, 2012. SECONDED by Mr. Currier. Mr. Reppucci asked about the public hearing or meeting for the next meeting. He said the applicant has a clear understanding of what the Board’s issues are, and any information the applicant can bring forward is worthwhile. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: MISCELLANEOUS: REGIONAL IMPACT: Mr. Falk said the first case will be postponed to the first meeting of September, which is September 11, 2012. The Board didn’t see any cases for the next Agenda to be of regional impact. MINUTES: July 24, 2012: MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Johnson. Zoning Board of Adjustment August 14, 2012 Page 12 MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:50 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing