Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 28, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 28, 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. Boston & Maine Corp (Owner) City of Nashua (Applicant) “L” Crown Street (Sheet 12 Lot 4) requesting special exception to work within the prime wetland buffer of the Merrimack River to install an underground storage tank with related interconnecting pipeline, which will be used to store combined sewer overflow during storm events. GI Zone, Ward 7. POSTPONED TO THE SEPTEMBER 11, 2012 MEETING 2. Matthew & Theresa Yaklin (Owners) 24 Markar Street (Sheet 122 Lot 240) requesting variance to encroach 4 feet into the 6 foot required side yard setback, and to encroach up to 16 feet into the 20 foot required front yard setback (on St. Joseph Drive) to relocate an existing shed. RA Zone, Ward 6. Zoning Board of Adjustment August 28, 2012 Page 2 Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson David Creed Matthew Yaklin, 24 Markar Street, Nashua, NH. Mr. Yaklin passed out a few pictures to the Board. He said they re-landscaped the front of the property, and now they are working on the back. He said the lot is small, and due to the ordinance about front yards, there are two of them, facing Markar and St. Joseph, and they are 20 feet. Mr. Yaklin said they’d like to have either a porch or a deck in the rear, and if the shed were to meet current setbacks, it would be right in the middle of the rear yard. Mr. Creed said the property has two front yards, even though the part of the lot by St. Joseph Drive acts as a rear yard. Mr. Yaklin said he has a letter from the next door neighbor, who is in support, and verbally talked to another abutter, who said they were in favor as well. Mr. Johnson asked if by putting the shed in the front yard setback, if it impedes the City for doing any work in the right- of-way. Mr. Falk said that St. Joseph Drive is a short, less-travelled, well established street, and didn’t see the location of the proposed shed to be an issue in the future. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to grant the variance on behalf of the owners. Mr. Johnson stated that the variance is granted based upon the five criteria. He said the case is not contrary to the Zoning Board of Adjustment August 28, 2012 Page 3 public interest, as noted, the back yards are consistently facing away from Markar Street, and they won’t interfere with the public right-of-way, and the City has its appropriate access. He said the request will observe the spirit of the ordinance, because ordinarily a home will have one front yard condition, and the rear yard setbacks, accordingly, given the circumstances, it is irregular and counter to the intent of a home in it’s natural setting. Mr. Johnson said that substantial justice will be done to the property owner, it doesn’t diminish the property values of the surrounding properties, the applicant has contacted and engaged the abutters. He said there are no special conditions. SECONDED by Mr. Reppucci. 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. [TABLED FROM 8-14-12 MEETING] Voting on this case: Gerry Reppucci Jack Currier Rick Johnson David Creed JP Boucher MOTION by Mr. Johnson to take the case off the Table. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Reppucci clarified an earlier statement he made. He said the actual tax rate on a two-family or single-family is the same in Nashua. He said he earlier phrased it as a misnomer, and said he meant how the property was assessed. MOTION by Mr. Reppucci to re-open the public hearing and allow Mr. Deary present. Zoning Board of Adjustment August 28, 2012 Page 4 SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Tom Deary, 7 Bates Drive, Nashua, NH. Mr. Deary stated that he got the tax record, and it is assessed as a two-family. He said he has the bill of sale for when she purchased the property, and said he also has the closing papers. Mr. Deary said that Ms. Rodriguez got the loan for the property at the bank, and she paid a higher price because it’s a commercial property, and she pays taxes on the income she receives for the rental. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said that this property has been recognized as a two-family since at least 1994. He said the issue that is most compelling, is that when the assessor’s office changes the assessment of the property, they don’t notify the property owner, and they don’t notify the Building Department, as far as he can tell. He said that this explains a lot, when applicants come to the Board, believing they are fine when they bought their property, and need a variance for something when they submit for a building permit. He said there is also a fairness issue. He said he understands how some properties fall through the cracks, and why people think they’re doing the right thing, and are doing the right thing, but sometimes the City says that what they think they have, there is no approval for. He said that without question, there should be a connection between the Assessing Department and the Building Department if there is ever a question about how many units should be there. Mr. Johnson asked if this is already a two-family unit, does the applicant require this variance. Mr. Reppucci said it’s only a two-family in the eyes of the Assessor’s Office, it’s not a two-family in the eyes of the Zoning Board of Adjustment August 28, 2012 Page 5 Building Department. Mr. Falk said it was a single-family up to the late 1980’s or early 1990’s, the Code at that time required more square footage of land than they had. He said the use of the property for a two-family is permitted in this zone, however, they didn’t have enough land area, in either the older Code or the newer one. He said it is necessary for the applicant to apply for the variance because they never received any permits or approvals for two units. Mr. Currier said that the cards on record always showed that they have had one kitchen, even when it was an in-law. He said that at some point in time, someone didn’t pull a building permit to build a kitchen. He said the kitchen was put in sometime around 1994 or before, and wondered how this happened. He said that the assessor sees the property, writes down what they see, and if there’s an addition or something put on, the tax rate goes up. He said that it appears as if the current owner bought the property with every reason to believe it was a two-family, and has operated as that. He said the case needs to stand on its own merit. Mr. Reppucci said the problem is that if you see the building information on this property in the database, it’s considered to be two living units, and it’s assessed that way. He said at some point, this property changed from being assessed as a single-family house to being assessed as a multi-family house. He said that the problem is that at some point, the City said it’s a two-family, and there is nothing in the process that allows anyone to think otherwise, because there’s no connection between the Building Department and the Assessing Office, until the homeowner who is doing their due diligence and do the right thing, goes for a building permit, the ramifications are really significant financially. Mr. Shaw said that the homeowner had the opportunity when they purchased the property, and could have gone to the Building Department to verify the use. He said the information does exist within the City, and it was available upon doing their research. He said when you purchase a property, you need to do a title search, check for liens on the property. He said the Building Department dictates whether or not it’s a single family home or a two-family home. Zoning Board of Adjustment August 28, 2012 Page 6 Mr. Creed said for executive agencies, the unitary theory of government, the idea is that the right and left hand are one in the same. If the right hand knows, the left hand is presumed to know as well. He said the Board cannot deny this request, because a Court of law would say that the Board is estopped from denying it, because the City government knew, and assessed it, as a two-family home. Mr. Creed suggested that the Board send a letter to the Mayor, saying that this is an issue that the Board has discovered in our deliberations, and we think it should be looked at, and the Board proceeded with this case. Mr. Johnson agreed. Mr. Shaw said that even though he’s not voting on the case, he said he’s in favor of it. He said he believes that the assessors often time look at changes to the property assessment as something that they’re just getting the record corrected, and catching up to what was already out there, so, they’re approaching it as they’re just correcting their records to show it as a two-family. MOTION by Mr. Creed, he said in order to provide substantial justice in this case, the motion is to grant the variance application as applied for, on behalf of the owner. Mr. Creed stated that even though there was some discussion about whether this application needs to come before the Board, he said in order to do justice to this applicant, and not unduly burden or delay the reparations they need to make to the property, that the Board grant the variance because it is not contrary to the public interest, it would observe the spirit and intent of the ordinance, the house has been assessed and has been existing as a two-family residence for quite some time, predating 1994. Mr. Creed said substantial justice would be done to the property owner by granting the variance to enable them to move on with the property. He said the proposed use would not diminish the values of surrounding properties, because the use currently exists. He said that literal enforcement of this ordinance would create an unnecessary hardship, as a delay in approving this variance would create an unnecessary hardship for the applicant. SECONDED by Mr. Currier. Zoning Board of Adjustment August 28, 2012 Page 7 Mr. Johnson asked what would happen if the City disagrees with the Motion. Mr. Shaw said they could appeal it, and it would come before the Board. Mr. Reppucci said he didn’t believe that we’re doing anyone any favors by making them pay the City for a variance they don’t need, which is hundreds of dollars. He said he thinks the Board can waive fees, but the general consensus is that they can only be waived by the Board of Aldermen. He said the Board has never done that, but hopes the City can do it in cases such as this. Mr. Johnson said he agreed with Mr. Reppucci, and the City should reconsider the fee that was charged. Mr. Creed asked if Mr. Reppucci wanted this to be an amendment. Mr. Reppucci said no, it’s just a point. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: Mr. Creed asked if someone should draft up a letter from the Board to the Mayor’s Office about the issue as discussed earlier, relative to assessments. Mr. Falk said he believes it could be best solved just by improved communications between the Departments. He said there are so many different possibilities and scenarios out there with changes to buildings. He said that staff does the best they can with addressing them as they come up, but there isn’t a one- size-fits-all answer for issues like this. He said if the communications between all the Departments is better, perhaps fewer issues will come up. He said that there are thousands of older properties in the inner city, many of which did make changes to their property years ago, and staff does their best to address whatever they may need when it is presented. He said there are issues with signage, parking, landscaping, parking lots, number of units, interior building changes occur over the years without our knowledge, and when they are brought up to us, staff addresses them as they come in. Zoning Board of Adjustment August 28, 2012 Page 8 Mr. Creed said he’d be willing to take a shot at a draft for the Board’s review. Mr. Shaw said it could be brought up under “Other Business”. Mr. Currier suggested that if Mr. Creed writes it, sends it to Mr. Falk, and Mr. Falk puts it in the package. Further discussion ensued about waiving fees. Mr. Reppucci said the Board could ask the City Attorney’s Office if the Board can waive fees, it’s a simple, clear question. He said it’s up to the State Statutes. He said it could be included in the letter. REHEARING REQUESTS: None. REGIONAL IMPACT: The Board didn’t see any cases of regional impact. MINUTES: None. ADJOURNMENT: Mr. Shaw called the meeting closed at 7:45 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing