Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 9, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, October 9, 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 Bob Carlson 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. Mr. Falk stated that Case #2, at 249-251 Main Street, has been postponed to the October 23, 2012 meeting. He passed out a letter asking for the postponement to the Board members. Mr. Reppucci asked if anyone in the audience had questions on the process, not the case itself. Mr. Boucher said he has concerns with anyone speaking about the case, as it may show bias. He felt that the case would be discussed before it is heard. Mr. Johnson said it’s a regrettable that there is a continuance after the public announcement, but it will be re-advertised and re-notified. He said the questions and comments may be looked upon as testimony. He said if they can’t come at the next meeting, they could put their concerns in writing. Mr. Carlson asked if both sides for the case are in attendance. Zoning Board of Adjustment October 9, 2012 Page 2 Mr. Reppucci said they are not, but said that there may be people who have come to the meeting and are prepared to talk. Mr. Currier said it sat well with him. Mr. Reppucci said that the Ordinance from 2007 stated that an applicant has to go forward if there is less than a full Board. He said that in this case, the applicants could not make it due to a prior commitment in another city. Mr. Carlson said that Mr. Maynard represents numerous individuals and firms, and what he says may be construed as testimony, or that it would benefit him or his clients, to the detriment of other clients. Mr. Reppucci said he didn’t see it that way, and said he’d like to hear what people have to say in the audience about the issue of postponement. Mr. Johnson said he’s uncomfortable with it. He said a citizen could utter something that could cause undue influence on Board members who are about to hear a case that hasn’t been presented yet. Mr. Carlson said that in Court, in a civil case, an individual wouldn’t be allowed to testify in front of a Judge or a Magistrate before the case is called. Mr. Reppucci said that the Zoning Board members are not judges, and we’re not a court of law. Richard Maynard, 21 East Pearl Street, Nashua, NH. Mr. Maynard said that only the Zoning Board can grant a continuance once a case is posted and noticed. He said that staff does not have that authority. Mr. Reppucci said that the agenda is controlled by the Chair. He said the Planning Department received the letter of continuance. He said he couldn’t think of a single instance where someone requested a continuance, and it wasn’t granted. Mr. Maynard said that continuances are not allowed, you are allowed to go forward, or to withdraw and re-submit totally. He said it happens every time where there are less than five Board Zoning Board of Adjustment October 9, 2012 Page 3 members. Mr. Reppucci said there is an Ordinance in the city, and if an applicant is opposed to going forward with their application because there are less than five voting members present, then that application must go forward by Ordinance. He said it was created in about 2007. He said it only speaks to that issue. Mr. Maynard asked what the deadline is for a continuance. Mr. Reppucci said he believes its six days. He said it is the discretion of the Zoning Board Chair to decide whether to continue the case or not. He said the agenda is controlled by the Chair. Mr. Maynard said that if someone withdraws on the day of the meeting for whatever reason, should not be allowed, either they withdraw and re-submit, or they get denied. He asked when the deadline is for asking for a continuance. Mr. Boucher asked Mr. Maynard what happens in other cities. Mr. Maynard said that other cities don’t have Nashua’s ordinance, and most of them make a judgment at the meeting themselves on whether or not to grant a continuance. Mr. Reppucci said that continuances are virtually always granted leaves the impression that the decision is made by the Planning Department, and it’s not. He said it’s the Zoning Board that makes the decision to continue a case. Mr. Maynard said that Mr. Falk granted the continuance. Mr. Reppucci read the letter, and the letter was simply summarizing the request that they discussed with Mr. Falk. He said Mr. Falk didn’t use any authority to grant a continuance, he said he didn’t see it in the letter. He said the ordinance that Mr. Maynard is referring to is extremely specific, it only relates to an applicant who does not want to go forward with less than five voting members. He said it does not touch on any other reason. He said he didn’t see anything here where anyone in the Planning Department or the Board could do anything differently. He said the perception that an applicant who sent a letter this morning could have any concept of who would be sitting on the Board is ridiculous. Zoning Board of Adjustment October 9, 2012 Page 4 Stacy Laughton, Selectmen, Ward 4. Mr. Laughton said he understood it as that no testimony can be given about the case. Mr. Reppucci said if the concern is about the case, it will be on the Agenda in 2 weeks. 1. REM Capital, LLC (Owner) 112-114 Lock Street (Sheet 46 Lot 16) requesting variance for minimum lot area, 6,970 square feet required, 6,689 square feet proposed – to subdivide one lot into two lots to construct a new two-family dwelling unit. RC Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Bob Carlson Attorney Brad Westgate, Winer & Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate described the location, and the surrounding land uses and zoning districts, many of which are multi-family structures. Atty. Westgate said the property is in the RC district, which has a lot size of 5,000 square feet, frontage of 50 feet, width of 50 feet, and a lot depth of 75 feet. He said the density for this district allows for a lot of 6,967 square feet to meet the minimum lot area requirement for a duplex. Atty. Westgate said the request is to subdivide the property into two almost equal lots. He said the front lot would have the existing duplex, and meets the dimensional requirements in the district, and does not need any variances. He said the lot to the north is about 270 square feet short of the 6,967 square feet needed in land area for a duplex. He said it come out to being 4% shy of the necessary land area. He said both lots are serviced by City utilities. Atty. Westgate said the existing driveway would still be there, to service both properties. He said that parking spaces will be installed right near where the existing detached garage is, and they’d be straddling the two lots. He said it would be four Zoning Board of Adjustment October 9, 2012 Page 5 spaces. He said the duplex would have two spaces, one in the garage under the building, and one surface, outdoor space. Atty. Westgate went over the variance points of law, stating that they are just 4% less than the minimum amount, and that the request is within the spirit and intent of the ordinance, as it is a modest duplex and will fit in well in the neighborhood. He said the use of a duplex is permitted by right, it’s just the land area that is being requested as a variance. He submitted a letter from Randy Turmel stating that the property values will not decrease. He said the request will allow for a harmonious development in the neighborhood. Mr. Currier said his concern is that a garage under usually gets used as only a storage space, and not for a vehicle. He asked if a stipulation would be supported that the garage spaces could only be used for parking, and not for living space. Atty. Westgate said they chose the garage under, because it reduced the impervious space by 360 square feet. He said the reduction in the impervious space is more than the lot area that the lot is missing on the lot. He said the owner is willing to build it as proposed, or, to put the four spaces outside, and have it be a regular two-story duplex without any inside garage. He said it’s more costly to do it the proposed way, but want to reduce the impervious surface. He said they’re willing to go either route. Mr. Currier said he would support the garages being garages, and if it was living space with less yard space, he wouldn’t be inclined to support the request. He said as long as they are garages, it’s a good plan. SPEAKING IN FAVOR: Hou Chu, 20 Majestic Avenue, Nashua, NH. Mr. Chu stated that they wanted to build a side-by-side duplex, with a garage underneath. He said the height will be somewhat less than a three-story building, because of the garage will be lower. Steve Auger, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Auger said that the Land Use Code requires that there be two parking spaces per duplex unit. He stated that they’ll have 360 square feet of additional pervious surface on the property by having the garage spaces under the units. He said Zoning Board of Adjustment October 9, 2012 Page 6 another benefit is that since one owner owns both lots, the separation of parking with the four spaces straddling the lot line will be a better situation, as the parking spaces will be clearly defined as to which parking spaces belong to which building. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to grant the request on behalf of the applicant. Mr. Currier stated that it is only 4% below the minimum, which the Board finds is a small amount, and that the variance is needed to enable the applicants proposed use of the property, which is subdividing it into two duplexes. Mr. Currier said it is only a 4% reduction. He said the Board finds that it is in the spirit and intent of the ordinance to allow the property to be developed in this fashion. He said that the Board has testimony that it will not adversely, but will actually help surrounding parcels property value. Mr. Currier said the Board finds that the request is not contrary to the public interest, and substantial justice is served. Mr. Currier said the special condition of the Motion is that the two garage spaces are maintained as parking spaces, and not for living space. SECONDED by Mr. Reppucci. Further discussion ensued. AMENDED MOTION by Mr. Currier that the four spaces total are two exterior, as proposed, and two are interior as proposed. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: None. Zoning Board of Adjustment October 9, 2012 Page 7 REGIONAL IMPACT: The Board didn’t see any cases of regional impact. Staff is contacting the Town of Hollis for the case on Bartemus Trail. MINUTES: None. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:10 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing