Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 23, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, October 23, 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 Rick Johnson 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. Reppucci said that Cases #3, 4 and 5 will be taken as #2, 3 and 4. 1. City of Nashua (Owner) 6 Main Street (Sheet 43 Lot 72) requesting the following variances for a proposed new ground sign: 1) to encroach 5 feet into the 10 foot required front yard setback (on Main Street); and, 2) to allow two lines of manually changeable copy. D-1/MU Zone, Ward 3. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Joy Barrett, 5 Elliott Street, Chair, Hunt Board of Trustees, Nashua, NH. Mrs. Barrett said that they got a favorable recommendation from the Historic District Commission last night, contingent upon the Zoning Board approving the request. She introduced Bill McNamara from Classic Signs, who designed the Zoning Board of Adjustment October 23, 2012 Page 2 sign. She said they are asking for a variance to allow two lines of manually changeable copy, and to encroach 5 feet into the 10 foot front yard setback. She said the sign will offer identification for the tenants in the building, and the removable text will advertise to the public the events taking place in the building, such as the Holiday Stroll, concerts and plays. She said that they have revised the sign so it doesn’t block the building, or the windows to the old children’s reading room. She said that the HDC did not want the sign to block the windows, and they are satisfied with the sign’s location. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION, OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the request on behalf of the applicant. 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 by 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, and will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. Mr. Boucher said that the request is approved with the special condition that it is per the 10-22-12 Historic District Commission approval, with two stipulations of approval. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 2. Pauline R. Tourigny (Owner) 3A & B Spalding Street (Sheet 7 Lot 51) requesting special exception to work within the 75- Zoning Board of Adjustment October 23, 2012 Page 3 foot prime wetland buffer of Salmon Brook to construct a 10’x12’ shed. RB Zone, Ward 7. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Bryan Fox, 7 Delta Drive, Nashua, NH. Mr. Fox said he is doing this request for his sister-in-law. He said that Salmon Brook is located in the rear, but it drops off significantly. He said most of the lot is in the buffer. He said that they received Conservation Commission approval last week. He said the shed will be 10’x12’ in size. Mr. Boucher asked about the location of the shed. Mr. Fox said they originally considered putting it at the end of the driveway, but there would be no place to put snow. He said they’ve studied the lot very carefully, and the shed is in the best location without going into any setbacks. Mr. Reppucci asked about the nine special wetland conditions, and Mr. Fox said they are in compliance with all of them. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the special condition on behalf of the applicant. Mr. Boucher stated that the request is listed in the Table of Uses, Section 190-112. He stated that the request will not create undue traffic congestion, or unduly impair pedestrian safety. Mr. Boucher said that the request will not overload public water, drainage or sewer or other municipal systems. He said that the special regulations are fulfilled, the request was approved by the Conservation Commission at their 10-16-12 meeting, with five stipulations. Zoning Board of Adjustment October 23, 2012 Page 4 Mr. Boucher stated that the request will not impair or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Mr. Boucher said for the special conditions, the wetland conditions will be met, per testimony. He said that the Conservation Commission had five stipulations of approval, and the applicant stated that they would meet. SECONDED by Mr. Johnson. Mr. Reppucci asked for the Conservation Commission meeting minutes be incorporated into the record. AMENDED MOTION by Mr. Boucher to add the Conservation Commission meeting minutes into the record. MOTION CARRIED UNANIMOUSLY 3-0. 3. Kerry Baxter (Owner) 31 Harris Street (Sheet 110 Lot 241) requesting variance to encroach 3 feet into the 6 foot required left side and rear setbacks to replace a nonconforming 10’x13’ shed with a new 12’x14’ shed. RA Zone, Ward 6. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Kerry Baxter, 31 Harris Street, Nashua, NH. Ms. Baxter said that she is requesting two variances, to encroach into the rear and side yard setbacks for a new shed. She showed some photos of the area to the Board. She said the purpose of the request is to replace an old 11’x13’ metal shed in the corner. She said the new shed would replace the old shed, just a little more even, and within the setbacks. She said the shed would be wood constructed, and vinyl sided, with architectural shingles to match the house. She said the new shed will allow for adequate storage, and the appearance of the shed will look much better. Zoning Board of Adjustment October 23, 2012 Page 5 Ms. Baxter went over the variance points of law to the Board’s satisfaction, and informed her neighbors of the plan, and they are all in favor of it. SPEAKING IN FAVOR: Megan Lucier, 29 Harris Street, Nashua, NH. Ms. Lucier said she has no problems with the proposed shed. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the request on behalf of the applicant. Mr. Reppucci stated that the variance is needed to enable the applicants 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 an area variance. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance, and 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. Boucher. MOTION CARRIED UNANIMOUSLY 3-0. 4. Hollis Crossing Condominium Association (Owner) Bartemus Trail (Sheet F Lot 4) requesting special exception to work within the 75-foot prime wetland buffer of the Nashua River and the 40-foot critical wetland of Bartemus Brook to remove an existing deteriorated sidewalk and replace in- kind with a new sidewalk. PRD Zone, Ward 1. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Gary Flaherty, 335 Broad Street, Hollis, NH. Mr. Flaherty said they’re requesting a special exception to replace the sidewalk Zoning Board of Adjustment October 23, 2012 Page 6 in the property, in-kind, as some of it exists within the wetland buffer. He said some of it is in the critical wetland buffer, and some is in a prime wetland buffer. He said it will be about 380 lineal feet of sidewalk is in the 40-foot buffer, and there is 160 feet in the prime, 75-foot buffer. He said the sidewalk is approximately 4 feet wide, and wasn’t installed property, so there are cracks and undulating surfaces in it. Mr. Reppucci asked about the nine special wetland conditions. Mr. Flaherty said they are in compliance with them, as well as the conditions from the Conservation Commission meeting of 10-5- 12, with their four conditions. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the special condition on behalf of the applicant. Mr. Boucher stated that the request is listed in the Table of Uses, Section 190-112. He stated that the request will not create undue traffic congestion, or unduly impair pedestrian safety, in fact, it will improve pedestrian safety. Mr. Boucher said that the request will not overload public water, drainage or sewer or other municipal systems. He said that the special regulations are fulfilled, the request was approved by the Conservation Commission at their 10-5-12 meeting, with four stipulations. Mr. Boucher stated that the request will not impair or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Mr. Boucher said for the special conditions, the wetland conditions will be met, per testimony. He said that the Conservation Commission had four stipulations of approval, and the applicant stated that they would meet the stipulations. He said that the Conservation Commission meeting minutes are incorporated into the record as well. Zoning Board of Adjustment October 23, 2012 Page 7 SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 5. Lorna C. Browning (Owner) JPM Real Estate, LLC (Applicant) 239 and “L” Main Dunstable Road (Sheet E Lots 78 & 2208) requesting the following: 1) use variance to allow a restaurant with drive-through or drive-in facilities and a retail sales and service establishment, as well as one or more commercial uses listed in items 29,30,32,37,39,42,52,58,72,85,94 and 102 of Table 15-1, Table of Uses; and the following variances: 2) to allow portions of parking spaces to be no less than 10 feet from front property lines – 30 feet required; and 3 ) to permit the drive-through stacking distance from ordering station to the beginning of the drive-through lane to be no less than 90 feet – 160 feet required. PI Zone, Ward 5. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Attorney Brad Westgate, Winer & Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate pointed out a copy of the concept plan, and an aerial photo on the bulletin board. He said they have applied for three different variances, however, the third variance has been eliminated due to a revised plan. Atty. Westgate described the property location. He said it has two lots, and the owner bought them in two different transactions. He said that the lots would be combined should the request be approved. He stated that the property has a preschool and a kindergarten/early learning center on it, and three of the four sides have road frontage. He said the restaurant space would contain about 2,000 square feet, and the retail space would contain about 1,500 square feet of space. He described the operations of the drive-thru and bypass lane. Atty. Westgate said that by granting the variance, the request would not be contrary to the public interest. He said to permit Zoning Board of Adjustment October 23, 2012 Page 8 the proposed use on a modest piece of land in the PI zone, abutted on three sides by road frontages, two of which are limited access, and near retail and other non-industrial uses. He stated that it will allow for an updated and upgraded use of the property. Atty. Westgate stated that the request will be in the spirit and intent of the ordinance, as the site is an underutilized parcel in this area, and will be harmonious in the area. He said the front yards are so far away from the paved right-of-way. Atty. Westgate said the variance would do substantial justice, given the nature of the properties nearby, it will be a compatible use to the nearby properties, and there’s no real impact to the public interest. Atty. Westgate stated that the request will not diminish the value of surrounding parcels, there are a lot of older buildings nearby, and a modern service use will not degrade properties. He said they are very close to an LB zone, where this is a permitted use. Atty. Westgate said that the request meets the hardship criteria, he said it’s a relatively small parcel, oddly-shaped, and it has three road frontages, therefore, having greater front yard setback requirements. He said that this sector of the PI district is really not traditionally PI used, there is clearly more of a retail and service zone. He said the size and shape of the lot is not conducive to park industrial development. He reminded the Board about the Belanger vs. Nashua case. Jim Petropulos, Civil Engineer, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Petropulos stated that there is customer parking in the front, a designated drive-thru with a bypass lane. He stated that the neighbors are satisfied with the project. He said they are adding about 15,000 square feet of new pavement, and the project will comply with all stormwater requirements. He said the site contains a lot of tall pine trees, and the neighbors are pleased that many will be removed. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Zoning Board of Adjustment October 23, 2012 Page 9 No one. Mr. Johnson stated that the Board didn’t spend much time discussing the retail space next to the Dunkin’ Donuts shop. Mr. Reppucci said the space is not that big, only 1,500 square feet. He said the road is a low-impact road. Mr. Johnson said the access to the site is adequate, and is satisfied with the request. Mr. Reppucci said it is a good place for the retail, and with the small size, couldn’t imagine it would be an impact. MOTION by Mr. Reppucci to grant the requests on behalf of the applicant. He said both requests are being considered collectively, the first two in the advertisement, since the third one is not needed. Mr. Reppucci stated that the zoning restriction as applied interferes with the landowners reasonable use of the property, considering the unique setting of the property in its environment, and no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property, and the variance would not injure the public or private rights of others. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance, and will not adversely affect the property values of surrounding parcels, no opposition to the request at all, it is not contrary to the public interest, and substantial justice is served. He said there was a discussion on traffic, and the Board believed it would be negligible. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 6. Eva Fariz Rev. Trust, c/o Theresa Huntley, Executor (Owner), Joseph Fariz (Applicant) 14 Thorndike Street (Sheet 103 Lot 330) requesting variance for minimum lot area, 12,445 sq.ft required, 10,000 sq.ft existing – to convert a single-family home into a two-family home. RB Zone, Ward 6. Zoning Board of Adjustment October 23, 2012 Page 10 Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Joseph Fariz, Owner, 14, Thorndike Street, Nashua, NH. Mr. Fariz said they need a variance for land area, they need 12,446 square feet, and 10,000 square feet exist. He said in the immediate area, there are 28 other duplexes and one three- family. He said of these only 3 have lots larger than the subject lot. He said the purpose of the request is that his 81- year old grandmother, and aunt, live there, and the intent is to build a garage with an apartment above, and the elder relatives can as well. He said he’s met with all the neighbors, and they are all for the request, as there will be a dramatic improvement to the structure. He pointed out the pictures that were given to the Board members. Mr. Reppucci asked why he didn’t consider this as an in-law apartment. Mr. Fariz said they reviewed that issue. He said the long term thing is that the in-law apartment ties them into putting $100,000 into the building, that legally can’t be rented, is tied to the existing house, and limits the size of the unit greatly. He said they intend to keep the property for a long time, and it made more sense to renovate it into a two-family structure. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the request on behalf of the applicant. Mr. Boucher stated that the variance is needed to enable the applicants 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 an area variance. Zoning Board of Adjustment October 23, 2012 Page 11 Mr. Boucher stated that the request is within the spirit and intent of the ordinance, and will not adversely affect the property values of surrounding parcels, actually it should increase values and the neighborhood is happy about the request; it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. 7. Demoulas Supermarkets, Inc. (Owner) Tuesday Morning (Applicant) 8-20 Northwest Boulevard (Sheet I Lot 32) requesting the following variances: 1) to allow an off- premises wall sign; and, 2) to exceed maximum wall sign area, 90 sq. ft allowed, an additional 90 sq.ft proposed. GB Zone, Ward 2. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Tim Sullivan, Barlo Signs, Hudson, NH. Mr. Sullivan said they are asking for a second Tuesday Morning sign on the side of the building facing Amherst Street, similar to what Home Goods already has. He said the new sign will allow motorists to see the sign, and the business. He said the size of the proposed sign is consistent with other signs on this part of the development. Mr. Sullivan stated that the proposed new sign would be 90 square feet, but it’s because of the name “Tuesday Morning”, which is fairly long, and to keep a consistent letter height, it came out to 90 square feet, which is the same size as the sign on the front of the building. Mr. Sullivan said the proposed sign would not be contrary to the public interest, as the public would have proper identification with this sign, to safely enter and exit the property and make the correct turns to make it to the store. Zoning Board of Adjustment October 23, 2012 Page 12 Mr. Sullivan said the proposal is within the spirit and intent of the ordinance, as the proposed sign is similar to the signs that the other two businesses within this building already have. Mr. Sullivan said that substantial justice would be done to the property owner, as it’s a new business in town, and they’re looking to gain visibility to the motorists. He said that the tenant is concerned about their visibility, and to be recognized from the street. Mr. Sullivan stated that the property values of surrounding parcels will not be devalued, it’s all commercial in this area, and is in keeping with other businesses. Mr. Sullivan said the hardship is that most of the other businesses in this parcel are facing Amherst Street, there are only a handful that face into the parking lot. He said that Tuesday Morning’s front is facing the parking lot and Pier 1 Imports, so by granting the variance, it will properly identify the business. Mr. Reppucci asked how many businesses are in the strip where Tuesday Morning is. Mr. Sullivan said there are three in the main building, and there are eight in the part of the building that sets back furthest from Amherst Street. Mr. Reppucci said he is concerned with not only doubling the amount of signage they would be allowed, but also about the other stores that would want a sign on this wall. Mr. Sullivan said it’s the landlord’s intent that the other eight tenants furthest away from Amherst Street are basically looked at as in another building, due to how they are situated. He said that Tuesday Morning, Big Lots and Home Goods are looked upon differently. Mr. Johnson asked how the calculation is made for wall signage. Mr. Falk said it is 1.5 times their individual tenant space frontage, therefore, if they have 60 feet of building space, they’d be allowed 60x1.5=90 square feet of wall signage. He said they could do up to three wall signs in total. Zoning Board of Adjustment October 23, 2012 Page 13 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci asked where would this end. He said if the Board approves this sign, and then the next store down could ask for exactly the same request, how could the Board say no. He said the whole side of that building could turn into signage, and this section of Amherst Street has a lot of signs. He said the stores in the back by Demoulas’s have a greater issue with visibility, as they’re a lot further away. He said he is struggling with a 100% increase in wall sign area, it is excessive. Mr. Johnson said that given the circumstances with the building, he’d be comfortable with limiting the signage to three on this side of the building. He said the sign and the store are hard to find. Mr. Reppucci said when a business signs a lease, they should go with their eyes wide open. He said this building has been here for a long time. Mr. Johnson said he thought it’s a reasonable request, given the characteristics of the uses and buildings, and thought it was fair to limit the number of signs to three on this side of the building. Mr. Boucher said that he’s struggling with the request. He said he’d feel more comfortable if the Board could limit the signage. He said he can understand why the applicant is requesting to put a sign there, and these three stores are three of the biggest ones in the strip. He said the pylon sign is already full, they could re-arrange the panels on it. He said he may vote in favor if there was a way to limit the signage on the wall. Mr. Reppucci said that he will not be supportive of this request. He said it’s not equitable to have only three voting members. He said the application would be considered denied if they don’t receive three affirmative votes. He said if two of us are opposed to the application, by statute, it would be Zoning Board of Adjustment October 23, 2012 Page 14 denied. He said in order for it to be approved, there needs to be three affirmative votes. He said it may be better to table the request to the next meeting, so that there would be five members, that way, it would be a more equitable decision. He said the Board could just have the public meeting. Mr. Johnson said that would be acceptable with him. MOTION by Mr. Reppucci to re-open the public hearing to ask the applicant a question. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Sullivan said it’s ok with him to Table the request to the next meeting, for the public meeting only, not a public hearing. MOTION by Mr. Reppucci to Table the request to the next meeting, which is November 13, 2012. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 8. 249 Main Street, LLC (Owner) Yenoh, Inc. & FMP, LLC (Applicants) 249-251 Main Street (Sheet 82 Lot 14) requesting the following: 1) use variance to allow a restaurant with a drive-through; and, 2) variance from ingress and egress geometry to allow stacking spaces to block parking space access. D-1/MU Zone, Ward 4. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Attorney Peter Nicosia, Nicosia & Associates, Tyngsboro, Massachusetts. Atty. Nicosia said that his client is looking to construct a mixed-use development on the site, consisting of a Honey Dew Donuts on the first story, and three stories above with two residential units per floor above. He said they are requesting a use variance for the drive-through portion of the property in the D-1/MU zone, and the other variance relates to Zoning Board of Adjustment October 23, 2012 Page 15 the stacking requirements of the drive-through, as there is potential for interference with the stacking spaces and some of the parking spaces. Atty. Nicosia said that a revised plan was given to the Board today, and it doesn’t affect the variances requested, as well as a letter about stacking and queuing cars. He said they’ve reviewed the Master Plan of this area, and surmise that this type of mixed use development fits within the objectives of the Master Plan. He said there is a desire for mixed use in this area, with a residential component in the downtown area, and there are compatible uses in the area. He said it will be a benefit for additional services in the downtown. He said the use will attract passers-by. Atty. Nicosia said the drive-through is the economic drive to make the Honey Dew Donut shop successful, as they rely on the drive-through to make their business successful. Doug Lees, Land Engineering & Environmental Services. Mr. Lees said that the left-turn lane starts about halfway through the property. He said the proposed site layout will have the proposed entrance on the northerly side of the property, so there will be room to pull in after the intersection. Mr. Reppucci asked for clarification on the left-turn lane. He said it is dedicated for only left-turns, onto West Hollis Street. Mr. Lees said that the site will have one way in, on the northerly side, with a 20-foot aisle, and five parking spaces, with the handicapped space closest to the entrance to the facility. He said there is a dedicated drive-through lane with a bypass lane, coming out to the southern portion of the lot onto Main Street. He said there are three parallel parking spaces on this side of the lot. He said they are proposing eight parking spaces on the property, however, in the D-1 zone, there is no minimum parking space requirement. Mr. Reppucci asked about the total parking count. Mr. Lees said there would be eight, of which one would be handicapped. Zoning Board of Adjustment October 23, 2012 Page 16 Mr. Lees said that there are other drive-throughs in the area, Walgreens has one right off of Main Street, and the Burger King and Taco Bell restaurants have one also. He said they have about 160 feet of stacking without backing up onto Main Street, they have about 180 feet. He said that Honey Dew indicates that they have 3-5 cars stacked in other facilities. He said that Honey Dew believes that anything over six cars in line is bad management. Mr. Reppucci asked what the distance is between the intersection of Main Street and West Hollis Street is to the subject lot. Atty. Nicosia said the use is one thing, but there is no minimum parking requirement in the D-1/MU zone, and there is parking available in the area, so the spaces that could be blocked by stacking cars aren’t required. Mr. Reppucci said this application was submitted a long time ago, it got delayed, and then today the Board gets a revised plan, and said that he heard that there is no financial viability in this project if they can’t stack the cars and have the drive-through. Mr. Lees said its 128 feet from the corner of the building to the property. SPEAKING IN FAVOR: Rich Lannan, Lannan Company, Principal Owner. Mr. Lannan said he owns other mixed use commercial buildings on Main Street, and is very involved in the downtown. He said he is very interested in the downtown. He said this proposal will meet the Downtown Master Plan, as far as having a mixed use building with residential, and it meets the outlook of the downtown. Mr. Reppucci said the West Hollis Street Dunkin Donuts shop can stack 17 cars at that lot, and it still spills out onto West Hollis Street. He asked if the proposed plan wouldn’t do the same. Mr. Lannan said he goes to several of the local Dunkin Donuts shops, and has never witnessed that many cars in line. He said if he sees that many cars in line, he goes somewhere else. Zoning Board of Adjustment October 23, 2012 Page 17 Mr. Reppucci asked if cars stack onto Main Street, will that be a major, minor or no problem. Mr. Lannan said he doesn’t see it happening frequently, and there is a fair amount of stacking here. He said he doesn’t see the stacking to such a full degree. He said that the drive- through is very important to the Honey Dew business. He said the West Hollis Street location does not get a lot of walk- through traffic, but this location, there will be a lot of people from the hospital, and there is a lot more pedestrians nearby. He said he is very concerned with Main Street, and believes that this is a good project. Frank Polok, FMP, LLC, Tyngsboro, Mass. Mr. Polok said he was raised in Nashua, and remembered this site as a gas station. He said from a business standpoint, if one of his stores had a 17 car back-up, it would discourage the customer from ever returning. He said they hold the stack time down. Mr. Reppucci asked how they hold the stack time down, what does the business do to keep cars from stacking onto Main Street. Mr. Polok said they raise the staffing at peak times. Doug Lees, Londonderry, NH. Mr. Lees said he thinks they have enough room on the site for the stacking spaces and the parking. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Brad Whitney, 38 Fifield Street, Nashua, NH. Mr. Whitney said they operated a pharmacy for over forty years on Main Street, and owns three buildings on the corner of Main Street and Kinsley Street. He said he’s very concerned about the impact to his properties. He said his parking areas are plowed, salted and paved. He said he is concerned if people would park on his property illegally, and take up his tenant’s spaces. He said the nearby parking is metered, and people who live here will not park there. He said there is very little room for snow storage on the site, and for delivery trucks. He said they’re asking for spot zoning, as the drive-through is not legal. He said the cars will be stacking out onto Main Street, and it will be a big problem. He said that there is a problem with cars exiting the CVS across the street, and with the proposed drive-through, the traffic will be a problem in this area. He said there are three other donut shops nearby that have no drive-through. Zoning Board of Adjustment October 23, 2012 Page 18 Richard Maynard, Maynard & Paquette Engineering, 23 East Pearl Street, Nashua, NH. Mr. Maynard said he is representing Mr. Joseph Carvalho and Mr. Vatche Manookian and others. He said the proposal for the drive-through is inadequate, and of extreme concern. He said his office did the site engineering for numerous other drive-throughs. He said he looked at their most recently submitted revised plan. He said the layout is misleading, and inadequate. He said the original plan shows a 9-foot wide right-of-way easement that goes back many decades. He said there are parking spaces that will be blocked by the stacking spaces, they are showing the minimum space, and they will block people parking here. Mr. Maynard said the plan shows no provisions for tractor- trailer trucks, or box trucks, so they will park on Main Street. He said their queue lane shows more cars than can actually fit there, they’re showing them as only 15 feet long. He said from bumper to bumper, you need 20-23 feet, so, their stacking lane will really only hold about 6 cars. He said most of the Dunkin Donuts shops have room for 12 or more cars, and even then, they can back up on the street. Mr. Maynard said he’s studied the traffic for numerous Dunkin Donuts shops, and in the peak hours, they can have between 50-90 cars per peak hour. He said they try, as a goal, to serve every customer within 90 seconds, but it’s extremely challenging to do so, with multiple orders, socializing, big orders, heated bagels, etc. Mr. Maynard said there are two other Dunkin Donuts on Main Street without drive-throughs, and they are very successful. He submitted a plan that is marked up with issues. Leonard Abreu, 18-20 Maple Street, Nashua, NH. Mr. Abreu submitted a letter in opposition. He said he’s worked in the fast-food industry for many years, and said there will be a big problem with the back-up traffic. He said the drive-through is the biggest problem with the proposal. Stacie Laughton, 243 Main Street, Apt 33, Nashua, NH. Mr. Laughton said he doesn’t support the drive-through, the traffic is heavy in this area. He said that many of the businesses on Main Street do not have drive-throughs, and are very successful. He said he supports the residential, but not the drive-through. Zoning Board of Adjustment October 23, 2012 Page 19 Scott Slattery, Harbor Homes, Owner of 8-16 Maple Street, Nashua, NH. Mr. Slattery said they are in objection to the proposal. He said he agrees with the several points already raised about the drive-through. He said their main issue is the impact to the tenants of their building, especially early- morning hours. He asked where the delivery trucks will park, and what time will they come. He said there will be workers, deliveries at 6:00 a.m. or earlier. He said there are dumpsters in the northwest corner of the lot, and one of them is shown located over the 9 foot easement. He said they also question their statement of having a minimum of six apartments. He said the parking on site is also inadequate, even though none are required. SPEAKING IN FAVOR – REBUTTAL: Atty. Nicosia stated that there was a reference about the implied rights of the abutting landowner. He said that that property owner has no easement rights, they’ve done title searches, and there are no rights for them. He said that there was a lot of discussion about the economics of the project, with respect to the drive-through. He said that this is not a Dunkin Donuts, its Honey Dew, a competing brand, and doesn’t have the dominance in the market. He said that this franchise at this location, without the drive-through, is not viable. He said that relative to the stacking, it was mentioned that there are stacking issues at some of the other donut shops, which indicates that there is a demand for this use, so this use will offer the customers another option, and may reduce stacking at other sites. Mr. Lees said they have 160 feet of stacking space, so at 20 feet per car, they’d have 8 spaces for stacking. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Maynard said besides the drive-through lane, there are problems with left turns in and out. He said there’s no way trying to control people trying to take left turns in or out, crossing several lanes of traffic. He said the request is not in the public interest. He said the site plan shows no rounding for the entrance, it would make for a very difficult square turn into the site, also, coming out as well. He said this Zoning Board of Adjustment October 23, 2012 Page 20 intersection is extremely busy, and it would be a disaster if there were cars backing up traffic. Mr. Reppucci said the viability of this site being built, or anything from a financial or economic view, is not part of the Board’s purview, and is irrelevant. He said he is strictly looking at having a drive-through 128 feet from the corner of Main Street and West Hollis Street, and can’t imagine a worse place to have it. He said he can’t imagine this not being a problem, it’s already a traffic problem now. He said that the drive-through would be a huge impact on the residents in the back. He said the drive-through and the stacking spaces go hand in hand. He said it is inconceivable that this would function well at this location. Mr. Johnson said he couldn’t fathom this proposal not causing major problems with traffic. He said there’s too much risk, and it’s a public safety issue if this were allowed. He said even in non-peak hours, even on a Saturday morning, there is traffic here. Mr. Boucher said he had no issues with the Honey Dew, or the residential units. He asked if they would think about this any differently if they had more parking, or the drive-through was longer. He said since they don’t, the drive-through would bring a lot of traffic problems, and said it is a public safety issue if this were to be supported. Mr. Johnson said he’s also concerned about pedestrians, their safety would be compromised. Mr. Reppucci said, in summary, that this is not a reasonable use of the property, given the conditions of the property and its proximity to West Hollis Street/Main Street intersection, and the traffic in that area. He said the Board members are not traffic experts, but we all know this intersection is very busy. Mr. Reppucci said the request is not within the spirit and intent of the ordinance, and it will not adversely affect property values, we have no evidence towards that. He said it would be against the public interest. He said the idea of allowing the use without allowing stacking is ridiculous, he said there is no way to control stacking, regardless of their staffing. Zoning Board of Adjustment October 23, 2012 Page 21 MOTION by Mr. Reppucci to deny the request, both taken collectively. He stated that the zoning restriction as applied interferes with the landowner’s reasonable use of the property, he said he finds that not to be so. He said there’s no presentation that the property is not useable in any other way. He said all they heard was from the applicant, in their business plan, that it’s viable for them, but there was no testimony that there was no reasonable use of the property were this not be approved. Mr. Reppucci said that the zoning restriction is reasonable for the location of the property. Mr. Reppucci said that the request is not within the spirit and intent of the ordinance, a drive-through within 130 feet of the intersection would be exactly contrary to the ordinance lays out. Mr. Reppucci said the use will not adversely affect property values of surrounding parcels, we had no evidence to that one way or another, and are not considering that. Mr. Reppucci said the Board finds it contrary to the public interest, as it would create undue traffic congestion in the area, and it would present a public safety hazard with pedestrians in the area. He said that no substantial justice would be done to the community in general if this were granted. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: Mr. Reppucci said the next agenda is not ready yet, as there is another week to go to accept cases. Mr. Falk said there are four cases in so far, and none of them appeared to be Regional Impact. Zoning Board of Adjustment October 23, 2012 Page 22 MINUTES: 9-25-12 and 10-9-12: MOTION by Mr. Boucher to approve both sets of minutes as presented, waive the reading, and place both sets of minutes in the files. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:46 p.m. Submitted by: Mr. Johnson, acting as Clerk in Mr. Currier’s absence. CF Taped Hearing