Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 13, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, November 13, 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 J.P. Boucher David Creed 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. 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. [TABLED FROM 10-23-12 MEETING]. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson MOTION by Mr. Reppucci to remove item from table. Zoning Board of Adjustment November 13, 2012 Page 2 SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Johnson said he was leaning towards favoring the request, to the landowner and the business, which is in fairness since it’s sandwiched by two larger companies, both of which have space on the outside wall for signage. He said to allow a maximum of three signs is fair, so as to not allow a larger number of signs on the side of the building. He said he’d be ok with no more than three at any time, and have it be up to the landowner. Mr. Boucher said he mirrors what Mr. Johnson said. He said he’s concerned with a litany of advertising on the outside wall. He said the Board has received a letter from the owner, who agrees to the maximum of three signs. He said he’d be in favor if the Board could limit the number of signs. Mr. Reppucci said the more signage on the property, the more marketable it is. He said he drove by the site many times, and has become more opposed to the request. He said they have a huge sign in front of their property, with very little or no obstructions. He said the Big Lots and the Home Goods signs on that building wall look excessive. He said it seems unnecessary to him. He said he didn’t think it would help the business, and thought the extra sign is excessive. He said the landlord’s letter is irrelevant. He said if this is approved, we are allowing that building to have more signage; it’s not necessarily going to Tuesday Morning. Mr. Creed said he thought the landlord’s letter is non-binding. He said that as a tenant, you would want to lock down the idea of your signage before the lease is signed. He said they knew the situation, and now they’re asking for more. He said the Board wouldn’t be just giving this to Tuesday Morning, it would be to the building. He said they’d be doubling their signage. He said there are limits in the Sign Ordinance to prevent too much, where this request is to double the amount of allowed signage. He said it is tough to find the store, but they knew that before they went in there, that it is tough to see, and they went into it with their eyes open. Mr. Currier asked why this is an off-premises sign. Zoning Board of Adjustment November 13, 2012 Page 3 Mr. Falk said that the proposed sign is not within their own physical tenant space. They pay their rent on only their own space, the proposed sign would be in the location of another store’s space, it’s not theirs. Staff has determined that even though it’s on the same lot, and in the same building, it’s not their space, and if this is the case, every single other store or tenant would want their sign on the outside wall closest to the street. Not everyone can have their signs closest to the street. Mr. Currier said the trees don’t really block the signage or the front of the building, and you can readily see the front of the building. He said you can see the sign heading westbound towards Milford readily, and there’s plenty of time to turn left. He said going eastbound, they could put a sign on the bottom of the ground sign, but it’s so filled up with other signs. He said this is a very self-created hardship, and believes the 90 square feet that they have is more than enough to advertise their store. He said he’s struggling with the hardship to have another sign. Mr. Shaw asked to clarify the westbound statement by Mr. Currier, if that meant the pylon sign. Mr. Currier said they’ve chosen to max out their 90 square feet with one big sign. Mr. Shaw said that Home Goods received a variance to allow a sign on the outside wall as well. He said this area is fairly intensely cluttered with signage. He said he’s probably leaning towards approving the request. Mr. Johnson said the store is difficult to find. He said the Board has allowed far worse signage in the City. He said he’d support it with the stipulation of only three signs on this wall. He said the request is just, and there is a business sense in approving it, and it would blend in with the neighborhood. Mr. Reppucci said that Tuesday Morning’s sign is one of the few visible signs in this shopping center that you can see from Amherst Street. He said that there are a lot of signs that you cannot see. He asked when this would end, as everyone would want a sign closer to the street. He said it’s a 100% increase to the signage that is allowed. Zoning Board of Adjustment November 13, 2012 Page 4 Mr. Currier said its one of those circumstances where someone maxes out their signage by right, and then they come back and ask for more. Mr. Shaw said you’d have to turn your head more than 90 degrees to see the wall sign heading westbound. Mr. Creed said it’s a self-created hardship. He said the tenant went into this situation knowing what the situation is with signage. He said he’d vote to disapprove the request. MOTION by Mr. Johnson to grant the request on behalf of the applicant, both requests considered collectively. Mr. Johnson 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. He said that some of the Board members discussed that this is a self-induced hardship, but also stated that considering the benefit of the business, and given its location, it is deemed appropriate. Mr. Johnson stated that the request is within the spirit and intent of the ordinance, given the circumstances, for the purpose of the business to thrive, it is within the intent. Mr. Johnson stated that it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. Mr. Johnson added a special condition that both the off-premise sign and the additional 90 square feet, that that is the maximum, but no more than three, of the landlords choice, businesses, can advertise within that approved space in that off-premises configuration as it is now. SECONDED by Mr. Boucher. Mr. Reppucci asked if it would be more prudent to put a restriction on the square footage of space, rather than the number of signs. Mr. Johnson said yes, that they have to stay within that square footage, so he said he’d amend the request. He said it should Zoning Board of Adjustment November 13, 2012 Page 5 be no more than the additional 90 square feet, apportioned up to the landlord. He said the allocation of advertising would be determined by the landlord. Mr. Creed said that by putting in that special condition, is the Board giving the landlord another space to lease? He said that they could go to all the businesses in there, and they could bid for signage, and he’d take off Tuesday Morning, or bid to take off the Home Goods sign. Mr. Reppucci said that Demoulas is a huge corporation, and didn’t see them doing that to their tenants. Mr. Johnson said the Board might want to withdraw the special condition, since the motion is to allow an off-premises sign, and the extra square footage. Mr. Johnson said he is requesting to Withdraw the special condition, and not offer it. He said the rest of the Motion stands as is. SECONDED BY Mr. Boucher. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Currier) 2. Elliott Waller (Owner) 109 Palm Street (Sheet 96 Lot 139) requesting variance to exceed maximum driveway width, 18’ 8” existing – 24 feet permitted – an additional 17 feet proposed. RC Zone, Ward 6. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier David Creed Rick Johnson Elliott Waller, New Boston, NH. Mr. Waller said he’s requesting the variance to replace the two parking spaces he lost because of the re-paving of Palm Street. He said when the road was re- surfaced, there was no way to access the two spaces that have been there. Mr. Currier asked how the surface was before. Zoning Board of Adjustment November 13, 2012 Page 6 Mr. Waller said it was like that when he bought the property in 1983. Mr. Currier asked how many units are at the property. Mr. Waller said that there are four units, three in the brick house, the church-looking house, and one in the other. Mr. Currier asked how many cars typically park at the property. Mr. Waller said he was allowing one car for the single bedroom unit, and two cars for the two two-bedroom units and two for the three-bedroom unit, so, seven spaces. Mr. Reppucci asked if there were any conversations with the City when the work started on the roadway, to see if it could be put back. Mr. Waller said that the City deemed it to be illegal, and they came out to look at it. Mr. Reppucci asked if there was any brand new sidewalk that would be altered and taken up. Mr. Waller said that there is no new sidewalk, just brand new asphalt. He said the driveway there is dirt now. Mr. Creed asked about traffic, and if the impact on traffic was examined. Mr. Waller said he’s lived in the building for fifteen years, and said the street is relatively quiet. He said it’s busier when you get closer to Kinsley Street. He said he’s never had an incident, though. Mr. Creed said that since the City deemed the spaces illegal, they shouldn’t be replaced as they were. Mr. Reppucci said that the existing driveway exceeds the 24-foot maximum driveway width, and that the City wasn’t going to put it back with it exceeding the maximum width, and that’s why the owner is before the Board. Zoning Board of Adjustment November 13, 2012 Page 7 Mr. Falk said that the owner has been parking in the same configuration for many years, and he just wants to put it back the way it was used. He said that the Board has considered other similar variances where the Street Department didn’t put back the driveway openings that had previously existed, because they exceeded the maximum opening width. Mr. Currier asked what the possibility of having a twelve-foot curb-cut on either side, to meet the Ordinance. Mr. Waller said that if it was narrowed down, it would be tougher for cars to park and get in and out of the driveway. He said that driveway on the left is 18 feet 8 inches. He said for the other driveway, at 17 feet, there wouldn’t be any room for drivers to jockey around, there’s not much room, and if it was 12 feet wide, it would be even more difficult. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said that there is zero change in the use. He said that its been used this way for many years, and any impact that was there existed for many years, and nothing is changing, other than the installation of a proper curb cut. Mr. Johnson said there is little change, and except for the street paving, none of this would have come up before the Board. Mr. Creed said even though it was there a long time, it doesn’t make it right. He said the Aldermen write the Ordinances, and we are here to follow it. He said they have to provide a hardship to the Board, and the Board has to question whether we are a relief valve, or are re-writing the Code. Mr. Shaw said this property has four units, and it has to accommodate upwards of seven vehicles, and this would be a better solution than having one curb cut. Mr. Currier said that historically, two cars have parked on the Kinsley Street side, side by side. He said the 17 foot width is Zoning Board of Adjustment November 13, 2012 Page 8 a reasonable opening, and on the other side, the Lake Street side, he said he took the owners testimony at face value, that he’s lived there a while, and the drivability and opening is what it is. He said the unit number is staying the same, and they’re not adding to any congestion or impact with the request. He said he’s favorable to what they are requesting. MOTION by Mr. Reppucci to grant the variance request on behalf of the owner. 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 as it’s no change to the way the property was historically used for the past thirty years, and the owner just wishes to continue it, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED 4-1 (Mr. Creed). 3. Amy Harrington (Owner) 84 King Street (Sheet 125 Lot 36) requesting variance to exceed maximum driveway width, 10 feet existing - 24 feet permitted – an additional 22 foot wide driveway proposed. RB Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson No one in attendance to present the case. The Board decided to hear this case at the end of the Agenda. 4. WKV Realty (Owner) 5 Coliseum Avenue (Sheet E Lot 1384) requesting the following variances: 1) to allow an electronic message center with graphics, where only three Zoning Board of Adjustment November 13, 2012 Page 9 lines of text is permitted; and, 2) to allow an electronic message sign to exceed 50% of the area of the sign. GB Zone, Ward 1. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Mr. Reppucci said that the use that is being requested is not allowed anywhere in the City, no one can use a sign the way this one is being requested. Mr. Falk said the GB and HB zones allow ground electronic changing signs. He said that there are two issues with the variance, one is that they are requesting to have graphics, the other is the size of the electronic portion of the sign. Mr. Reppucci said that the City forbids graphics by its ordinance. He said the ordinance itself doesn’t allow graphics anywhere in the City. He asked if the Board can even grant a variance for something that isn’t allowed, if we do, we’re changing the zoning laws. Mr. Falk said it’s the same thing for a use variance, in which every use variance is a request for something that is not allowed in a certain zone. Mr. Reppucci said in that circumstance, the use may be allowed somewhere, just not on that property, so the applicant is making a case for a use on a property that is not allowed in that zone. He said he didn’t think the Board had the authority to override the Code. He said it’s not a variance. Mr. Johnson asked if there is prohibition, or an ordinance that states that there are no graphics allowed on an electronic sign in the City. Mr. Falk said that Section 190-97 (B) states that graphics are not permitted, and that only three lines of text are allowed, as well as there is a five second rule for the message to stay on, and the lighting intensity. He said that they’re asking for Zoning Board of Adjustment November 13, 2012 Page 10 something that the Code doesn’t allow, and they’re asking for a variance to allow graphics. He said they want something that is not allowed in the Code, so their option is to apply for a variance. Mr. Reppucci said he thought the request is beyond the Boards purview. Mr. Creed read Section 190-97 verbatim. Mr. Shaw said that Staff has instructed the applicant to apply for the variance. He said that someone could appeal the administrative decision. He said we have a case before us, and stated that it’s our duty to hear the case. Attorney Gerald Prunier, Prunier and Prolman, P.A. 20 Trafalgar Square, Nashua, NH 03063. Atty. Prunier said that in view of the question, he suggested that staff get an opinion from Corporate Counsel that the application is valid. Mr. Johnson said he saw it in the Boards purview to hear. Further discussion ensued. MOTION by Mr. Reppucci to table the request to the November 27, 2012 meeting. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 5. Southern New Hampshire Medical (Owner) 17 Prospect Street (Sheet 18 Lot 4) requesting variance to allow a 48.6 square foot wall sign. RC Zone, Ward 4. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier David Creed Rick Johnson Don Reid, Barlo Signs, Hudson, NH. Mr. Reid stated that they are proposing a logo to be installed on the tower section which Zoning Board of Adjustment November 13, 2012 Page 11 will identify the building as the Nashua Medical Center. He said that the logo is recognized throughout the City as representing the Hospital. He said the logo is appropriate for the size and scope of the building. Mr. Reid said the lighting technique for the logo is a halo light, so no light will be directed towards the residential area. He said passersby in the area will recognize the logo as part of the Nashua Medical Center. He said the request meets all the relative points of law for a variance. Mr. Currier asked about the halo lighting. Mr. Reid said that the structure is a solid aluminum fabricated structure, it’s raised off the wall, and there are led lights that shine back onto the wall, creating a halo effect. SPEAKING IN FAVOR: Scott Cote, Southern NH Medical Center, 8 Prospect Street, Nashua, NH. Mr. Cote stated that the sign is facing west, and described the abutting properties. He said the tower is the double elevator tower, and it’s consistent with what they have at the emergency department across the street. He said they haven’t had any concerns from the neighbors. Mr. Johnson asked to clarify exactly what they are requesting. Mr. Falk said the ground sign is allowed by right. He said the property is in a residential zone, so for signage, there is a choice of either a wall sign of a maximum of 6 square feet, or a ground sign of 10 square feet. He said the ground sign meets the ordinance, so they’re requesting solely the wall sign. Mr. Currier asked what the height of the sign will be. Mr. Shaw said the top of the sign is about 35 feet. Mr. Currier asked if the sign is shown to scale on the drawing. Mr. Reid said that it is drawn to scale. Mr. Johnson asked if this were in a commercial zone, what would be allowed. Zoning Board of Adjustment November 13, 2012 Page 12 Mr. Falk said in the General or Highway Business zones, they’d be allowed one-and-one half times the building frontage, or 150 square feet, whichever is smaller. He said their sign, at 48 square feet, would be allowed, based upon the size of the building. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the variance 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. Creed. MOTION CARRIED UNANIMOUSLY 5-0. 3. Amy Harrington (Owner) 84 King Street (Sheet 125 Lot 6) requesting variance to exceed maximum driveway width, 10 feet existing - 24 feet permitted – an additional 22 foot wide driveway proposed. RB Zone, Ward 7. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson MOTION by Mr. Reppucci to table the variance request to the November 27, 2013 meeting. SECONDED by Mr. Johnson. Zoning Board of Adjustment November 13, 2012 Page 13 MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: 10-23-12: Mr. Falk said that Mr. Reppucci made some corrections, and they have been done already. MOTION by Mr. Reppucci to approve the minutes as amended, waive the reading, and place the minutes in the file. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Creed asked when the Board is going to review suggestions for the Board of Aldermen. Mr. Shaw said that the Board reviews the By-Laws on an annual basis, which is an obligatory review, but there isn’t a standing timeframe to meet with the Aldermen. Mr. Currier said it should be open to discuss anything we want to discuss with them, as issues arise. Mr. Currier passed out a revision to Mr. Creed’s letter about the property at Monroe Street. Mr. Reppucci said he remembered this issue as a simple question to the City Attorney, and that is, if one Department of the City recognizes a piece of property as a certain thing, can another Zoning Board of Adjustment November 13, 2012 Page 14 Department in the City recognize it as something different, or, does that substantiate that the City sees it in a way that one Department sees it. He said if the Assessing Department sees it as a two-family, can the Building Department consider it as something different. Mr. Creed said that he addressed the letter to Mayor Lozeau simply because she is the head of the Executive Branch. Mr. Reppucci said the Chairman of the Zoning Board can ask the City Attorney for guidance on how we interpret something. Mr. Creed said that even though he is an attorney, he’s not here to give legal advice to the Board, he’s only here as a homeowner and member of the community, a private citizen. Mr. Johnson said the Board should ask the City Attorney first, and decide based upon the response. Mr. Reppucci said if the letter comes from the Chair, then it represents the Board. Mr. Shaw said we could keep this simple, and if Attorney Bennett says that if the best thing to do is to sit down with the Board and discuss it, that’s fine. He said he’s willing to ask the question, and go from there. Mr. Johnson said that the Mortgage Specialists sign on Amherst Street is not in compliance. He mentioned the J. Gregory sign as well, and questioned if they got a permit. He asked what the process is for a citizen to get enforcement action. Mr. Falk said if Code Enforcement knows about an issue, they will investigate it and take appropriate action. Mr. Reppucci said the Board has to be careful in not enforcing the zoning laws, as it is forbidden. He said that enforcement should not be our scope. He said it’s the City’s obligation to do enforcement. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:50 p.m. Submitted by: Mr. Currier, Clerk. Zoning Board of Adjustment November 13, 2012 Page 15 CF Taped Hearing