Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 27, 2012 A public hearing of the Zoning Board of Adjustment was held on Tuesday, November 27, 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. 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 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. [TABLED FROM 11-13-12 MEETING] Voting on this case: Rob Shaw Gerry Reppucci Jack Currier David Creed Rick Johnson MOTION by Mr. Reppucci to remove item from table. SECONDED by Mr. Currier. Zoning Board of Adjustment November 27, 2012 Page 2 MOTION CARRIED UNANIMOUSLY 5-0. Mr. Shaw said that the Board had questions on whether or not to hear the case, and received an opinion from Atty. Bennett, stating that it is proper for them to apply for the variance. Attorney Gerald Prunier, Prunier and Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that the second variance is no longer needed, as the revised drawing indicates that the top portion of the sign now meets the Ordinance, and now the only variance being requested is the one for the graphics. Atty. Prunier described the neighborhood, and nearby uses. He said that the entire Nashua Mall has recently changed, new stores were added to the rear, and that Coliseum Avenue was enlarged to four lanes of traffic. He said that there is a very short distance from Broad Street to Norwood Street, and many patients have had a difficult time seeing to turn into Norwood Street, the sign will help identify where the business is located, and what they do, which is what the graphic picture will do. Atty. Prunier said that there are similar signs on the other side of the turnpike, the Gurney Automotive sign is about the same size as the proposed sign. He said the Merrimack Bank and the Car Wash also have electronic signs. He said in the Nashua Mall there are no electronic signs. Atty. Prunier said that the sign is not contrary to the public interest, as the sign itself is allowed, and if it didn’t have any graphics, it wouldn’t be before the Board. He said the graphics are important to the business. He said the sign is much smaller than what the Code would allow, and it wouldn’t be seen from Broad Street. Atty. Prunier said that the public interest would be served by allowing this sign because it says what is being done by the doctors at Nashua Eye Associates. Atty. Prunier said that substantial justice would be done, as the road was changed, and drivers get to this location very fast, and it’s important that notice be given as soon as possible about the right turn into the property. He said that Zoning Board of Adjustment November 27, 2012 Page 3 the property values will not be diminished from the installation of the sign. Mr. Reppucci said the difference between the Gurney application and this one is that the Gurney one was to install the sign and to use it as the ordinance allows. They weren’t asking to use graphics. Atty. Prunier said that is correct, that sign is in a residential area, but were very close to a business zone. Mr. Reppucci said that the Board only gave permission for Gurney’s to have three lines of text, and for it to be installed in that zoning district. He said Section 190-93, the sign code, prohibits signs. He said that the Aldermen wrote the ordinance prohibiting signs, letter “E”, prohibits electronic messages signs, except for electronic message devices that are allowed under Section 190-97 (B). He said that the ordinance specifically states that this can’t be allowed. He said it’s not a matter of interpretation. He said Section 190-97 (B), it gets back to the three lines. He said he likes these types of signs, but asked how the Board can justify changing the ordinance in the City by allowing this type of sign. Atty. Prunier said he is here because the Ordinance doesn’t allow this. He said the Zoning Board exists to take care of situations that the Ordinance doesn’t allow use in, or dimensional issues. He said the Ordinance takes care of 20-year old technology, the technology is changed. Mr. Reppucci said that he believes that by allowing this sign, that the Board would be changing the Ordinance, and wanted assurance that that would not be the case. Atty. Prunier said that is not the case. He said that a variance only applies for this particular piece of property. He said that Coliseum Avenue is a local street, it’s not like Broad Street, or Amherst Street, or DW Highway, where the McMulkin sign is located with graphics. He said that the people who are looking for this sign are the ones that have problems with their eyes. Mr. Johnson asked if the graphics are visible from both directions. Zoning Board of Adjustment November 27, 2012 Page 4 Atty. Prunier said they would be. Mr. Johnson asked if there is a residential community right near the facility. Atty. Prunier said that the closest houses are on the top of the hill. He said that there is a senior retirement community nearby. Mr. Johnson asked if the intensity of the led lighting can be adjusted, and if the lights on the sign would be on 24/7. Atty. Prunier said the Board could put conditions on it, so that it’s on less hours. Mr. Johnson said that he saw some residents windows that would be a reasonably close distance away, about one hundred feet. He asked if they were contacted. Atty. Prunier said no, they’re an abutter and a client, he said he called them, but the call wasn’t answered or returned. Mr. Johnson asked about a permanent back-lit type of graphic, as a sign. He said he is concerned about the variability and the adjustment capability about the lighting, and asked if consideration was given to a permanent plexi-print, and why that was dismissed. Jeff Tuttle, The Sign Gallery, Hooksett, NH. Mr. Tuttle stated that the whole purpose of the message center is to have different advertisements on the sign of the services that they offer, so they didn’t want a sign that they couldn’t change. Mr. Currier said he disagreed with the testimony that the changes on Broad Street provide a unique challenge to the client, who has been there a long time. He said the guardrail, coming down Coliseum Avenue, block the signs along the back of the shops to the left. He said that the topography uniquely suits the applicant. He said that Coliseum Avenue is a local street. He said that abutting this property for many years is a multi-unit elderly housing development. He said the sign may look like Las Vegas, and there are other residential units further down the street. He said that this is a local street, and having a sign with graphics on it completely changes the Zoning Board of Adjustment November 27, 2012 Page 5 character of the street. He said he is also concerned with future compliance. Atty. Prunier said that with other similar signs, its an enforcement issue. He said that the visibility isn’t that great with the existing sign. He said with the lighting, the sign itself is allowed, and it will be muted and controlled by the client. Mr. Creed asked about the ability to change graphics. He said he’s inclined to grant the request, but needs a higher comfort level with the issue of having the graphics, and if there’s no other method besides having graphics. Mr. Tuttle said the biggest reason is that the number of signs in the area, and that the power lines come down really low, and there’s no way to make the sign any higher than it is now, or else the power lines would run right through the message center. He said the sign isn’t tall, and it’s easy to pass the sign. Mr. Boucher asked about the frequency of change of the message. Atty. Prunier said they’ll have different graphics, and the frequency could be one at least every five seconds. Mr. Shaw said that they’re potentially looking at a full change in the graphics every five seconds. He asked if they would be interested in a stipulation that the graphic stays on for a longer period of time. Atty. Prunier said that would be a reasonable stipulation. Mr. Shaw mentioned the difficulty of the right turn into the property. He asked why they couldn’t just have Nashua Eye Associates in the full bright lit upper sign. Atty. Prunier said the services that are being offered are important, as well as giving direction into the lot. He said a static, non-moving sign doesn’t grab your attention like a moving sign would. He said that the electronic sign will get your eye a lot faster than a static non-moving sign. SPEAKING IN FAVOR: No one. Zoning Board of Adjustment November 27, 2012 Page 6 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said that the request is explicitly forbidden in the City by Ordinance. He said he didn’t see how the Board could grant it, if it’s not allowed everywhere. He said he likes these signs, and these signs are expensive, and have the most up-to-date technology. He said in order for this to be approved, the applicant has to make an argument that they are uniquely affected by this restriction, as the criteria for a variance. He said the Board would be allowing something that is explicitly forbidden in the City, and it’s the wrong thing for the Zoning Board to do. Mr. Shaw said the Board needs to judge the request on it’s own merits. Mr. Reppucci said that the sign ordinances were recently updated in full, in 2006. He said he didn’t agree with earlier statements that the sign ordinance is outdated, its not twenty years old. Mr. Shaw confirmed Mr. Reppucci’s statement about the recent updating of the sign ordinance. Mr. Creed said this isn’t the first electronic changing message sign in the City, there are others out there. He said many of them have been granted variances for one thing or another. He said that the uniqueness of the site does merit granting a variance but said he wondered if another type of direction sign may work better. He said they do have low hanging power lines, and it is tough to read graphics while you’re making a turn, so he understands the need for the sign, provided there is some kind of condition to alleviate any problems with any of the neighbors, especially the Senior Citizens center. Mr. Johnson said he’s not in favor of it, but is open to reason. He said he is concerned for the nearby residents, and the application states that they want full capability of the sign. He said the organization has many customers, and didn’t feel like this sign was the best way to identify themselves to customers. Zoning Board of Adjustment November 27, 2012 Page 7 Mr. Shaw said there are other reasonable means feasible for them to have a sign, but to do so with a standard sign with their standard name and logo on it. Mr. Currier stated that the sign with graphics is not needed. He said the courts are seeing more and more cases with electronic message center issues, and isn’t convinced that a slackening of the requirements is coming with respect to these types of signs. He said he’s unconvinced with this property, situated as it is coming down the hill, he said the sign is very well pronounced as it is now, and never knew of a power line getting in the way of a sign. He said the nearby residential element is still a concern. He said this area struggled for many years, and now it is a vibrant, strong area. He said he felt that it is fair game to consider compliance as an element of his decision. Further discussion ensued. MOTION by Mr. Reppucci to deny the request on behalf of the applicant. Mr. Reppucci 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 the property does not have any special conditions that justify this. Mr. Reppucci said for the spirit and intent of the ordinance, supporters of this motion find that it is contrary to the spirit and intent to the governing ordinances that Nashua has in place concerning electronic message centers with graphics. Mr. Reppucci said it will not adversely affect the property values of surrounding parcels, no testimony was given one way or another about that. Mr. Reppucci said for the public interest, he said he can’t say one way or another if it is, but said he didn’t want to include it as a reason for denial. Mr. Reppucci said that for substantial justice, the Board finds that the applicant has other means to accomplish getting their business recognized, and it would not grant them substantial justice to allow this type of sign. Zoning Board of Adjustment November 27, 2012 Page 8 SECONDED by Mr. Currier. Mr. Creed said for the spirit and intent of the ordinance, he said he is going the other way for the voting. He said for the enforcement, the City has gone a long way to approve the use of these signs by not enforcing and taking down improper signs in the City. Mr. Reppucci said he believed how the law is being enforced shouldn’t affect what the Board does. MOTION CARRIED 4-1 (Mr. Creed) 2. Jeffrey M. Hirsch (Owner) 550 Amherst Street (Sheet H Lot 646) requesting variance to exceed maximum ground sign area, 127 sq.ft existing, 150 sq.ft allowed – 162.8 sq.ft proposed - to add additional space onto an existing ground sign. GB Zone, Ward 2. CASE WITHDRAWN WITHOUT PREJUDICE – APPLICANT TO SUBMIT A PLAN THAT MEETS THE ORDINANCE. 3. Simmi Bhadran & Sajan Sathyan (Owners) 28 Pinebrook Road (Sheet C Lot 2351) requesting special exception to work in the 40-foot critical wetland buffer of Salmon Brook for after-the-fact removal of 19 pine trees in the buffer zone. R18 Zone, Ward 9. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Mr. Creed said that this is an after-the-fact request for approval, as the work has already happened, and they’re requesting a special exception. He asked whether the Board should be hearing the case. Mr. Currier said the Board is reviewing what the Conservation Commission is saying. He said that although the work has been done, there has been mitigation and plantings have been made, Zoning Board of Adjustment November 27, 2012 Page 9 and it will be better than it was. He said it’s fair for the Board to consider their request. Mr. Reppucci said that this is a common thing for the Board, he said a lot of people have already done something, and they’re found in violation, and they’re before the Boards. After a brief discussion, the Board began deliberation on the request. Robert Prokop, Certified Wetland Scientist, 15 Bisson Lane, Merrimack, NH. Mr. Prokop said the lot is about 1.5 acres in size, located within a 40-lot subdivision, located off of Ridge Road. He said they’ve had regular meetings with the Conservation Commission since the trees were taken down, almost monthly. He said in mid-March 2012, they contacted a tree logger to take down the trees, and clear the land more. He said they wanted the trees cleared within 100 feet of the house, unfortunately, they cleared virtually all of the trees in the upland portion of the lot. He said it amounted to fifty or more trees that were cut from the lot, of which nineteen were in the buffer zone. He said that the logging company left the tree stumps, and a lot of slash and log piles of trees they didn’t want to remove. Mr. Prokop said the Conservation Commission allowed them to remove the slash, and to eliminate the piles of logs. He said that the owners purchased approximately 120 trees, seedlings, which are about 15 inches tall, and planted 87 of them within the buffer zone. He said he’s monitored the site, and the trees are doing very well, and the Conservation Commission is happy with the restoration and future non-disturbed area as well. Mr. Prokop went over the nine special conditions, as well as the special exception regulations, to the Boards satisfaction. SPEAKING IN FAVOR: Sujatha Prasad, 27 Pinebrook Road, Nashua, NH. Mrs. Prasad said she is in favor of the request, and the area looks nicer, and none of the neighbors have a problem with it. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment November 27, 2012 Page 10 MOTION by Mr. Reppucci to grant the special exception request on behalf of the owner. Mr. Reppucci stated that the request is listed in the table of uses, Section 190-112. Mr. Reppucci stated that the request will not create undue traffic congestion or unduly impair pedestrian safety; it will not overload public water, drainage or sewer or other municipal systems. Mr. Reppucci stated that special regulations are fulfilled, by testimony of the applicant, all of the special regulations laid out in the ordinance are all met, and there is an approval letter from the Conservation Commission dated November 20, 2012 which makes reference to the November 13, 2012 Conservation Commission meeting, in which they reviewed this and approved the plan presented to the Board with five conditions that have all been, or will be met per testimony. Mr. Reppucci said the proposed use will not be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents, there was a neighbor that testified that she thinks it’s beautiful. Mr. Reppucci stated that he’s making a special condition that the Board is including the minutes of the Conservation Commission meeting in the ZBA meeting for review. Mr. Shaw said that there were multiple Conservation Commission meetings, dating back to at least April, and any of those meetings that dealt with this case should be included. Mr. Reppucci said he’d amend his motion as Mr. Shaw just stated. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 4. M325 Real Estate, LLC (Owner) 325 Main Street (Sheet 100 Lot 2) requesting the following variances: 1) to allow a ground sign on a lot with 73.95 feet of frontage – 100 feet required; and, 2) to allow four lines of manually changeable copy. D-3/MU Zone, Ward 6. Voting on this case: Rob Shaw Zoning Board of Adjustment November 27, 2012 Page 11 Gerry Reppucci Jack Currier David Creed Rick Johnson Attorney Robert Welts, 29 Factory Street, Nashua, NH. Atty. Welts stated that they are requesting a variance for a lot with less than 100 feet, and to allow four lines of manually changing text, in the D-3/MU zone. He said the lot is long and narrow, and contains about 21,500 square feet, but only 73.95 feet of frontage. Atty. Welts said that there are three buildings on the lot, two buildings contain four residential units in each one, and the office is the one furthest away from the street, and cannot be seen from the street. LinBar Property Management is the only tenant in that building, it manages the units on the property, as well as 125 other residential units in the City-wide area. Atty. Welts said that Linbar Property Management is continually renting units, and there are people coming to the office who don’t know it’s there to drop off leases and other rental paperwork. Atty. Welts said that the sign meets the setback, area, height, and number of signs. He said the four lines of changing text area will allow them to identify when and where units become available, and where the property is located. He said that many nearby signs, and others in the downtown district have manually changeable signs. He went over all the relevant variance points of law. SPEAKING IN FAVOR: Joe Roberts, LinBar Property Management, 325 Main Street, Nashua, NH. Mr. Roberts stated that they want seven-inch letters, which is what some of the nearby signs have, instead of five-inch letters. Mr. Currier asked about an old existing sign frame on the lot. Atty. Welts said that frame was put up by the prior owner. He said there was a fire on the King property next door, and while that building was being rebuilt, Mr. King had an office on the subject lot until theirs was restored, and his understanding was Zoning Board of Adjustment November 27, 2012 Page 12 that they used frame for their temporary office. He said it would come down if this request is approved. Mr. Currier asked about the setback. Atty. Welts said that they will meet the front yard setback. He said they’d have a surveyor locate it. Mr. Falk said it has to be a minimum of ten feet. Atty. Welts said that they’re allowed fifty square feet, and the proposed sign is thirty square feet. He said there is a ten foot height allowance, and the proposed sign is just over seven feet. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the request on behalf of the owner, both requests taken together. Mr. Reppucci stated that the variances are 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 the area variances. He said the building is hard to find, and the request is reasonable. Mr. Reppucci 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 met. Mr. Reppucci said there is a special condition that the text be limited to four lines, and that the letters be limited to five inches in height. SECONDED by Mr. Johnson. He said that there was a letter in support from Steve King. MOTION CARRIED UNANIMOUSLY 5-0. 5. Amy Harrington (Owner) 84 King Street (Sheet 125 Lot 6) requesting variance to exceed maximum driveway width, 10 feet Zoning Board of Adjustment November 27, 2012 Page 13 existing - 24 feet permitted – an additional 22 foot wide driveway proposed. RB Zone, Ward 7. CASE WITHDRAWN BY OWNER. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: None. ADJOURNMENT: Mr. Shaw called the meeting closed at 8:51 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing