Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 12, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 12, 2013 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 J.P. Boucher Rick Johnson 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. Monica & Richard Tino III (Owners) 11 Burnside Street & “L” Beauview Avenue (Sheet 59 Lots 108 & 109) requesting the following variances: Lot 108 – developed lot: 1) minimum lot area, 7,500 sq.ft required, 7,425 sq.ft existing; 2) minimum lot depth, 90 feet required, 67.5 feet existing from Burnside Street; Lot 109 – undeveloped lot: 3) minimum lot area, 7,500 sq.ft required, 7,425 sq.ft existing; and 4) minimum lot width, 75 feet required, 67.5 feet existing – all requests to construct a new single-family home on the undeveloped lot. RA Zone, Ward 2. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson David Creed Monica Tino, Richard Tino, 11 Burnside Street, Nashua, NH. Mrs. Tino said they just bought the home in November, 2012. She said it’s already a subdivided lot, the other lot is separate. She Zoning Board of Adjustment February 12, 2013 Page 2 said they have a great relationship with their parents, and want the vacant lot to build a house on. She said that her parents have since sold their home. She said the vacant lot is the same size as the lot with the home on it. She said if they cannot build on this lot, it would create a financial hardship, as it wouldn’t be worth anything because of the taxes being paid on it, and wouldn’t be able to build on it. Mr. Tino said for the public interest and the character of the neighborhood, the neighborhood is single family homes, mostly ranches and capes, and there are some splits and colonials in the area. He said the proposed house is a ranch that will be in the same character of the neighborhood. He said the character of the ordinance is to enforce residential neighborhoods, with single family homes. He said there is an apartment building at the end of Beauview Avenue, but the proposal will enhance the idea of single family homes with yards around them. Mr. Tino said there are similar sized lots in the area, and said that some lots are even smaller. Mr. Tino said that for substantial justice, the previous owners did some yard work, and re-graded the yard somewhat, which changed the drainage flow. He said by building the new home, it will allow the builder to look at the drainage and possibly adjust it. Mr. Tino said for the property values, he said the proposed house won’t be substantially different from the houses in the area. He said when they bought their home, the appraisal didn’t factor the size of the lot into the value. He said there are fences up, which identify the lots. He said there is a planter area which determines the property lines. He said the new house will not substantially affect property values. Mr. Tino said for the hardship, he said their intent was to buy a home that they had extra land to sell to his in-laws, so they could be close by as they age, and to help watch the children. He said someone questioned the house location and orientation on the lot, he said they are willing to relocate it on the lot and work with the neighbors for the positioning of the house on the lot. Mr. Creed asked if they had considered the possibility of having the lots merged into one bigger lot, which may allow for a good Zoning Board of Adjustment February 12, 2013 Page 3 sized addition onto the house, or another house, which would be two buildings on one property. Mr. Tino said they did a little investigating, and know that an accessory dwelling cannot exceed 700 square feet. He said that his in-laws are still too active to live in an accessory type dwelling, and want their own place, so, the first preference is for them to have their own house. Mrs. Tino asked about merging the lots together, and building a separate dwelling unit. Mr. Falk said that if the lots are merged, they wouldn’t be allowed to build another house on the lot, as you can only have one principal structure on one lot. He said in order for them to consider that, they’d need to apply for a variance. Mr. Reppucci asked if they had bought two separate pieces of land. Mrs. Tino said that they did. Mr. Reppucci asked if it was their understanding that it was a buildable lot, or if it didn’t meet the criteria required to build on it, and variances were needed. Mr. Tino said their understanding was that they needed to get variances that they didn’t meet the area requirements. He thought the vacant lot could be buildable, with variances. Mr. Shaw said that there are a couple sections in the Code that refer to this issue, he said that even though they are two separately deeded lots, for purposes of the land use code, they are treated as one lot. Mr. Falk said that when properties are bought and sold together, like these two lots, for zoning purposes, we consider them one lot, because since each lot is nonconforming, the lots borrow space to make them conforming. Mr. Currier said the lot is worth more if it is developable, rather than undevelopable. He said in theory, if it’s undevelopable, the taxes would be a lot less if it’s developable. He said he assumes that Assessors office knows it’s an undevelopable lot, and the taxes paid on it are fair. Zoning Board of Adjustment February 12, 2013 Page 4 Mr. Tino said the value of each lot is the same amount. Mr. Johnson asked what the result was in their discussions with abutters about the proposal. Mrs. Tino said they walked around, and met all the neighbors except one that was never home. She said one neighbor talked to her about the drainage and that during construction is the best time to address that. She said that one neighbor didn’t care about it. She said that the neighbor to the rear did express some concerns about it, but didn’t really elaborate on it. She said she had some nice conversations with the neighbors. SPEAKING IN FAVOR: Mario Fernandez, 9 Intervale Street, Nashua, NH. Mr. Fernandez stated that his daughter has been living in his duplex for the past eight years, and it was nice living next door taking care of the grandchildren. He said his house just sold, and the closing is next month. He said their original approach was to have an in-law apartment, but didn’t think that that was the best thing to do for the neighborhood. He said he looked at other houses for sale in the neighborhood, but none were at a price that was acceptable. He said this issue has been well- researched. He said the house could be moved around on the lot somewhat. Mr. Currier said a special exception is a request that is a permitted use, as long as there is not a detriment, it’s a low bar to cross for approval. He said that an in-law apartment is a special exception. Mr. Fernandez said his issue right now is time, and it’s too expensive to rent a place, start construction, and then start another process with the Board. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Roger Jamerson, 37 Beauview Avenue, Nashua, NH. Mr. Jamerson said they bought their home twenty years ago, it’s a well- established neighborhood, great for families. He said the lots with less than 75 feet of width have been grandfathered in since before zoning laws. He said a variance should be sacred, unless Zoning Board of Adjustment February 12, 2013 Page 5 there’s only a dire need to build a house. He said he’s concerned with a modular home being built there. Roland Savoie, 20 Hooker Street, Nashua, NH. Mr. Savoie said that a special exception for an in-law apartment would be a better idea, and he would support. He said he’s not an abutter, but can see the lot. He said he heard of Mr. Fernandez’s financial hardship with moving this case along, but said he had to endure the same issue. He said the proposed home would not fit in with the others in the neighborhood. He said he didn’t think they met the hardship. Mr. Shaw reminded the audience that financial hardship is not a topic for the Board to discuss, and it is not one of the points of law. Tracy Krulikowski, 14 Hooker Street, Nashua, NH. Mrs. Krulikowski said that the Board has a letter, and pictures that she submitted. She said her house would be impacted, and said her house is currently on the market, because of this issue. She said she doesn’t want a house there, she said she’d look out my window and see a rooftop of someone’s modular ranch crammed into that spot, where her children play in the small area. She said it would look like an industrial park. She said the case does not meet the criteria, and would impact her property values, and her ability to get a return on her investment. She said that 22 feet from her foundation to where the proposed lot is. She said that she doesn’t want to look out at the roof of someone’s home, there’s space there for a reason. She said it would significantly compromise the character and aesthetics of the neighborhood. She said she wouldn’t mind an in-law apartment built onto their home. Mr. Reppucci said that the request is 1% off from the lot size variance for the lot area. He said there is generally a lot of space between houses in this neighborhood, there’s a lot of openness. He said the request is extraordinarily close to what is required by the ordinance. He said the frontage and width variances are more than 1% off. He said the setbacks for the proposed house all meet the ordinance. He said that the requests the applicant is seeking are comparatively small compared to many others the Board sees. Mr. Currier agreed about the lot area. He said that the variance for the lot depth is rather large, they are asking for Zoning Board of Adjustment February 12, 2013 Page 6 75% on lot 109, and 90% is being asked for on lot 108. He said that the lot area variance is trivial, but the others are more significant. Don Sherwood, 16 Hooker Street, Nashua, NH. Mr. Sherwood said he is concerned with the two lots being smaller, percentage- wise, than the ordinance calls for. He said the lot is positioned so that a house must go in lengthwise, so that the narrow width faces the road, which is out of character with the neighborhood. He said a new house put in here would significantly lower the property values in the neighborhood. He said he is concerned with the sewer layout, as it goes through his back yard, and any construction on the sewer line will disrupt the area. He said he’s concerned with water runoff and water percolation. Mr. Shaw said that any new development in the City requires that the drainage coming off that property not add to or create additional runoff on adjacent properties. Priscilla Slatunes, 15 Burnside Street, Nashua, NH. Ms. Slatunes said her folks bought the subject lots, as well as others nearby, in 1952. She said they sold Lots 108 and 109 in 1953 to Mr. Edward Downie. She said on the deed, there were no separate lot divisions, it was 108 and 109. She said the vacant lot was never a separate lot. She mentioned Plan #300, which shows a lot of triple lots from Hooker down, and a lot of the triple lots were changed to double lots. She said the only triple lot in existence today is at the end of Burnside Street. She said her lot is lower than everyone else’s around her, and drainage comes into her lot. JoAnne St. John, 25 Beauview Avenue, Nashua, NH. Mrs. St. John said they’ve lived here since 1977. She said in the 1950’s, the history and prominence of this neighborhood is that it’s a charming area. She said that 9 Sheridan Street wanted to do the exact same thing, to put in a ranch sideways. She said a subsequent owner put on a nice addition, which exemplified what the neighborhood is about. Robert Irwin, 40 Beauview Avenue, Nashua, NH. Mr. Irwin said he’s in support of what the others have said, and is concerned about the property values. He said he’s against the proposal. Zoning Board of Adjustment February 12, 2013 Page 7 Mr. Shaw said that there are several letters of opposition that are added into the record, some of whom have already spoken against the request. SPEAKING IN FAVOR – REBUTTAL: Richard Tino, 11 Burnside Street. Mr. Tino said a lot of points were raised about the appearance of the home, and it being out of character. He said the proposed home is not a mobile home, it has less impact with construction on the area, and the company can build it in any character that is needed. He said it wouldn’t look aged like the other ones because it’s new, but it could be built and designed like it fits into the neighborhood. He said there are a few houses that are oriented length-wise in the neighborhood, so it wouldn’t be dramatically out of character if it is length-wise. Mrs. Tino said the modular homes are built to higher standards and are very well built homes. She said that the house would meet the frontage, but it doesn’t meet the width. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Roger Jamerson, 37 Beauview Avenue. Mr. Jamerson said their rebuttal is based upon the character of the neighborhood. He said the house would be set length-wise, with an entrance on the side of the house, a driveway on the other side, and the character of the neighborhood is that every home is set back, and every home does face the road. He said there are concerns with the sewer system. He said that they believe that the property values would go down. He said the Tino’s house is one of the most beautiful ones in the neighborhood, and for them to put a modular home there, breaks the neighborhood’s heart. Mr. Reppucci said when he drives around that neighborhood, it has a lot of character, but there is a large number of properties that are extraordinarily dated, there are many houses that are older, and haven’t been updated. He said a new house in this neighborhood will not be detrimental to the neighborhood in general. He said for the definition of a hardship, if the Board doesn’t allow people to do something with this piece of property, it’s basically valueless. He said he couldn’t imagine a better example of a hardship, where, if the Board doesn’t allow the lot to be developed, it doesn’t have much of a value. He said from a land-use point of view, the neighbors have the Zoning Board of Adjustment February 12, 2013 Page 8 advantage of enjoying someone else’s property. He said they are only 1% short on the land area, and meet the frontage and setbacks. He said he has to hear how this case doesn’t meet the hardship criteria. He said he thought the request fits the boundaries of what our task is to approve this case. Mr. Creed said he didn’t think the request should be approved. He said the sense he gets is that this request could be a special exception with an in-law apartment, or the requested variance, and they’ve chosen to go forward with the variances. Mr. Falk said if the Board denies the requested variances on the agenda this evening, an option by the owner would be to apply for a special exception to have an accessory dwelling unit. He said they’d have to go through the Fisher vs. Dover case first. He said without seeing a proposed plan, it’s unknown if any variances would be needed. Mr. Creed said there is another method reasonably feasible for the applicant to pursue. He agreed that the special exception threshold is lower for approval, than a variance. He said the special exception is a more reasonably feasible route for the applicant. He said it is a self-created hardship, and the request should be denied. Mr. Reppucci said the special exception application that the applicant could do is a completely separate application, and they haven’t applied for that. He said the Board should not be talking about that, as it wasn’t presented to the Board. He said the applicant didn’t ask for an in-law apartment, they’ve only asked for the variances, and that’s what we should be discussing and voting upon. Mr. Currier said he’s struggling to find hardship with this case. He said it’s a wonderful yard for a corner property. He said that financial hardship is off the table, and finding a home for a parent that sold their house and is in dire need to find something cannot be considered. He said he didn’t think a discussion about a special exception is off the table, but didn’t’ see the hardship. Mr. Shaw read Land Use Code Section 190-121 (B)(3) into the record, and mentioned Section 190-16 (C)(1). He said for the past sixty years, this property has been dealt with as one commonly owned piece of property, even though there were two Zoning Board of Adjustment February 12, 2013 Page 9 lots. He said the lots, as they are now used, are conforming with the Code because of this requirement. Mr. Boucher asked if 11 Burnside have been sold separate. Mr. Shaw said no. Mr. Boucher said they’re separate lots, but are being treated as whole, to be conforming. Mr. Johnson said that the Board should stick to the issue of what has been applied for. He said the requestor has asked for a reasonable case, and they clearly wanted to work with the neighbors to make it as aesthetically pleasing as possible. He said they are land owners, and they do own two lots. He said he supports the application. Mr. Reppucci said the request meets the frontage requirements, but not the width requirements. He said that except for cul-de- sacs, the width issue is bizarre. He said he respects the concerns about the width, but the applicant is not seeking any setback variances, the use of the land will conform to the setbacks. Mr. Shaw said for the frontage and width, it was intended for cul-de-sacs and lots on curvilinear streets so that the satisfactory width could be met, while frontage is decreased because of some sort of an angular shaped lot. He said this lot is rectangular, and while it may meet the frontage, the width is still not met. Mr. Boucher said that this Board has approved similar sized lots, and said that in hearing all the testimony, would vote in favor of the request if he were a voting member on this case. MOTION by Mr. Creed to deny the application on behalf of the owners, as advertised. Mr. Creed stated that he is denying this request because he doesn’t believe a variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, and that the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance, specifically, a special exception would be more appropriate to accomplish the applicants stated goal in this case. Zoning Board of Adjustment February 12, 2013 Page 10 SECONDED by Mr. Currier. Mr. Reppucci said that if the Board passes this motion, he thinks the Board is extremely vulnerable to an appeal, because the Board is associating, in the motion, an optional use to the property that is non-existent, and referencing that as far as denying the application, is in peril. Mr. Currier suggested that the hardship is not found, and that the property as has existed for decades in a reasonable use, and is a reasonable use now, and therefore there is not a hardship to have to subdivide this. He said for clarification, he’d like to throw that into the motion. Mr. Creed said that as an amendment, would like that language in as an amendment to the motion. AMENDMENT to Motion Seconded by Mr. Currier. Mr. Johnson agreed that it is an error to have a reference of any implied solution that would seek another venture to this Board. He said it’s a bad idea. Mr. Currier said he didn’t think Mr. Creed’s solution was specific, it was just reasonably feasible, which is the criteria that we see. Mr. Creed said he could withdraw the language about a special exception. He said he didn’t want to suggest that is the way to go, his point is that there is another alternative. Mr. Johnson stated that he’d like to hear the actual motion re- phrased based upon the denial. REVISED MOTION TO DENY by Mr. Creed. Mr. Creed said that the basis of the denial is that it fails the first criteria, which is that a variance is needed to enable the applicants proposed use of the property, given the special conditions of the property, and that 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. Creed said that he thinks there are other methods, and said that he doesn’t meet the hardship criteria, because it’s been used for decades in another manner, and is a self-created hardship. Zoning Board of Adjustment February 12, 2013 Page 11 REVISED MOTION TO DENY SECONDED by Mr. Currier. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Johnson). 2. Sequel Development, LLC., (Owner) 102 Lock Street (Sheet 46 Lot 15) requesting variance for minimum lot area, 5,603 sq.ft existing, 6,969.6 sq.ft required – to convert a single-family home into a two-family dwelling. RC Zone, Ward 3. Voting on this case: Rob Shaw Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Steve Vallier, 14 Robin Drive, Nashua, NH. Mr. Vallier said they recently purchased two properties, 102 and 104 Lock Street. He said that 104 Lock was an existing two-family that major renovations were done for, and 102 Lock was a two-family structure at one point, but there was an abatement filed. He said it was a two-family years ago, but it was re-classified into a single-family home. Mr. Vallier said that the house is in very poor condition. He said their goal is to renovate the property, and create two two- bedroom apartments. He said the building will be brought up to current code. He said there’s parking on the side for at least two cars. He said the neighborhood has mainly multi-family structures, and 104 Lock is right next door. He said there’s a park right behind the property, and there is a church right across the street. He said they’re in an RC Zone, and it’s a permitted use to have a two-family. Mr. Currier asked how far back the driveway goes. Mr. Vallier said it goes almost to the back of the house, roughly about forty feet long. He said the back yard is all fenced in. Mr. Currier asked if there is a sidewalk in front of the house. Mr. Vallier said there is. Zoning Board of Adjustment February 12, 2013 Page 12 Mr. Currier asked if the cars would stick out in the sidewalk. Mr. Vallier said they would not. Mr. Currier asked if there is a foundation and a basement. Mr. Vallier said there is a full basement. SPEAKING IN FAVOR: Peter Dolloff, President, Sequel Development, 29 Allison Drive, Hollis, NH. Mr. Dolloff said this building was a two-family structure for many years. He said the previous woman who owned it went into a nursing home, and her son brought it back to a single-family, to save on the taxes. He said they didn’t make any physical changes to the house, and didn’t remove the second kitchen, or the second bathroom. He said the property they renovated next door at 102 Lock Street has improved the neighborhood, and the subject house will look brand new when it’s completed, and it will also help to bring up the values in the neighborhood. He said that all the neighbors have been very positive about the changes. 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 the area variance. Mr. Boucher stated that the request is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, actually, there is evidence that the applicant has made some improvements to some properties nearby, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. Zoning Board of Adjustment February 12, 2013 Page 13 MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases that have Regional Impact. REHEARING REQUESTS: None. MINUTES: January 8, 2012: Voting on Minutes: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher MOTION by Mr. Reppucci to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. January 22, 2012: Voting on Minutes: Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher MOTION by Mr. Reppucci to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. Zoning Board of Adjustment February 12, 2013 Page 14 ELECTIONS: MOTION by Mr. Currier for Mr. Reppucci as Chair, Mr. Currier as Vice Chair, and Mr. Johnson as Clerk for 2013. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. ADJOURNMENT: Mr. Shaw called the meeting closed at 9:16 p.m. Submitted by: Mr. Currier, Clerk. CF Taped Hearing