Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 26, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 26, 2013 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci, Chair Jack Currier, Vice Chair J.P. Boucher Rob Shaw Rick Johnson David Creed 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. 1. North Concord Street Properties (Owner) City of Nashua (Applicant) “L” Concord Street (Sheet 51 Lot 8) requesting special exception to work within the 40-foot critical wetland buffer to install two sections of chain-link fencing. R18 & RA Zones, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw JP Boucher Rick Johnson Attorney Steven Bennett, Corporation Counsel, City of Nashua Atty. Bennett said he’s here on behalf of the City as part of a conservation easement which was granted to the City by the applicant. He said that there are two areas, a recreation area and a bog, located just east of the recreation area. He said they are requesting a special exception to install fencing within the wetland buffer. He pointed out the locations of the fence on the submitted maps. Zoning Board of Adjustment March 26, 2013 Page 2 Atty. Bennett said that the fencing to be installed will be similar to other fences in and around Pennichuck. He said there will be strands of smooth wire strung at the top of the fencing, it will be a protective measure for the conservation areas. Atty. Bennett went over all the relevant points of law for the special exception, also, it received approval by the Conservation Commission on March 5th, with three stipulations of approval. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the application on behalf of the owner. Mr. Reppucci stated that the use is listed in the Table of Uses, section 190-112. He said that it 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 all special regulations are fulfilled, and the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Mr. Reppucci said that the special conditions are that the approval is per the Conservation Commission approval on March 5, 2013, with three stipulations of approval. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 2. North Concord Street Properties (Owner) “L” Concord Street (Sheet 51 Lot 8) requesting variance to exceed maximum fence height, 6 feet permitted, 7 feet requested. R18 & RA Zones, Ward 3. Voting on this case: Zoning Board of Adjustment March 26, 2013 Page 3 Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Attorney Brad Westgate, Winer and Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate identified the location of the property, and stated that it will be a 55-year old and older condominium. He said it is currently being developed. He said the purpose of this request is to permit an additional foot of fencing over the six-foot maximum requirement height, to allow for strands of smooth wire, not barbed wire, on arms above the fence, to give it an overall height of seven feet. He identified the location of the fencing on the plan. He said the additional height will give better protection to the bog area, and to give some more isolation to the development. He said that the fence will help in protecting the assets. Atty. Westgate addressed the variance points of law to the Board’s satisfaction. He submitted two letters of support into the record, from the two major abutters. Mr. Reppucci stated that the only issue before the Board is the extra height of one extra foot on the fence, as a six-foot high fence is allowed by right. Atty. Westgate agreed. Mr. Reppucci said the wires at the top are very discreet, perhaps the arms that extend above the fence may be seen. Atty. Westgate said that the fence will be black vinyl. He said from a distance, it will be very hard to see the wire. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Geoff Daly, 48 Walden Pond Drive, Nashua, NH. Mr. Daly suggested that the fence should be even taller than what is proposed. Zoning Board of Adjustment March 26, 2013 Page 4 SPEAKING IN FAVOR – REBUTTAL: None. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. MOTION by Mr. Currier to approve the application on behalf of the applicant, as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, as stated, it’s an over-55 community, and they’re looking for additional security, thus, the additional one foot at the top of the fence. He said the security is both from the street, as well as the bog on the inner side of the project. He said that the two most impacted abutters are also in favor of this. Mr. Currier said that the request is within the spirit and intent of the ordinance, also, the Board finds that it will not impact property values, although there is no professional testimony towards that, and everyone feels better that the bog is being protected as much as possible, and substantial justice will be served. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 3. Mary Hitchcock Memorial (Owner) Jutras Signs (Applicant) 2315 Southwood Drive (Sheet G Lot 554) requesting the following variances: 1) to allow an off-premises directional sign; and, 2) to exceed maximum directional sign area, 9 sq.ft allowed, 19.5 sq.ft proposed. PI Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Zoning Board of Adjustment March 26, 2013 Page 5 Cathy Champagne, Jutras Signs, Bedford, NH. Mrs. Champagne said there are two requests, one is the size, and the other is the fact that it’s an off-premises directional sign. She said the application is complete and goes through the applicable points of law. Mrs. Champagne said that given the choice, most drivers tend to go to the right. She said there was an article in the Edmonton Journal that had a compelling article about traffic engineering, and why we drive the way we do. She said the article is compelling to what the request is. The study showed that making a left-hand turn is more complicated than a right turn. She said in this particular case, Dartmouth Hitchcock asked them to design a sign that shows the other businesses on the street. She said when you approach the intersection, you cannot see the businesses to the left easily. She said it’s in the public interest to help the businesses on the street to help give direction to the businesses, and get people to where they need to go safely. Mr. Creed asked if Dartmouth Hitchcock is charging fees for the sign, and creating some sort of a revenue stream. Mrs. Champagne said she is unsure, and never asked. She guessed that they’re not asking for money. She said they’re just trying to be good neighbors. Mr. Currier asked if the sign will have lighting or electricity. Mrs. Champagne said that it will not. Mr. Johnson said that some of the businesses on the sign have a lot of after-hours customers, and a lit sign may be beneficial. Mrs. Champagne said it just wasn’t part of everyone’s thought process. Mr. Reppucci said that car headlights will shine right at the sign, also, there are street lights right there, too. Mr. Creed asked about the potential for other off-site businesses to be on the sign. Mrs. Champagne said it only makes sense to have just the few businesses on the street to be on the sign. Zoning Board of Adjustment March 26, 2013 Page 6 Mr. Creed stated that he’d like to see a special condition that the sign is limited to businesses on Southwood Drive only. Mrs. Champagne said that is reasonable, and agreed. SPEAKING IN FAVOR: Chris Bergeron, Facilities Manager, Dartmouth Hitchcock. Mr. Bergeron said they had a lot of patient feedback that there was a lot of tendency at the bottom of the hill of not knowing which way to turn. He said they are not charging the other businesses to be on the sign, and this isn’t going to be a revenue maker for the hospital. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the application on behalf of the applicant, as advertised, both taken together. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, the situation is a proposed directional sign to guide traffic to the left at this intersection. Mr. Currier said that the request is within the spirit and intent of the ordinance, as the sign serves several businesses that are located to the left at this intersection. He stated that the request will not impact property values, the request is not contrary to the public interest, and substantial justice will be served. Mr. Currier said a special condition is that the sign is to be used only for Southwood Drive businesses. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 4. City of Nashua (Owner) Department of Public Works (Applicant) 70 & “L” Bridge Street (Sheet 40 Lot 34 & 48) requesting special exception to work within the 75-foot prime wetland buffer of the Merrimack River to construct an underground concrete screening and disinfecting tank; a Zoning Board of Adjustment March 26, 2013 Page 7 process control building to temporarily store, screen and disinfect Combined Sewer Overflow (CSO), and an interconnecting underground discharge pipe and outfall structure. GI/MU Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Amy Prouty Gill, Engineer, Department of Public Works, City of Nashua. Ms. Gill said that the project went before the Conservation Commission on March 20, 2013. She said that they will be constructing a concrete structure underground to gather wastewater and treat it, and have it discharge into the outfall. She said the City of Nashua is under a 15-year EPA Consent Decree CSO Program to reduce the frequency and volume of combined wastewater that’s entering into the Nashua and Merrimack Rivers. She said that this is the last element of several projects to reduce the frequency of the overflow into the river. Ms. Gill said that during wet water events, the construction will allow for overflow discharge a combination of stormwater and wastewater. She said that this project will take overflows that would have normally discharged, it will be stored in the tank, treated with chlorine and de-chlorinated, and then it will flow out of the outfall into the Merrimack River. Ms. Gill said they will be in the 75-foot buffer of the Merrimack River, the outfall is 540 feet long, and the last 75 feet of it is in the buffer zone. She said it will be installed by using a micro-tunneling system, that is an underground bore. She said the outfall is a standard concrete headwall, about five feet above the high-water elevation. She said that silt wall and erosion control measures will take place prior to construction, and the outfall will be constructed using metal sheathing and a cofferdam system, and the headwall will be constructed. She said up to the two-year event will be stored into this tank and not discharged, therefore not discharged, which will improve the water quality of the Merrimack and Nashua Rivers. Zoning Board of Adjustment March 26, 2013 Page 8 Ms. Gill described the general area and location. She went over the nine special regulations, and the special exception points of law. She said this will be located in the same location as the proposed Renaissance development. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the application on behalf of the owner. Mr. Shaw stated that the use is listed in the Table of Uses, section 190-112. He said that it will not create undue traffic congestion, or unduly impair pedestrian safety, it will not overload public water, drainage or sewer or other municipal systems, in fact, this project is meant to improve the final aspect of the CSO Consent Decree. Mr. Shaw stated that all special regulations are fulfilled, per testimony, and the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents, and since it is underground, there will be very little impact. Mr. Shaw said that the special conditions are that the approval is per the Conservation Commission approval on March 20, 2013, with all stipulations of approval. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 5. Linear Retail Nashua #1 LLC(Owner) ViewPoint Sign & Awning (Applicant) 225 Daniel Webster Highway (Sheet A Lot 190) requesting variance to replace an existing electronic message center on ground sign with a new one that would display symbols, graphics and images, where only three lines of text are permitted. GB/HB Zones, Ward 8. [TABLED FROM 3-12-13 MEETING] Zoning Board of Adjustment March 26, 2013 Page 9 Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson William Smiley, 17 Villager Road, Chester, NH. Mr. Smiley said in 1988, there was an electronic message sign installed there, it was an old bulb message center. He said that the current sign is now antiquated, and it needs to be replaced. He said they want to use an energy efficient system with LED. He said that the technology has changed to LED. He said they’d like to replace it with the same size, actually, the new one would be a little bit smaller. Mr. Smiley said the purpose of the sign will be to let the tenants advertise, and to create a cost savings with regards to the electrical. He passed out some drawings/pictures of what they are proposing. Mr. Smiley went over the drawings as passed out to the Board members. He said there won’t be any movement, it’s for the tenants to display their logo ads in color. He said all the other criteria in the Ordinance, Section 190-97 (B) will be met. He said the brightness of the sign at night is measured by the ambient light in the area. He said the old sign had 45-watt bulbs, with no dimming capabilities. Mr. Smiley said they are asking the Board for permission to display their logos and ads, no video, no movement of anything else. He said it’s not contrary to the public interest, it’s a commercial area. He said that substantial justice would be met to assist in retail operations. He stated that it is tough in the retail market to retain tenants. He said it will be helpful for them to display logos, as they’re universally identified with. He said it’s a heavy retail area. Mr. Reppucci said that the language in the ordinance is clear. He said that the language says that a changing sign shall be restricted to three lines of text only, and no additional symbols, graphics or images shall be allowed, and that signs which are restricted to the display of the current local time and the current local temperature shall be restricted to one line of text. He said that the ordinance forbids these signs Zoning Board of Adjustment March 26, 2013 Page 10 everywhere in the City, there is no area in the City that permits this type of signage. He said they have to show that they’re affected unreasonably by this ordinance, and that this property is uniquely affected. Mr. Smiley said that they had an existing sign there, that was allowed to change frequently, with no restrictions on it. He said the sign just stopped working in December, 2012, and they can’t repair it because it’s so old, and that technology doesn’t exist anymore. He said that the spirit of the ordinance is that it allows electronic signs, the only thing that the ordinance does not allow is the logo’s. He said the old message center existed there for over twenty years, and had the ability to do flashing and other movement related activities. He said that this is a perfect request for a variance. SPEAKING IN FAVOR: Gordon Whitman, Manager, Linear Retail Nashua, Burlington, MA. Mr. Whitman stated that Lay-Z Boy and Sleepy’s are both about 19,000 square foot tenants, and there is Chipotle and TDBank on the end. He said these businesses are trying to compete on- line, it’s a game of survival in today’s market. He said that this is what signs do nowadays, they have the capability for these energy-efficient devices that can do what the proposed sign can do. Mr. Shaw asked about just having the three-lined message center and nothing further than that, to follow the Code. He said he had concerns about these signs meeting the five-second rule, and having videos on the sign. Mr. Whitman said he understands the City’s concern about monitoring the sign, and knows that the Board has witnessed some violations. He said that Linear Retail is a major property owner in town, several sites, and they are not in a position to take advantage of the City to be in non-compliance. He said their intent is to provide a contemporary medium of communication that would be compatible with the City’s desires for a tasteful and non-distracting image on the street. Mr. Boucher said that he’s aware that the technology is moving quickly, and sometimes the programming of the sign goes awry. He asked what kind of controls are in place to ensure that the sign is doing what it’s supposed to. Zoning Board of Adjustment March 26, 2013 Page 11 Mr. Whitman said they have a property manager who has the sign software on their desk that controls the images on the sign. He said they are aware that compliance is important to the City, and they want to keep the City on their side and support the businesses. Bart Steele, ViewPoint Sign and Awning, Northborough, MA. Mr. Steele said that he contacted the City before they applied, and said they have a pre-existing nonconforming sign and wanted to replace it. He said that he was told that there have been other signs that were allowed variances in similar circumstances. Mr. Currier asked about the capabilities of the old sign. Mr. Falk said it had the individual bulbs, that could create the appearance of motion, it was one of the old style signs. Mr. Reppucci said he sees these signs all over the City, they do offer valuable technology, however, the capabilities of these signs may best be discussed by the Board of Aldermen, as the legislators have given us the clear rule to follow. He said that since the old sign doesn’t work anymore, any new sign has to comply with the ordinance that is in force now. He said the functionality of the signs and their scope goes beyond the authority of the Board. He said until Section 190-97 (B)(2) changes, we’ll deal with exactly what is in the Code right now. Mr. Shaw said he is struggling with this case. He asked what grandfathered rights the owner has to replicate the capability that pre-existed by replacing the sign. Mr. Reppucci said it’s spelled out in the affidavit. He said that anyone who applies for one of these signs, has to sign the affidavit and they have to abide by the rules. He said if it’s a brand new sign, and the old one was removed, they don’t have a right that goes beyond that. Mr. Falk said for many years, the old sign had some capabilities of movement, logos, it was one of the crude, basic type of message centers. He said the new sign will have graphics, corporate logos, and the new technology can have the colors and capability to look like a tv screen. He said that they had a non-conforming sign, it did have movement, logos, symbols, and Zoning Board of Adjustment March 26, 2013 Page 12 this sign is a new sign, a new permit, and the new sign has to meet all of the sign ordinance criteria. He said that they were questioned why this isn’t a special exception. He said that special exceptions are permitted uses, as long as they meet the points of law, and the proposed sign, and what they want to isn’t allowed in the sign ordinance. Staff believes they rightly applied for the variance. Mr. Shaw said they’re asking for more than what they had before. He asked if they have any standing right or grandfathered status, by replacing the sign, to still have that capability, or is it still viewed that because the capability is greater, or that the sign is new. He said he’s struggling with what can carry over for rights from the old sign to the new sign. Mr. Reppucci said that the determination on the MacMulkin sign was that by replacing the sign, it had to completely comply, there were no grandfathered rights. He said that their sign got hit by lightning, and it couldn’t be repaired. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Discussion ensued by the Board members. MOTION by Mr. Reppucci to deny the application as advertised. Mr. Reppucci stated that the Board does not find that the property is uniquely situated, and doesn’t have special conditions that uniquely affect this property that would make it eligible for a variance for this kind of relief. Mr. Reppucci stated that this request is not within the spirit and intent of the ordinance, in fact, it is contrary to the specific language in 190-97 (B)(2), that specifically prohibits the activity being requested in the application. Mr. Reppucci stated that there was no testimony one way or another relative to the property values, also, the Board has not taken a position on the request being contrary to the public interest with this motion, and for the substantial justice standard, the request does not rise to granting relief on the function of the sign, when it’s specifically prohibited by ordinance. Zoning Board of Adjustment March 26, 2013 Page 13 SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. REHEARING REQUEST: 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. [DENIED AT ZBA MEETING ON 2-12-13] Voting on this case: Gerry Reppucci Jack Currier Rob Shaw David Creed Rick Johnson The Board denied the rehearing request because they did not believe that there was a procedural error, that the decision was legal; the request didn’t contain any new information not presented to or available to the Board at the original public hearing; and that there was nothing submitted that would/could cause the Board to make a different decision. MOTION by Mr. Reppucci to deny the rehearing request, for the reasons aforementioned. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 6. Monica & Richard Tino III (Owners) 11 Burnside Street & “L” Beauview Avenue (Sheet 59 Lots 108 & 109) requesting a determination whether a material change of circumstances affecting the merits of the application has occurred, or that the application is for a use that materially differs Zoning Board of Adjustment March 26, 2013 Page 14 in nature and degree from the variances denied by the ZBA on 2-12-13; and, if so, requesting special exception to allow an accessory (in-law) dwelling unit. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson After a brief discussion by the Board, they determined that the case is substantially different than the variances denied on February 12, 2013, and allowed the special exception case to go forward. MOTION by Mr. Reppucci that it is a substantially different application, and the Board will hear the case. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Richard Tino, 11 Burnside Street, Nashua, NH. Mr. Tino handed out a package to the Board members. He said that the special exception is listed in the Table of Uses, an accessory dwelling unit is permitted. He said that there are two letters in the packet, stating that there won’t be a significant impact to the water pressure or to the water use in the area. He said the second letter is from Bill Keating of DPW, stating that there won’t be an impact to the sewer system. He said the plans show where the sewer lines are located and where they hook up. Mr. Reppucci asked if there will be a separate sewer line going to the addition, or if they are tying into the existing line. Mr. Tino said they’re connecting to the existing line. Mr. Tino said that the special regulations regarding the accessory dwelling unit are met, the apartment will be 700 square feet, and it is under the 30% limit. He said it will be the only one in the house, and it meets the accessory dwelling criteria. He said the main entry to the addition will be facing Zoning Board of Adjustment March 26, 2013 Page 15 the driveway, thereby, it will still look like a single-family structure. He said they as the owner will occupy the primary residents, and blood relatives will occupy the accessory dwelling unit. He said they will fill out the covenant, attesting that they are allowing their relatives to live there. He said the two lots will be combined into one lot as well. Mr. Tino said the addition will fit into the character of the neighborhood, it will retain the same cape style, it will have the same height and pitch to the roof. He said the roof lines will match the house. He said their driveway will meet the ordinance too, it’ll be less than 24 feet in width, up to the front yard setback. Mr. Tino said for the garage, in the submitted plan, there are four houses on Beauview Avenue, at 37, 28, 26 and 24, all which have set back garages, detached from the house. He said these garages are close to the street, where theirs will be far away from the street, and will meet all setbacks. He said there have been three in-law apartments that have been granted in the recent past in the neighborhood, as shown with a letter “I” on the drawing. He said the house will match the character of the neighborhood. He said they’ve listened to the neighborhood feedback, and have submitted a plan that meets more of what the neighbors have suggested. Monica Tino, 11 Burnside Drive, Nashua, NH. Mrs. Tino said they’ve done more reaching out to the neighborhood since the original hearing, and hopefully addressed everyone’s concerns. SPEAKING IN FAVOR: Angela Markley, 63 Charlotte Street, Nashua, NH. Ms. Markley said she moved into this neighborhood in 2006, and she said she likes the uniqueness and character of the neighborhood, and believes the addition will fit into the neighborhood very well. She said that the applicant is her sister, and fully believes that the concerns have been addressed, and that the current application meets all requirements. She handed out some letters of support to the Board. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Roger Jamerson, 37 Beauview Avenue, Nashua, NH. Mr. Jamerson said he’s in favor of the in-law apartment attached to the Zoning Board of Adjustment March 26, 2013 Page 16 house. He said he’d have concerns if it’s not attached to the house. Tracy Kulikowski, 14 Hooker Street, Nashua, NH. Ms. Kulikowski asked to confirm the exact plan that is being considered. Priscilla Situnas, 15 Burnside Street, Nashua, NH. Ms. Situnas said she sent in a letter and a packet. She asked about the sewer lines. Mr. Reppucci re-iterated that the sewer line and sewer information is not before the Board. SPEAKING IN FAVOR – REBUTTAL: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS - REBUTTAL: No one. MOTION by Mr. Boucher to approve the application on behalf of the owner. Mr. Boucher stated that the use is listed in the Table of Uses, section 190-32. He said that it will not create undue traffic congestion, or unduly impair pedestrian safety, it will not overload public water, drainage or sewer or other municipal systems, there are emails and correspondence from Pennichuck Water Works and the City of Nashua that this is the case. Mr. Boucher stated that all special regulations are fulfilled, per testimony, and the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents, and per testimony, the neighbors are happy with the accessory dwelling unit. Mr. Boucher said that the accessory dwelling unit meets all the six special conditions. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment March 26, 2013 Page 17 7. Monis One Family Trust (Owner) Gottesman & Hollis, P.A. (Applicant) “L” Barrington Avenue (Sheet B Lot 57) requesting variance to allow a dwelling to be erected on a pre-existing lot of record which has no frontage, where frontage is required pursuant to RSA 674:41. R18 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis said that the last two cases are distinctly different but they correlate with one another. He said that this was the last dairy farm in the City, and it’s now closed, and no one lives there anymore. He said the zone is R18, and they are looking at their options for the property. Atty. Hollis said that Hayner Swanson surveyed the site, which has two significantly different lots, one of which is landlocked and has no lot frontage. He said that dividing these two lots is a piece of land formerly owned by the railroad, and is now owned by the condominium complex located in back of the site, and there is a deeded walking and biking path, and it separates the property. Atty. Hollis said that the proposed subdivision is a conservation subdivision, historically called a cluster subdivision. He said that the plan is a concept plan, that is making use of lots of appropriate size, layout of roads, and there will be some roadway crossings of wetlands, which will be back before the Board. He said the plan is strictly a concept plan. He described where the access will be, approximately across from Indian Fern Drive, and there would be a loop road. Atty. Hollis said the one smaller lot is separated, because of the strip of land used for open space by the development to the south, and they have decided to apply for a variance because it has no frontage. They’d like to make it an estate lot, with only one house on it. Zoning Board of Adjustment March 26, 2013 Page 18 Atty. Hollis said in order to develop and build one house on lot 57, they have to come before the Board. He read the statute, RSA 674:41. Atty. Hollis said that the NH Supreme Court has said that practical difficulty has been deemed as an unnecessary hardship. He said that by not having frontage on a public way is a unique hardship, not shared by other properties. He described the location of the separate lot, as a unique piece of property. He said that the lot will have a private driveway, over the bikepath, which will connect to the loop road within the conservation subdivision. Atty. Hollis said that one house on a 4½ acre parcel that pre- exists, will not distort the official map, as the zoning isn’t changing, and the Master Plan is going to be the same. He said that the proposed house will not cause hardship to future purchasers because there will be a driveway connection to a public way. Atty. Hollis said that the request will not create undue financial impact on the municipality, the Fire Department has been notified, and once a final plan is submitted, they’ll be able to comment. He said he suspects they’ll look at the length of the driveway, turnaround capability, and possibly a sprinkler. He said it’d be fair to have a special condition that it is pending final approval by the Fire Department. Mr. Reppucci said if the Board doesn’t grant permission to use the separate lot on the left, he asked if they’d build more intensely on the larger lot on the right. Atty. Hollis said not particularly. He said it depends on the owner wants to go at the next stage. He said that the density may not change, but a lot will depend on the Boards decision on the smaller lot, which, if denied, the bikepath may be altered. Mr. Boucher asked to clarify the meaning of an estate lot. Atty. Hollis stated that it’s a very large lot, 4.5 acres, probably one of the nicest lots in the City of Nashua, it has high value. He said appraisers use this term. SPEAKING IN FAVOR: Zoning Board of Adjustment March 26, 2013 Page 19 No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mihaela Hinkle, 5 Searles Road, Nashua, NH. Mrs. Hinkle said they are concerned about the amount of houses to be built in this area. She said there is a lot of wetlands around in this area. At this point, the Board decided to hear the last case, and defer the voting until both cases are heard. 8. Monis One Family Trust (Owner) Gottesman & Hollis, P.A. (Applicant) 4 Searles Road (Sheet B Lot 20) requesting the following variances for a Conservation subdivision: 1) to allow a 15 foot side yard setback, where 20 feet is required; and, 2) to allow a 10 foot rear yard setback, where 40 feet is required. R18 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson David Creed Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis said that they are planning on doing a conservation subdivision, which used to be called a cluster subdivision before the Code was revised. He said that the conservation subdivisions allow some flexibility in the design and planning of the subdivision, as long as there is no greater density than you could have in a standard grid subdivision. Atty. Hollis said that a reduction in lot size is allowed, which is made up in open space, also, there is flexibility in frontage. He said that there is no flexibility in the distance between the buildings, and to have flexibility in the rear yard setbacks. He said that they’re proposing a public way, and according to the density of the lot, there could be 49 lots, however, the proposal is calling for only 33 lots. Zoning Board of Adjustment March 26, 2013 Page 20 Atty. Hollis said they’re trying to get the lots away from the wet areas, and out of the buffer. He said with the goal of maximum flexibility, the subdivision should look like a nice R18 type of neighborhood. He said that can be obtained with the Board granting the side yard and rear yard setback variance. Atty. Hollis said the character of the neighborhood is R18 house lots, the proposed lots will be slightly smaller than R18, because it’s conservation, but the extra open space will help to buffer the neighborhood. He said the flexibility, if granted, will not change the character of the neighborhood. Atty. Hollis said that the proposal won’t be against the spirit and intent of the ordinance, the purpose of the conservation ordinance is to provide flexibility and site design, to conserve open space and common space. He said that infrastructure is less because the homes are somewhat closer together. Atty. Hollis said that substantial justice will be done by granting the request. He said it will allow the maximum flexibility in design, it will maximize open space, the density isn’t increased. He said whether or not the Board grants the request, the density won’t change, there will be the same number of lots, it’ll just be in a different layout and less open space, and with less design flexibility. Atty. Hollis stated that there will be no harm to the public if the request is granted, the houses will be developed in a safe fashion. Atty. Hollis said there will not be a diminution of value if the request is granted, it will allow for flexibility and greater design, keep the garages on the side, and will keep the lot boundaries out of the wetland and wetland buffer, and will allow for greater open space in the rear. He said he has a real estate written opinion, which he passed out to the Board, indicating that it will not negatively impact property values. He said that by having reduced setbacks on the side and rear lots for 33 homes will have no negative impact to property values. Atty. Hollis said for the hardship, he said he’s already identified the buffering, the steeper slopes, and the bulk of the development around the loop road. He said if it went to a grid subdivision, there would be different types of roads, Zoning Board of Adjustment March 26, 2013 Page 21 different setups, and different arrangement of lot space. He said with the cluster, there is greater open space, and each property will be buffered by open areas. He said the parcel is unique because of that, and the application of the required side yard setbacks and rear yard setbacks makes no sense, and doesn’t bear any fair or substantial relationship to the purpose of the ordinance, in fact, it’s contrary to the ordinance, because it removes the flexibility in the intent of conservation subdivisions. He said to enforce the setbacks serves no real purpose in this cluster subdivision. He said they’ll be back to the Board once it goes to the Conservation Commission, for relief of the roadway crossings, and the layout will be set. Atty. Hollis said there are four reasonable conditions. The first is that it should be developed as a conservation subdivision. He said the second is that there will be a maximum of 33 lots in the conservation subdivision. The third is to maintain a rear yard open space as represented on the concept plan. The fourth is to have no lots in the wetlands or wetland buffers. Mr. Reppucci said if the Board doesn’t grant this, and they relocate the bike path, is it by right to do that, or a negotiation with the owner. Atty. Hollis said that the property owner owns the path has a reserved right to it, so it would be a negotiation. He said they’ve discussed it, but there is no agreement on anything. He said the process could be very long. Mr. Shaw asked about lot 12, it looks as if part of it is in a wetland buffer. Atty. Hollis said that lot would be the one exception. Mr. Currier said there should be open space for folks to use, not space that is steep or wet, he said in Maplewood, all the open space is steep or wet, and it didn’t accomplish what the cluster zoning is all about. He said all the open space here is steep or wet, and it’s not usable. Atty. Hollis said a substantial amount of the open space is wet, in all fairness, but a purpose of the cluster regs is to have open space, it doesn’t say it has to be usable, it’s just not built on. He said its preserved space, not built on. He said Zoning Board of Adjustment March 26, 2013 Page 22 the goal is to make it look natural, and to preserve the natural resources. He said it’s not supposed to be active open space, and the developer in this project doesn’t want trails, they just want it to be natural resources, unbuilt, its conservation, not cluster. Mr. Currier asked if the strip of land is going to be used for people walking their dog, or public, and people walking there. Atty. Hollis said it’s for common area, common land. Mr. Currier asked if this request isn’t approved, could it be built with less density. Atty. Hollis said the density wouldn’t have to change, it would be just the shape and location of the houses. He said the density could go up, they could build more homes, but they’re limiting it to 33 lots, and stay in the character of the neighborhood. He said they need the setback flexibility, and to go with 33 lots, to allow for the type of development that is proposed. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mark Hinkle, 5 Searles Road, Nashua, NH. Mr. Hinkle said they moved in a couple years ago, across the street. He said it will change the character of the neighborhood, and 33 houses is a lot. He said there will be an environmental change, too. He said the access road to the development is also a concern, but maybe that’s a Planning Board issue. He said there are a lot of questions as to how approving this development will change the neighborhood. Fred Teeboom, 24 Cheyenne Drive, Nashua, NH. Mr. Teeboom asked how deep the lots are. He was told one hundred feet. He questioned why they need the 10 foot setback. He asked about the depth of the wetland buffer, and was told about forty feet. He also asked who lives on the other side of the wetland buffer area. He questioned why they need to have the 10 foot setback, when forty feet is required. Zoning Board of Adjustment March 26, 2013 Page 23 Mr. Shaw said it’s a condominium complex off of Cadogan Way that is the abutter in the rear in back of the buffer. SPEAKING IN FAVOR – REBUTTAL: Atty. Hollis said for the density, if this is denied, the density will be either the same, or even more lots, but without the setback flexibility. He said if it’s granted, they’ve attested to 33 lots. He said it’s a 27 acre piece of property, something is going to be done here. He said it’s unfair to say that everyone else down here has developed their larger property, but this owner can’t. He said that the minimum depth of the lots will be 100 feet. He said for the setback reduction, they want the design flexibility for placement of the buildings, so they’re all not side by side, they’d like to have some of them staggered. He said the depth of the conservation buffer is about 40 feet. Mr. Reppucci asked if by having the reduced setbacks, it will allow for building more desirable houses, which would be more in line with the neighborhood. Atty. Hollis agreed, for both the side and rear yards, but the rear yard reduction in setbacks allows for more conservation land for open space. At this time, 11:15 p.m., Mr. Shaw left the meeting, and Mr. Creed will be voting. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. Mr. Reppucci said it looks as if there’s a consensus for the one lot by itself for approval. Mr. Currier said it’s usually trouble by having setbacks such as the ones proposed, especially going from 40 feet down to 10 feet. He said it’s an R18 neighborhood. Mr. Reppucci said 10 feet sounds bad, and he mentioned that they could add another 20 feet from the conservation area to have 30 feet for a setback, but the buffer would be reduced. Zoning Board of Adjustment March 26, 2013 Page 24 Mr. Currier said the whole purpose of the conservation easement is open space, open to the public. He said this area would just end up being used as back yards. Mr. Creed said that this is the first one he’s seen, and thinks the design is innovative, it’s pushing the boundaries, and it’s changing, and that the requests do go together. He said he’s in favor of both the requests. Mr. Reppucci said it appears as if the Board is uncomfortable with just granting a carte blanche 10 foot rear yard setback. Mr. Johnson said that this case reminds him of the Wellman Avenue case that the Board recently considered. He remembers that the Board had some concerns with that one, but it was resolved. He said that a 30 foot delta in setback is too great to overcome. He suggested tabling the request to re-think it, to make it less intrusive. Mr. Reppucci said he agreed with Mr. Curriers thought, that anyone with a 10 foot rear yard setback would use the conservation buffer as their rear yard. He said he’d support the concept, but has a concern with the rear yard. Mr. Boucher asked if when this goes to the Conservation Commission, if it’s possible that there’s a scenario where the rear yard changes. Mr. Creed said he’d be in favor of them tabling this request. MOTION by Mr. Reppucci to suspend the rules to have the applicant speak. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. Atty. Hollis agreed with the proposal to Table the case to a date certain, and would like Mr. Petropulos to attend, to discuss the setbacks further. He said the Board should re-open the public hearing for the second case. MOTION by Mr. Currier, for approval on Lot 57, to allow a dwelling to be built on the pre-existing lot. Mr. Currier stated that the variance is needed to enable the applicant’s Zoning Board of Adjustment March 26, 2013 Page 25 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, as the property wouldn’t be able to be used at all, since it has no frontage, and the proposal is in concert with the conceptual plan, which will be tabled tonight. Mr. Currier said that the Board does find hardship on Lot 57, and it’s reasonable to erect one house on this lot, per RSA 674:41 that the Board is weighing in on. He said there are two stipulations, one is that it will ultimately connected to the concept plan, and the other is that Lot 57 will remain one lot, with one house, and the third stipulation is that it is subject to final approval by the Fire Department for proposed access to the house over the old railroad. Mr. Currier said it will not negatively affect property values, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Reppucci to table the second application to a date certain of April 9, 2013, with the record of what is discussed tonight included, and it will be open to a public hearing, to have more testimony. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases that have Regional Impact. REHEARING REQUESTS: None. MINUTES: Zoning Board of Adjustment March 26, 2013 Page 26 Mr. Creed suggested the Minutes be tabled to the next meeting. ADJOURNMENT: Mr. Reppucci called the meeting closed at 12:05 a.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing