Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING April 23, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, April 23, 2013 at 6:30 PM in the Auditorium at City Hall. Jack Currier, Vice Chair, conducted the meeting. Members present were: Jack Currier, Vice Chair J.P. Boucher Rob Shaw Rick Johnson, Clerk David Creed Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Currier explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Currier 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. Currier also explained procedures involving the timing light. 1. James V. & Cheryl M. Botelho (Owners) 4 Donovan Drive (Sheet C Lot 1375) requesting variance to exceed maximum fence height along a portion of the rear yard, 6 feet allowed – 8 feet requested. R9 Zone, Ward 5. . Voting on this case: Jack Currier Rob Shaw David Creed JP Boucher Rick Johnson Cheryl Botelho, 4 Donovan Drive, Nashua, NH. Mrs. Botelho said the existing fence in the back yard is 18 years old and needs to be replaced. She said due to the topography of the land, in order to enjoy the yard, are requesting the 8-foot tall fence. She said that the land behind theirs is substantially higher, and said that they feel like they’re in a fishbowl, where everyone around them can see in. She said it’s even more so in the warmer months, when they’re trying to use the yard and back deck. Zoning Board of Adjustment April 23, 2013 Page 2 Mrs. Botelho said that the fence that is proposed, at eight feet hall, would be professionally installed, made out of wood, and it would start at six feet high, and angle up to eight feet, as shown in the drawing. She said she contacted Pat Clancy Realty and asked about the impact to property values, and spoke to a licensed real estate appraiser in New Hampshire, as well as a Real Estate Agent, and was reassured by the answer that there would be no impact to our property values, nor to any of the abutters. Mr. Creed asked if the extra two feet in height will solve the problem. Mrs. Botelho said it will, and they went out and held up a piece of wood to verify if it would block the height of a normal person standing in the surrounding yards if they’re outside or on their deck. She said the extra two feet will work fine. Mr. Johnson asked to confirm that the eight feet is only along the rear property line, and the rest of the fence would be six feet. Mrs. Botelho agreed. She said there isn’t as much view from the side houses as there is from the house right in the rear. Mr. Johnson said he knows that there are topography issues, and asked for some more perspective as to the magnitude of it. Mrs. Botelho said the neighbor’s pool right in back of them, the top of their pool is above the top of their fence. Mr. Currier said that there is a letter of support from several neighbors. Mrs. Botelho said that the neighbors all get along, and there is no adversarial relationship with any of the neighbors, and the ones that signed the letter were happy to do so. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Dave Bushee, 5 Jolori Lane, Nashua, NH. Mr. Bushee said he is the direct abutter to the rear of their lot. He said that his concern with the fence is that it would affect his property Zoning Board of Adjustment April 23, 2013 Page 3 values. He said they’ve been waiting for the market to come back to do some improvements of their own, to get the price of their home up. Mr. Bushee said he talked to five real estate agents, three of which wouldn’t discuss it unless he was planning on listing his house soon. He said that one indicated that it didn’t matter, and the other said it may. He said that agent said if it’s in a downtown part of the City, an eight foot high fence could be an enhancement to the property, but depending on what else is around, it could be a detriment. Mr. Bushee said all the properties around his have a fence. He said even though his property is sloped down, it would affect his values. Mr. Currier asked if it’s the style of the fence that’s an issue. Mr. Bushee said he has a picture taken from his deck, towards their deck, and said he can barely see her house from his deck. He handed in the picture to the Board. Mr. Currier said that anyone can plant arborvitaes on their property, and they provide a good visual buffer. He asked if he thought that their viewscape is being taken away by the fence. Mr. Bushee said from where the current fence is to his deck, it’s only about twenty feet. He said the proposed fence would give a tunnel effect in the back yard. Mr. Currier said that anyone can put up a six-foot high fence, there’s one there now. He asked if something in the 6-8 foot tall range would work. Mr. Bushee said that he didn’t want to see any change to the line of fences, as there are three houses in a row with six foot fences all the way around the back. He said the differences in aesthetics will affect his property values. Mr. Johnson said that if this approved, he still has the option to plant arborvitaes to break up the visual of the fence. Mr. Bushee said once the fence is approved, it’s there forever, but once an eight-foot fence goes in, it’ll be a permanent structure. Zoning Board of Adjustment April 23, 2013 Page 4 Mr. Johnson asked if he owns any of the fencing on the sides. Mr. Bushee said no. Donna Bushee, 5 Jolori Lane, Nashua, NH. Mrs. Bushee went to a fence company, and stood beside an eight foot high fence, and feels that a fence that high will make it feel too closed-in. She said their back yard isn’t that deep, either. She said it will look like a fortress. She said she’s afraid of what it would look like. Mr. Boucher asked if there is any slope to their property. Mrs. Bushee said it’s straight across, and goes down. She said they used to have a tree that had shade, but they took it down. Mr. Currier asked if the Botelho’s put up a stick or something with a flag on it, to give the opportunity to better judge the height, and asked if they would be open to that idea. Mr. Bushee said they can already visualize what it would look like, because they do have a shed close to the fence, and it’s two feet higher than the six foot high fence that is already there. SPEAKING IN FAVOR – REBUTTAL: Mrs. Botelho said that the planting that’s in the center is not a tree, it’s more of a stick, so even when it has greenery on it, it doesn’t block. She said the biggest issue with the topography might not be with Dave and Donna’s land, once you are our side of the fence, it’s our yard that really drops. She said her house and yard is substantially lower. She said it’s even hard to cut the grass in the back portion, because it’s quite steep. She said that for the other fences, one is a house that is bank-owned, it’s in very poor condition, and it was a do-it-yourself job, and some pieces are missing. Mr. Boucher asked if the type of fence that is proposed is the exact same style with the pickets. Mrs. Botelho said it is. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. Zoning Board of Adjustment April 23, 2013 Page 5 Mr. Creed said if it were a set, common aesthetic between the three fences around Mr. Bushee’s property, then, there could be a logic for not changing the height. He said the greatest impact here is to the applicant, they have the privacy factor, they also have the height factor, which he doesn’t see how the fence could be three feet over Mrs. Bushee’s head, when she’s standing in her property, because of the slope. He said the pool is 52 inches high, and the pool can be seen over the six- foot tall fence. He didn’t see how Mrs. Bushee would have the stockade effect standing on her side of the property. He said he’s leaning towards granting the variance. Mr. Shaw said he’s not favorable to the case. He stated that he’s giving a lot of weight to the neighbor in this situation, with the height effect of the wall, being as close as it is to both houses, as the yards are not large separating these homes. Mr. Boucher said he appreciates the applicant’s need for privacy, there is some slope here, and understands that the yards are not as deep. He said that there may be a tunnel effect on part of the property, but not the whole property. He said there is no testimony in front of us for property values going down. He said he’s leaning towards approval. Mr. Johnson said he’s in favor of the application. He said arborvitae may break up the wall. He said if the Board grants the case, it would solve their privacy issue, they’re willing to put forward the money, to maintain the fence, and it’s on their property, and it’s recessed. He said he didn’t think it would be an additional three feet, it may be in some areas, but they could also address that with vegetation. He said to deny the case would cause undue hardship on the applicant, and is supportive of the application. Mr. Currier said he lives on the downside of a slope, and is empathetic with the application. He said he appreciates the Botelho’s requesting more privacy, and is also very sensitive to the Bushee’s feeling of being tunneled. He said he didn’t think that would be the case, because it’s going downhill, but is leaning towards not approving the case. MOTION by Mr. Johnson to approve the application on behalf of the owner. Mr. Johnson stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, with the topography degrade on the applicant’s side, and the benefit sought by the applicant Zoning Board of Adjustment April 23, 2013 Page 6 cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Johnson said that the request is within the spirit and intent of the ordinance. He said although it was debated, it will not adversely affect property values. He said the case is not contrary to the public interest, however, there has been an argument made by the direct abutter with the height of the fence, he said that is negated or offset by the decrease in topography on the applicant’s property, and if there is a walled effect, there are other ways to remedy, or break up that pattern. Mr. Johnson stated that it is an undue hardship to not grant the request to the applicant. SECONDED by Mr. Creed. He said that he wanted to add that substantial justice is done to the applicant. Mr. Johnson agreed. MOTION CARRIED 3-2 (Mr. Currier and Mr. Shaw). MISCELLANEOUS: REGIONAL IMPACT: Mr. Falk said that there is an extra week in the advertising timeframe. He said there are four cases submitted so far, and he didn’t see any of them as having Regional Impact. REHEARING REQUESTS: None. MINUTES: 2/26/13, 3/12/13 and 3/26/13: Mr. Falk said that Mr. Reppucci told him that he didn’t have a problem with any of the Minutes. Mr. Currier re-iterated Mr. Falk’s comment for the record. Mr. Johnson said he’s fine with the 2/26/13 minutes. He said for the 3/12/13 minutes, he wasn’t there, but the minutes said he was the clerk. Mr. Boucher said he was the Clerk that evening. Zoning Board of Adjustment April 23, 2013 Page 7 Mr. Johnson said for the 3/26/13 minutes, he said for Case 8, at the bottom of page 24, it should say that Atty. Hollis agreed to the proposal to table this case. He said that the 5th paragraph, where it says Mr. Currier, there should be an apostrophe there. Mr. Johnson gave his notes to Mr. Falk, and Mr. Falk will make the appropriate changes. MOTION by Mr. Currier to approve all three sets of minutes, with the changes as noted. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Currier called the meeting closed at 7:20 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing