Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 28, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 28, 2013 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci, Chair Rob Shaw J.P. Boucher Rick Johnson 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. Nelson S. & Patricia D. Allan (Owners) 107 Shore Drive (Sheet E Lot 527) requesting special exception to work within the 75-foot prime wetland buffer of the Nashua River to construct a handicap ramp to access front door. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rob Shaw JP Boucher Rick Johnson Mr. Reppucci asked the applicant if she was aware of Chapter 218 of the State Land Use Statutes, that make some exceptions with persons that have physical disabilities. Patricia Allan, 107 Shore Drive, Nashua, NH Mrs. Allan stated that her husband went into the hospital on March 5th, and is still in rehab, and can’t get into the house safely without the ramp. She said she went to the Conservation Commission and received their permission. She said their whole lot is within the wetland buffer. She said they’ve also gone before the Zoning Board of Adjustment May 28, 2013 Page 2 Conservation Commission and the Zoning Board many years ago when they had to have their deck rebuilt. She said the ramp has to be in the front yard, because there’s no way her husband can walk in the back yard. She said the ramp will meet all ADA requirements, etc. She said it will be made of pressure treated wood. She said it will be visible, but not overly visible to the neighbors. She said that none of the neighbors expressed any concern. 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 applicant. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-112. He stated that the use will not create undue traffic congestion or will not unduly impair pedestrian safety. He said it will not overload public water, sewer drainage or other municipal systems. Mr. Reppucci stated that special regulations are fulfilled, the nine criteria for wetlands have been fulfilled and will be complied with as stated in the application, and the use will not be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Mr. Reppucci said that the Conservation Commission approval was on May 7, 2013, with two stipulations of approval, which the applicant has agreed to abide by. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 2. Susan A. Crandall (Owner) Matley Swimming Pools & Spas, Inc. (Applicant) 1 Cherrywood Drive (Sheet C Lot 2591) requesting special exception to work within a 40-foot critical wetland buffer for access to rear yard to construct a swimming pool. FUOD Zone, Ward 9. Zoning Board of Adjustment May 28, 2013 Page 3 Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson Rob Shaw David McQuaide, Matley Pools & Spas, Pepperell, MA. Mr. McQuaide said that they need to travel in and out of a portion of the wetland buffer to construct the pool, which will be out of the wetland buffer. Mr. McQuaide said that on Page 3 and 4 of his application, he said he highlighted the areas in which they will be travelling to the rear of the lot. He said they have some big machinery that needs to get by, like an excavator. Mr. McQuaide said that they have received Conservation Commission approval on May 21st. He said that they are willing to comply with all the stipulations of approval. He said they will comply with all the special exception regulations, as well. He said that he will be the construction supervisor, and will be onsite throughout the installation of the pool. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: None. MOTION by Mr. Shaw to approve the application on behalf of the applicant. Mr. Shaw stated that the use is listed in the Table of Uses, Section 190-112. He stated that the use will not create undue traffic congestion or will not unduly impair pedestrian safety. He said it will not overload public water, sewer drainage or other municipal systems. Mr. Shaw stated that special regulations are fulfilled, the nine criteria for wetlands have been fulfilled and will be complied with as stated in the application, and the use will not be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Zoning Board of Adjustment May 28, 2013 Page 4 Mr. Shaw said that the Conservation Commission approval was on May 21, 2013, with four stipulations of approval, which the applicant has agreed to abide by. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 3. Justin J. Rancatore & Andrea E. Poirier (Owners) 170 Harris Road (Sheet B Lot 2146) requesting the following variances: 1) to encroach 6 feet into the 6 foot required rear yard setback to maintain an existing 12’x20’ shed; and, 2) to exceed maximum accessory use area, 40% allowed, 47.8% proposed. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Rick Johnson Justin Rancatore, 170 Harris Road, Nashua, NH. Mr. Rancatore said that the shed is on the back of the property line, he said they were unaware of the setback requirements. He said that the house is for sale, and pending this approval, the closing is on the 31st, this Friday. Mr. Rancatore submitted a photo album of the shed and yard area, it’s a Reeds Ferry Shed, very well built, on solid blocks. He said it has 2”x6” walls, and a gambrel roof. Mr. Reppucci asked when he put the shed up. Mr. Rancatore said roughly four years ago. Mr. Reppucci asked how they got here tonight. Mr. Rancatore said he didn’t know, he received a letter in the mail, and then applied for the variance. He showed a map of 9 nearby properties that also have sheds in very close proximity to the property line. Mr. Reppucci asked if the shed could be moved 6 feet off the line. Zoning Board of Adjustment May 28, 2013 Page 5 Mr. Rancatore said that there isn’t, the lot is 0.27 acres, and it’s a small lot. He said that most of the land is in the front of the house, as shown in the pictures. He said that they installed a poured concrete path going right up to the shed. Mr. Reppucci asked if a permit was pulled to put up the shed. Mr. Rancatore said that there was an after-the-fact permit, done after the letter was received. Mr. Reppucci asked if Reeds Ferry delivered the shed. Mr. Rancatore said no, it was purchased off of someone who didn’t need it anymore. Mr. Johnson asked about the walkway, and when it was put in, also, asked to see the map of other properties with sheds on or near the property line. Mr. Rancatore said the walkway was put in after the shed was installed. SPEAKING IN FAVOR: Mark Sylor, 168 Harris Road, Nashua, NH. Mr. Sylor said he is in favor of the shed. Janice Sylor, 168 Harris Road, Nashua, NH. Mrs. Sylor said they have the abutting property, and said that there are many other sheds in the neighborhood right on the property line. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Joseph Williams, 23 Custom Street, Nashua, NH. Mr. Williams said they’re the rear yard abutters. He read a letter that he submitted to Staff, and given to the Board, about his concerns over the shed. Mr. Williams spoke about his own shed, and the ramifications of relocating it. Mr. Williams submitted a picture of what the shed looks like from his property. Zoning Board of Adjustment May 28, 2013 Page 6 Mr. Reppucci said that to relocate the shed would be costly, and would be a lot of work. Mr. Williams agreed, but there are other places on the property where the shed could go. He said the location of the shed is on a portion of the property that has the highest slope. Mr. Johnson asked about the rear door on the shed in the photo. Mr. Rancatore said that the door is locked, and cannot be opened, the previous owner had it put in. SPEAKING IN FAVOR – REBUTTAL: Mr. Rancatore said that the yard does slope back there, and the same amount of rain falls whether the shed is there or not. He said that the yard is not wet, and it’s not near a wetland. He said there really isn’t any other part of the lot where the shed could go, unless it goes in the front yard. He said he cleans behind the shed every spring, and removes the leaves. He said it’s very clean and kept nice around the shed. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Williams said that of all the abutters, they are the only one that is directly affected by the shed. He said that he feels that his property value is diminished by the shed. Mr. Reppucci said the neighborhood and the area is nice. He asked how the situation would be if the shoe were on the other foot, and he had to move his shed. Mr. Williams said that the City doesn’t enforce the 6-foot setback on sheds, city-wide. Mr. Reppucci said that the City does enforce the setbacks on sheds. Mr. Williams said he’d move his shed, but would ask if he’s grandfathered. Mr. Reppucci said that the shed is really on the side, not the back yard. Mr. Williams said that it’s the side back yard. Zoning Board of Adjustment May 28, 2013 Page 7 Mr. Falk said that the City absolutely does take the Ordinance seriously, and it’s a misdemeanor offense and we do care about the setbacks. He said that unfortunately, a lot of people build homeowner projects such as decks and sheds without permits. He reiterated that the City most assuredly requires building permits and land use approval for sheds. He said that we must abide by our Ordinances. Mr. Williams suggested that it would be great if the City could make citizens more aware of that. Further discussion ensued. MOTION by Mr. Reppucci to approve the application on behalf of the owner, as advertised, both cases 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 an area variance. He said that the Board discussed the standard that loss to an individual, which is not outweighed by a gain to the general public is an injustice, and to force the applicant to move the shed after it being in position for three years, and the history of it being there, would show no true benefit to the general public, and would pose an injustice to the applicant. Mr. Reppucci said that the special conditions of the property being, plus, the fact that there have been improvements to the property, that tie to the shed, such as the walkway and pad. Mr. Reppucci said that the request is within the spirit and intent of the ordinance, also, the Board finds that it will not impact property values, it is not contrary to the public interest, the Board has heard conflicting testimony from abutters, both abutters are side abutters, one is in favor, and one is opposed for the reasons that are in the record, and by letter. He said that the Board didn’t find the opposition compelling, and by granting the variance, substantial justice will be done. SECONDED by Mr. Johnson. MOTION CARRIED 3-1 (Mr. Shaw). Zoning Board of Adjustment May 28, 2013 Page 8 4. Rob C. & Marnie M. Crowley (Owners) 25 Granite Street (Sheet 44 Lot 30) requesting variance to construct an additional driveway 46 feet from an intersecting right-of- way – minimum of 50 feet required. RB Zone, Ward 3. Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Rick Johnson Rob Crowley, 3 Hibiscus Way, Nashua, NH. Mr. Crowley said that the house is a corner lot, the corner of Granite and Summer Street. He said there’s virtually no parking. He said the property is a two-family, but was used as a single-family, it only has one driveway. He said he’s done a lot to revitalize the home, it was in major distress, with numerous investments both inside and outside the property. He said he’s trying to fix up the property, and do the right thing. Mr. Reppucci said that Granite Street is a one-way street going from the intersection towards where the driveway is going. Mr. Crowley agreed. He said that there are driveways on the other side, and right next to it, which aren’t too far from the proposed driveway. Mr. Reppucci asked about the curb cuts. Mr. Crowley said that they are fine, it’ll be under the total of 24 feet allowed. Mr. Shaw asked to confirm that there is no where else to put the driveway. Mr. Crowley said that there’s only one driveway, and it’s very narrow, only 8 or 9 feet on the Summer Street side, and there is no other location on the lot to put a driveway. SPEAKING IN FAVOR: No one. Zoning Board of Adjustment May 28, 2013 Page 9 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Theodore LaPointe, 23 Granite Street, Nashua, NH. Mr. LaPointe said that he lives right next door. He said his house was built in 1860, and has a granite rock foundation. He asked where the runoff will go from the new driveway. He asked how long the driveway will be, also, asked if it will go around the house and connect to the existing driveway. SPEAKING IN FAVOR – REBUTTAL: Mr. Crowley stated that right now, there is a slope, it slopes down to Granite Street, so the intent is to cut the curb. He said the work will be done by a professional contractor, and it will be checked to ensure that the grading will be appropriate. He said that the driveway will follow the existing slope. Mr. Reppucci said that the difference is that it will go from dirt, to a paved surface. He asked how far back the driveway would go. Mr. Crowley said he’s not intending to connect the driveways in the rear. He said from the sidewalk, he wanted to fit two cars. Mr. Reppucci said that a parking space is 20 feet deep. He said he’d need to go back 40 feet. He asked if there were a stipulation that the driveway couldn’t go back more than 40 feet, if that would be ok. Mr. Crowley agreed. He said for the drainage, it will be done professionally, he said that Affordable Asphalt will be doing the work. Mr. Boucher asked if would be reasonable to have a berm on the right side of the driveway. Mr. Falk said he didn’t know if there would be enough room for a berm, they are usually a minimum of three feet high, and about 5 feet from end-to-end. He said just a one-half degree of slope away from the neighbors property would be suitable for keeping the drainage away from the neighbors property. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Zoning Board of Adjustment May 28, 2013 Page 10 Mr. LaPointe said that his questions about the drainage have been answered. He said he’d rather have him have the driveway than have cars parked out on the street, which is dangerous. MOTION by Mr. Boucher to approve the application on behalf of the owner, as advertised. 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 an area variance. He said that the Board heard testimony by the applicant that this is a very tight neighborhood, and that this is the only option he has to get cars off the street. Mr. Boucher said that the request is within the spirit and intent of the ordinance, also, the Board finds that it will not impact property values, it is not contrary to the public interest, and substantial justice will be served. Mr. Boucher said the special conditions are that the driveway length be no longer than 40 feet from inside the sidewalk, and that the applicant get the proper permit from DPW, especially to address the issues that the abutter had relative to drainage, so nothing goes on his property. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 5. DHG Associates (Owner) 30 Mulberry Street (Sheet 82 Lot 50) requesting variance for minimum lot area, 6,969 sq.ft required – 4,523 sq.ft existing, to convert a single-family structure into a two-family structure. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Rick Johnson Attorney Jed Callen, BCN Environmental & Land Law, Concord, NH. Atty. Callen said that the issue here for the variance is density. He stated that the house has 4 bedrooms, and is a single, in an area where duplex units are permitted. He said Zoning Board of Adjustment May 28, 2013 Page 11 that they want to split it into two two-bedroom units. He said there will be no change to the exterior footprint. He said the issue is the number of units per acre, they need 6,969 square feet of lot, whereas the existing lot is 4,523 square feet. Atty. Callen said they want to add a kitchen and a bathroom to the upstairs portion, and it would make the upstairs a habitable unit. Atty. Callen went over the variance points of law, to the Board’s satisfaction. Mr. Boucher said when he drove by, he saw two mailboxes. Atty. Callen said there is only one kitchen. He said they want to add a kitchen and a bathroom to the back upstairs, so that that unit can be habitable. Mr. Reppucci asked if there are two residences there now. Atty. Callen said he believes that there is not two. SPEAKING IN FAVOR: Dan Glenick, 34 Tampa Street, Nashua, NH. Mr. Glenick said that the bottom floor unit is rented. He said when they bought the building, it was their intent to renovate it, with permits, to go to two units. He said the building was in bad shape when they bought it, they’ve done a lot of work both inside and outside to clean the unit up. He said they’ve fixed up the second floor unit, but it’s not finished yet for anyone to live in. He said that they have a long-term interest in this property, and they go beyond the Code in making it nice. He said if he can keep it as two units, he’d live in the bottom and rent out the upstairs unit. He said for the mailboxes, they just bought two, and put them in, but there is only one family living there. Mr. Reppucci asked how many parking spaces there are. Atty. Callen said that seven cars can fit on the property. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Zoning Board of Adjustment May 28, 2013 Page 12 No one. MOTION by Mr. Boucher to approve the application on behalf of the owner, as advertised. 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 an area variance. Mr. Boucher said that the request is within the spirit and intent of the ordinance, also, the Board finds that it will not impact property values, it is not contrary to the public interest, there was significant testimony on other similar units in the neighborhood, and substantial justice will be served. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. REHEARING REQUESTS: 4 Donovan Drive, Nashua NH, as submitted by abutters Mr. & Mrs. Bushee, residing at 5 Jolori Lane, Nashua, NH: 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: Gerry Reppucci Rob Shaw J.P. Boucher Rick Johnson MOTION by Mr. Reppucci to deny the rehearing request submitted by the abutter, 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. Zoning Board of Adjustment May 28, 2013 Page 13 SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REGIONAL IMPACT: For Case #1, the Board asked if the Town of Merrimack was notified. Mr. Falk said they were, and as the Town of Merrimack is also involved with the project, so they’re well aware of it. MINUTES: None. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:35 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing