Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 11, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, June 11, 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 Jack Currier 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. City of Nashua (Owner) Bridge on Manchester Street over Pennichuck Brook, requesting special exception to work in the 75-foot prime wetland and wetland buffer of Pennichuck Brook to replace the Manchester Street bridge, widen the roadway, add a sidewalk, drainage swales, and associated site improvements. R18 Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw JP Boucher Rick Johnson CASE WAS TABLED TO THE 6-25-13 MEETING. 2. Brar Holdings, LLC (Owner) Ripaldi Construction Services, Inc. (Applicant) 31-33 Broad Street (Sheet 61 Lot 5) requesting special exception to expand an existing dentist Zoning Board of Adjustment June 11, 2013 Page 2 office by constructing a 312 square foot addition for two exam rooms. RA Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw JP Boucher Rick Johnson Peter Ripaldi, Ripaldi Construction Services, Nashua, NH. Mr. Ripaldi said they are requesting to add two handicapped accessible exam rooms, they will be on the first floor, and located in the rear of the building. Mr. Reppucci asked the applicant if he’d like his application to stand for itself. Mr. Ripaldi said that is fine, the application should be thorough. Mr. Currier asked if it will be a one or two story addition. Mr. Ripaldi said it will be one story. Mr. Currier asked how the dentist’s office got there in the first place, and approximately what year. Mr. Falk said it’s been there a long time, he said that they have paperwork dating back to the 1960’s and 1970’s, they did get a use variance. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Tom Nguyen, 35 Broad Street, Nashua, NH. Mr. Nguyen asked to understand the basics of what they are asking for. Mr. Falk said they’re here because the use of the land is only allowed as a special exception, which is a permitted use providing the applicant meets the points of law. He said they do Zoning Board of Adjustment June 11, 2013 Page 3 not need any dimensional variances, and all the setbacks are met. 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 190-119 (A)(4). 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, and the use will not be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 3. Edmund & Christel Dobens (Owners) MET General Contracting, Inc. (Applicant) 11 Berwick Street (Sheet H Lot 501) requesting variance to exceed maximum driveway width, 24 feet allowed, 17 feet existing, an additional 24 feet requested. R9 Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Rob Shaw Mark Twardoski, MET General Contracting, Inc., Merrimack, NH. Mr. Twardoski said that they have an existing 17 foot wide driveway on one corner of the property, and they’re adding a detached garage, and they’re asking for approval for a 24 foot wide driveway. Mr. Twardoski said he filled out a thoroughly complete application, and said he’d like it to stand on its own merit. Mr. Currier said the foundation for the garage is already built, and ask how it got started with the driveway issue not settled yet. Zoning Board of Adjustment June 11, 2013 Page 4 Mr. Twardoski said that the permit was issued for the garage foundation, but subsequently, it was determined that the driveway curb-cut width would be greater than 24 feet. He said that nothing was done to circumvent the Ordinance, if anything, it was both he and the City that were unsure of what the interpretation of the Ordinance would be. Mr. Falk reiterated that Mr. Twardoski did nothing wrong, he’s highly respected by staff, and is extremely honest. He said the whole thing was a misunderstanding, of no fault of the applicant. Mr. Reppucci asked if it was the width of the driveway within the front yard setback. Mr. Falk affirmed that is the issue, and that is what they are applying for. Mr. Currier said that this isn’t like a typical street, it’s like the end of a horseshoe, and concurs that there isn’t a lot of traffic. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: None. MOTION by Mr. Boucher to approve the variance, 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, and by granting the variance, substantial justice will be served. SECONDED by Mr. Currier. Zoning Board of Adjustment June 11, 2013 Page 5 MOTION CARRIED UNANIMOUSLY 5-0. 4. Marie B. Dionne (Owner) Crimson Properties, LLC (Applicant) 63 King Street (Sheet 13 Lot 16) requesting the following variances: Lot 16: 1) minimum lot width, 60 feet required, 50 feet proposed, 2) minimum lot area, 6,000 square feet required, 5,912 square feet proposed; Lot 18: 3) minimum lot width, 60 feet required, 50 feet proposed, and 4) confirmation that Lot 16 and Lot 18 are not merged. RB Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Attorney Brad Westgate, Winer and Bennett, Nashua, NH. Atty. Westgate identified the maps on the bulletin board, depicting the lots in the neighborhood and a historical copy of the land use plan. He said the property consists of three old lots. He said the lot on the right shows historical Lot 18, and to the back is a 30’x100’ section of land. He said these properties were laid out on Plan 144. Atty. Westgate said the lots are 50’x100’ or 125’ lots. He said if the request is approved, they’d build a new single-family home on original Lot 16, and the existing single family home staying on Lot 18. He said that the property is in the RB zoning district, which requires a 6,000 square foot minimum lot size, 60 foot lot width, and 50 foot lot frontage. He said the properties have 50 foot frontage lots, and they need a variance for width. He said that the intent is to have two parcels, separate, Lot 16 and Lot 18, with the rear portion, that would each house a single family dwelling, the existing one on 18 and the rear portion, and a new one on Lot 16. Atty. Westgate said the entire property is about 14,800 square feet, and is large enough to accommodate a duplex dwelling without a variance, but want to use a density neutral approach and have single family homes instead. He described the other Zoning Board of Adjustment June 11, 2013 Page 6 uses in the neighborhood, which is a mix of single family, duplex units and he described the nearby lot sizes. Atty. Westgate went over all the variance points of law, and went over all the special conditions of the property to support the variance requests. He said that he prepared a draft motion for the Board to consider should the request be supported. He handed out some handouts for the Board. Atty. Westgate said that the applicant found a small mound of asbestos in the front of the property. He said it will be dealt with and handled properly according to DES guidelines. Mr. Currier asked why the rear lot is going to be added to the other lot, so they’d go straight back and the variance for lot area wouldn’t be needed. Atty. Westgate said the existing house slightly encroaches into that rear lot, and since the new house would be built closer to King Street, it would be more sensible to have the entire rear portion as back yard for the existing house, and it also enables both lots to exist in their original configuration, so they’d be conveyable simply off Plan 144. He said they’re only 88 square feet short, so it’s almost an academic exercise to move a lot line such a very short distance. Mr. Currier said that the vacant lot is like a kettle hole of land, and asked if there is any standing water there. Atty. Westgate said that in concurrence with Randy Turmel, Crimson Properties, the applicant, they are not aware of any issues, and that the soil is pretty well drained soil. Mr. Currier asked if there will be any grade change once the new house is built. Randy Turmel, Crimson Properties. Mr. Turmel stated that they would bring the foundation a few feet above the existing grade, and taper the soil so that it drains away from the house. Mr. Currier said that he wanted to hear that the house can be built, without runoff problems. Mr. Turmel said he hasn’t had an engineer on site to look at it, but it’s absolutely the goal to not create an adverse affect to Zoning Board of Adjustment June 11, 2013 Page 7 any of the neighbors. He said they’d take proper measures for drainage, for gutters, to discharge the water into the ground. He said he’s never witnessed a water problem, but said he doesn’t live there. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Gerry Parent, Litchfield, NH, family owns 61 King Street, Nashua, NH. Mr. Parent said that the existing house is about a foot from his property line. He said that a long time ago, the property was a farm, and it was later subdivided. He said he’s personally never seen standing water on her land, it’s very flat, but said that he tends to get all the rain from the hill into his yard. He said his concern is that a duplex won’t be built there, since the lot is small. He said he does have concerns with water, and asked if the driveway could be made with material that is pervious and absorbs water. Mr. Reppucci said the Board is only looking at the requested variances, the type of driveway they build is outside the responsibility of the Board. Mr. Reppucci stated that it appears as if the work to be done is not on the abutting lot, but the next one over, so the impacts could be negligible. He said he’s having a hard time seeing the impact on Mr. Parent’s property. Mr. Parent said that the problem is that the old house is only about a foot from the property line, they can’t even paint it without going on his property. Mr. Reppucci reiterated that he didn’t see an issue, or a connection with the proposed single family home being built on the vacant lot, and the impact on Mr. Parent’s lot. Mr. Parent said there may not be a connection, but is concerned about the water, and that they may need variances in the future. Mr. Reppucci said the Board is only considering what is before them this evening, and that any other work in the future would have to be considered at such time in the future. Zoning Board of Adjustment June 11, 2013 Page 8 Sally Eastman, 69 King Street, Nashua, NH. Mrs. Eastman said her concern is about the asbestos in the yard, and when they were digging, they left 2 big pieces in her yard. She brought them in to show the Board. She said she wants to make sure they dig it right, and have the EPA checking it out. Mr. Reppucci said that the Board doesn’t have anything to do with the asbestos, there are other Agencies in the State that deal with asbestos. Mrs. Eastman confirmed that there is a problem with water on the site. Mr. Reppucci read a letter from Mr. Shattuck at 64 King Street, who is in opposition to any building construction on the lot. SPEAKING IN FAVOR – REBUTTAL: Atty. Westgate said that Mr. Turmel has dealt with asbestos remediation on a number of properties, and he knows it must be taken care of with the proper protocol from the State, and the appropriate DES regulations and arrangements. Atty. Westgate said they’re aware that they have to work with the neighbors, to make certain that they don’t increase their own liability with their neighbors. He said that they are aware that they need to take care of their drainage within the confines of what the law permits. He said that Hayner Swanson will be in the loop figuring out how to handle any drainage questions that come up. He said they will coordinate with the neighbors about the drainage. He said the plan is to keep the existing home there, and rehab it. Mr. Reppucci said that even though the Planning Board doesn’t have to review the engineering plan to handle the water off the lot, it’s certainly a requirement of the Building Department that water runoff that’s created by the construction of this property not affect any of the abutting properties. Atty. Westgate said that he didn’t want to answer for the Building Department, but they have a civil liability that they can’t put drainage and stormwater onto our abutting properties in a manner that will disrupt what is historically existing. Zoning Board of Adjustment June 11, 2013 Page 9 Mr. Currier said there’s no comment on the plan about water runoff. He said there is no data before them about the runoff, no professional comment. He said he thinks it’s a small request, or stipulation, that a professional engineer sign off that there won’t be a drainage runoff problem with the property. Atty. Westgate said that Hayner Swanson has not analyzed this request from a drainage perspective yet, they just prepared the concept plan on how these lots would fit on the property. He said that they should be obligated by a civil responsibility, to the extent that they’re not increasing rates of flow, for example, onto other properties, or cause a nuisance from a legal sense by allowing stormwater to run off of our property onto abutting properties in a manner that overwhelms the historical usage that’s been experienced. He said if the Board feels that a stormwater analysis be part of a building permit process, he could see the login in that. He said that engineers cannot guarantee absolutes, but they can work to design a stormwater management arrangement that can show that he’s not violating his civil obligations, which they wouldn’t want to do anyways. He said that perhaps a drainage analysis could be a component of the building permit process might be a logical condition. Mr. Currier agreed, and said that for the asbestos abatement, is to pour good stuff on the bad stuff. He said the most appropriate way to go is to dig it out and cover it over. Atty. Westgate said that they should leave it up to the State. He said that asbestos abatement is very well regulated, and many site protocols have to be rigorously prepared by qualified firms, submitted to DES for their approval. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No comments. Mr. Reppucci said that there’s no evidence that there’s a water issue, or problem here. He said there was no professional testimony, or evidence that there’s flooding problems in this area in any way. He said he believed that for the Board to put stipulations on a case where there is no evidence or proof that there’s a water problem goes beyond what the Board should do. He said that if the lot was just a little bit larger, they could build a house there by right, without the Boards input at all. Zoning Board of Adjustment June 11, 2013 Page 10 He said the Board has no expertise in the water issue, and there is no expert testimony saying that there is a problem in this area. Mr. Currier said he believes that there is clear evidence with the water. He said abutters on either side have said so. He said he takes that testimony as credible, and it’s been presented to the Board. He said with the kettle hole of a lot, and the abutters testimony, it’s clear evidence that water is an issue. He said he’d like to see an assessment that the water runoff, post-development, will not be more than pre-development. He said his concern is that if there will be water runoff, it’ll be on the abutters property. Mr. Boucher said if he understands Mr. Currier, he wants to see a statement that he wants to make it a responsibility of the applicant. Mr. Currier said he wants to see a stipulation that a professional engineer approves that the post-development runoff will not exceed the pre-development runoff. Mr. Shaw said it’s really just reinforcement of the testimony of the civil obligation to be met, and want to see a statement by a professional engineer. He said that there are all types of events with runoff, and we’re talking about this in a general sense, and from general runoff, to major storm events such as a 500-year event. He said his sense is that something can be accomplished in a general sense. Mr. Reppucci said if he were an engineer, he’d be very reluctant to put something like this in writing, and put his stamp on it. He said it will be hard to make a recommendation, without knowing the impact of the recommendation. Mr. Shaw said the engineer would state something like under their best judgment, application of all the knowledge they have, perhaps the post-development would be no worse than the original situation. He said that engineers are called upon to do this all the time. He said that there are specs that are written to take care of this. Mr. Currier said that any swale in the City, or in the State, in the past twenty or thirty years, isn’t done by just digging it, it’s done by a straightforward assessment of what’s the runoff Zoning Board of Adjustment June 11, 2013 Page 11 coming in, this is what the soil is, and this is what it’ll do to accommodate it. Mr. Creed said he agrees with where Mr. Reppucci stands on this. He said that he doesn’t think that it’s a valid approach to require the engineering document after-the-fact. He said the appropriate approach, if something is missing, would be to table this request. He said if the Board doesn’t have all the facts, we cannot make a decision on the record. He said for this particular issue, he said he’s inclined to favor this. He said he thought that what they want to do is the best approach to do that. He said in regards to the water runoff, if that is such a great concern, the Board should either vote against it if it’s too great a concern. Mr. Johnson asked if this case were to go before the Planning Board, but wasn’t sure if it’s in the Building Inspector’s mind to alert any possible drainage or runoff issues, and if there are any issues, asked if there’s anything internal before the permit is signed that addresses the runoff. Mr. Falk said he can’t answer for the Building Department, or exactly what codes they look at. He said he believes they look at the grade, and the foundation, during the rough inspection. He said if they see an obvious problem, they’ll investigate. Mr. Johnson said that given the percentage of the land that can be built on, asked if there is some internal process of looking as safeguards. Mr. Falk said that there is an open space percentage of the lot that must be met, plus the building setbacks. Mr. Shaw said that if the Board has a stipulation that requires a professional engineer’s statement regarding the runoff that’s been discussed, it seems as if it would be the Planning Departments responsibility to have it to sign off on the plan. Mr. Reppucci closed the Public Meeting, and opened the Public Hearing again. Atty. Westgate said that engineers look at many factors in deciding runoff issues when they design a subdivision. He said that he wondered if the stipulation has enough detail for the engineer to understand how to satisfy. He suggested one Zoning Board of Adjustment June 11, 2013 Page 12 stipulation that prior to the issuance of a building permit for original Lot 16, a stormwater management report would be submitted that is acceptable to the Community Development Division. He said that alternatively, the case could be tabled to a date certain, so that Mr. Petropulos could come to the meeting. Mr. Reppucci asked Atty. Westgate which date they’d like the case to be tabled to. Atty. Westgate said the July 9, 2013 meeting would be the preferred date. Mr. Shaw said that the Board got very focused on the water issue, and asked if the Board had any strong concerns about the division of the property. Mr. Reppucci said that the Board didn’t spend time discussing the rest of the application. Mr. Currier said he was concerned about over-development, but Atty. Westgate’s testimony about having a stipulation for a single-family home is a positive move. He said the dimensional issues didn’t raise a problem with him. Mr. Johnson concurred. Mr. Shaw said the lot could be divided up in some different ways, but after hearing the placement of the existing house and the rear yard to that structure, said that it’s so close to meeting the ordinance. He said the Board has looked at the least amount of nonconforming aspects of the application, but when all the facts of the case was considered, he said its worthy that the slight underage of land, and the lot width, is consistent with the neighborhood and the historic aspects of the neighborhood. Mr. Reppucci said no one seemed to be concerned with the new house, just the water. MOTION by Mr. Reppucci to Table the request to a date certain of July 9, 2013, and that the Board opens the Public Hearing with specific presentation by the applicant and anybody with questions or concerns to the water runoff issue, and nothing Zoning Board of Adjustment June 11, 2013 Page 13 more than that. He said that after further thought, we should just consider the whole case. Mr. Johnson said that there are four dimensional variances that were applied for, so he said that we’d be tabling all four variances. Mr. Reppucci retracted his earlier motion, and said we’ll just table it to a date certain and have the Public Hearing, with the applicant knowing that the only thing that’s of concern to the Board is the issue we raised. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0 MISCELLANEOUS: REGIONAL IMPACT: Mr. Shaw identified a typo on the next agenda, it said “June 11”, and it should say “June 25”. Mr. Falk said that staff would correct it. The Board did not see any cases with Regional Impact. MINUTES: May 14, 2013: MOTION by Mr. Reppucci to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:55 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing