Zoning Board of Adjustment

EXPANDED DRAFT MEETING SUMMARY THIS IS NOT AN OFFICIAL TRANSCRIPT OF TAPE RECORDED PROCEEDINGS THE INFORMATION CONTAINED HEREIN HAS NOT BEEN REVIEWED OR APPROVED BY THE ZBA ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING June 25, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, June 25, 2013 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci, Chair J.P. Boucher 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. 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 David Creed Rick Johnson JP Boucher CASE WAS TABLED TO THE 7-23-13 MEETING. 2. Kimco Webster Square, LLC (Owner) NH Signs (Applicant) 256- 268 Daniel Webster Highway (Sheet A Lot 19) requesting variance to exceed maximum wall sign area, 25.12 sq.ft existing, 36 sq.ft permitted - an additional 25.12 sq.ft Zoning Board of Adjustment June 25, 2013 Page 2 wall sign proposed on northern (rear) building elevation. HB/GI Zone, Ward 7. Voting on this case: Gerry Reppucci David Creed JP Boucher Rick Johnson Grant Michael, NH Signs, Londonderry, NH. Mr. Michael said they are requesting the variance for an additional set of letters on the wall, mounted on a raceway. He said it will be for Moe’s Southwest Grill, they have recently opened. He said they are located towards the rear of the building. Mr. Michael said that the main traffic pattern enters on the north side of the building, which is the rear of the building. He said that for any visibility, they need a sign on the back of the building so people know that they’re there. He said that the proposed sign will not impact any safety issues, it’s in the public interest, and the size of the proposed sign is not overly excessive, it’s the same size as the one in the front. He said the tenant space is long and narrow, and since there is such limited frontage, it limits them as to the size of the sign. He said the business next door is Five Guys, and they were recently granted a variance. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the variance on behalf of the applicant, 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. Zoning Board of Adjustment June 25, 2013 Page 3 Mr. Boucher said that the request is within the spirit and intent of the ordinance, the building is in a unique portion of the property, 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. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 3. Monis, Phyllis 2013 Rev. Trust (Owner) 4 Searles Road & “L” Barrington Avenue (Sheet B Lots 20 & 57) requesting special exception to work in a critical wetland and wetland buffer to construct a public roadway, utility crossings and associated site improvements for a 37-lot single-family residential subdivision. R18 Zone, Ward 9. Voting on this case: Gerry Reppucci J.P. Boucher Rick Johnson David Creed Mr. Reppucci said that the Board received a revised drawing that was emailed by Mr. Falk. Everyone confirmed that they received it. Jim Petropulos, Civil Engineer, Hayner Swanson, Inc, Nashua, NH. Mr. Petropulos stated that the request is for wetland buffer impacts associated with a 37-lot single-family conservation subdivision. He said that the project was before the Board recently, where two variances were granted, one for rear yard setbacks, the other was for the back lot without any street frontage. He described the property’s location and abutting streets and uses. Mr. Petropulos said the property is a combination of woods and open fields, the topography is relatively high, and it’s relatively flat. He said there is a wetland that bisects the property. He said they are asking for a conservation subdivision, or, formally called a cluster project. He said the intent is to promote protection of open space features, and allows for relief of smaller lot sizes. He said the lots are between 9,000 square feet to 13,000 square feet. He said that Zoning Board of Adjustment June 25, 2013 Page 4 they are proposing a public road, called Generation Drive, which would line up across from Stillwater Drive. Mr. Petropulos said that the Land Use Code gives a density of 49 units, but only 37 are being proposed. He said the proposed roadway and utilities cross the wetland areas. He described the wetland impact areas. He said that they are extending the sewer line from Barrington Avenue into the project. He said it will pass by a washed out culvert that will be reconstructed, and will be a well-needed improvement. He described the wetland impact areas. He said that impact area “G” was an old railroad bed, it’s a gravel, stone dust walkway. He said that the Conservation Commission asked them, as part of their mitigation, to pave the walkway, from a location almost at Searles Road to Ridge Road, in order to allow for sidewalk connectivity. Mr. Petropulos said that there are no wetland or buffer impacts associated with the lots, the impacts are all due to roadway and utility crossings. Mr. Petropulos went over the special exception points of law, to the Boards satisfaction. He said that they also comply with the nine special regulations. He said the mitigation was worked out with the Conservation Commission, to pave the pedestrian bike path, it’s almost one-half mile in length, and the cost would be somewhere between $75,000-$90,000 for offsite improvements. Mr. Boucher asked about the difference between the impacts from the old proposal to the new layout. Mr. Petropulos stated that there is no difference in wetland impacts, it’s the same amount. He said the only change is that the roadway now comes out across from Stillwater Drive, instead of Indian Fern Road, and this change was requested by the City of Nashua Engineering Department. Mr. Johnson asked why they’re paving part of the rail trail, and what was the rationale behind that. Mr. Petropulos said that the trail exists, they pulled the rail and the ties, and it’s in a “dirted-out” manner, it’s a nice wooded walking trail. He said that there’s been some ATV activity, but to put pavement down gives a twenty-five year less maintenance burden on the City, because it’s in a City easement, and it will be maintained by the City. He said that the City Zoning Board of Adjustment June 25, 2013 Page 5 felt that it would maintain better over time, as opposed to stone dust, or subject to rain or washouts. Mr. Reppucci mentioned a Supreme Court decision today from Florida, concerning mitigating requirements put on developers to mitigate things that aren’t associated to the development. SPEAKING IN FAVOR: Katherine Fisher, 81 Cadogan Way, Nashua, NH. Ms. Fisher stated that they will be installing stormwater discharges and runoff, and asked about retention or detention ponds. Mr. Reppucci said that these systems aren’t really Zoning Board issues, the only thing before the Zoning Board tonight is the relief to work in wetland buffers highlighted on the map. Ms. Fisher asked if the utilities are going to be underground. Mr. Reppucci said he believes that this is determined by the utility companies. Ms. Fisher asked about the setbacks, and the distance from the proposed development to her development. Mr. Reppucci said the applicant was given a variance for a 25 foot rear yard setback, where 40 feet is required. Michael McDermott, 1 Indian Fern Drive, Nashua, NH. Mr. McDermott said he’s very grateful that the access road was changed to be off of Stillwater Drive. He asked about a potential increase in density from the last plan. Richard Lucy, 58 Cadogan Way, Nashua, NH. Mr. Lucy asked for a copy of the plan from Mr. Petropulos. Mark Hinkle, 5 Searles Road, Nashua, NH. Mr. Hinkle asked about the number of units. He said they’re happy that the entry road got moved. He said that the buffered wetlands on his property is starting to dry up, it’s fenced in, and it’s posted and preserved. He said that the wetland plants are starting to dry up. He said that as houses are being put up, the buffers may likely start to dry up. He said they are also concerned about the trash thrown into the buffers. Zoning Board of Adjustment June 25, 2013 Page 6 SPEAKING IN FAVOR – REBUTTAL: Mr. Petropulos said that the closest unit to Cadogan Way is about 250 feet away. He said they will be utilizing underground utilities, he said they’ll have detention and infiltration in two locations. He said they’ll be very responsive about dealing with stormwater. He said the unit count for the original plan had a single-family home in the back that was not part of the Conservation subdivision, it had three lots in the front that were also not part of the Conservation subdivision, and had 33 lots as part of the Conservation subdivision, for a total of 37 units. He said the proposed new plan has 37 units in the Conservation subdivision, and one other lot, for a total of 38 homes, so there is one additional home. Mr. Reppucci asked what is it that requires that the utilities be put underground. Mr. Petropulos said that the Land Use Code requires underground utilities. He said that there will be some street lighting, about seven or eight poles. Mr. Creed asked about lot 3164, saying it’s in the buffer zone, and what will be done to help the owners not damage the buffer. Mr. Petropulos said that once the roadway is complete there, the portion that is shown as buffer will be gone, since a portion of that wet area will be gone. Mr. Johnson asked about the Conservation Commissions stipulation #7, about the well being abandoned to DES standards. Mr. Petropulos said they want it abandoned in case any children are curious about what it is, for safety concerns. He said that wells are abandoned with DES guidelines, with fill up to the top. Mr. Reppucci asked about Conservation Commission stipulation #4, about paving the rail trail for mitigation. He asked how they view the stipulation, whether it’s proper, or an undue burden, or if it’s acceptable. Mr. Petropulos said that mitigation is a very worthwhile effort with respect to the environment. He said it’s fair, and mitigation can come in many forms. He said they resisted trying Zoning Board of Adjustment June 25, 2013 Page 7 to actually create or build a wetland on the site for mitigation. He said in working with Planning Department staff, it’s a reasonable stipulation. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. Mr. Reppucci said he thinks it’s improper to require somebody to do work on property that’s not theirs. He said it was placed on them by the Conservation Commission, if the Planning Board wanted to, it’s a different situation, as they do that with sidewalks. He said the Conservation Commission is an advisory Board, and would like to strike their comment. He said that they’ve done a lot to make this work. Mr. Boucher said that he is in favor of the special exception, and said that the rail trail is nice, and the paving of the trail is insignificant to him, he’d like to see the project get going. Mr. Johnson said that if the rationale is to protect the water that is underground, it’s understood, but wondered if this is a Planning Board issue. He said he concurs with Mr. Reppucci’s comment about item #4, and supports the application. Mr. Creed said that the Board has seen this before, and have approved it before, and we should continue forward with it. Mr. Reppucci said if the Board begins to look at cases, where there is an exception affecting other properties, he said he’s uncomfortable doing it. He said the Board is supposed to look at very specific requests, on very specific properties. He said it makes him uncomfortable, as it would be interpreted as this Board coming forward with this special condition. Mr. Creed said that they said it’s an amenity, being close to the rail trail, and it’s something that they were going to do anyway. Mr. Reppucci said he’d like to move forward with a recommendation with all of the Conservation Commission’s stipulations, except #4, which he didn’t feel was proper for the ZBA to put a demand on an applicant that affects another piece Zoning Board of Adjustment June 25, 2013 Page 8 of property. He said if the City or the Planning Board wants to put it in, that’s fine. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant, as advertised. Mr. Reppucci stated that the use is listed in the Table of Uses, Section 190-112. He stated that it will not create undue traffic congestion or unduly impair pedestrian safety. Mr. Reppucci said it will not overload public water, sewer, drainage or other public utilities. He said that the water, drainage and sewer impacts will be evaluated by the Planning Board. Mr. Reppucci said that all the special regulations are fulfilled by testimony, and it will not impair the integrity or be out of character with the neighborhood, or be detrimental to the public health, safety and welfare. He said that as a special condition to the motion, he said that the Board will accept the May 11, 2013 letter of recommendation by the Conservation Commission, that lists eight requirements of the applicant, and that the minutes of their meeting be incorporated into our meeting, and that the Board is including all eight of the special conditions, except stipulation #4, the Board believes that it is not the purview of the Zoning Board to require action on a piece of property that is not before the Board. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 4-0. 4. Highland Lake Properties, LLC (Owner) Jeffrey A. Zall (Applicant) 18-20 Auburn Street (Sheet 68 Lot 52) requesting variance for lot area, 8,755 sq.ft existing, 20,909 sq.ft required – to allow for 6 multi-family units in existing building. RC Zone, Ward 3. Voting on this case: Gerry Reppucci David Creed J.P. Boucher Rick Johnson Zoning Board of Adjustment June 25, 2013 Page 9 Attorney Jeffrey Zall, 221 Main Street, Nashua, NH. Atty. Zall stated that the applicant is actually Highland Lake Properties, not himself. Atty. Zall said that the applicant is requesting six multi-family units, but after considering the space inside the building, the applicant has decided to request four units inside the building instead. Atty. Zall said that the property has a three-story multi-family building, and it does contain six units, on a lot size of approximately 8,735 square feet. He said that only two of the units are legal, and only one is occupied. He said that the other units are not occupied, but at one time they were all occupied, and legal. He said on the left side of the building, is a two-story townhouse with four bedrooms, and on the right side is five separate building units, and a basement. He said the five units have a total of 16 rooms, each five kitchens and five bathrooms. Atty. Zall said that in 1945, the Shattuck’s bought the building, and the following year, they purchased the lot next door, Lot 153, which has remained a vacant lot, which has just over 5,000 square feet. He said the problem started in 2007, when the estate of Alta Shattuck sold both of the lots separately, one to Mermaid Holdings, LLC, and sold the vacant lot to Mr. Clay Garcia. He said Mr. Garcia owned Mermaid Holdings. He said that in 2010, the property with the house on it was foreclosed, and Highland Lake Properties purchased the lot with the building on it, and found out that they’d need a variance to have additional units in the building. He said the separation of the lots made the property more non-conforming, and the grandfathered situation of the six lots was lost, and hence, only the two units were legal based upon the lot size. Atty. Zall said there are special conditions of the property. He said the first is that the building is physically a six-unit building. He said the Board can consider that the size of the building can be considered as a relevant special condition when being considered for a variance. He said it is similar to the Harbor Associates Supreme Court case. He said that the second special condition is that it’s located in a neighborhood of multi-family properties, where most of them exceed, or far exceed, the density requirements of the neighborhood. He said that there are 32 properties in the immediate neighborhood alone, of which 25 of them are multi-family properties, and 18 of them exceed the density. He said that the average density of Zoning Board of Adjustment June 25, 2013 Page 10 these multi-family properties is 2,030 square feet per unit, and the ordinance requires 3,484 square feet per unit. He said that of the four units that are being requested, the density will be 2,183 square feet, which is greater than what the neighborhood has as existing. Atty. Zall went over the variance points of law, to the Boards satisfaction. He reiterated the special conditions of the structure, as it was a six-unit building for many years, and the neighborhood is predominantly multi-family. Mr. Reppucci asked to confirm the ownership situation with the lot next door, that Mr. Garcia only owns the vacant lot next door. Atty. Zall confirmed his statement. Mr. Boucher asked about the parking requirement. Mr. Falk said its 1.5 spaces per unit, so they’d need to provide six parking spaces. Mr. Boucher asked if there will be some parking spaces in the back of the building, where it’s all overgrown landscaping. Atty. Zall said yes, and there will be plenty of parking spaces to meet the ordinance. Mr. Reppucci said that the case was advertised for six units, and it’s perfectly acceptable for an applicant to reduce the amount at the meeting, without re-advertising or notifying abutters, as it’s less of a request. He said the footprint of the building is not changing, either. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Attorney Morgan Hollis, Gottesman & Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis stated that he is representing Mr. Clay Garcia, who owns the vacant property next to the subject lot. He said his client attempted to buy the property that was foreclosed, but was unable to do so. Zoning Board of Adjustment June 25, 2013 Page 11 Atty. Hollis stated that relative to the hardship criteria, Atty. Zall’s client purchased the property knowing that it was a 2-unit limitation under today’s zoning ordinance. He stated that the purchase price would reflect that knowledge. He said since it’s been purchased, it’s only been used for a two-family structure. Atty. Hollis said that on June 7, 1955, it went from a two- family to a six-unit building. He said that their position is that it could go back to two units. He said that Mr. Garcia is still opposed to four units, and the potential impact it could have. He submitted an appraisal from J. Chet Rogers, which analyzes the proposed six units and the effect, if any, to neighboring property values. He said that a number of the abutting properties are single family homes, not multi-family. He read a portion of the appraisal letter, and said it would bring adverse impacts to the property values. Amy McNamara, 2 Highland Street, Nashua, NH. Ms. McNamara said she lives right across the street. She said there will be an impact on public safety, it is extremely hilly, and there are five roads that converge. She said in the winter it gets slippery, and with four new units, it’s a dangerous intersection. She said if the rear of the house were turned into parking, the runoff would be problematic for the neighbor to the south of the house. She said that her house is a single- family home, and a lot of the existing multi-family structures were once single family homes. Victoria Tane, 23 Auburn Street, Nashua, NH. Ms. Tane said she lives diagonally across the street. She said she’s here for herself, and to read Ald. Sheehan’s letter against the proposal. She read the letter into the record. She said there is density problems already, and parking and traffic problems. She said she’d like to see the property remain as a two-family building. Donald Poirier, 11 Locust Street, Nashua, NH. Mr. Poirier said he’s been there for 37 years, and there’s been problems with the parking for this building, as cars have come over the wall. He said that this request will affect the quality of the neighborhood, and the character of the neighborhood, it will create more vehicle pollution. He said the sewer will need to be dug up and redone. He said his quality of life will be affected. Zoning Board of Adjustment June 25, 2013 Page 12 Clay Garcia, 1 Clocktower Place, Nashua, NH. Mr. Garcia said he owns the vacant lot next door, and formerly owned the subject property. He said when he bought it, there was extensive renovation and work that needed to be done. He said some of the units were shoddily put together into very small studio apartments, and said that the function of the neighborhood now, the way it is, have meticulously maintained homes, and the homeowners interest should be maintained. He said the City would be best suited if this were not granted. Further discussion ensued. Eric McNamara, 2 Highland Street, Nashua, NH. Mr. McNamara asked if the old owner was given the opportunity to buy back the property was lost. Mr. Reppucci said that question would be best asked to the former owner, it’s not a Board question, as it’s not relevant to the requested variance. Tim Declow, 23 Auburn Street, Nashua, NH. Mr. Declow said the density is complex. He said they have a considerable amount of frontage on Auburn Street, and none of the neighbors park vehicles on the street, they all have off-street parking spaces. He said that the subject area continually has cars parked on the street, and density is not only the people living there, but its also visitors, guests. He said the density will not work. SPEAKING IN FAVOR – REBUTTAL: Atty. Zall said an offer was given purchase the vacant lot from Mr. Garcia, but the price was too high. He said his client did his due diligence, and knew when he bought it that it was a two- family. He said that this building was a six-unit building from 1956 to 2010. He said for the neighbors to come forward now, and to put it to four units being an imposition to the neighborhood, does not sound credible. He said it was a six- unit property for 50 years. He said it is a neighborhood of multi-family properties, and the four proposed units will not be a problem for property values. He said there will be the proper amount of parking spaces, and the curb-cut permit will be obtained, too. He said everything will be done in accordance with City codes and requirements. He said there will be no Zoning Board of Adjustment June 25, 2013 Page 13 impact on public safety, and all parking spaces will be on-site. He said it’s a neighborhood of many multi-family properties. Mr. Reppucci said that Mr. Poirier had a concern with headlights hitting his house. He asked if the Board were inclined to make a stipulation that would address this, would the owner be amenable. Atty. Zall said they wouldn’t have a problem with that. Dr. Cary Shaffer, Highland Lake Properties, 66 West Prescott Street, Nashua, NH. Dr. Shaffer said he’s considered many different parking options. He said they would be able to put up a nice fence to help out. He said they do not want to interfere with the neighbors in a negative way. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Amy McNamara stated that it was obvious that the six-unit property required parking on the vacant lot. She said she believes that the owner is looking at this as a money-making opportunity. She said that the second part of the house, the five-unit portion of the house being 16 rooms, is not valid, because it would be easy to knock down walls and build some nice living space. MOTION by Mr. Reppucci to approve the variance on behalf of the applicant, to allow for a four-unit multi-family building, as amended by the applicant at the beginning of the meeting. Mr. Reppucci 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 finds the use of the property reasonable, as it was used as a six-unit multi-family for many years, up until 2010. Mr. Reppucci said that the request is within the spirit and intent of the ordinance, it will not adversely impact property values of surrounding parcels, while the Board has an appraisers letter referencing that it would affect the surrounding properties, there are two components that need to be taken into account, one is that through no fault of the person writing the letter, they understood it to be six units, and based upon the Zoning Board of Adjustment June 25, 2013 Page 14 Boards experience and knowledge, the Board finds that the changes made by the applicant, that there will be no adverse change to property values, in fact, the Board believes that the values will be improved. Mr. Reppucci stated that the case will not be contrary to the public interest, and by granting the variance, substantial justice will be served. Mr. Reppucci said that there is one special condition, that the applicant must design the parking to be done to limit in every way possible, the impact of lighting on his neighbors property, the headlights shining on their property especially. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases with Regional Impact. MINUTES: April 9, 2013 May 28, 2013 June 11, 2013 MOTION by Mr. Reppucci to Table the minutes to the next meeting. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Falk said that the “panic” button is working, and if it’s activated, the Police Department will know about it. He also told the Board what the locked bathroom door code is. ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:30 p.m. Submitted by: Mr. Johnson, Clerk. CF Zoning Board of Adjustment June 25, 2013 Page 15 Taped Hearing