Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 13, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 13, 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 J.P. Boucher Rick Johnson Robert Shaw 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. Douglas A. Pominville (Owner) 140 Manchester Street (Sheet 137 Lot 143) requesting variance to exceed maximum fence height, 6 feet permitted, 9½ feet proposed. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Rob Shaw JP Boucher Stacy Pominville, 140 Manchester Street, Nashua, NH. Mrs. Pominville apologized about her interpretation about the fence, she said it was a misunderstanding. She said that due to the topography of the land, the wall and the fence will allow the maximum amount of privacy and enjoyment of the lot. She said that the existing fence has been rotting, due to the slope and runoff from the abutting property, and the additional four feet of lattice was added about 15 years ago, as the back yard was redone, and the pool got more use, and privacy became a factor. Zoning Board of Adjustment August 13, 2013 Page 2 Mrs. Pominville said the property in back of theirs is substantially higher, and they feel like they’re in a fishbowl, where people can look in. She said that they’re starting a new family and feel it is important to take the necessary steps to create a safe environment, with a safe fence that won’t fall over, and maintains the privacy in the back yard. She said it would represent an undue hardship if the case is not supported. Mr. Reppucci asked who constructed the stone wall. Mrs. Pominville said it was Ed Forte, a professional mason contractor, he did it at the end of June. Mr. Reppucci said that it appears as if the top of the old fence is virtually the same as the top of the new fence. Mrs. Pominville said it’s about six inches less than the old fence. Mr. Johnson said it’s normally practice to verify if a permit or variance is needed before construction begins. He asked how they were made aware that they needed a variance. Mrs. Pominville said that a building inspector informed them that someone called him, and he relayed the information that a variance was required for the extra height. She said that they talked to the neighbors about the request. Mr. Reppucci said that there are some letters in opposition, and an appraisal letter; Mr. Currier gave Mrs. Pominville his copies. SPEAKING IN FAVOR: Frank Giarrusso, 142 Manchester Street, Nashua, NH. Mr. Giarrusso said they knew about this before the construction started, and the fence was discussed. He said the new fence is more aesthetically appeasing, and is in favor. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Attorney Gerald Prunier, Prunier and Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that he represents Mr. Trombley and Ms. Moran, who are opposing abutters, who wrote the letters. He said a fence in Nashua of 9½ feet is very high. He Zoning Board of Adjustment August 13, 2013 Page 3 said that most of them in the City are 6 feet in height. He said the proposed fence is a third higher than what is allowed by the Ordinance, and it is out of character with the neighborhood, a realtor’s letter says it has an adverse affect on the neighbor’s property, and the applicant has failed to show that there is any hardship. He said the fence is too high. He said the topography is not a problem, and just because the property in back is a little higher, it doesn’t mean that they get a fence this tall. Atty. Prunier said that the fence is not in the public interest, it’s only to benefit the applicant. He said the older fence with the lattice, at least it let the light through, the new fence does not. He said it adversely affects his client’s property and their enjoyment of their back yard. Mr. Reppucci asked if the appearance of the old fence was more impactful than the stone wall and the new fence. He asked if the new fence is more of a detriment than what was there for so long. Atty. Prunier said that his clients feel that the new fence, because of its density, adversely affects their back yard in not allowing sunlight to their back yard, so much so, that they paid to have an appraiser come in and review the property. Mr. Reppucci asked if they felt that way about the old fence as well. Atty. Prunier said he didn’t know. He said that there’s no hardship with the height of the proposed fence. Mr. Currier mentioned that the letter mentions a dispute over the location of the fence, that it could be built on the neighbor’s property. Atty. Prunier said that issue is not before the Zoning Board to decide. He said it may or may not exist. SPEAKING IN FAVOR – REBUTTAL: Mrs. Pominville said she believes the boundary issue is what started all of this. She said the property was surveyed by the abutter, and there were markers into the ground. She said that they believed they were moved, and called our construction Zoning Board of Adjustment August 13, 2013 Page 4 people, saying that they were moved, which they were not. She said that the abutter wanted them to stop, and get the property surveyed, and they responded by saying they didn’t feel that it was necessary. She said that neither their workers or they did not move any of the markers. Mrs. Pominville said that they actually moved their fence closer in by 2½ feet, just to make sure they were on the safe side, and the granite marker is still on the safe side of that line, just to make sure they are within their lot. Doug Pominville, 140 Manchester Street, Nashua, NH. Mr. Pominville said that they cut 2½ feet of concrete off of the pool apron. He said the wall is twenty inches wide. He said at one time, their fence was attached to the Trombley’s fence. He pointed out a photo, where there is a much wider gap now. He said for property values, the proposed fence is a Trex fence, it’s an all-weather fence, and never has to be maintained. He said they ordered it from Colorado, and it shouldn’t degrade the neighborhood, or take anything away from it. Mrs. Pominville submitted pictures of other walls and fences that are taller than six feet in height, taken right in the neighborhood. Mr. Pominville said that by looking at the pictures, the Board can see that there really isn’t much of a height difference. Also, he said that they only share less than eight feet of land with the Trombly’s lot, most of their lot abuts the Moran’s. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Atty. Prunier said he’s not here to discuss the boundary dispute between the lots, even if there is one, and it’s not a Board issue. He said the hardship has not been shown, the public interest has not been shown, the value as indicated by the appraisal has been diminished, and all of these issues should cause the variance to be denied. He said that the nine foot tall fence takes the daylight out of the backyard of his clients. Mr. Currier said he’d like to do a site walk. He said after a site walk, he feels he could make a sound judgment on whether the nine foot tall high fence is detrimental to the abutter, or not, and how needed the extra height is for the fence. Zoning Board of Adjustment August 13, 2013 Page 5 Mr. Boucher asked what staff would do on a property where there is some slope, and a retaining wall is built, and it’s backfilled, and then a fence put on top of it, whether that would meet the six foot height limitation. Mr. Falk said in a situation like that, most likely Staff would not require an applicant Mr. Reppucci said he didn’t think that it’s logical that an appraiser stated that the fence was an issue, it’s closer in to the property line, it’s the same or less height as what was historically there, and is a nice looking fence. Mr. Shaw said that the wall is a beautiful structure, perhaps the reference is to commercial, he thought it’s the scale of the fence, at 9½ feet you’ expect to see at an industrial or commercial zone. He said that aesthetically, it doesn’t look industrial or commercial at all, if anything, they must be referring to the scale of the fence. He said there is a slope to the property, but then it levels out. He said the Board must find the right balance, because the abutter’s view on the other side is impacted. Mr. Johnson stated that the section for fences, 190-44, is short, all it says is that fences shall not exceed six feet, and not interfere with traffic circulation. He said he understands that it’s a variance, but the Code is left up to some sort of interpretation. He said the contractor should have been aware, and should have asked if this is permissible. He said on his site visit, there’s not much height differential between the proposed fence and the neighbor’s fence, maybe a foot or so, so the height isn’t significant. He said given the circumstances, 9½ feet may be excessive, maybe by a foot, but given the circumstances, he said he’s weighing in favor of the fence. He said the other factor is the intent of the applicant. He said they’ve made an attempt to make the fence closer in to their property. Mr. Currier asked about the posts, and if they are counted into the overall height of the fence. Mr. Falk said that they only count the main portion of the fence panels, and not the decorative objects at the end of the panels. Zoning Board of Adjustment August 13, 2013 Page 6 MOTION by Mr. Johnson to approve the variance on behalf of the owner, as advertised. 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, particularly the depression of land on the pool side; 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. Johnson stated that the request is within the spirit and intent of the ordinance, as displayed for safety, and considering the slope, and the construction of the fence, and in fact, there’s evidence from the applicant that they’ve intended to adhere to an existing property line, and the new fence is actually closer away from the property line, and closer to their home than the original fence. Mr. Johnson stated that the request will not adversely affect property values, notwithstanding a letter from a broker that says it would, however, in evidence by the photographs, the fence clearly has aesthetic value over the old dilapidated fence. Mr. Johnson said they do not believe it is contrary to the public interest, and substantial justice is done. He said that there have been letters of opposition due to sunlight, but the Board doesn’t feel that has been substantiated, and it is a reasonable means to achieve their intent. SECONDED by Mr. Boucher. Mr. Reppucci said he didn’t read the two letters into the record, but all five Board members have read them and considered them. Mr. Reppucci said that he liked when Mr. Johnson brought up the ambiguity of the ordinance, and that the Board found it a little bit ambiguous that it speaks to a six foot fence, and the Board doesn’t feel that the ordinance is clear, and thinks that it’s reasonable, therefore, it can fall within the spirit and intent of the ordinance. Mr. Johnson accepted Mr. Reppucci’s comments. MOTION CARRIED 4-1 (Mr. Currier). Zoning Board of Adjustment August 13, 2013 Page 7 2. Delta & Delta Realty Trust (Owner) Site Enhancement Services (Applicant) 261-275 Daniel Webster Highway (Sheet A Lot 321) requesting variance to exceed maximum wall sign area, 81 square feet allowed, 183.4 square feet proposed. GB Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Robert Shaw J.P. Boucher Donny Wirt, Site Enhancement Services, South Bend, IN, and Don Szatela, District Manager of iParty, Hudson, NH. Mr. Wirt said that it’s the current “iParty” site, which will become “Party City”. He said the site is allowed 81 square feet of wall sign area, and the proposed sign is 183 square feet in area. He presented the Board some drawings. Mr. Wirt said that the proposed sign is a 48-inch channel letterset, it includes Party City and the trademark tagline logo, “the Discount Party Superstore”. He described the drawings to the Board. He also passed out a drawing showing how the City calculates the allowable wall sign area, and said that if they were allowed to remove the “dead” space, or white space, on the sign, the proposed sign would only be 107.8 square feet, significantly lower than the requested 183 square feet. Mr. Currier asked if iParty is failing, and going out of business. Mr. Szatela stated that iParty has been around since 2000, and the company is merging with Party City, with Party City being the parent company. Mr. Currier said that iParty has been successful for many years, and stated that he was struggling with the extra wall sign area. Mr. Szatela said that iParty at this location hasn’t been profitable, hence the merger. Mr. Currier asked if iParty has their own freestanding sign. Zoning Board of Adjustment August 13, 2013 Page 8 Mr. Wirt said they have some tenant space, a small panel, on the freestanding sign, it’s approximately 15” x 22”. He said it is partially blocked by trees. He said the iParty store has a 44- inch letterset, and Party City’s is only three inches taller, but their name is longer, so that is where the increase is in square footage. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Currier asked how the 81 square feet allowed calculation is derived. Mr. Falk said they are allowed 1.5 times their individual tenant space. He said they have approximately 52 feet of frontage. Mr. Currier asked if the other stores in the shopping center meet the ordinance. Mr. Falk said that Market Basket and Bed Bath & Beyond are both beyond the size requirements, so they must have received variances for their size. Mr. Falk said that the 1.5 times the building frontage is only up to a maximum of 150 square feet. Mr. Shaw said they are using their space very efficiently, and they are not putting up a sign that will look out of place. MOTION by Mr. Shaw to grant the variance on behalf of the applicant as advertised. Mr. Shaw stated that the variance is needed to enable the applicant’s proposed use of the property, as noted in the discussion, and by the applicant, the relative size of the sign, while being approximately twice the allowed sign, would be consistent with the scale of the other signage in this plaza, as well as the analysis given to the Board, which does highlight the fact that most of the signs in the area, measured by the Zoning Board of Adjustment August 13, 2013 Page 9 ordinance has a lot of white space and if that’s taken out, the sign is much closer to the size allowed by the ordinance. Mr. Shaw said that the case is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, if anything, the size and scale of the sign will help to locate the store, and substantial justice is served SECONDED by Mr. Johnson. MOTION CARRIED 4-1 (Mr. Currier) 3. Constantine G. Scrivanos Trust & NAS Realty Trust (Owners) 109 Daniel Webster Highway (Sheet A Lot 964) requesting variance to allow a turn in a drive-through lane less than 40 feet from a pick-up window. HB Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Robert Shaw J.P. Boucher Attorney Gerald Prunier, Prunier and Prolman, P.A. 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that this is the Dunkin’ Donuts site on Daniel Webster Highway, next to the Cumberland Farms. He said it’s been here for a considerable amount of time, and what is being proposed is site renovation to help with circulation around the building, as well as to better serve the general public. Atty. Prunier said in 2006, the new Land Use Code was adopted, and there are new sections relative to drive-throughs, and it states that if you have a drive-through window, you need 40 feet from the middle of the pick-up window to the point where you make your first turn in your vehicle. He said that the existing window is on the southerly side of the building, and it currently is not 40 feet away. He said that the proposal is to have two windows, one will be relocated further up the drive- through a couple feet, and the other one will be earlier in the drive-through lane. He said that they feel that they have a Zoning Board of Adjustment August 13, 2013 Page 10 hardship in that the building was built before the new code section, as it exists, it doesn’t even have the 40 feet. Mr. Reppucci asked how much further the window being moved. Atty. Prunier said about 3-4 feet, both windows will be separated, and overall, it won’t be a substantial difference to what is there now, but the new window will help in having orders processed quicker. Mr. Falk said that staff has had a few meetings with the applicant, and the intent is to improve circulation. He said there will be a small patio in the front of the building, and they’re changing some 90-degree parking spaces to be 45-degree angled spaces, and with the additional window, it is to help improve circulation and make the site more effective. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to grant the variance 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, which is essentially to go from one drive-up window to two, the second window would be reconfigured about 3 feet closer to the turn, and the applicants engineer believes it will result in a better flow of the site overall, also with the angled parking spaces, therefore, the case is within the spirit and intent of the ordinance. Mr. Currier said there’s been no comments on it adversely affecting property values, it is not contrary to the public interest, actually, it will be better for traffic flow, and substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment August 13, 2013 Page 11 MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: July 9, 2013: Mr. Currier said on Page 5, he asked to revise the minutes to say that he recused from the case, and then left the meeting. Mr. Falk said that Staff will make the change. MOTION by Mr. Currier to approve the minutes with the revision, waive the reading, and place the minutes in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. July 23, 2013: Mr. Johnson said on Page 4, there should be a change where it says “Speaking in Opposition”. He said the header didn’t make sense. It should say “no one”. Mr. Falk said he’d make the appropriate changes. MOTION by Mr. Johnson to approve the minutes with the revision, waive the reading, and place the minutes in the file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:40 p.m. Submitted by: Mr. Johnson, Clerk. Zoning Board of Adjustment August 13, 2013 Page 12 CF Taped Hearing