Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 27, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 27, 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. S & L Dunn Family Trust (Owners) Bryan Castanino (Applicant) 34 Hyacinth Drive (Sheet A Lot 1829) requesting variance to encroach 2 feet into the 30 foot required rear yard setback to construct an attached 12’x21’ screened-in porch. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Rob Shaw JP Boucher Steven Dunn, 34 Hyacinth Drive, Nashua, NH. Mr. Dunn said that they have a deck in the back of their house, and it’s in need of being replaced. He said they are requesting to put up a screen porch on the back, so basically the job will be to tear down the deck and put up the new deck and screened porch. Mr. Reppucci said that the application is complete, and very thorough. Zoning Board of Adjustment August 27, 2013 Page 2 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance on behalf of the owner, as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is to have a reasonable sized screened-in porch on the back side of the property, it is just a two-foot incursion into one corner of the deck, and given the topography of the land, and the unique shape of it at the end of a cul-de-sac, and with the situation of the house and driveway, this deck would encroach up to two feet. Mr. Currier stated that the request is within the spirit and intent of the ordinance, there are no adverse affects on property values on surrounding parcels, it won’t even be seen from the street. Mr. Currier said it is not contrary to the public interest, and that substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 2. Jason & Allison Wakefield (Owners) 17 Wethersfield Road (Sheet B Lot 1930) requesting variance to encroach up to 5 feet into the 10 foot required left side yard setback to construct an attached garage addition. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Robert Shaw J.P. Boucher Jason Wakefield, 17 Wethersfield Road, Nashua, NH. Mr. Wakefield stated that they bought the house in 2005, and it has always been the intention to put in a two-car garage. He said Zoning Board of Adjustment August 27, 2013 Page 3 that the plot plan didn’t seem to match up with the existing conditions on the property. He said that they did have the property surveyed by Hayner Swanson Inc., and the results showed that the house does not sit squarely on the lot, it sits at an angle. He said that if they construct a standard 24-foot wide garage, the front of it will be within the setbacks, but the rear will not. Mr. Wakefield said that they are requesting a variance to encroach into the side, to construct the garage. He said there will be about 85 square feet of total encroachment, and if approved, it will bring great value to the neighborhood, and allow shelter for the vehicles, store equipment. He said that they have a temporary shelter in the rear yard that they’d like to take down. He said that the major hardship is that the house wasn’t built squarely on the lot. Mr. Reppucci asked if there would be plenty of room to get around the side if the garage is built. Mr. Wakefield agreed. He said on the other side of the property, there is very easy access to the rear of the lot. Mr. Currier asked about Exhibit 2. Mr. Wakefield said that is a drawing showing how the house would look if it was actually built square to the street. Mr. Currier asked about the height of the frost wall in the rear. Mr. Wakefield said the construction will look like the current one does, it will be matched to existing. Mr. Currier asked if the proposed garage would be casting a shadow on the neighbor’s driveway. Mr. Wakefield said he talked to most all the neighbors, and has taken that issue into consideration. He said in the winter, they use the space between the two driveways for snow-blown snow off the driveway. SPEAKING IN FAVOR: Zoning Board of Adjustment August 27, 2013 Page 4 Jose Hechavarria, 103 Westwood Drive, Nashua, NH. Mr. Hechevarria said that he lives directly across the street. He said that with the harsh New England winters, he is in favor of it, and it will improve property values. Brian Morrissey, 102 Westwood Drive, Nashua, NH. Mr. Morrissey said he lives across the street. He said that for fire emergencies, there is access to the rear of the lot. He said that it is a reasonable use of the property, and it will be consistent with other houses in the neighborhood. He said it’s better than the zip-up temporary shelter out back. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Patricia Prendergast, 19 Wethersfield Road, Nashua, NH. Ms. Prenergast said she can’t make a decision on this case right now, and would appreciate if the Board waits for a decision. Robert Prendergast, 11 Rugby Rd, Nashua, NH. Mr. Prendergast said that there is a concern about his sister’s property, on the property values. He said the garage is considerably closer to their house. He suggested that perhaps they build a one-car garage, and then they wouldn’t need any variance. Mr. Reppucci reminded the audience that there is a misconception that abutters can have a say in the outcome of a case, and it’s not so. He said their input is welcome for the Board to consider. He said that if the applicant meets the points of law, the Board must approve the case. SPEAKING IN FAVOR – REBUTTAL: Mr. Wakefield said that Patricia is the one most affected by the proposed garage. He said that if the entire side of the garage side wall were to be in the setback, they wouldn’t go forward with the request. He said they have no interest in jeopardizing their neighbor’s property. He said that they have a good relationship with their neighbor’s. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. Mr. Boucher said one of the points of law is that the request cannot adversely affect the property values of surrounding Zoning Board of Adjustment August 27, 2013 Page 5 parcels. He said that he wants the abutter to know that the Board considers this seriously when we vote. Mr. Currier said that he’s taking the abutters input seriously. He said he appreciates it when an applicant tapes out the area where they want to build and show it in a picture, it’s a great way to visualize a request. Mr. Shaw said it looks like it’s about 32 feet from the edge of 19 Wethersfield, so if they wanted to put in a 24 foot wide garage, that would only leave them 8 feet, so it would be a two- foot incursion into the side yard setback. He said it would be a similar situation if they want a full two-car garage. He said the home was sort of twisted on the lot when it was built, and the encroachment is just a small corner into the setback, it’s not the whole length of the garage. Mr. Johnson said he concurs with Mr. Shaw. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant as advertised. 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. Mr. Reppucci 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, actually there were abutters who testified that it will improve the neighborhood, and substantial justice is served. SECONDED by Mr. Boucher. Mr. Shaw said the house was placed in a rotated, or twisted position, from the original proposed plot plan, and that the Board is approving this based upon the proposed plan that shows only an 85 square foot incursion, and it’s not relief for a 5 foot incursion on the entire length of the structure into the side yard setback. Mr. Reppucci agreed with Mr. Shaw’s statement. Zoning Board of Adjustment August 27, 2013 Page 6 MOTION CARRIED 4-1 (Mr. Currier) 3. Ventura-Nashua, LLC (Owner) Members First Credit Union of NH (Applicant) 511 & 515 West Hollis Street (Sheet E Lots 1381 & 1495) requesting use variance to allow a credit union facility with a drive-through. PI Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson Robert Shaw J.P. Boucher Attorney Ari Pollack, Gallagher, Callahan & Gartrell, P.A., Concord, NH. Atty. Pollack said they are asking for a variance for a stand-alone credit union branch with a drive-through on a portion of 511 & 515 West Hollis Street. He said that the overall site is 8 acres, and the credit union is asking to use one acre of the overall lot that they want to subdivide out. Atty. Pollack stated that the branch would have a 3,000 square foot building, a drive-up and an ATM lane, that would house approximately 6-7 employees, who would work the usual bank hours, Monday-Friday and Saturday mornings. He said the variance is necessary, because the lot is in the PI zone, where credit unions are allowed as a conditional use, but only if used as part of a larger industrial or manufacturing development. He said if the request is granted, they would have to go before the Planning Board for a conditional use and a subdivision and site plan. Atty. Pollack identified a map showing the proposed one acre lot within the total 8 acre lot, and it shows a conceptual layout of the bank and parking areas. He said there was much discussion on where on the property the bank would go. He said they’ve also met with and discussed the case with the Ward Alderman and Mayor. Atty. Pollack said the site had some historical use as a municipal landfill. He said the credit union has hired Environ, a leading environmental consulting group, with offices in Massachusetts and New Hampshire, and they’ve been asked to study Zoning Board of Adjustment August 27, 2013 Page 7 the property. He said of the 8 acres, they’ve found the best location on the lot to develop. He said if the variance is granted, the credit union has authorized a further and more concentrated study of the one acre area to determine, through core samples and test pits, what really does exist. He said if the study contains asbestos, volatile organics or other chemicals that are in high concentrations, the credit union will not pursue the site. Atty. Pollack said that the variance would not be contrary to the public interest. He said that this case is similar to the Chester Gun Club case, because the credit union is a conditional use already, and its consistent with the City’s Master Plan for commercial use. He said they are looking to build a small cape- style building that will look residential. Atty. Pollack said that the proposed use will observe the spirit and intent of the ordinance, the credit union is already a conditional use in the zone, and the variance will allow a small drive-through facility. Atty. Pollack stated that substantial justice would be done by granting the request, as a larger industrial use would not fit into this area on this lot, especially if there are environmental concerns. Atty. Pollack stated that the property values will not be diminished, as the building will be tastefully done and will be a substantial improvement over the unsightly neglected site. Atty. Pollack said that the hardship exists, as the property, being a former landfill, has substantial limitations on what can be built here, and the site can’t be looked at as having a large scale development for an industrial use. Mr. Currier asked why they chose a portion of the property right in the center of the lot. Atty. Pollack said that the proposed location is the environmental consultant’s best guess as to the limits of the landfilled area underground. He said they want the building to be out of that area, in front of the landfilled area. He said another corner had the potential to an old wetland area, and they didn’t want their driveways to be right at the Zoning Board of Adjustment August 27, 2013 Page 8 intersection, and the proposed driveways are a safer distance away. Mr. Reppucci asked if the building would have a basement. Atty. Pollack said it’s not advisable for the bank to have a basement, and it’s not needed. SPEAKING IN FAVOR: Bruce Leighton, President, Members First Credit Union. Mr. Leighton said that they are a small credit union, with about $140 million in assets. He said they don’t believe that they’d outgrow the site, and in today’s market, most people do all their banking online. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Paula Johnson, 15 Westborn Drive, Nashua, NH. Mrs. Johnson said the traffic is dangerous at this intersection, especially the right hand lane. She said she is concerned with anyone building on top of an old landfill, with asbestos. She said it was a landfill in the 1960’s, and no one kept records of what is buried there. Chris Seibert, 28 Heather Court, Nashua, NH. Ms. Seibert said she agrees with the concerns about the traffic. She asked about the entrance into the property, whether or not it’s just a right turn into the property. Mr. Reppucci said only westbound traffic will be able to enter the site, and anyone exiting the site can only go westbound. Tim Glenday, 8 Cherryfield Drive, Nashua, NH. Mr. Glenday said he lives about two miles west of the location. He stated that his concern is to have additional curb-cuts on West Hollis Street. He asked about the vehicular level of service at the traffic light at the intersection. Doug Simons, Norma Drive, Nashua, NH. Mr. Simons said at that intersection, there is no right turn on red. He said that to add another egress road onto West Hollis Street is a big mistake. He said that high school kids will be cutting through the bank parking lot all the time. Zoning Board of Adjustment August 27, 2013 Page 9 Alderman Jim Donchess, 4 Rockland Street, Nashua, NH. Ald. Donchess said his concerns relate to traffic and the environmental issues. He said this stretch of road is dangerous, as it narrows down to two lanes after the bridge. He said that the public interest criteria isn’t satisfied. He said it isn’t satisfied, to create more curb-cuts on West Hollis Street. He said it’s congested here, the road narrows, and it’s a safety issue. He said a lot of drivers will cut through the parking lot. He said he didn’t hear a lot of thorough discussions on the environmental issues, either. Alderman Mike Tabacsko, 5 Federal Hill Road, Nashua, NH. Ald. Tabacsko said he’s not in favor of anything on West Hollis Street that would turn it into Amherst Street. He said that the credit union does seem to be the least impactful use that could go here, and the use should be ok. He said that everyone has already pointed out the traffic and environmental issues. He said that if this is approved, it only gets the applicant to the next level. He said the full environmental study will be very costly, and we need to know what is there. He said that the traffic issues can be addressed at the Planning Board level. He said the use is fine on the acre that they propose. Michael Joseph, 7 Clovercrest Drive, Nashua, NH. Mr. Joseph said that there is a high school nearby, which will create bottlenecks for traffic, and there are a lot of kids on bikes. He said that any use that adds to traffic at this intersection is a concern, from a school-related point of view. SPEAKING IN FAVOR – REBUTTAL: Atty. Pollack said he followed the discussions that have taken place. He said that the environmental inquiry is very expensive, and as far as traffic is concerned, it is realized, and with respect to the driveways, one is proposed to connect to Riverside Drive, it’s just not exactly determined exactly where it would be. He said the use is allowed as a Conditional Use permit, and the use variance is only for the drive-through. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Paula Johnson, 15 Westborn Drive, Nashua. Mrs. Johnson said people always cut through parking lots, it’s just human nature. She said the road, where it narrows down, is a death trap. She said people cut one another off when merging. She said she Zoning Board of Adjustment August 27, 2013 Page 10 didn’t know if the credit union is the best thing for this location. She said there are still many unknown issues about the environmental, and there is still concern about the other 7 acres out of the 8 acre site that will be left undeveloped. She said that Stellos Stadium was placed where it is because of the landfill, and that parking lot was hot-topped. Mr. Johnson said that the applicant has done their homework, but said that he has concerns about the traffic on West Hollis Street. He said he believes that there is a public interest issue. Mr. Currier said he was relieved to first know that a bank was going here, as it’s a low impact use. He said they realize that traffic is an issue here. He said he doesn’t agree with the statements made in testimony that the traffic is bad, and therefore, we shouldn’t approve any new development on this parcel. He said he has a hard time supporting a no development position. He said he is in favor of supporting the case as proposed. Mr. Reppucci said he can’t think of any commercial use that is less intensive than a credit union. He said the item that causes him the most concern is that we have this gigantic piece of land, and they’re carving out this one acre to focus on, and not even talk about the rest of it. He said the property, the entire 8 acres, should be looked at as one piece of land. He said that the credit union won’t create much traffic. He said that he doesn’t know of the implications of the rest of the property. Mr. Shaw said that the applicant just doesn’t have any plans for the rest of the site, they don’t know. He said if the owner just allows the remainder to be developed with a Park Industrial use, they’d actually be satisfying the criteria that this variance is trying to get around right now. He said it’s the owner’s right and privilege to do that. He said that any use that’s not allowed in the PI zone would have to come back before the Board for a variance. He said in all likelihood, we don’t really need to know their intentions right now, and they just don’t know what they want on the rest of the lot. He said the proposed use should be fine. Mr. Reppucci asked about mitigation, they’re cutting out this piece of land, and it’s surrounded on three sides by potentially Zoning Board of Adjustment August 27, 2013 Page 11 contaminated land that’s not mitigated. He asked about leachable things that are in the ground, and over the course of a few years, it could cause contamination on the bank site. He said it makes him uncomfortable not knowing what could happen. Mr. Shaw said the applicant did mention a vapor recovery system that will be built in, that is potentially a leg up on any mediation that might need to be done due to the adjacent part of the property. He said it’s in the bank’s best interest to do whatever they need to do to develop the property to provide as much barrier to any further detriment to this one acre parcel. Mr. Currier said that if this is approved, they’d have to drill borings, and any part of an environmental cleanup involves monitoring wells. He said if this is approved, it facilitates the step of the environmental assessment to see if it’s feasible to build a structure on the lot. Mr. Boucher said he’s in agreement with the use at the site. He said that they wouldn’t spend the money knowing that the site would be contaminated, so whatever the process is, they’ll know that in the report, they’ll know what the future will hold as far as re-contamination. He said the benefit to the public interest is to know what’s there, and what will be for the future. He said the applicant wouldn’t be interested in developing the site with no entrance to West Hollis Street. He said he didn’t feel comfortable in restricting that at this point, because there may be other alternatives, or other ways for traffic. Mr. Shaw said that all the concerns about traffic have been brought up. He said that if the case is approved, it will still have to go to the Planning Board. Mr. Johnson said he’s fine with the use. He said in the Use Table, it’s supposed to be part of a larger development, rather than just a bank. He said with the homework, and the logic that’s been presented, the testimony, in this situation, the traffic as discussed is an issue against the public interest. He said the Planning Board will review it, but said he doesn’t see how the safety test resonates. He said he’s in favor generally, but is concerned about the curb-cuts on West Hollis Street. Zoning Board of Adjustment August 27, 2013 Page 12 MOTION by Mr. Currier to grant the variance on behalf of the applicant, as advertised. Mr. Currier stated that the zoning restriction in a PI Zone interferes with the landowner’s reasonable use of the property. He said that is the case, because the proposed use on this acre is less intensive than a typical PI use. He said that this parcel is in the middle of a busy intersection, near a high school, however, the use as a credit union facility, the Board finds it a light intense use, and therefore, worthy of the use variance. Mr. Currier said the Board received a lot of testimony on the West Hollis Street curb-cuts, and the Board is not endorsing the curb-cuts as designed, but is also not denying it, the motion is asked to be judged upon the Planning Board. Mr. Currier said the request is within the spirit and intent of the ordinance, and it will not adversely affect property values of surrounding parcels. Mr. Currier said that the light intensity use is not contrary to the public interest, and substantial justice is served. Mr. Currier said that this approval does not deny the West Hollis Street curb-cuts, but it is not necessarily endorsing them, and it’ll be up to the Planning Board for their serious consideration. SECONDED by Mr. Shaw. Mr. Johnson said he liked the Motion. He said the Motion won over his vote, that the Board is not endorsing the curb-cuts on West Hollis Street. Mr. Reppucci said that the initial presentation spoke about locating that somewhere under that line on the plan, and that the applicant said that if the location of the acre were to change, it would have to come back before the Board. Mr. Shaw said if it substantially changes, not if it’s just a little bit. Mr. Reppucci said he won’t support the Motion, but thought the Board spoke well of every issue raised. He said his concern with approving this, is that he’s uncomfortable with knowing how things would be mitigated before we approve this. He said on Zoning Board of Adjustment August 27, 2013 Page 13 this specific lot, it’s reasonable to know what will be done with the rest of the land. He said the mitigation issue doesn’t sit well with him. MOTION CARRIED 4-1 (Mr. Reppucci). MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: August 13, 2013: MOTION by Mr. Reppucci to approve the minutes as presented, 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 9:35 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing