Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 10, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 10, 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. Aranco Realty, Inc. (Owner) 159 Amherst Street (Sheet 60 Lot 4) requesting the following variances to replace an existing nonconforming ground sign: 1) to exceed maximum sign area, 32 sq.ft allowed, 90 sq.ft existing - 75 sq.ft proposed; 2) to exceed maximum ground sign height, 6 ft permitted, 16 feet existing – 23 feet proposed; 3) to allow a portion of the sign to have manually changeable copy; and 4) to encroach 10 feet into the 10 foot required setback. LB Zone, Ward 2. Voting on this case: Gerry Reppucci Rick Johnson JP Boucher David Creed Attorney Thomas J. Leonard, Welts, White & Fontaine, 29 Factory Street, Nashua, NH. Atty. Leonard said the site is the Citgo station on Amherst Street, near Rite Aid and St. Laurent Auto. He said it is located in the LB, Local Business Zone. He submitted a packet of information to the Board. He said that many of the existing uses nearby have been there for a long Zoning Board of Adjustment September 10, 2013 Page 2 time. He distributed some pictures to the Board, and described the nearby businesses. Atty. Leonard said that the existing sign is 90 square feet, that is 16’-4” tall. He said on the drawing, the proposed sign is on the right, it’s a narrower version, it’s the “Euro” design, it’s 75 square feet, and has the four sections of gas prices, and some changeable copy. He said even though the proposed size is less than the existing sign, its nonconforming and still over the allowable amount. Atty. Leonard said they want the extra height mainly for additional traffic visibility, as the existing sign is very close to the roadway, and it interferes with visibility. He said that another consideration is that with the changeable copy, it shouldn’t be too low due to potential vandalism. He said the extra height is for increased visibility and safety. Atty. Leonard stated that they are requesting a variance for the setback as well. He said that during their research, it was noted that the sign was placed in a location where they didn’t think it was, as it’s partially located on the abutting property. He said that issue has to be resolved, and they are requesting a zero setback. He said that the primary reason is because with the present conditions it is very difficult to see oncoming traffic from the east heading towards the highway. He showed the existing and proposed signs on one of the submitted pictures. Atty. Leonard went over the variance points of law to the Boards satisfaction. Mr. Johnson asked if a sign that advertises diesel gas is proposed. He asked about signage change at the pump islands. Atty. Leonard said they will have a sign that has the diesel pricing, and the signage over the pump islands is approved. Mr. Falk said that staff doesn’t really get too involved with the little signage on the pumps. SPEAKING IN FAVOR: Mr. Paul Kenney, Aranco Oil, Concord, NH. Mr. Kenney stated that the signage is new station identification for the Citgo Zoning Board of Adjustment September 10, 2013 Page 3 facilities. He said the canopy will also be changed to the new design. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the variance on behalf of the owner, as advertised, with all requests considered collectively. 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 stated that the request is within the spirit and intent of the ordinance; there are no adverse affects on property values on surrounding parcels. Mr. Boucher said it is not contrary to the public interest, and that substantial justice is served. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 4-0. 2. Linear Retail Nashua #1, LLC (Owner) 221 Daniel Webster Highway (Sheet A Lot 761) requesting variance to allow a turn in a drive-through exit from the center line of the pickup window at 30 feet, where 60 feet is required. HB Zone, Ward 8. Voting on this case: Gerry Reppucci Rick Johnson David Creed J.P. Boucher Bob Cormier, Cuoco and Cormier, 74 Northeastern Boulevard, Nashua, NH. Mr. Cormier stated that the property is in the Highway Business Zone. He said the building is the existing Pier One Imports at Daniel Webster Plaza. He said that Pier One is planning on relocating, and the westerly portion of the building, approximately 1,900 square feet, will become a Zoning Board of Adjustment September 10, 2013 Page 4 Starbucks Coffee Shop. He said the other side of the building will be a restaurant. He said they appeared before the Planning Board last Thursday, and received a conditional approval to go ahead with the site plan, pending Zoning Board approval. Mr. Cormier said that a professional traffic study done, and gave a copy of it to the Board, and briefly described it. He said the Starbucks at Exit 6 is very similar to this site. He said at that site, they have 42 feet from the pickup window to the exit, so they don’t meet the Ordinance as well, as evidenced by the pictures that were submitted. Mr. Cormier said that the spirit and intent of the Ordinance is met because the proposed drive-through lane is contained within property, and is approximately 1,000 feet from the public right- of-way. He said there won’t be any traffic impacts to the roadway. He said there will be no impact to property values, and the proposed site layout will improve the views from Daniel Webster Highway with additional green spaces. He said the public benefit will be met, and substantial justice is served. Mr. Boucher asked if the traffic flow coming into the drive- through lane could be coming from the front of the building or from the side, he asked if there is a designated lane on where to go. Mr. Cormier said it will be a one-way system around the building, there will be crosswalks, too. He said that according to the traffic study, coffee shops typically have 11-13 vehicles cueing, the proposed site has room for 14 cars up to the crosswalk before you get to the front of the building. Mr. Boucher asked if there will be any planned outside seating. Mr. Cormier said there will be a sitting area on the easterly side of the restaurant. Mr. Creed asked if there will be one or two lanes in the drive- through. Mr. Cormier said two, one for cueing, and one for bypass. He said that during the morning traffic rush, all the stores in the Plaza are closed. Zoning Board of Adjustment September 10, 2013 Page 5 Mr. Boucher asked if there will be any cross-access with the new development currently under construction next door. Mr. Cormier said that there is a retaining wall about 8 feet down. He said the driveway by the pickup window will go down by the Walgreens Pharmacy, so people could get over to the traffic light at Royal Ridge Drive. He said there will be a lot of cross-connectivity between these properties. Mr. Reppucci asked why this case went before the Planning Board before coming to the Zoning Board. Mr. Cormier said that the reason was that there was a lease obligation with the tenant, and they didn’t want to lose the tenant. He said if they waited, they’d lose the tenant. He said that the Planning Board had a condition that it has to get approved by the Zoning Board. Mr. Boucher asked about the window location. SPEAKING IN FAVOR: Gordon Whitman, Linear Retail Properties, Burlington, MA. Mr. Whitman said that the tenant wouldn’t accept any other location. He said the problem with that other back location is that it’s not optimal in serving customers. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. 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. He said that the plan was reviewed by the Planning Board, and they considered it a good plan. Mr. Reppucci said that the case is within the spirit and intent of the ordinance, it will not adversely affect the property Zoning Board of Adjustment September 10, 2013 Page 6 values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 3. Galen Rose (Owner) “L” Monica Drive (Sheet B Lots 854 & 855) requesting special exception to construct two single family homes on two vacant lots of record. R18 Zone, Ward 8. Voting on this case: Gerry Reppucci Rick Johnson David Creed J.P. Boucher Bob Cormier, Cuoco and Cormier, 74 Northeastern Boulevard, Nashua, NH. Mr. Cormier said these are the two last remaining lots in the subdivision, they go back to 1964, before the wetlands ordinance was in place. He said the wetlands were identified by a certified wetland scientist, and they are surveyed. He said it is a 75-foot buffer designation from Salmon Brook. Mr. Cormier said the buffer is the yellow line on the plan. He said the lot on the left would have a small encroachment into the wetland buffer, and the disturbed area would be reclaimed afterwards. He said the applicant would build his own home there, and has a specific building footprint in mind. He said that one corner of the house would occupy 165 square feet of the buffer Mr. Cormier said the other lot on the right side, the buffer swings closer to Monica Drive, almost to the building setback line. He said the footprint is similar, but has no idea if the person buying the lot would have a need to have the house all on one floor, or to go to two stories. Mr. Reppucci read the Conservation Commission letter, #7. He said that the letter says that the house shall be made smaller. He asked how much into the setback would the house be. Zoning Board of Adjustment September 10, 2013 Page 7 Mr. Cormier said the buffer comes very close to the front yard setback of the lot, and there would only be 5-10 feet in the right hand corner. He said that whatever type of home is built on this lot, it is substantial. He said that both of these house lots are on a fairly level area, before they slope down to the brook. He said they’re 20-25 feet above the wetlands and the flood plain. He said none of the construction will impede the flow of the brook, and the houses would be quite elevated above the wetlands. Mr. Cormier said that any trees cut on the lot will have their stumps remain in place. He said there will be erosion control set up during construction, there will be a stone drainage channel around both homes for ground recharge, and other than the asphalted driveways, any patios, sidewalks, back-up spaces will be porous pavers. He said that there are no endangered species on the property. He went over the Conservation Commission stipulations of approval, and the special exception points of law for approval. SPEAKING IN FAVOR: Galen Rose, Monica Drive, Nashua, NH. Mr. Rose said he’s looking to build a single-story home. He said he used to live right up the road on East Dunstable Road, and knows several neighbors. He said these homes will complete the neighborhood, and they’ve been looking for this for a long time. He said the vacant lots aren’t good for the neighborhood. Mr. Creed asked about the bank, the buffer, and the stability of the water body’s bank. Mr. Rose said they walked the property with the Conservation Commission. He said the lots are very flat, and the bank drops off rather sharply to the water. He said there will be no building on the bank, it’ll be kept as is. He said if need be, there may be a small retaining wall to maintain the flatness for a small back yard. He said they should be able to get almost any home within the building envelope as shown. Mr. Reppucci said for the house on the right, he didn’t understand what impact the building footprint would have on the buffer. Zoning Board of Adjustment September 10, 2013 Page 8 Mr. Cormier said the house on the right would have a substantial part of the footprint in the wetland buffer. He said that the Conservation Commission wanted to see the proposed building footprint. Mr. Rose said that the Commission wanted less roof space, so there would be less water runoff to the river. Mr. Reppucci asked if there will be a difference, at all, to the impact to this site from a 2,400 square foot footprint, to a 2,000 square foot footprint. Mr. Cormier said it would be very insignificant, and there is the ability with recharge chambers to absorb that back into the ground. Mr. Johnson asked how the home would be supported. Mr. Cormier said there would be a foundation, it would be a normal house on the foundation. He said the house will be built in the flat area, not within the slope. Bill Machell, 8 Monica Drive, Nashua, NH. Mr. Machell said he lives right across the street, and has no objection to the houses being built here. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ron Eskin, 5 Monica Drive, Nashua, NH. Mr. Eskin said he lives to the right of the subject lots. He asked if a retaining wall is required at the corner. Mr. Reppucci said if this case is approved, the Board will allow activity in the wetland buffer to a very specific delineated line. He said if the applicant is going to exceed the line, they’ll have to come back to the Board. He said that ultimately, any applicant cannot do any long-term harm to the buffer, and restore it to its original situation. He said if they put in a retaining wall within the area they’re approved to work in, it’s ok. Mr. Falk said that the applicant has submitted a plan for development of the two homes. He said if the request turns out to be that they’re going further into the wetland buffer as the plan shows, they’ll have to come back to the Board. Zoning Board of Adjustment September 10, 2013 Page 9 Mr. Eskin asked if the plan implies that fill will be brought in to make the lot level, how the lot will be finished off, or if it’ll be backfilled, or if the retaining wall is required because of the fill. He asked if it would be stepped down at all. Mr. Reppucci said that the applicant isn’t building a house on the slope, he’s building on the flat surface that’s there. He said the slope doesn’t start until the area past where they are building. SPEAKING IN FAVOR – REBUTTAL: Mr. Cormier said that they indicated the limits of construction, it’s all designated. He said they understand that they have to accomplish their program within that area, for the house and any re-grading. He said they’re not going to exceed anything that is being asked for this evening. Mr. Rose said that the idea of the retaining wall and/or a deck area is to make sure that for the future, if we have to work on the back of the building, that we won’t be in the slope, but rather, in the flat surface to get ladders back there. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Eskin said if a retaining wall is required, it’s more of an engineering decision, rather than a Conservation Commission decision. Mr. Cormier said that no matter what, we can’t exceed the limit of construction as shown on the plan. Mr. Creed said he has some issues with this case procedurally. He said he can support Lot 855, but not Lot 854, it’s so much into the wetland buffer, and the house is right at the edge. He said it’s an undefined envelope, and we should have had two different applications. Mr. Reppucci said the request doesn’t say exactly how much of an incursion, it’s just to work in the buffer. He said he understands Mr. Creed’s position. He said he has a problem, procedurally, with the Conservation Commission’s letter, stipulation #7. He said that he tremendously respects the Zoning Board of Adjustment September 10, 2013 Page 10 Commission, but said that they sometimes think they have authority that they do not have. He said they can’t do stipulation #7, as they have no statutory authority to do that at all. He said that they are strictly a recommending body. He said he heard testimony that the impact is negligible for a smaller building footprint. He said he is in favor of removing stipulation #7. Mr. Johnson agreed with Mr. Creed, in that there should have been two separate applications. He agreed that the Conservation Commission is a recommending body, and it’s encroaching on their authority. He said that stipulation #7 should be struck, and they should comply with the remaining seven guidelines from the Conservation Commission’s letter. He said he’d go along with approving this case, but not with stipulation #7, as it exceeds their authority. Mr. Boucher said he really questions stipulation #7 as well. He said that in hearing the testimony from the engineer, he feels very comfortable whether the house is the proposed size or smaller. He said the recharge will be the same, too. He said he really respects the Conservation Commission, but feels that stipulation #7 should be struck. Mr. Creed said for stipulation #7, maybe this isn’t a valid approval, meaning that the Conservation Commission, there’s problems with how they go about their business, and that the whole approval letter is flawed. He said their job as a recommending Board, and not an approval Board, what they did was that they took a undefinitized proposal, a blank check for 2,400 square feet, and said to go ahead and start, and come back to us so we can give approval. He said that’s not an approval at all, it’s not a decision at all, it’s a random thought. Mr. Reppucci suggested it should have said that the project received a positive recommendation from the Conservation Commission, it shouldn’t say that they got approval from them. He said that their letter is not a binding letter, with respect to land use. He said he could look at the letter, and take seven out of the eight stipulations to carry forward. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant, as advertised. Mr. Reppucci said that the request is listed in the Table of Uses, Section 190-112. He stated that it will not create undue traffic congestion or Zoning Board of Adjustment September 10, 2013 Page 11 unduly impair pedestrian safety. He said that it will not overload public water, drainage or sewer or other municipal systems. Mr. Reppucci said that all the special regulations are fulfilled, the wetland special conditions identified in the zoning/land use code, and all nine of those conditions are met by testimony of the applicant. Mr. Reppucci said the request will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of the residents, actually, testimony was heard from an abutter who felt it would improve the neighborhood. Mr. Reppucci said the approval is simply to work within the wetland buffer. He said for a special condition, in referencing the September 9, 2013 letter from the Conservation Commission, they recommend project approval on 8 conditions. He said that the Zoning Board finds that those are all special conditions that they meet, with the exception of #7 (stipulation read). He said that the minutes of said Conservation Commission meeting be incorporated into the ZBA’s minutes. Mr. Reppucci said the approval is based upon the submitted plan in the application. SECONDED by Mr. Johnson. MOTION CARRIED 3-1 (Mr. Creed). MISCELLANEOUS: REGIONAL IMPACT: The Board did not see any cases of Regional Impact. MINUTES: None. Mr. Reppucci said that Mr. Currier is now an Alderman candidate, and will not be attending the Zoning Board meetings until after the election is over. He said that since Mr. Currier is the Vice Chairman, if he (Mr. Reppucci) cannot make a meeting as Zoning Board of Adjustment September 10, 2013 Page 12 Chairman, the By-Laws are not clear as to who would run the meeting in the absence of the Chairman and Vice Chairman. He said the By-Laws do not allow alternate members to vote on cases. MOTION by Mr. Reppucci to amend the By-Laws to say that if neither the Chair or Vice Chair is present, but a quorum is present, including full members or alternate members, that all members present have the authority to decide to appoint a Chairman for that evening to run the meeting. Mr. Johnson said if the Clerk is there, he/she could run the meeting. Mr. Reppucci said that is fine. Mr. Boucher said if the Clerk isn’t there, then a vote could be done amongst the members present who’d run the meeting. Mr. Falk said he’d provide the Board with a draft of the revised By-Laws by the next meeting. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:30 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing