Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING October 22, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, October 22, 2013 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci, Chair Rob Shaw J.P. Boucher Rick Johnson 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. Min Pin Properties, LLC (Owner) 36 Central Street (Sheet 83 Lot 55) requesting variance for minimum lot area, 5,227 sq.ft existing, 6,969 sq.ft required - to maintain property as a two-family structure. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson JP Boucher David Creed Bruce Hansen, 5 Trombly Terrace, Nashua, NH. Mr. Hansen stated that in about 2007 he purchased the property as a two-family. He said that the building had a fire in it, and to repair the damage and work with the insurance, a building permit is required. He said that he cannot obtain a building permit, because the City considers the structure as a single-family home. Mr. Hansen said that over the years, the City has identified the building as a two-family, a single-family, an in-law apartment. Zoning Board of Adjustment October 22, 2013 Page 2 He said the property was purchased as an investment property, and the units that are there are pre-existing, and have been there since at least 1982, and during inspections over the years, it was considered to be a two-family. Mr. Reppucci asked what the tax bill indicates. Mr. Hansen said it lists it as a single-family. He said it’s been discussed at the front counter in the Planning Department. He said it’s been a two-family for at least as long as he’s owned it. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Jesus Gutierrez, 23 Ash Street, Nashua. Mr. Gutierrez asked what the proposal was, he wasn’t necessarily against it, he just wanted to learn about the process and why they were notified. Mr. Reppucci went over the process of variances, and the State of New Hampshire RSA that requires property abutters to be notified. SPEAKING IN FAVOR – REBUTTAL: None. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS - REBUTTAL: None. MOTION by Mr. Boucher to grant the variance on behalf of the owner 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 October 22, 2013 Page 3 Mr. Boucher said that the case is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, the Board heard testimony that the property that this property has been a two-family, or used as a two-family for many years. Mr. Boucher said that the request is not contrary to the public interest, the construction work will be for repairs to the fire- damaged building, and substantial justice is served. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 2. Stephen A. & Rachel A. Tower (Owners) 34 East Dunstable Road (Sheet 111 Lot 67) requesting variance for minimum open space, 50% required, 17% existing – 15% proposed – to construct a 12’x14’ shed. RA Zone, Ward 6. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson David Creed J.P. Boucher Rachel Tower, 34 East Dunstable Road, Nashua, NH. Mrs. Tower said that they originally wanted a permit for the shed, but were denied. Mrs. Tower said that they received a letter from the Planning staff, and it said that they were over on their minimum open space requirement. She said they then decided to apply for the variance. Mrs. Tower said that their driveway is large, and it takes up a lot of land area, but it was in existence when they bought their house. Mr. Reppucci said the issue isn’t necessarily the width or size of the driveway, it’s just that it takes up a lot of open space. Mr. Boucher asked if the proposed shed is going where the pool used to be. Zoning Board of Adjustment October 22, 2013 Page 4 Mrs. Tower said it is, and they are aware of the six-foot setback to the side and rear property lines. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to grant the variance on behalf of the owner as advertised. Mr. Shaw stated that per the application and testimony, the open space is such that there is already an encroachment into the open space requirement, and the placement of the shed will be where the pool was placed. He said that per testimony, there are no other alternatives to achieve this. Mr. Shaw said that the request will have no adverse affects on the property values of surrounding properties, it is within the spirit and intent of the ordinance, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 3. James Allard (Owner) 38 Amherst Street (Sheet 68 Lot 104) requesting variance for minimum lot area, 6,280 sq.ft existing, 13,936 sq.ft required, to maintain property as a four-unit structure. RC Zone, Ward 3. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson David Creed J.P. Boucher James Allard, 26 Cherokee Avenue, Nashua, NH. Mr. Allard said that he purchased the property in May 2000. He said that the Zoning Board of Adjustment October 22, 2013 Page 5 building has operated as a four-unit building, all within the existing layout, there are six parking spaces, and for the past thirteen years, said he’s not aware of any adverse affect on the traffic or the neighborhood. He said that there are two means of entering and exiting the property, from Fairmount Street and Amherst Street. He said the Fairmount Street access is a property that he owns at 40 Amherst Street. Mr. Allard said that the building has been operating for the past thirteen years as a four-unit building. He submitted a list of other nearby multi-family buildings. He said the hardship is that he purchased it as an owner-occupied, it’s laid out as a four unit. He said the only way to make it into a three unit is to create a four-bedroom unit, which isn’t a good idea in this neighborhood along Amherst Street. He submitted some aerial photos since 2001. Mr. Reppucci asked how this case got before the Zoning Board. Mr. Allard said that he had applied for a permit to renovate one of the units, and it was brought to his attention. Mr. Reppucci said that it may be that the entire building has to be brought up to Code if this is granted. Mr. Allard said he’s not sure if it’s just the fourth unit, or the whole building, he has to speak to the Building Department. Mr. Falk said it’s a building code issue, and it’s up to the Building Department. Mr. Reppucci said it’s not the Zoning Board’s purview, however, if the variance is granted, and change the permitted use of the structure from a three-family to a four-family, the owner may have no choice. He said it could be tens of thousands of dollars to renovate the building. After a brief discussion, the Board thought it would be best to Table the request to the next meeting. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION: Zoning Board of Adjustment October 22, 2013 Page 6 No one. MOTION by Mr. Shaw to Table the request to the November 12, 2013 meeting, as the first case on the Agenda. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 4. Crescent Properties Realty Trust (Owner) Batten Bros. Inc (Applicant) 493 & 495 Amherst Street (Sheet H Lots 163 & 166) requesting the following variances: 1) to exceed maximum ground sign area, 150 sq.ft allowed, 196.6 sq.ft proposed, and 2) to encroach 14 feet into the 20 foot required front yard setback – both requests to remove two existing ground signs and replace with one new ground sign. HB Zone, Ward 2. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson David Creed J.P. Boucher Jeff Sarra, Batten Bros. Signs, Wakefield, MA. Mr. Sarra said that they are requesting approval for a new free-standing sign at the site. The owners are doing a lot of renovation and updates to the site. He said the intent is to remove the two existing free-standing signs that are outdated, and replace them with one ground sign that is 46 square feet larger than what the Code allows. Mr. Sarra stated that the existing signs total 225 square feet, so the overall area is being reduced. He said the new sign would be in the same general location as the existing signs, and at the same setback areas. Mr. Sarra said that the proposed sign is similar in nature to many other signs on Amherst Street, and pictures were included in the packet. Zoning Board of Adjustment October 22, 2013 Page 7 Mr. Boucher asked about the height underneath the sign, and whether it will allow for visibility for traffic to see under the sign. Mr. Sarra said that traffic visibility will not be a problem. Mr. Boucher asked about the setback from the property line, and asked whether it will be closer to the street. Mr. Sarra said it will be the same, not less. Mr. Reppucci said that there is 225 square feet existing, and the new sign will be a net reduction in sign area. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Shaw said that the key point is that they are reducing the square footage of the ground signs, and visibility is still ok. MOTION by Mr. Boucher to grant the variance on behalf of the owner 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, the request reduces the total square footage of ground signage on the property. Mr. Boucher 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, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment October 22, 2013 Page 8 5. O.M. Lapointe Living Trust (Owner) 29 Monica Drive (Sheet B Lot 2272) requesting the following: 1) special exception to work in an “other” wetland and wetland buffer for site grading, tree removal, creation of a proposed 900 sq.ft pond, and to maintain an existing detached shed/garage, and; 2) variance to exceed maximum wall height, 6 feet allowed – up to 9 feet existing. R18 Zone, Ward 8. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson JP Boucher David Creed Attorney Morgan Hollis, Gottesman and Hollis, 39 East Pearl Street, Nashua, NH. Atty. Hollis identified the property on the plan and the surrounding properties, and the site is 3.8 acres. He said that Mr. LaPointe has been doing a great deal of landscaping on the site. He said the property is unique, in that it has a sewer easement going through the lot, and a stormwater outfall pipe, which has led to some erosion on the property. Atty. Hollis said that Mr. LaPointe is also seeking a variance for a retaining wall that exceeds the six-foot high limit. He said that the wall is existing, and showed pictures in the package of the construction. He said that he could have built a series of terraces under six feet high, but it takes up too much land and is much more costly. Atty. Hollis said that for a case to be contrary to the public interest, you must unduly, and to a marked degree, conflict with the ordinance such that it violates the ordinance’s objective. He said that the walls aren’t standing up alone in a residential neighborhood, where everyone looks at it. He said that the ones on this lot are backfilled. Atty. Hollis stated that the variance would not alter the essential character of the neighborhood, and it will not alter the health, safety and welfare of the neighborhood. He said the width of the retaining wall is significant, it’s not your average retaining wall. He said there is steel rebar in the Zoning Board of Adjustment October 22, 2013 Page 9 middle. He said that because the construction is so solid, there won’t be any issue with the public health, safety and welfare. Atty. Hollis said that the request will not alter the essential character of the neighborhood. He said the wall backs up to a very steep grade, and is well inside the property boundaries. Atty. Hollis said for the substantial justice, the owner would like to keep his straight run retaining wall, instead of a series of terraces and steps, the wall as existing is a better use of the property, and there are only sections of the wall that exceed six feet in height, it’s not the entirety of the wall. He said there is no harm in this wall, the Building Department is ok with how it’s constructed, it’s properly engineered, and is safe. Atty. Hollis said that the use will not diminish the values of surrounding parcels, it is all onsite, and there’s no real change of use on the property. Atty. Hollis stated that for the hardship, the property has special conditions, and the ordinance as applied to the property does not serve the purpose and restriction in a fair and reasonable way. He said the property has very steep slopes right near the house, and to have a retaining wall is reasonable. He said the lot is also unique, in that it has a number of features that the average property doesn’t, such as the sewer line and the stormwater drainage line. He said the main unique features are the size of the lot and the topography. He said the retaining wall is fair and reasonable, and is justified. Mr. Reppucci asked who built the retaining wall. Atty. Hollis said that Mr. LaPointe built it. Mr. Reppucci said the wall is pretty substantial, and asked how this case got to the Board. Atty. Hollis said the retaining wall is already built. He said it came up during the wetland issues, and they came in for the variance. He said there is no fencing at the top of the wall. Zoning Board of Adjustment October 22, 2013 Page 10 Oliver LaPointe, 29 Monica Drive, Nashua, NH. Mr. LaPointe said that there is a big pile of loam on the one side of the wall, as shown in the photos. Atty. Hollis said the photos show how the nine-foot sections are, and they’re two feet taller on the back side of the wall. He said if it was all terraced, it would meet the ordinance, but it would take up a lot of land area. Mr. Reppucci asked where the requirement is for fencing on top of a retaining wall. Atty. Hollis said it’s not in the Zoning Ordinance, he said he assumed it is located in the Building Code, whether it’s a structural wall, or retaining wall. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. The Board discussed whether to vote on the variance application or to hear the special exception next and vote on both of them together. Decision made to hear special exception, then vote on each case separately. Atty. Hollis stated that the special exception is for approval for the construction of cistern and pump and a 900 square foot pond, within the wetland buffer zone. He said they are also asking for the removal of existing accessway, existing stockpiles of rock, stones and soils within existing buffers and wetland areas. He said that the pictures tell quite a bit for the property. He said there have been a number of meetings with the Conservation Commission already, and site walks. He said the application, as presented, has met with the approval of the Conservation Commission. He said they met last week, and recommended approval. Atty. Hollis said that the application is a combination of the new proposal, Mr. LaPointe has an extensive garden, and he has a tremendous water bill, several hundred dollars, and he’s trying to capture the water on site, and in doing so, is creating the Zoning Board of Adjustment October 22, 2013 Page 11 900 square foot pond. He said the pond is in a place where the topography is low and flat, but it’s in a wetland buffer area. Atty. Hollis said it was determined that there were some wetland violation, and he’s been trying to fix some of the erosion issues on the lot. Atty. Hollis said that Mr. LaPointe meets the nine special conditions for wetlands. He went over the special exception criteria, and stated that the applicant meets all the points of law. Mark Jacobs, Wetland Scientist. Mr. Jacobs described the property, and the location of the wetland buffers and stormwater flow from other properties in the area. He said approximately one half of the 3.8 acre property is developed, with the home, garage and garden area, and stone walls. He said the rear of the property is largely forested. He said there is a sewer easement going through the property. He said that there is erosion going down the slope in the rear yard, and Mr. LaPointe has installed some stone rip-rap to address it, which is a Best Management Practice to control the erosion. Mr. Jacobs said that with the approval to bio-engineer the stream, using straw waddles at the toe slope, the sediment will be captured and it will stabilize the stream going forward. He said they will be restoring 1,260 square feet of wetland, and 5,750 square feet of buffer zone to its pre-existing condition as near as possible. He said they will be retaining 600 square feet of impacts for a portion of the cistern, and 1,500 square feet of new impacts, comprising of 600 square feet for temporary access to build the pond, and will be restored upon completion of the pond, and 900 square feet is the pond itself. Mr. Jacobs said that they met with the Conservation Commission four times over the course of the summer, there were two site walks with them, the most recent meeting was on October 15th. He said that they meet the nine special wetland criteria. Mr. Johnson said that in their packets, there are two approval letters, with different stipulations, from the Conservation Commission. He asked if one or the other letter supersedes the other. Zoning Board of Adjustment October 22, 2013 Page 12 Mr. Jacobs said that both letters are appropriate, and the letters should be taken in aggregate, and all stipulations from both letters count. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to grant 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; 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 said that the case is within the spirit and intent of the ordinance, given the topography that exists; it will not adversely affect the property values of surrounding parcels, actually, the nearest site is over 100 feet away from two potential properties that could observe it; it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Johnson to approve the special exception on behalf of the owner as advertised. Mr. Johnson said that the use is listed in the Table of Uses, Section 190-112. Mr. Johnson said that the proposed use will not create traffic congestion or unduly impair pedestrian safety. He said it will not overload public water, drainage or sewer or other municipal systems, all the special regulations are fulfilled, and the use will not impair the integrity or be out of character with the Zoning Board of Adjustment October 22, 2013 Page 13 neighborhood or be detrimental to the health, morals or welfare of residents. Mr. Johnson said that the proposal meets all the nine special wetland conditions per testimony. He said that all letters of approval from the Conservation Commission and all stipulations of approval, as well as the Conservation Commission minutes are included. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REGIONAL IMPACT: Mr. Falk said that there are no cases that will have Regional Impact. MINUTES: October 8, 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 8:22 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing