Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING December 10, 2013 A public hearing of the Zoning Board of Adjustment was held on Tuesday, December 10, 2013 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci Rob Shaw J.P. Boucher Jack Currier Rick Johnson 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. Peter Crutchley & Rachel Siegle (Owners) 15 Laramie Circle (Sheet C Lot 2033) requesting special exception to maintain an existing accessory (in-law) dwelling unit. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rob Shaw Jack Currier JP Boucher Rick Johnson Peter Crutchley, 15 Laramie Circle, Nashua, NH. Mr. Crutchley said that the in-law apartment has been there for thirty years, and they are requesting a special exception to use it. He said they found out when they tried to re-finance their house, and were told it’s not legal. He said the whole lower level is finished, with a bathroom, kitchen. Mr. Reppucci asked if the lower level has ever been rented to anyone. Zoning Board of Adjustment December 10, 2013 Page 2 Mr. Crutchley said no, and no one lives in it. He said on occasion, they use the stove downstairs. He said that they have no intent to rent the space out. Mr. Currier asked if they intend to use it for a blood relative. Mr. Crutchley said their kids or family use it if they come visit, but that’s about it. Mr. Currier asked if they are aware of the special conditions, and about the affidavit that is recorded at the Registry of Deeds. Mr. Crutchley said that he wasn’t aware of some of them, and read it over. Mr. Reppucci asked how the property is listed on the tax cards. Mr. Crutchley said it is identified as a single family home, it was built in 1982. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the special exception on behalf of the owner as advertised. Mr. Reppucci stated that the special exception is listed in the table of uses, Section 190-32. He said that it will not create undue traffic congestion, or unduly impair pedestrian safety. He said it will not overload public water, drainage or sewer or other municipal systems. He said that all special regulations are all met per testimony, and that the use 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. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment December 10, 2013 Page 3 2. DeMoulas Supermarkets, Inc. (Owner) 375 & 379 Amherst Street (Sheet G Lots 398 & 527) requesting special exception to work within a 40-foot wetland buffer to allow for reconstruction and pavement resurfacing construction of existing paved access drives and parking areas, and the construction of a new trash/recycling enclosure and maintenance shed. GB Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Earle Blatchford, Hayner, Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Blatchford said that the plan is to renovate the westerly portion of Somerset Plaza Shopping Center, at the corner of Amherst Street, Somerset Parkway, and Trafalgar Square. Mr. Blatchford said that along the westerly boundary of the property is Boire Brook, and contiguous to those, are two man- made swales, that were constructed when the center was built. He said they have forty-foot setbacks, and pointed them out on a map. He said that there is some existing pavement lying in the wetland buffer. He said that they are reducing the amount of impervious surface in the buffer, so, there is a net reduction of impact for the site of about 2,000 square feet over the whole site. He said that there is a slight reduction in square footage in the building area. He said that there will be no disturbances to the wetland itself, only to the buffer. He said that there will be a couple new small structures, the trash recycling enclosure, and a maintenance shed for storage of seasonal items. Mr. Blatchford said there will be some utilities around the maintenance shed, there will be some test pits. Mr. Blatchford said that last Tuesday, they met with the Conservation Commission and received approval. Mr. Johnson asked if they had received the Conservation Commission approval letter with the stipulations. Zoning Board of Adjustment December 10, 2013 Page 4 Mr. Blatchford said he hadn’t, and was given a copy. Mr. Johnson asked about the nine special conditions for approval. Mr. Blatchford said that they have no issues with them, and all will be satisfied. Mr. Jim Lamp, JNCo, Owners Rep. Mr. Lamp said they would put the conservation markers out, and to have no snow up against the wetlands. Mr. Currier asked to confirm about the snow storage, whether or not it cannot be stored in the wetland itself, or the buffer. Mr. Lamp said that he believes it’s the wetland, there can’t be a way to have no snow storage in the buffer, since some of the wetland buffers are actually in the pavement and drive aisles. Discussion ensued about the intent of the Conservation Commission stipulations. Mr. Blatchford said that the intent is to put the Conservation markers a little up-slope of the wetland buffer, so that the vegetated area expands a little bit. Mr. Lamp said that they’ll have a little sign that says no tractors and equipment in this area, its number 7 on the stipulations. Mr. Blatchford said that they’re coordinating the marker locations with Chris Sullivan, and they’ll be put in locations that are satisfactory to the Conservation Commission. He said it’ll be formalized with the site plan in the Planning Board process. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment December 10, 2013 Page 5 MOTION by Mr. Currier to grant the special exception on behalf of the applicant as advertised. Mr. Currier stated that the special exception is listed in the table of uses, Section 190-112. He said that it will not create undue traffic congestion, or unduly impair pedestrian safety. Mr. Currier said that the Board finds that it will not overload public water, drainage or sewer or other municipal systems, actually, the drainage will be improved with the project with less impervious surface, and they’ll be better vegetation to filter the water. He said that all special regulations are all met per testimony, and that the use 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. Mr. Currier said that the December 6, 2013 letter from the Conservation Commission is attached, and that the applicant will clarify and collaborate with the Conservation Commission, and Chris Sullivan, for the placement of the signs, and to clarify the specific language about the snow storage and mowing, and that will be included and clarified on the site plan. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 3. Reinaldo Soto & Amanda Arango (Owners) 65 Hills Ferry Road (Sheet 48 Lot 53) requesting the following: 1) special exception to allow an accessory (in-law) dwelling unit; and, 2) variance to exceed maximum accessory dwelling unit area, 30% allowed, 68% proposed. RA Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Andres Bueno, 15 Lucier Street, Nashua, NH. Mr. Bueno said that he will be speaking in behalf, and translating for Mr. Soto. Zoning Board of Adjustment December 10, 2013 Page 6 Mr. Bueno said that the unit was there, when the house was purchased, in May, 2013. Mr. Bueno said that the unit is only for himself and his family, and is asking for approval to continue with the request at his home. Mr. Boucher asked about the layout of the house. Mr. Bueno said that when they purchased the house, there was a bathroom down there, and a shower. He said that he wants to put a kitchen in there, for his own use and pleasure. Mr. Boucher asked if the intention is to rent to anyone, or if it is only for accommodating family. Mr. Bueno agreed. Mr. Johnson said the application says that the intent to care for an older relative that has some health issues, and asked if the bottom unit is being finished for occupancy for just that person. Mr. Bueno said there would be one person living there, not paying rent. Mr. Reppucci said the application is clear on what they are looking for. He said that the advertisement said that its 68% of the size of the house, and the ad is a miscalculation. He said that they’ll have 1,016 square feet of the regular house, and it’s an additional 700 square feet for the accessory unit, so the percentage should be 700 square feet into 1,700, not 700 of the original 1,000. He said the relief will be 40%, which is far less than what was advertised. Mr. Shaw said that there are special conditions that must be met. He went over the conditions. Mr. Bueno said that they would meet all the conditions. Mr. Currier asked if they’re using the full basement for the in- law apartment, and the story above that, which is mostly ground level, is that the main portion of the house. Zoning Board of Adjustment December 10, 2013 Page 7 Mr. Bueno said the in-law is for his grandparents, it is most of the basement. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Bob Burgess, 32 Bates Drive, Nashua, NH. Mr. Burgess said he lives about 1,000 feet away. He said they received a stop work order from the City for the work. He said the property is 24’x40’, a small ranch. He said his house is the same size, with three bedrooms. He said that two of the bedrooms couldn’t fit a full sized bed in. He said the neighbors are concerned, as there are always about seven vehicles in the driveway every day, for a small ranch. Mr. Reppucci went over the interior square footage space, and said it’s the proper amount. He said they’re refinishing the basement, and not expanding the footprint. He said that their application is pretty clear, and there’s a schematic drawing of what they want to do, and layout and dimensions of the rooms. He said its 700 square feet in size. Mr. Burgess said that we can’t control the number of family members living in one house, and most of the neighbors are upset and are worried about property values. He said that seven vehicles in the driveway is a real eyesore. He said that this is a small ranch, and doesn’t know where everyone will fit in there. Mr. Shaw said that the applicant has to fill out the affidavit about there will be only blood or marriage relations living in the house. Socrates Photiades, 131 Princeton Drive, Nashua, NH. Mr. Photiades said he lives almost directly across the street. He submitted a picture, showing that the space used to be a garage. He said after the new owners moved in, they’ve been doing a lot of construction occurring in the house. He said that they’ve been stopped for doing work already, and said that they should ask for permits and variances before doing the work. He said that one of the contractors used foul body language. Zoning Board of Adjustment December 10, 2013 Page 8 Richard Gelinas, 123 Concord Street, Nashua, NH. Mr. Gelinas said that he was initially concerned with the accessory use area of 68%. He said that after hearing the discussion, feels better about the 40%. SPEAKING IN FAVOR – REBUTTAL: Mr. Reppucci asked if the owner understands all the issues that were raised. Mr. Bueno said that the owner is sorry if he caused any ill feelings in the neighborhood, and has no control over contractor’s attitudes, but said he is sorry about it. He said that the owner has applied for every permit that is necessary. He said that he did the basement for Amanda’s grandmother, who has Alzheimers disease. Mr. Reppucci said that the Board doesn’t hold a property owner accountable for someone else’s actions. Mr. Shaw said that there was some discussion about the number of vehicles parked in the driveway, there was mention of seven vehicles, as well as the number of people living there, and asked to clarify. Mr. Bueno said that everyone in the house has a car, and one relative has two cars. He said that eight people live in the house. Mr. Currier said of the eight people living there, he asked if the grandparent with Alzheimers would make it nine people. Mr. Bueno said no, there are eight people including the grandparent. He said that the grandparent with Alzheimers isn’t at the house all year long, she goes to Florida. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Photiades asked who has Alzheimers. Mr. Reppucci said that it’s not relevant to the case. Mr. Photiades said that everyone who lives there, drives a car. Zoning Board of Adjustment December 10, 2013 Page 9 Mr. Reppucci said that this case does not involve the number of cars, or the number of people who live there. MOTION by Mr. Reppucci to grant the variance on behalf of the owner. He said that it was advertised at 68%, but in reality, it’s 41%. Mr. Reppucci said 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 discussion on the Board recognized the type of house it is, and to implement the change in the structure of the house, frequently it’s required to go beyond 30%, and this application is consistent with that. 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, there was no evidence that it would, it is not contrary to the public interest, and substantial justice is met. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Reppucci to grant the special exception on behalf of the owner. He said it is listed in the Table of Uses, Section 190-32. Mr. Reppucci stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, by testimony, it’s an elderly person, and traffic will not change. Mr. Reppucci said that the use will not overload public water, drainage or sewer or other municipal systems. He said that all the special regulations are fulfilled, and the use will not impair the integrity or be out of character with the neighborhood or be detrimental to health, morals or welfare of the residents. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment December 10, 2013 Page 10 Mr. Reppucci reiterated the decision, and the appeal process to Mr. Bueno, who replied that it was all understood. 4. Liberty Development of Nashua, c/o CVS Pharmacy, Inc. (Owners) Back Bay Signs (Applicant) 214 Daniel Webster Highway (Sheet A Lot 977) requesting the following variances: 1) to exceed maximum number of wall signs, 3 permitted, 4 allowed per 7-28-98 variance, 1 additional wall sign requested; and, 2) to exceed maximum wall sign area, 150 sq.ft allowed, 318 sq.ft permitted from 7-28-98 variance, an additional 19.59 sq.ft proposed. HB Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Jason Barillo, Back Bay Signs, Medford, MA. Mr. Barillo said that they are requesting a variance for one additional wall sign, it will be a “Minute Clinic” wall sign, that is just over 19 square feet in area, to be installed on the side of the building that faces Poisson Avenue. He said that the store was granted a variance in 1998 to exceed the number of wall signs allowed, also, the square footage. He said the new Minute Clinic sign would be the fifth wall sign. He said that CVS would like to advertise this new use in the building, a service that would help the public. Mr. Shaw said it looks like an extensive re-signing of the property, and replacement of existing signs. Discussion ensued about the replacement of some of the existing signs, none of which need a variance. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment December 10, 2013 Page 11 MOTION by Mr. Boucher to grant the variance on behalf of the applicant. Mr. Boucher said 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 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 will be served. SECONDED by Mr. Shaw. Mr. Johnson said that there are two variances, and asked if they should be considered together. Mr. Boucher said that they are taken together. MOTION CARRIED UNANIMOUSLY 5-0. 5. Priscilla Chabot (Owner) 29 Bridge Street (Sheet 38 Lot 41) requesting use variance to allow two undetermined commercial uses in space formerly used for a glass shop. GI Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Mark Tuniewicz, North Easton, MA. Mr. Tuniewicz said he is a family friend of Mrs. Chabot, and will be representing her at the hearing. He said that a bicycle shop occupied the property for many years previously, and there was also a butcher shop. He referred the Board to a follow-up letter of a short list of proposed uses for the building, all of which are keeping with the character of the neighborhood. Mr. Tuniewicz said that the request will have no adverse impact Zoning Board of Adjustment December 10, 2013 Page 12 to the neighborhood, and it will improve the property values, and will have a positive impact on the neighborhood. He said that there would not be any impacts to water, sewer, traffic. He said that the site is in the GI zone, but visually, looking at the building it is not designed for a heavy industrial use. He said there have been numerous uses in the building in the past. Mr. Tuniewicz said that the plan is to separate the former glass shop into two spaces, which will create a total of three rental areas, as well as the bays for an assembling area. He said that there is a barbershop already there, that will remain there, as well as an existing storage space. He said the updated letter that he submitted on proposed uses came in after the City advertised the case. He said they are satisfied with the proposed list of permitted uses, instead of the undetermined uses. He said it will narrow down the potential uses. Mr. Reppucci said that the Staff memorandum states that if the Board doesn’t know what use will go in there, it’s hard to review. He said it’s hard to speak intelligently about an application if it’s not clear what is going into the space. He said that the memo states that the Board needs to know what is going into the space. Mr. Tuniewicz stated that the follow-up addendum list of uses was made after the application was submitted. Mr. Reppucci said that there are a total of 18 uses on the list, and there’s a couple of uses, and it’s not sure what some of them would entail as far as impact. Mr. Tuniewicz said that they have no objection to amending the request relative to the new list of uses. Craig Chabot, 29 Bridge Street, Nashua, NH. Mr. Chabot said that the type of industry that is allowed by right here just doesn’t exist anymore. Mr. Tuniewicz said that the proposed uses are ones that are consistent with the current uses in the neighborhood, and none of them should be detrimental. He said that there are abutters in the audience ready to speak in favor. Mr. Reppucci said that the Zoning Board cannot rezone property, Zoning Board of Adjustment December 10, 2013 Page 13 but can provide relief. He said that to rezone property is a function of the Board of Aldermen, not the Zoning Board. He asked if they’ve considered approaching the Board of Aldermen to rezone the property. Mr. Tuniewicz said that he discussed that possibility with Mr. Falk, and his guidance led them to the use variance. Mr. Falk said that the Board of Aldermen wouldn’t support a rezoning of just this one piece of property, as it would be considered spot zoning. He said they’re more likely to review a much larger geographical area, such as an entire block, or both sides of the street, that’s more of an appropriate way to look at a rezoning. Mr. Johnson said the GI zone is intended to be for heavy industrial or heavy machinery. He said that for whatever reason, the Board were to approve this, the Board would be going away from that reserve of GI zoned land, and is it acceptable for the City to do that. Mr. Falk said that there have been numerous Park Industrial zoned properties that have come before the Board, all asking for uses that are not allowed by right, such as the proposed case. He said we’ve had restaurants, gyms. He said that this is a GI zone, and many years ago, there were many more heavier industrial uses, but not anymore. He said that now, it’s more of a mixed use neighborhood, with multi-family and motor vehicle repair uses. He said the lot is about a quarter-acre, it’s too small for most all GI-related or heavy industrial uses anyways. Mr. Currier asked how many parking spaces are available. Mr. Tuniewicz said it’s detailed in the application, there are at least four in front of the building on the street. Mr. Falk said those spaces cannot count towards their required parking requirements. Mr. Tuniewicz said that there are a few angled parking spaces on the side. Mr. Chabot said that there are 6 cars on the side and additional space in the rear. He said that there is also room for 12 cars to park inside the building, in a drive-in basement. He said Zoning Board of Adjustment December 10, 2013 Page 14 that he grew up in the neighborhood, and cares more than anyone what uses go in the building. SPEAKING IN FAVOR: Chris Eckler, 21 Amory Street, Nashua, NH. Mr. Eckler said that he owns 16 properties in the neighborhood, many of them either abut or are right near the subject lot. He said the area should be more of a mixed use zone, and has been in contact with the Ward Alderman to see what steps are needed to have the area re- zoned. Tom Duffy, Prudential Commercial Realty, Nashua, NH. Mr. Duffy said that one of the difficulties that arose when trying to come up with a specific use. He said that the property needs to be rehabilitated. He said that the proposed list of the revised uses should be acceptable. He said that the areas in and around Nashua, the ones with older industrial rail lines, may have more zoning changes to reflect the areas around commuter rail areas and a greater complimentary list of uses to the existing residential areas. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Johnson said that the proposed 18 uses are all not permitted. He said that the good thing is that no matter what use goes in here, the zone still remains as GI. Mr. Currier said he remembers when it was Larry’s Bike Shop. He said by getting the revised list of uses from the applicant is a step in the right direction. He said he has an issue with a couple of the uses, but some of them are right on target. He said he didn’t like #126, especially if it includes outside storage. He said that #125 is ok. He said he’s struggling with #116 also, it’s too wide open. He said he didn’t like #80. Mr. Reppucci said that his problem is that some of the testimony is actually enforcing the fact that this is something we shouldn’t do. He said that the Planning Board and Alderman should address these types of issues. He said if we approve this, it’s almost like we’re performing the role of another Board. Zoning Board of Adjustment December 10, 2013 Page 15 Mr. Shaw said it would be more relevant or significant if this property is being used for some kind of industrial usage for the last century, and now, someone is coming in and wanting to convert it to commercial or retail. He said that the barbershop has been there for some time. Mr. Falk said that the barbershop came to the Zoning Board and received a use variance. Mr. Shaw said that he’s much more comfortable approving this with some of these limitations, from the list of uses they submitted. He said that we’re constrained enough just by looking at the size of the parcel, in reality, the property isn’t going to get any industrial type of usage, considering the surrounding uses and the historical use of the property. Mr. Johnson said that the property is still in the GI Zone, and could someday be used for a GI use, but the property owner wants to keep it in the character of the neighborhood of the surrounding area. He said by not approving this, the property could go into inactivity and non-occupancy, and that is a problem. He said the proposal is a minimal incursion. Mr. Boucher said that no one is here to speak against the request or contest it. He said he is comfortable with the request. He said that the applicant would be amenable to revising their updated list of uses. He said that the request makes sense. MOTION by Mr. Currier to grant the use variance on behalf of the applicant and owner. Mr. Currier said that a majority of the Board finds that the landowner’s reasonable use of the property has been demonstrated that it was a retail property for many years, and it is a rather small quarter-acre lot, that the Board finds reasonable to allow this variance. He said that the proposed use variance from Land Use Code Section 190-15, Table 15-1, to approve the uses that are numbered 31, 35, 36, 47, 50, 51, 70, 82, 89, 94, 97, 102, 109, 110, 123, 134, and 125. He said that those uses are encompassed in the December 4, 2013 letter from Mr. Tuniewicz to Mr. Falk. He said that those uses are fairly well articulated, and are the same or similar to retail uses at the site before. Mr. Currier said that because this property has been retail before, that it is within the spirit and intent of the Zoning Board of Adjustment December 10, 2013 Page 16 ordinance, there hasn’t been testimony one way or another about the property values, but a couple of abutters believe that a new retail business would be healthy for the surrounding parcels. He said that by approving these specific uses ahead of time in this fashion would not be contrary to the public interest, and substantial justice would be served. SECONDED by Mr. Johnson. MOTION CARRIED 4-1 (Mr. Reppucci) MISCELLANEOUS: REGIONAL IMPACT: Mr. Falk said that there is no agenda available, as there is extra time between meetings due to the holidays. MINUTES: November 26, 2013: MOTION by Mr. Shaw to approve the minutes as presented, waive the reading, and place the minutes in the file. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 3-0. (Mr. Johnson and Mr. Reppucci abstained) ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:25 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing