Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 14, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, January 14, 2014 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci J.P. Boucher Jack Currier 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. Mr. Reppucci said that the agenda is very full, and the Board will not make it through all the cases this evening. He said the last four cases of the meeting, Cases 10 – 13, will be Tabled to the January 28, 2014 meeting. MOTION by Mr. Reppucci to Table the four cases just described to a date certain of January 28, 2014. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 1. 270 Amherst Street, LLC & EDCO Nashua, LLC (Owners) 270 & 274 Amherst Street (Sheet E Lots 268 & 2136) requesting special exception to remove pavement adjacent to Colerain Brook, restore the 40-foot wetland buffer, improve on-site drainage and mitigate environmental contamination – to redevelop the former Nashua Motors site into a new retail center. HB Zone, Ward 1. Voting on this case: Gerry Reppucci Zoning Board of Adjustment January 14, 2014 Page 2 Jack Currier JP Boucher Rick Johnson David Creed Mark Fougere, Fougere Planning & Development, Milford, NH. Mr. Fougere stated that they are proposing to re-develop the center, and there will be a disturbance in the 40-foot buffer along Colerain Brook. He said the site drains entirely into Colerain Brook, with no treatment whatsoever, and when it’s all done, all local and State requirements will be met as far as treatment is concerned. He said that there will be underground treatment of the runoff, meeting AOT requirements. Mr. Fougere said that they have met with the Conservation Commission and have received approval. He said that all the paving in the buffer along Colerain Brook will be removed, and drainage will be treated in that rear area from a treatment system designed by the Civil Engineer. He said that they meet all the Special Exception criteria, the nine special regulations are also met as well. Mr. Fougere said that the site will be a retail center, and will connect with Pep Boys, and will be going to the Planning Board soon. He said they will have approximately 40,000 square feet of retail, with one space for a drive-through, the rest will be an inline retail space with various sizes. SPEAKING IN FAVOR: Russ Barton, Wilcox & Barton, Inc., Concord, NH. Mr. Barton stated that there are some underground storage tanks out there, they will all be removed as part of the development. He said that there is some leakage underground, and they have all their approvals to remove the underground storage tanks, excavate the contaminated soil, and manage the groundwater. Mr. Currier asked what was stored in the tanks. Mr. Barton said diesel and gasoline. He said that there is no evidence of contamination back there. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment January 14, 2014 Page 3 MOTION by Mr. Currier to grant the special exception on behalf of the owner 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. He said it will not overload public water, drainage or sewer or other municipal systems, in fact, the drainage will be improved by better infiltration along the way. He said that all special regulations are all met per testimony, and in this area that has a lot of retail uses, 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 nine special wetland conditions are all met per testimony, and the Conservation Commission letter dated November 15, 2013 shows six stipulations of approval. He said the minutes of that meeting are included in the record for approval SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 2. Karen & Scott Brown (Owners) 14 Brookline Street (Sheet 64 Lot 29) requesting variance to encroach 14 feet into the 25 foot required front yard setback (on Douglas Street) to enclose an existing 6’x12’ open porch. RA Zone, Ward 2. Voting on this case: Gerry Reppucci – Recused Jack Currier – Acting Chair for this case Rick Johnson J.P. Boucher David Creed Karen Brown, 14 Brookline Street, Nashua, NH. Mrs. Brown said that they are wishing to enclose an existing porch on the side of the house, which is really a front yard. She said that the house footprint will not change, as the porch is already existing, its 6’x12’. She said it will just be enclosed. Zoning Board of Adjustment January 14, 2014 Page 4 Mr. Currier said that the application is complete and thorough. Mr. Currier said they’re just walling off the area, it’ll be no additional roof space. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the variance on behalf of the applicant as advertised. 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, testimony by the owner is that the footprint of the building will not be changing. Mr. Boucher said that it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 4-0. 3. John J. Flatley Company (Owner) 100-300 Innovative Way (Sheet A Lot 798) requesting special exception to work within an “other” wetland and wetland buffer to construct a 240,000 sq.ft research and development building and associated site improvements. PI Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed Zoning Board of Adjustment January 14, 2014 Page 5 Attorney Gerald Prunier, Prunier and Prolman P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that the owner will be constructing a 240,000 square foot research and development building. He identified the wetland impacts on a map on the board, shown in green. He pointed out the wetland buffer in yellow. He said that they’ve been to the Conservation Commission and they’ve approved the request, their letter in included. He said that he included responses to the nine special wetland regulations, which was also approved by the Conservation Commission. Atty. Prunier said that the use of the land for the building is allowed. He said the use will be served by all public utilities, and it won’t interfere with traffic or other public utilities, and the use is not out of character with the overall neighborhood. Mr. Reppucci said that there are two letters from the Conservation Commission, one from the 6th and one from the 9th, and the one from the 9th has two additional stipulations on it. Atty. Prunier said that the 9th letter is fine. Mr. Currier asked about the units in the Conservation Commission letter, it refers to 100, but not a measurement. Mr. Falk said it should be “feet”. Atty. Prunier said it is feet. Mr. Currier asked if the mitigation is stand alone, or part of a larger plan. Atty. Prunier said it is some 400 acres at this site, and the apartments and development is just starting in the area. Mr. Chad Branon, Fieldstone Land Consultants, Milford, NH. Mr. Branon said that there was a mitigation plan that covered this project and the Phase 2 of Tara Heights. He said the mitigation was given to the Conservation Commission as well as the State. He said that DES felt that it would be adequate mitigation. He said that ultimately, they submitted the plan for mitigation, and the EPA and Army Corps of Engineers took jurisdiction on the project and deemed that it was not adequate mitigation, and they were forced in the direction of in-lieu fees for this phase of Zoning Board of Adjustment January 14, 2014 Page 6 the project, which encompasses not only the R & D project, but the Innovative Way extension that went before this Board, as well as the Tara Heights Phase 2. He said that the Conservation Commission has been in dialogue with DES with trying to implement some kind of a funding process so that some of the funds from the in-lieu fee could be allocated to other projects within the City, but there are no projects that meet the criteria of EPA. He said that the mitigation fee has been paid for all the projects on the site to date. Mr. Creed said that he hopes that they’re taking into account the traffic on Spit Brook Road, because all of the cars in this project are going to seriously impact that street. Atty. Prunier agreed, and they are. He said they’re in discussions with the State of New Hampshire about an exit onto the turnpike, and trying to take care of the traffic. He said that there will come a time where they will not be able to proceed any further until the traffic concerns are taken care of. He said it’s under consideration by the City and by the State. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to grant the special exception on behalf of the owner 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. He said there is no impact on pedestrian safety, there are quite a few walkways there, and the traffic congestion is an on-going debate, and they have the ability to widen that stretch of Spit Brook Road, and when the traffic numbers hit that, they’ll do it. He said that the Board is aware that the traffic numbers are on the radar screen, but that this particular special exception for wetland won’t trigger the traffic to the next level for mitigation. Zoning Board of Adjustment January 14, 2014 Page 7 Mr. Currier said that the Board finds that the request will not overload public water, drainage or sewer or other municipal systems, in fact, the drainage will be improved by better infiltration along the way. He said that all special regulations are all met per testimony, 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, and that this is a long-term development being filled out by an R&D building. Mr. Currier said that the nine special wetland conditions are all met per testimony, and the Conservation Commission letter of 9-3-13 with 5 stipulations of approval are all agreed to. He said the minutes of that meeting are included in the record for approval. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 4. Jean M. Jones (Owner) Scott Jones (Applicant) 166 Amherst Street (Sheet 61 Lot 148) requesting use variance to use building for a tattoo salon. RA Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed Attorney Gerald Prunier, Prunier and Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that the property has been before the Board before, it was granted a variance for a financial planning office. He said that Amherst Street is different today than it was twenty years ago, or even ten years ago. He said that single-family homes are difficult to exist on Amherst Street, especially in this location. Atty. Prunier said that they are requesting a variance to allow a tattoo parlor with only Mr. Jones as the employee, and he will live in the house. He said there is a sunroom connection between the house and the garage. He said that the proposed use is much smaller than the one approved by the Board the last Zoning Board of Adjustment January 14, 2014 Page 8 time, and there won’t be any changes to the outside of the house, it’ll stay a single-family house, and he’ll be living there. He said that the owner has a shop on Main Street that will be torn down. He said that he’d only have one customer at a time, and won’t do anything to change it from a single-family house. He said the use will not be out of character with the neighborhood, it will not affect the property values in the area, and it’ll be used as a single-family, just as it is now, but that he’ll use a section of it for his business. Mr. Boucher asked if there will be any employees. Atty. Prunier said no. Mr. Boucher asked if it is by appointment only, or can walk-ins come. Atty. Prunier said it’s by appointment only, probably 99% of the time. Mr. Creed said that the last time, the approval changed the property to entirely commercial use, no one was living there. He said that essentially, this proposal would be for a mixed use. Atty. Prunier said it will be a much less intense use to the previous approval, because it’s staying as a residential house. Mr. Creed said the last plan, there was an entire change, as there was a driveway improvement, structural improvements, and this time, there will not be these improvements. Mr. Currier said in comparing this to the previous approved use, the impactful item about the last approval was the driveway moved to Milford Street, and the parking in the back. He said the cars pulling in and off from Amherst Street is challenging to an already overburdened street. He said he was disappointed to see a plan without a driveway and parking on Milford Street. Atty. Prunier said if it is going to be that intense of a business, he’d agree, but this will only be one person living there and doing the business, and he’s only using part of the house as the tattoo business. Mr. Creed said it seems as this is less of a business, and more Zoning Board of Adjustment January 14, 2014 Page 9 of a hobby, and he’ll live there, and have the side business. He asked why he wouldn’t operate this as any other business owner, and try to maximize profit, which would include having walk-ins, larger signage, and having people come park off of Milford Street. Atty. Prunier said that he’s living there, and the business he already operates is just himself. He gets most of his appointments through telephone calls. Mr. Creed said he assumed it would be unacceptable to the client to put conditions on an approval limiting the amount of customers he could get. He said if the approval goes through, he’d have the ability to have as many customers as possible, and there would be no restrictions on the use as a business. Atty. Prunier said he can’t really answer the question. He said that he didn’t think that this is a really busy 10-12 hour a day business. He thought about four appointments a day sounds reasonable for the use. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Rick Nixon, 4 Mt. Vernon Street, Nashua, NH. Mr. Nixon said that he’s a direct abutter. He said most all the neighbors are not in favor of this. He said with the chiropractic office on Mt. Vernon Street, it’s wall-to-wall cars on the street all day long. He said he’s also concerned about property values, and said if we can’t allow one more thing to lower our property values. He said he wouldn’t have bought the house if the tattoo parlor was there when the house was bought. He said it’s the wrong use in the wrong zone, and it doesn’t fit in the neighborhood. Mr. Reppucci said that there were some submitted letters to the Board in opposition. He asked if Atty. Prunier had copies. Atty. Prunier said that he received them from Mr. Falk. Mr. Reppucci said that the letters speak to diminishing property values, parking and traffic. Zoning Board of Adjustment January 14, 2014 Page 10 Mr. Reppucci said there is a letter from D&D Appraisals, and the opinion is that the property may be on the market longer. He said that the letter states an opinion about the property values. Atty. Prunier said that people have the right to make any opinion that they want, but you have to take it into context, about what knowledge they have about the proposal. Mr. Reppucci said that appraisers to have a level of knowledge and expertise, that may introduce a little more weight onto their opinion. Mr. Reppucci said that the other letter is from Keller Williams Realty, and their opinion is blunt – they’re speaking to the requested use, that it would have a diminution in value of surrounding properties. Atty. Prunier said that there won’t be any changes to the neighborhood, and they are stating their opinion, probably based upon the word “tattoo”, as some people look at them differently as others. He said it’s really body art. Mr. Johnson asked about parking, and most cars would park in the driveway on Amherst Street. He asked what is to preclude someone from parking on Milford Street. He said if that were the case, it would impact property values in the area. Atty. Prunier said when he put the signs out there, there were two cars parked in the street. He said they are having one person at a time for customers, and they’ll park in the driveway. Mr. Currier said he was disappointed to learn about the businesses on Main Street being displaced. He said he found the appraisers statement about most homeowners not wanting to live next to or near a tattoo parlor. SPEAKING IN FAVOR – REBUTTAL: Atty. Prunier said you could look at that as an old single- mindedness of what people think of this use. He said they’re not doing the whole house, the house will stay residential. He said the house really isn’t in the neighborhood, it’s out on Zoning Board of Adjustment January 14, 2014 Page 11 Amherst Street. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Nixon said that the people that hear the word “tattoo” are the prospective buyers for his house, and they’re not interested. He agrees that there’s a stigma that goes with the word, right or wrong, and it could affect any potential buyer for a house for sale in the neighborhood. Mr. Creed said he has problems with the mixed use component. He said he wished they came with a full proposal to do the whole thing, make it all a tattoo salon, with a parking lot. He said it doesn’t make sense to operate a business in where you wouldn’t be maximizing your profits. Mr. Reppucci said that the Board has the right to put restrictions on any approval that they give. He said to have an applicant have guarantees of restrictions put on by the City is a futile attempt. He said we can make rules all day long, but it’s the enforcement later. He said we can put restrictions on an approval, but doesn’t know how valid they are. Mr. Creed said that enforcement is an issue, and to put such restrictions on the business would strangle it, and the business would never grow. Mr. Reppucci said if this is approved, 30 days later, it is concrete. He said if the applicant wishes to appeal a decision, they can do so as a rehearing request, and then to Superior Court. Mr. Reppucci said that no business is just one customer at a time. He said they may have one appointment at a time, but there’s no possible way a business owner could guarantee that there would just be one person there, one client at a time. Mr. Johnson questioned how this request satisfies points two and three, the spirit and intent of the ordinance, and property values. Mr. Boucher asked if the Board is being discriminatory to this use, about tattoos. He said the property value issue is important, the house is staying the same, and the use runs with the land. He said the financial planner had about 7 or 8 Zoning Board of Adjustment January 14, 2014 Page 12 parking spaces, and could be a more intense use. He said the proposed use could be less intensive than the financial planner office. He said the owner just wants to live there and work there, with no employees. MOTION by Mr. Currier to deny the use variance on behalf of the applicant and owner. Mr. Currier said that the Board finds that a zoning restriction as applied does not interfere with the landowner’s reasonable use of the property. He said the building has been a residence for many years, up until the Board approved it for a business. He said that the Board has demonstrated that it can function as a business but the Board is sensitive to what type of business is located here, as it is immediately adjacent and in a residential zone. Mr. Currier said the Board finds that by denying this use for a tattoo salon, it is not taking away the landowners reasonable use of the property. Mr. Currier said in summary, the Board finds that this requested use is not within the spirit and intent of the ordinance, because of the testimony we received tonight, that because the driveway on Amherst Street, and the mixed use of residential and commercial that would be a difficult situation for parking to be as it is on Amherst Street, and therefore, it is not within the spirit and intent of the ordinance. Mr. Currier said there is more universality on the Board in that it will adversely affect property values of surrounding parcels, the Board has two letters of testimony by professionals that state that the use of the residence would impact negatively, and this case would be contrary to the public interest if approved. SECONDED by Mr. Johnson. MOTION CARRIED 4-1 (Mr. Boucher) 5. CREG-Temple Street, LLC (Owner) Akumina, Inc. (Applicant) 30 Temple Street (Sheet 33 Lot 31) requesting the following variances: 1) to allow an off-premises wall sign; and, 2) to exceed maximum height of wall sign, 20 feet permitted, 73 feet proposed. D-1/MU Zone, Ward 4. Zoning Board of Adjustment January 14, 2014 Page 13 Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed Robert Perry, Sousa Signs, Manchester, NH. Mr. Perry said that they are asking for a variance for the location of a wall sign greater than 20 feet high, also, the sign is off-premises, as it would be on the 7th floor of the building. He said that the Akumina Company occupies the 3rd floor. Mr. Reppucci said the application is thorough and complete. Mr. Currier asked if the off-premises wall sign is because the business is on the 3rd floor. Mr. Falk said the business is on the 3rd floor, and the sign would be on the 7th floor, therefore, it’s not in their physical space, and is considered off-premises. Mr. Currier asked if the business were on the 7th floor, they wouldn’t be asking for the off-premises wall sign variance. Mr. Falk agreed, but they’d still need a variance to exceed the maximum wall sign height of 20 feet in the D-1/MU Zone. Mr. Currier said that he thinks that someone walking or driving on Temple Street would see the sign, that’s it. He said the rationale for the sign is puzzling. SPEAKING IN FAVOR: Steve Sherkowski, Akumina, 30 Temple Street, Nashua, NH. Mr. Sherkowski said the reason for the sign is for branding and a positive image. He said you could see the sign from the intersection of Amherst Street and Main Street, so, they need the sign higher so folks see it, recognize it, and come for an employment standpoint. He said it’s more for brand positioning in the City. He said he believes they’re the largest tenant in the building, and future plans are for expansion to the 7th floor. Zoning Board of Adjustment January 14, 2014 Page 14 Mr. Reppucci said his concern is that everyone else in the building will want a sign this high up on the building. Mr. Sherkowski said that there is a letter in the packet, from the building management office, stating that they are giving permission to place the sign on the 7th floor, but only at a size that is 50% of what is allowed for size. Mr. Currier asked about the color of the sign, it looks violet. Mr. Sherkowski said that is their corporate colors. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the variance on behalf of the applicant as advertised, with both cases taken together. Mr. Boucher said that the variances are 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 the area variances. 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. Mr. Boucher said that it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Creed. MOTION CARRIED 4-1. (Mr. Currier) The Board took a 5-minute break. At this point, a representative for the case for 12A – 12B Hanover Street, Case #9, came to the podium, stating that the person who they wanted to come as a translator couldn’t make the meeting. Mr. Reppucci said that the Board could Table the case to the January 28, 2014 meeting. Zoning Board of Adjustment January 14, 2014 Page 15 MOTION by Mr. Reppucci to Table Case #9 to a date certain of January 28, 2014 SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 6. Donna Daigle (Owner) John Martien (Applicant) 56-58 Canal Street (Sheet 42 Lot 228) requesting use variance to use a portion of the building for a tattoo salon. LB Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed John Martien, 6 Silver Drive, Nashua, NH. Mr. Martien said he owns Mayhem Ink on Main Street. He said he’s been in business for 15 years, 20 years in the tattoo business. He said they’re requesting the use variance to move to Canal Street. Mr. Reppucci said that the application is complete and thorough. Mr. Creed asked to confirm that the building is mixed use. Mr. Martien said the bottom floor is commercial, with apartments up on the second floor. Mr. Creed asked if there are separate entrances for the commercial and the residential uses. Mr. Martien said that there are separate entrances. He said that there are two commercial spaces on the first floor, and he’d use one of them. They’ve been commercial spaces for many years. Mr. Reppucci said that there used to be a tattoo parlor here. Mr. Martien said he used to work there. Zoning Board of Adjustment January 14, 2014 Page 16 SPEAKING IN FAVOR: Donna Daigle, owner of building. Ms. Daigle said she’s familiar with the applicant, he used to work here, and it’s nice to have a familiar face back. She said the use is compatible with the neighborhood and they are a quiet use. 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 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 the variance. Mr. Reppucci said that the case is within the spirit and intent of the ordinance, and it will not adversely affect the property values of surrounding parcels. Mr. Reppucci said that it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 7. Trafalgar Square Associates, LLC (Owner) 25 Trafalgar Square (Sheet G Lot 654) requesting the following variances: 1) to exceed wall sign area, 150 sq.ft allowed, 283.5 sq.ft proposed, 2) to exceed maximum ground sign area, 100 sq.ft allowed, 120 sq.ft proposed, 3) to exceed maximum ground sign height, 20 feet allowed, 35 feet proposed, and 4) to encroach 8 feet into the 20 foot front yard setback for ground sign. PI Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed Zoning Board of Adjustment January 14, 2014 Page 17 Fred Pino, Barlo Signs, Hudson, NH. Mr. Pino said that the relief that is requested is appropriate and fair. He said the project is challenging, in that it is set back from Amherst Street, and the relief asked for is fair, considering the size of the project. He said the business is a 24/7 business, and there will be people coming in off of Amherst Street and Route 3 from the airport, the feeling is that it’s critical to have the branding. Mr. Reppucci asked, in taking the whole project in its totality, if this is it for requests. SPEAKING IN FAVOR: Robert Walker, Nashua TS Lodging. Mr. Walker said that this will be all that they’re going to ask for, for the free-standing sign and the secondary building on the site, which is planned for a restaurant, that will be all they’re asking for. He said the only additional sign is when they secure a tenant for the restaurant, they’ll be asking for a wall sign for that building. Mr. Currier asked to clarify the location of the ground sign. Mr. Walker said that the sign sits within the boundaries of the property, and the goal is to put branding where a glimpse could be caught from Amherst Street, and that is the reason for the additional height on the ground sign. He said that the setback for the hotel is considerable from Trafalgar and Amherst Street. He said there isn’t much traffic on Trafalgar at night compared to Amherst Street, and the placement of the sign was taken into account for views from Amherst Street. He said it is more effective driving out of the City, as opposed to driving into the City. Mr. Johnson asked to confirm if the tree is going to be removed, and the sign would be placed there. Mr. Walker said yes. He said that their client base comes in at all hours of the night. He said if the sign were to be shorter in height, it would be even more difficult to see from Amherst Street. Mr. Boucher asked if the tree to be removed is required to be there on the site. Zoning Board of Adjustment January 14, 2014 Page 18 Mr. Walker said that it isn’t. Mr. Reppucci said a lot of times, people come to the Board with requests that are reasonable, but it’s like they’re biting off a piece of the apple each time, and there’s more and more requests. He said he’s inclined to include language that’s very specific, saying that this is it, this is what the plan calls for, and this won’t come back for a request for additional signage, and try to take another bite. Mr. Walker said he’s fine with that, this is all they need, along with the exception for the restaurant. SPEAKING IN OPPOSITION OR WITH QUESTIONS AND CONCERNS: No one. MOTION by Mr. Reppucci to grant the variance on behalf of the applicant as advertised, with all the variances considered collectively. Mr. Reppucci said that the variances are 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 the variance. Mr. Reppucci said that the case is within the spirit and intent of the ordinance, and it will not adversely affect the property values of surrounding parcels. Mr. Reppucci said that it is not contrary to the public interest, as the Board discussed the dimensions and details of the signs, and substantial justice will be served. Mr. Reppucci stated that for a special condition, that consideration of the full project in its totality were discussed at length, and the Board received assurance from the applicant that, with the exception of the wall sign for the proposed restaurant, that this will be the total amount of signs being requested for the project. He said that this stipulation is absolutely essential in supporting this application. SECONDED by Mr. Creed. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment January 14, 2014 Page 19 8. Fitform, Inc. (Owner) AK Auto (Applicant) 9 Union Street (Sheet 38 Lot 66) requesting use variance to allow retail automobile sales. GI Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher David Creed Adil Khaya, Applicant, and Chris Eckler, property owner. Mr. Eckler said that they are asking for permission to sell cars at retail out of 9 Union Street. He said that there are several nearby locations that sell cars, as pointed out on his map. He said he’s been in contact with Alderman Cardin and Caron to add a mixed use overlay in this area. He said it wouldn’t allow car retail, but it would allow other retailing, which is more similar to the proposed use. He said that many of the businesses nearby are in favor of the request. Mr. Currier asked if there will be a showroom, or just cars on the lot. Mr. Eckler said the building has two tenants, he said the applicant will be selling cars, he wholesales cars out of there now, and one bay would be rented. He said the other two bays are auto repair uses, there are three bays in all, two auto repair bays, and this one selling cars. Mr. Currier said it just appears as if there are cars there everywhere now. Mr. Khaya said he’s been there for six years now, and has a Bonded Dealer License, and is trying to change it to a Retail License. He said the difference is with the Bonded Dealer License, the State doesn’t give you a plate. Mr. Falk said he’s allowed to sell cars at an auction or over the internet, he just can’t have then displayed on the site. He can use the site as an office for inspection. This site has had many auto repair uses, or Bonded Dealers, just nothing for a Retail Dealer, which is not permitted in this zone. Zoning Board of Adjustment January 14, 2014 Page 20 Mr. Eckler said he met with Alderman Caron and Alderman Wilshire last week, and they discussed this application, plus the need to expand the Mixed Use Overlay in this area. He said they agreed with him for the commercial areas. Mr. Reppucci asked if he has anything in writing from the Alderman to support a zoning change. Mr. Eckler said he did not at this time. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said that he thinks it’s a rezoning, and that this is an Alderman’s decision. He said the proposed use is probably fine for the area, and we’re deciding on what the area should be, but that is a legislative function. He said a couple weeks ago, we had a similar case nearby, and now we have this one, and there could be other cases coming in soon. He said he feels strongly on principal alone, not on the applicant or the application, but feels very wary in the line to distinguish rezoning an area, and making specific exceptions to specific properties. He said he feels like the Board would be doing the legislature’s work. He said the Board doesn’t have any info from the Alderman about supporting a zoning change. He said that this is a principal issue with him. Mr. Johnson said that the Board has had issues with the Airport Industrial zone earlier, and this type of issue comes up repetitively and agrees with Mr. Reppucci. He said he thinks the Board is ok with this particular case, but the whole zoning area needs to be re-looked at. MOTION by Mr. Boucher to grant the use variance on behalf of the applicant as advertised. Mr. Boucher said that a zoning restriction as applied interferes with a landowners reasonable use of the property, considering the unique setting of the property in its environment; no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and the Zoning Board of Adjustment January 14, 2014 Page 21 variance would not injure the public or private rights of others. He said that in testimony, the use will be very similar, but now the applicant can put “for sale” signs on vehicles, as opposed to just wholesaling them, so it’s a reasonable use. Mr. Boucher said that the case is within the spirit and intent of the ordinance, and it will not adversely affect the property values of surrounding parcels. Mr. Boucher said that it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Currier. MOTION CARRIED 4-1 (Mr. Reppucci) MISCELLANEOUS: REGIONAL IMPACT: The Board determined that there is no Regional Impact. MINUTES: December 10, 2013: The Board took no action on the Minutes. Mr. Reppucci said that staff will not send out the cases that were not heard tonight, and the minutes, so everyone bring their information to the next meeting. Mr. Reppucci said the Board will consider Officers for 2014 at the next meeting. Mr. Reppucci said that when advisory boards are giving us input, such as the Conservation Commission, or the Historic District Commission, it’s important to have their meeting minutes, and wants the Zoning Board’s By-Laws amended that says if something is coming from another Board, we need to have the minutes of that meeting. ADJOURNMENT: Zoning Board of Adjustment January 14, 2014 Page 22 Mr. Reppucci called the meeting closed at 9:40 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing