Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 28, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, January 28, 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 Rob Shaw Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Reppucci explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Reppucci explained how testimony will be given by applicants, those speaking in favor or in opposition to each request, as stated in the Zoning Board of Adjustment (ZBA) By-laws. Mr. Reppucci also explained procedures involving the timing light. Mr. Falk said that the cases for 8 Spit Brook Road and 225 Daniel Webster Highway have been withdrawn by the applicant. 1. Alexander Maynard Rev. Tr, (Owner) 13 Kathy Drive (Sheet B Lot 997) requesting special exception to construct a single family home on a lot of record in the 75-foot prime wetland buffer of Salmon Brook. R9 Zone, Ward 9. 2. Elizabeth A. Wilmot & Richard J. Anctil (Owners) John A. Pearson (Applicant) 15 Kathy Drive (Sheet B Lot 832) requesting special exception to construct a single family home on a lot of record in the 75-foot prime wetland buffer of Salmon Brook. R9 Zone, Ward 9. Both cases Tabled from the January 14, 2014 meeting. Voting on this case: Gerry Reppucci Jack Currier Zoning Board of Adjustment January 28, 2014 Page 2 JP Boucher Rick Johnson Rob Shaw NOTE: Both cases taken as one presentation. Richard Maynard, Maynard & Paquette Engineering, 23 East Pearl Street, Nashua, NH. Mr. Maynard said the request is to construct two single-family homes in the wetland buffer on each of the lots as advertised. He said that each house will be provided with a leaching catch basin to handle runoff from the house, and recharge it into the ground. He said that the requested use is very much in character with this residential neighborhood. He said that this subdivision was recorded in July 1965, as plan #3089. Mr. Maynard said as far as the wetlands special regulations, the proposed houses are located towards the front of the lots, away from the wetlands and towards the street, where the impacts can be identified and avoided. Mr. Maynard said that per the Conservation Commission approval, the houses are placed in the best locations possible, and there will be no wetland loss or degradation, and the extensive debris on the lots will be removed. He said that invasive species on the lots will be eliminated. He said that the State has confirmed that there is no known rare or endangered species at this location. He said that the best erosion control methods will be incorporated, as outlined in the Conservation Commission letter with stipulations of approval. He said that this request will have no impact on wildlife or fisheries, and the request will have no impact on the stability of the bank or the brook. He said that these are pre-existing lots of record that go back to the 1960’s, and they’ve been paying taxes all this time. Mr. Maynard said that they have a positive recommendation from the Conservation Commission, and a permit from the Shoreland Protection from the NH Wetlands Bureau. He said they believe they meet all the criteria in the Ordinance for approval. Mr. Currier said that one of the concerns he has is with the edge of wet being where it is, and the wetland buffer being so close to the foundation of the backs of the homes, and his experience with that over the test of time is that it results in violations and burdens on the City. He said he’s struggling to Zoning Board of Adjustment January 28, 2014 Page 3 see how future homeowners would respect the buffer. He said another concern is a four foot increase in water height, and in looking at the topo map, it puts the water into the foundation. He said that they may be meeting the letter of the law, but didn’t think they meet the spirit and intent of the Ordinance. Mr. Maynard said that the wetland laws came into effect after these lots were created and approved. He said that the Conservation Commission signs would be placed right on the wetland line to alert people that this is an undisturbed conservation land. He said that they’ve done the best they can with these lots to minimize impacts. He said they are small homes, with no garages, drainage is towards the street. He said they’re legal lots of record, and are trying to develop them as best as possible under the current regulations, even though it can be argued that these lots are grandfathered. He said the floodplain is all the way across the street, grade-wise, and other homes are in it too. He said that the houses being designed will have a solid basement, no openings, no walkouts, and will have proper water-proofing. He said that the houses are situated above the floodplain, the first floor elevations are 155, and the homes will be at 156. Mr. Reppucci said that these are buildable lots, these applications do not involve any requests for variances. He said that variance criteria have a much higher standard for approval. He said that special exceptions are allowed, provided criteria that the City sets up are met. Mr. Maynard said that he is re-emphasizing that this is a permitted use, and it meets the criteria. He said that two exclusive Boards with regards to wetlands and uses adjacent to wetlands have approved this already with positive recommendations. He said that this subdivision is vested, and is grandfathered and exempt from regulations that come after the fact. He said the wetland buffers came after these lots were approved. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Zoning Board of Adjustment January 28, 2014 Page 4 Ald. Ken Seigel, 3 Lamb Road, Nashua, NH. Ald. Seigel said that his concern is a technical concern. He said that there is a document from the Conservation Commission that while they recommend that the pile of loose asphalt be removed, the State states that the land should be undisturbed. He said he’s recommending that this be sent back up to the State. He said the Conservation Commission letter dated January 4th to Richard Maynard, and #8 states that the applicant must clean out the site, and re-vegetate the buffer area. He said the DES document, the Shoreland Impact Permit that was granted, in paragraph 3, it says that the property must remain in its unaltered state in order to comply with RSA 43-149. He said that these two findings play together. Ald. Jim Donchess, 4 Rockland Street, Nashua, NH. Ald. Donchess said he is opposed to the granting of these special exceptions. He said there is a conflict in the two agencies letters. He said the voters passed the wetland ordinance in 1991, by more than 80% of the vote. He said that the intent was that the law be strictly conformed with, and this site is a prime wetland, with a 75-foot buffer, the highest priority of protection. He said that one of the requirements for a special exception is that the development be consistent with the character of the neighborhood, and twenty years ago, it can be argued that this neighborhood didn’t have a character, it was relatively undeveloped. He said this area really wasn’t a residential neighborhood. He said that the owners have waited 23 years, and in this period of time, the neighborhood has developed, with Salmon Brook Drive and other homes on Searles Road. He said the neighborhood has developed in such a way that the houses are all virtually 75 feet or more feet away from the buffer. He said if the houses are developed such as this, they’d be totally altering the character and appearance of the neighborhood, and this request should be denied. Jeff Daly, 48 Walden Pond Drive, Nashua, NH. Mr. Daly said that there is a conflict between the Conservation Commission and the State. He said he agreed with Alderman Seigle that it should go back for clarification. He said the water will come up to the foundation. He said if these houses are built, who will monitor them, and the Conservation Commission has money, that perhaps they can purchase this property to keep it in perpetuity. Carol Sarno, 15 Rocky Hill Drive, Nashua, NH. Ms. Sarno said she was one of the voters that voted for the wetland ordinance Zoning Board of Adjustment January 28, 2014 Page 5 in 1991. She said she is in opposition to the special exceptions to work in the buffer, as the buffer is important and should be preserved and protected. She said they are important for wetland habitats. She said the importance of wetlands and buffers has increased over the years, and that the City does not approve this request. John Going, 61 Searles Road, Nashua, NH. Mr. Going passed out some photographs to the Board members, and described them for the Board. He said that the water comes up far, and every year, it floods. He said the water table is very high here. He said when the house was built next to him, he said he had a carpeted beautiful basement, and no water at all. He said the house next door ruined his cellar, there is mold and water damage, that has ruined his home, from the raised water table. He said another neighbor lost their septic system due to this. Mr. Reppucci asked if there is any proof that just one house being built next door changed the water table. Mr. Going said that there was no water in his house in 2001, it was carpeted, with wallpaper, and very attractive. He said it was ruined, as since the house next door was put in, the water table changed. He said he gets water in his basement all the time now. He said that there are ice pieces the size of a Volkswagen that will go on that property every year. He said this area has an extraordinarily high water table. He said one of his neighbors has a sump pump that runs 20 hours a day. He said it will negatively change the character of the neighborhood. SPEAKING IN FAVOR – REBUTTAL: Mr. Maynard said there has been a lot of discussion about flooding. He said the line is the 100-year flood, meaning it’ll occur once in a hundred years. He said that there is an 11-foot difference in elevation from the bank of Salmon Brook to the location of the proposed houses. He said that the soil will not be compacted when the foundation is being built. He said the soil is already well compacted when you dig down seven or eight feet. He said that there is no reason to have a sump pump in a properly constructed home, if it has proper waterproofing and proper construction methods, it’ll keep out water, just as a concrete pool will keep in water. Zoning Board of Adjustment January 28, 2014 Page 6 Mr. Maynard said the water table across the street is irrelevant to what we are doing here, development on our property will have no impact on the Going property. He said that there are plenty of homes that are adjacent to Salmon Brook that are well within the buffer. He said that two independent Boards that are experienced in what they do and what’s right and what’s wrong with regard to the building adjacent to the wetlands and buffers, and they’re cognizant of all the rules and regulations. He said the State DES always wants to know what the local municipality has to say about the request, and they get the decision letter from the Conservation Commission, and their minutes. He said that the Conservation Commission wants the lot cleaned up, and the mounds of asphalt, tires and concrete blocks and trash be removed. He said it’s a stretch to believe that the State DES wants nothing removed from the site. He said it’s ludicrous to think that the State wants these items on the site. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Going said he observes every spring what goes on here. He said he has a photograph of some of the trees in that area, but said that some of the trees are over one hundred years old. He said with the trees to be taken down to make up the two lots, its 600 gallons of groundwater a day. He said as far as the trash on the lot, it’s something that should have been cleaned up years ago. He said he’s in defense of Mr. Daly’s comments, and agrees with his statements on the topography and the water table. He said the water is 5-7 feet deep in some places. He wondered what people are going to say to the new owners when pieces of ice the size of a Volkswagen start coming up to their house, and they’ll have water bouncing up to their house. He said the Conservation Commission should re-look into this, and look into purchasing the property. He said if this is approved, it will negatively change the neighborhood. Mr. Johnson asked about the 600 gallons of water a day for the trees. Mr. Going said that if you research trees and how much water they drink, especially in the summertime, you’ll see that when those two lots are done, the amount of trees that they’re taking out will be between 500-600 gallons of water every day. Mr. Currier said he’s not in favor of the application, because his experience is that lots like this don’t work well, and they Zoning Board of Adjustment January 28, 2014 Page 7 cause problems down the road, to have a house foundation put in a few feet from the wetland, that has to be undisturbed, it just doesn’t work, trees grow in, there’s mold, and it’s not very acceptable. He said the whole purpose of the wetland laws is to protect the wetlands, and not have disturbance. He said to approve this is bad practice. Mr. Reppucci said that this is one of those situations where we know the public’s concerns and interests, and there’s a huge misunderstanding of the rules and how they apply. He mentioned the conflict in the letters that the Aldermen brought up, and said it’s impossible to think that the DES is implying that they don’t want the requirements defined by the Conservation Commission to be met. He referred to the Handbook by the NH Office of Energy and Planning, stating that if the conditions of the special exception are not met, the Board cannot allow it, however, if the conditions are met, the Board must grant the special exception. Mr. Reppucci said that there is clear guidance to a Zoning Board that on special exceptions, that they are permitted subject to specific conditions set forth in the ordinance. He said he understands the concerns about the water table, but there’s no evidence or professional presentation that states that constructing these two houses would change anything as far as the water table is concerned. He said the Conservation Commission reviewed this very thoroughly, and it’s their job. He said by the letter of the rules, the Board should be compelled to approve this application. He said he would like to see if there is any requirement in a special exception ordinance that is not met, but it has to be black and white. Mr. Currier brought up a coffee shop drive-through that the Board considered in recent past, and it was the judgment and experience of the Board members to not support that application. He said if there is an undisturbed line just a few feet away from a foundation, it’s completely unreasonable in his experience, and it does not work. Mr. Reppucci said that the coffee shop drive-through was a variance, it was something that was not allowed by the ordinance in that zone, and the criteria to approve that was so different, and a harder standard to meet. Zoning Board of Adjustment January 28, 2014 Page 8 Mr. Currier said it is part of our purview, to expect a homeowner to buy a home, and not be able to do anything whatsoever just a couple feet from the foundation, is unrealistic, and doesn’t meet the test. Mr. Shaw said it’s just outright impractical to expect a homeowner on a single-family lot to have these restrictions, and to have virtually no activity in their back yard, even if the markers are there. He said he’s seen it in many yards. He said that we want people to adhere to these regulations, but as close as this one is, it’s impractical to think they will comply. Mr. Boucher said he shares the position that Mr. Reppucci is taking, on the face of it, they’re meeting the criteria. He said that the Conservation Commission’s recommendation to the Zoning Board isn’t out of line. He said that the State has taken a strong look at this too, and they have the experts also, and they didn’t take it lightly. He said when the houses are being marketed, there will be deed restrictions, and it will be a choice by someone to want to live there. Mr. Johnson said he’s looking at what’s presented, not any grandfathered issue. He said the relevance is what we have in the Land Use Code, and the criteria for a special exception. He said that number five of the points of law, he didn’t think they meet the aspects of this point of law. He said there are two lots before the Board, even though we’re hearing one presentation. He said he has a greater issue with one lot, but not so much the other. He said the lot at 13 Kathy Drive, there is no way they could build there and not disturb the 75-foot buffer. He said 15 Kathy Drive has a little more room. He said there are significant water levels here on these lots, and surrounding these lots. He said he didn’t see how you could build a house at 13 Kathy Drive and not expect that the 75-foot buffer to be encroached upon. He said it’s just too close. He said the ninth point of the wetland special conditions will not be satisfied, either. Mr. Currier agreed, 15 Kathy Drive has a little more room. Mr. Reppucci said that they’re two separate applications, they just presented them together as one, but we can act on them separately. He said that he has a huge problem when we’re trying to protect people from themselves. Zoning Board of Adjustment January 28, 2014 Page 9 MOTION by Mr. Currier to deny the special exception application for 13 Kathy Drive on behalf of the owner as advertised. Mr. Currier stated that per the testimony tonight, the majority of this Board feels that having a foundation close to the nondisturbed buffer and having the DES clarifying that they want the buffer to remain in an unaltered state, he said he believes it does not meet the special exception number five about being detrimental to the health and morals and welfare of the residents, particularly the residents of the potential home that could go in, and, also criteria number nine on wetland special conditions, which is the wetland buffer function of absorption capacity and storage shall not be impaired, this Board finds that those back yards would be used for back yards, and then they would not be in their natural state, and it would be creating a situation as difficult to monitor and will not work. SECONDED by Mr. Shaw. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Boucher) MOTION by Mr. Currier to deny the special exception application request for 15 Kathy Drive as advertised, on behalf of the owner. Mr. Currier stated that he is making the motion to deny for the same reasons as before. He said that the Board acknowledges that there is a little more distance between the undisturbed buffer and the back of the home. He said that he finds that the majority of the lot is to be left undisturbed to protect the wetland buffer, and that is not functionally work with the home, and therefore, criteria number five in the special exception points of law is not met, neither is special condition number 9 of the wetlands special conditions would be met. SECONDED by Mr. Shaw. Mr. Reppucci said that while he does not disagree with the sentiment behind the motions, he thinks that the Board has a legal requirement to approve these applications. MOTION FAILS 2-3 (Mr. Reppucci, Mr. Johnson and Mr. Boucher). MOTION by Mr. Reppucci to grant the special exception on behalf of the owner for 15 Kathy Drive as advertised. Zoning Board of Adjustment January 28, 2014 Page 10 Mr. Reppucci stated that the request 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. Mr. Reppucci said that the special regulations required by the Ordinance are fulfilled, and it 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. Mr. Currier said that all the Conservation Commission and DES restrictions, and signs, be included in the deed. AMENDED MOTION by Mr. Reppucci to include the minutes of the Conservation Commission and the DES, but that the restrictions defined by the incursion into the wetland buffer will be included in the deed for the property. SECONDED by Mr. Boucher. Mr. Shaw said that there is a statement in number four, that no sheds, patios, or fences or other impervious structures be built upon the lot, just the home itself. He said what he’d like to see, is that there is a proposed driveway with the plans, and it is impervious surface. He said the request shouldn’t disclude the driveway. AMENDED MOTION by Mr. Reppucci to include language that the proposed driveway would be allowed as presented on the plan. SECONDED by Mr. Boucher MOTION CARRIED 3-2. (Mr. Shaw and Mr. Currier) 3. Julian Morillo (Owner) 12A-12B Hanover Street (Sheet 86 Lot 100) requesting variance for minimum lot area, 2,975 sq.ft existing, 10,454.4 sq.ft required – to convert a two-family dwelling into a three-family dwelling. RC Zone, Ward 4. (TABLED FROM 1-14-14 MEETING) Voting on this case: Zoning Board of Adjustment January 28, 2014 Page 11 Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Rob Shaw NOTE: it was very difficult to understand the audio from the applicant for this case. Jeff Rodriguez, 101 Ash Street, Nashua, NH. Mr. Rodriguez said that he is interpreting the case for the owner. Mr. Reppucci said it is a request to go from two to three units, and the third unit would be in the attic. He said it’s a land area variance. He read through the applicants responses on their application. He read the notice of violation in the package, issued in November to the owner, in which there was building without permits. Mr. Reppucci asked what the plan is for the extra space, and asked if there is a kitchen and bathroom in the attic. Mr. Rodriguez said that there is. Mr. Reppucci asked about the entrance to the attic unit. Mr. Rodriguez said that there is a separate entrance to the unit, from the outside. Mr. Reppucci asked if the owner has spoken to the Fire Department or the Building Department about bringing the unit up to Code. Mr. Falk said that there is a letter in the package from the Building Department, stating that just the new unit would have to be brought up to the current Building Code, not the other two units. Mr. Currier asked about parking, and said that sometimes the cars would be overhanging the sidewalk. He said his concern is adequate parking for the additional unit. Mr. Rodriguez’s response unintelligible. Zoning Board of Adjustment January 28, 2014 Page 12 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 applicant as advertised. Mr. Shaw said that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, this will bring the unit into Code and utilize the space in the attic for a dwelling unit. Mr. Shaw 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 will be no structural changes to the building. Mr. Shaw said that it is not contrary to the public interest, and substantial justice will be served. SECONDED by Mr. Boucher. MOTION CARRIED 4-1. (Mr. Currier). Mr. Reppucci told the applicant that they need to go to the Building Department and obtain all necessary building permits for the additional unit. 4. Anthony J. Valdes (Owner) 20 Fulton Street (Sheet 100 Lot 10) requesting variance for minimum lot area, 4,680 sq.ft existing, 6,969 sq.ft required – to maintain property as a two-unit duplex. RC Zone, Ward 1. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Rob Shaw Attorney Jason Craven, Craven & Splendore, PLLC, Manchester, NH. Zoning Board of Adjustment January 28, 2014 Page 13 Atty. Craven stated that Mr. Valdes bought the property as a two-family, and the tax records will indicate it as such, and has been that way for several years. He said since at least the late 1980’s, it’s been in operation as a two-family building. He said that in the fall, 2013, the owner sought electric permits, and was then informed by the Building Department that it is an illegal two-family. Atty. Craven went over the application, and all the relevant points of law, to the Board’s satisfaction. Mr. Johnson said that he saw one electric meter on the side of the house. Atty. Craven said that is correct, and the owner was actually applying for a separate meter. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to grant the variance on behalf of the owner as advertised. Mr. Currier said that the variance is needed to enable the applicant’s proposed use of the property, which is a two-unit duplex, 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. Currier said that the case is within the spirit and intent of the ordinance, he said the lot area is a little short, but the property has been functioning fine as a two-family home for over twenty years. Mr. Currier said that the Board has professional testimony that 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. MOTION CARRIED UNANIMOUSLY 5-0. Zoning Board of Adjustment January 28, 2014 Page 14 MISCELLANEOUS: MOTION by Mr. Reppucci to re-open a variance case that was decided on January 14, 2014, for 25 Trafalgar Square. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0 Mr. Reppucci said that the owner of that case was not in favor of the applicant representing that they approved of one of the signs that was applied for, the ground sign. He said that the right thing for the Board to do is to completely vacate that decision. He said he wants to withdraw the Boards approval on that decision. He said that the owners letter makes it clear to the applicant that he didn’t want that ground sign. He said that there was misrepresentation. MOTION by Mr. Reppucci to vacate the entire decision for 25 Trafalgar Square, because the application was based upon a misrepresentation. Mr. Johnson asked if they then have a denied application. Mr. Falk said it’s not even a valid application, it’s not denied. He said it won’t be a Fisher vs. Dover issue, they can come back to the Board. SECONDED by Mr. Johnson. Mr. Reppucci said that the Board is still within the 30-day appeal period, there was false information, and the Board shouldn’t have even heard the case. MOTION CARRIED UNANIMOUSLY 5-0. REGIONAL IMPACT: The Board determined that there is no Regional Impact. MINUTES: December 10, 2013: Zoning Board of Adjustment January 28, 2014 Page 15 MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place the minutes in the file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. OFFICERS for 2014: MOTION by Mr. Currier to keep the Officers as the same - with Mr. Reppucci as the Chairman, Mr. Currier as the Vice Chairman, and Mr. Johnson as the Clerk. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0 ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:00 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing