Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING March 11, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 11, 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 Rob Shaw Rick Johnson Jack Currier Kathy Vitale 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. Dartmouth Hitchcock Clinic (Owner) 589 & 591 West Hollis Street (Sheet E Lots 6 & 1494) requesting variance for open space, 50% required, 31.9% proposed, to allow for a lot line relocation. R9 & PI Zones, Ward 5. Voting on this case: Gerry Reppucci Rick Johnson J.P. Boucher Rob Shaw Jack Currier Attorney Gerald Prunier, Prunier & Prolman P.A, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that there are two buildings on the property, and the proposal is a lot line relocation to give the lots better sizes for the future. He said that there will be no changes to the property, it’s just the lot line being relocated. He said that the access to the property will be the same. Zoning Board of Adjustment March 11, 2014 Page 2 Atty. Prunier said that the only request is for a variance to allow for open space of 31%, where 50% is required, as the land to be acquired is mostly all pavement and parking. He said that there will be reciprocal agreements for cross access from the main entrance. At this point, Mr. Reppucci announced that Ms. Vitale has arrived, and the voting members will be the five members present. Mr. Currier asked about the parking and it seems as if most of it is on the lot to the right, the easterly side, and if the ultimate goal is to sell off each lot individually. Atty. Prunier said that is correct. Mr. Currier asked if both lots meet the minimum parking requirements. Atty. Prunier said they do, and there will be cross-access agreements. Ms. Vitale asked about the access to the site. Atty. Prunier said the access to the site will remain the same with traffic. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Robert Gervais, 590 West Hollis Street, Nashua, NH. Mr. Gervais asked if they are putting in any new buildings. Mr. Reppucci said it is just a lot line relocation, and the variance is for open space. He said he’s not aware of what could go on in the future. Mr. Falk described the existing and proposed lot line. MOTION by Mr. Currier to approve the variance on behalf of the applicant as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the Zoning Board of Adjustment March 11, 2014 Page 3 property, which is essentially what it’s been for many years as a business, and they’re looking to balance the two lot sizes, versus one large and one small lot. Mr. Currier stated that it is within the spirit and intent of the ordinance for the Board to allow this variance, as part of the lot is in the R9 zone, and has an unusually high open space requirement. He said that there was no professional testimony, but there should be no change to the property values of surrounding parcels, it’s a benign property line relocation. He said the request is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 2. Andrea L. Whalen & Craig Sanossian (Owners) 73 McKenna Drive (Sheet C Lot 1841) requesting variance to encroach 2½ feet into the 30-foot required rear yard setback to construct a 14’x16’ home addition. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rick Johnson J.P. Boucher Rob Shaw Jack Currier Owner/applicant not present to make a presentation. The Board decided to wait and do this case as the last public hearing, in case the applicant is late. 3. Lawrence A. & Marianne M. Artz (Owners) 7 Fountain Lane (Sheet B Lot 1574) requesting variance for accessory use area, 40% allowed, 66.8% requested, to construct a 12’x16’ shed. R9 Zone, Ward 9. CASE WITHDRAWN WITHOUT PREJUDICE BY THE OWNER. 4. David C. Rhodes (Owner) 11-13 Linden Street (Sheet 45 Lot 145) requesting variance for minimum lot area, 4,987 sq.ft Zoning Board of Adjustment March 11, 2014 Page 4 existing, 10,484 sq.ft required, to convert a two-family building into a three-family building. RC Zone, Ward 3. Voting on this case: Gerry Reppucci Rick Johnson J.P. Boucher Rob Shaw Jack Currier David Rhodes, 11 Linden Street, Nashua, NH. Mr. Rhodes said that the biggest impact could be the traffic to the street. He said that he has more than enough ample space for five plus cars. He said that there are no obstacles blocking anyone’s vision. He said that nothing is being constructed, it’s all inside work. He said the only thing in the way is the lot size square footage for the extra unit. Mr. Reppucci asked if this was a three-family before. Mr. Rhodes said it’s a two-family, and wants to make an attic unit, no one has ever lived up there. He said he wants to live up there. He said the neighbors won’t even know this is being done. Mr. Currier asked if the garage is available for parking. Mr. Rhodes said that there’s a lot of stuff in it now, but it can be used for parking, it’s a fully functioning garage. He said in reality, it’s just his van and another tenant’s car. He said the tenant on the second floor is blind and does not drive, and has lived there for 18 years, and she has no plans on moving. He said that there will be only two cars on the property. Mr. Shaw asked if any construction has started in the attic. Mr. Rhodes said the work was done ten years ago, the previous owner put in a condo area up there. He said it’s a cute little place, it’s not an exuberant amount of work, it was just sheet rocked, and some piping. He said it’s very little plumbing, no gas. Mr. Shaw asked about a building permit. Zoning Board of Adjustment March 11, 2014 Page 5 Mr. Reppucci said he’d have to get a building permit. Mr. Shaw asked if there would be a need to provide another egress from the new unit, something outside the existing building. Mr. Rhodes said that everything would be done inside, there would not be a need to have anything external. Mr. Reppucci said that the new unit would have to be inspected, would have to meet all codes. Mr. Falk said that the unit would have to have two means of egress to meet the Fire Code. Mr. Rhodes said that there are two inner stairwells, one is functional now in the front and is being used, the other one would need a little work but it would be fine to use. He said they wouldn’t need to build anything externally to the house. He said the house is big, it’s over 50 feet long. He said all the neighbors are fine with this. Mr. Johnson asked if parking space #3 is a lawn area. Mr. Rhodes said it is. He said he wants to pave or cement it, or turn it into gravel. He said it’s utilized for a trailer right now. Ms. Vitale asked how many bedrooms are on the third floor. Mr. Rhodes said one. Ms. Vitale asked how many bedrooms are in the other units. Mr. Rhodes said two, but they each could have three if the large living rooms are cut, it’s the renter’s choice. He said that there are really five bedrooms in all. SPEAKING IN FAVOR: Mr. Reppucci said that there are two letters of support, from Irene Richardson of 11 Linden Street, and from Theresa Westcott, 12 Linden Street. Zoning Board of Adjustment March 11, 2014 Page 6 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to grant the variance request on behalf of the owner as advertised. Mr. Boucher stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Boucher stated that the use 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, as the lot has adequate parking and there were two letters of support submitted in the package, and substantial justice will be served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Reppucci to Table the case for 73 McKenna Drive to a date certain on the next meeting, March 25, 2014. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: 13 Kathy Drive: Denied at Public Hearing on January 28, 2014: 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. Mr. Reppucci said in this particular case, the applicant is requesting a recusal of a member. He said he’d like to hear Mr. Currier’s inclination and thoughts on it, and his intentions. He said that will govern how the Board goes forward on the case. Zoning Board of Adjustment March 11, 2014 Page 7 Mr. Shaw said he’s fine with that. Mr. Johnson said that is what he expected. Mr. Currier said for impartiality, he said it’s not the case that he has a personal “in” to deny this case ahead of time. He said he approached this case as impartial as every case we have. He said for the section that states that he involved himself well prior to this meeting, he said as per the testimony which was added to the public hearing, he said the pictures were of himself at the same location at the brook edge as testified to, and said he’d witnessed about a four foot rise in the brook. He said later on, as the issue of how high above the brook the foundation was, there was some non-belief, like it doesn’t rise that high, and that’s when he showed the pictures. He said the pictures weren’t to show pre-judgment, they are just to show what happens on the brook, he said it’s just first-hand experience of the area. Mr. Currier said that there is an implication that since his own property is within the 75-foot buffer, that he should recuse himself. He said he has no financial stake in this case. He said just because he lives on the same watershed is not a reason for recusal. He said that his testimony was reasonable on the case. Mr. Currier said for the word “reluctant”, he said he did use it, and perhaps it was a poor choice in words on the issue of the Conservation Commission there was an awful lot of discussion back and forth about the debris in the lot. He said his use of the word “reluctant” maybe a poor choice in words, but it was not used to diminish the Conservation Commission. He said there should be no reason to recuse himself. Mr. Shaw said he supports Mr. Currier’s position. Mr. Shaw said that he was just doing his normal preparation for the case, like submitting the pictures, just like in any other case, and shouldn’t be penalized because he lives on the same waterway. He said he didn’t see any basis for a recusal. Mr. Reppucci said that Section 4 of the Currier objection, there are five paragraphs on this topic. He said he agrees with what Mr. Shaw said about the pictures. He said he was unaware of when the pictures were submitted. He said he didn’t see much of Zoning Board of Adjustment March 11, 2014 Page 8 a difference between pulling out pictures that we are under consideration of, and demonstrating something that you think, he said he didn’t see much of a difference between doing that and studying the law or the manual to prepare yourself to speak to a specific case. He said he’s not sure if the pictures were entered correctly, because he said he doesn’t remember it, but doesn’t think it somehow taints what happened. He thought that of all these paragraphs, only the first one is really important. He read the paragraph. He said the question was whether the case was dealt with with complete impartiality. He said it is up to a member to decide if they are meeting the standards to decide whether or not to recuse. Mr. Reppucci said his sense of it is that only Mr. Currier can answer that question, if he feels that he can be completely impartial, and that he meets the juror standard, and if a juror were to pull out evidence of one side or another in hearing a case, that would certainly be improper. He said that his sense of this is that we have a Board where, if there’s an implication of impropriety, we can easily remedy that by hearing the case by a full Board, and completely remove that piece of the equation. He said the whole issue is in Mr. Currier’s hands. Mr. Shaw said that because this issue is being brought to the Board as a question, he said that the Board is being judged to whether one of the members actually acted with impartiality. He said he is giving a lot of weight to Mr. Currier’s thoughts. He said he’s convinced that Mr. Currier acted impartial towards the case. Mr. Currier said that this isn’t the first time his name has been brought up in a rehearing. He said that he denied a bank request at Mine Falls Park, the old WSMN site. He said that during the hearing, he said that he goes by that part of town, and that’s a very busy section, and people making left hand turns out of the bank to go towards the landfill, and it’s very challenging. He said that the applicant thought he had a pre- determined judgment and shouldn’t have sat on the case. He said he felt it was just his experience of the area, and that case went all the way to the Supreme Court. He said he sees the current case as no different. He said that all he’s done is to bring his experience to the case, with the pictures of the maple buckets in his yard showing how the water level has risen. Mr. Reppucci said that a couple things occurred in the meeting. Zoning Board of Adjustment March 11, 2014 Page 9 He said that he thinks that Mr. Currier thinks that he was completely impartial. He said the talk of the word “reluctantly” is different than he remembers. He said that when that was presented, he challenged it in the meeting, saying that to characterize a decision of another Board that way without evidence is improper. He said that one thing that he thought was an issue was in the discussion, the premise that it’s a special exception and that whether or not the standards are met. He said that Mr. Currier defended the position of judging it by the concept of that the DES didn’t see the final plan, and that, therefore, that was our role to fulfill. He said that Mr. Boucher pointed out that that isn’t accurate, that in fact they did see the final plan, his sense of that was it was just dismissed. He said in his mind, the decision is completely up to Mr. Currier as to whether he recuses himself or not. He said it’s a personal decision, and that’s the way the Statutes lay it out. Mr. Currier said that when Mr. Boucher pointed out that DES did have the plan, he said he looked, and said that he standed corrected, and thanked Mr. Boucher for pointing it out, because that was a big correction that he had wrong. He said that was one of several things in the application, and the main thing of the application all along was the fact that the no-disturb line was right adjacent to the foundation, and his experience is that it doesn’t work, which is a real problem with the application, then and now. Mr. Reppucci said he’s of the mind that it’s purely Mr. Currier’s call, and is not comfortable intervening in that piece of this appeal. Mr. Johnson said that for him, being a resident in the City, based upon his interests and employment standing, and in his frame of mind, there will be certain instances where an organization or entity comes forward, his first thought will be to recuse himself. He said that even though we could be impartial, if there’s any perception, then he’d recuse himself. Mr. Currier said he’s not going to recuse himself, he said he didn’t see why he should. Mr. Shaw said he’d like to see the Board vote on it. MOTION by Mr. Shaw said for one item in the rehearing request, Zoning Board of Adjustment March 11, 2014 Page 10 item number 4, titled “Currier Objection”, to deny the rehearing request, stating that he didn’t see any procedural error, that it was a legal decision, that there wasn’t any new information that would cause this Board to act on, and in all the four rehearing criteria, said he didn’t believe any of them would cause a rehearing, so based upon the question of whether Mr. Currier should recuse or not, that that does not warrant a rehearing. SECONDED by Mr. Reppucci. Mr. Reppucci asked if the Motion could be amended to include the specific question, “does the Board believe Mr. Currier should recuse himself” AMENDED MOTION by Mr. Shaw that the Board does not believe that Mr. Currier acted in any way that should cause him to be recusing himself from this case. SECONDED AMENDED MOTION by Mr. Reppucci. Mr. Reppucci said that this denial is only affecting the recusal. MOTION CARRIED 4-1 (Mr. Reppucci). Mr. Reppucci said that the Board will now go forward with the rest of the rehearing request. Mr. Reppucci asked if there was a procedural error, including improper notice, denying someone the right to be heard, etc. Mr. Johnson said no. Mr. Shaw said no. Mr. Boucher said no. Mr. Currier said no. Mr. Reppucci said no, and we all agree that there was no procedural error. Mr. Reppucci asked if it was an illegal decision, in other words, did the Board fail to completely address each of the Zoning Board of Adjustment March 11, 2014 Page 11 points of law required for the special exception and/or variance. Mr. Reppucci said as he clearly stated in the initial hearing, he does believe it was an illegal decision for the Board to deny the special exception. He said that he believes the Board is required, and compelled, to approve a special exception where all the requirements are met. He said that there is actual language in the discussion on the motion that the criteria is met, however, then explaining why this isn’t a good plan. He said that is improper. Mr. Shaw said that the motion was made in the context that one of the special regulations wasn’t fulfilled. Mr. Reppucci said that Mr. Currier said that everything was technically satisfied, however, this is a bad plan. Mr. Currier said it is incorrect to say that he feels that everything was met, but this is a bad plan and therefore, voting to deny it. He said that the criteria that the applicant needs to exceed was not met in his opinion. Mr. Reppucci said that in the motion itself, it said that Mr. Currier stated that per testimony tonight, the majority of this Board feels that having a foundation too close to the non- disturbed buffer and having DES clarifying that they want the buffer to remain in an unaltered state, he said he believes that it does not meet the special exception number five, about being detrimental to the health morals and welfare of the residents, particularly the residents of the potential home. Mr. Reppucci said that this is exactly his point, by using that language, and to say it’s too close to the line, where the ordinance allows it to be that close, and where DES and the Conservation Commission have reviewed and approved these plans, and recommended approval. He said that this is why he said the decision is illegal. Mr. Currier said that the line of non-disturbed, there’s not a requirement that says it has to be a foot or three feet, from the foundation. He said it goes to the general question of “does it work”. He said to have a non-disturbed buffer inches away from a foundation is an inappropriate situation that does not meet the test of that criteria. He said that he and Mr. Zoning Board of Adjustment March 11, 2014 Page 12 Reppucci just do not agree on this. Ms. Vitale said that the project, and it could reduce the stability of the line just by the fact that the foundation is right there. She said that you can disturb inside the line, when a house or foundation is right outside the line. She said that there will be encroachment in the buffer. Mr. Reppucci said that the City of Nashua, like many other communities, have the absolute right to legislate this type of thing as a variance. He said that some towns consider encroachment into a prime wetland buffer as a variance. He said if this were a variance, he’d have no problem supporting the Board’s decision. He said that in Nashua, it’s a special exception, a permitted use. Mr. Shaw said that the motion was of not meeting the criteria of the special wetlands criteria. He said that criteria number nine of the special wetland criteria, the buffer function, he said that the Board did find that the back yard would be used for back yards, and they wouldn’t be in their natural state, and they would be creating a situation that would be difficult to monitor. Mr. Reppucci said he disagrees, he said that piece of the motion is 100% speculative. He said we can’t say that this is the rule, but we don’t think that people will follow it, and deny the application. Mr. Currier said he disagrees, he said that we have a lot of information to go on, and stands by his decision. Mr. Boucher said that he may agree that people may encroach into the buffer, but can see how the applicant meets the criteria in the special exception criteria. Mr. Reppucci said that there was a reference to Continental Paving vs. Town of Litchfield. He said it is a similar case, in the idea of being a special exception involving a wetland incursion. He said that the language that the Court used in overturning that, are the questions about expert testimony and replacing expert testimony. He said in this case, we had the DES review this application and approve it. He said our own Conservation Commission recommended approval of this case. He said the applicant, Mr. Maynard, who is a licensed engineer, and Zoning Board of Adjustment March 11, 2014 Page 13 has fiduciary responsibilities to that license, and his credentials stand. He said that those three experts voted to approve this case, yet our Board ignored it. He said that the language that the Court uses in Continental Paving vs. Litchfield makes it very clear that is improper. Mr. Currier said that the Continental Paving vs. Litchfield, the decision was hedged on the water quality that would happen to those wetlands, it wasn’t a running stream, it was lowlands. In this case, we have DES saying they’ll buy this, as long as there’s a non-disturbed buffer. He said he’s the guy saying that is an impractical thing, we don’t have the ability to debate with the DES, saying that they’ll be a foundation inches from the non-disturbed buffer, please address that specifically. He said he’s not disputing the credibility of Mr. Maynard, or the DES. He said he’s not disagreeing with the DES, he’s saying that a foundation doesn’t work just inches from the buffer line. Mr. Currier brought up the approval of lots, and the definition of grandfathering, from forty or fifty years ago. He said that the Planning Board, in 1964, said that this subdivision met all the tests, and here we are, many years later, after wetland laws were put into place, and it’s a fair question to state that the lots don’t meet today’s standards. Mr. Johnson said in Farmille vs. Town of Danville, in 1998, the ordinance allows excavations provided that they are compatible with either natural features or historic landmarks or structures. He said that the Board denied a special exception, finding that the use would be detrimental to the historic and natural character of Tuckertown Road. He said the decision was appealed and upheld by the Superior Court, it reversed the ZBA, finding that there was nothing in the record to support the Zoning Board’s conclusion that the proposal would have an adverse impact on the road. Mr. Currier said that he believes that having a foundation just inches away from a non-disturbed wetland buffer line is unreasonable. He said if the Court finds it reasonable to have a non-disturbed wetland buffer that close to a house, then so be it. Mr. Reppucci asked what rule, statute or document that gives the ZBA the authority to determine whether or not that is reasonable. Zoning Board of Adjustment March 11, 2014 Page 14 Mr. Currier said the lots were platted in the early 1960’s, and now we’re in 2014, and in the early 1990’s, the wetland ordinance went into effect, he said he’s either right or wrong, and feel that now, in 2014, the lot doesn’t meet the current standards, twenty years plus after the wetland ordinance. Ms. Vitale said it was a building lot before, and then there were public hearings and that was the time that it was determined that the lot would fall within it or not, that was the time that the person who owned the property had their opportunity to go forward with their property. She said in the early 1990’s that was the time that the property owner could have gone forward to speak at the public hearings relative to the changes taking place. Mr. Reppucci said in 1992, the owners of that property had a permitted use of building a house on the land. Ms. Vitale said that now, the owner is coming forward with something that is more than the property can sustain. She said they’ll cut down trees, they rot underneath the ground, the land gives way, it washes away. Mr. Reppucci said the grandfathering piece of this is state statute. He said the RSA’s lay out how the land is grandfathered. He said that after the city’s wetland ordinance, the law changes. He said that the situation became that these previously buildable lots have an extra set of criteria that they must meet, which is quite a difference over saying that they’re not buildable any more. He said the subdivision was into a total of about ten lots in the early 1960’s, and in order for grandfathering to kick in, they had to proceed with development of the property, so, eight of those ten lots were completely developed, so it’s a good argument that it grandfathers the rest of the lots, because that’s when they were divided. He said he’d rather not go into the grandfathering issue, because what’s before the Board is that they believe that they’re grandfathered, but they’re trying to follow the rules of the City. He said the Court may see the grandfathering as relevant, and decide or may not, but the applicant thought that the property is grandfathered, the right thing to do was to not apply. Mr. Shaw said that one thing that stands out is that subdivision Zoning Board of Adjustment March 11, 2014 Page 15 was in 1965 and 1966, and it was presented that 26 years later that the wetlands ordinance went into effect, and there was a good amount of time before the last development was done. He said that when the City updated the Land Use Code in 2006, there were some changes to the wetland ordinance, and asked if any of those changes affected the wetland buffers. Mr. Currier said that he didn’t believe that any of the buffer widths changed. Mr. Falk said that intermittent streams and vernal pools were added, and there was the addition of “other” wetlands over 3,000 square feet in area. Mr. Reppucci said that the applicant chose to apply, and go through the DES and the Conservation Commission process. He said he didn’t believe that the Board made an illegal decision. Mr. Reppucci asked if it was an illegal decision, in other words, did the Board fail to completely address each of the points of law required for the special exception and/or variance. Mr. Johnson said that based upon what he read earlier, no. Mr. Shaw said no. Mr. Boucher said yes. Mr. Currier said no. Mr. Reppucci said yes. He said that there were three of the Board members that believe that it was not an illegal decision. Mr. Reppucci asked if the request for rehearing contains any new information not presented or available to the Board at the original Public Hearing. Mr. Shaw said yes to the extent of some of the specific case law, and Mr. Maynard tried to speak to some of that, but said that new things are brought up, but don’t have enough bearing on the case. Mr. Currier said he agrees with Mr. Shaw, and said there’s nothing in the request to change his mind. Zoning Board of Adjustment March 11, 2014 Page 16 Mr. Boucher said no. Mr. Johnson said no. Mr. Reppucci said he thinks that there’s a lot of new information on the grandfathering, but it’s not something we should change. He said the Board is unanimous on this point. Mr. Reppucci asked if there is anything which would/could cause the Board to make a different decision. Mr. Johnson said no. Mr. Boucher said no. Mr. Shaw said no. Mr. Reppucci said that the Board is unanimous on this point. Mr. Johnson said that we’re here to serve the public, and we can all agree to disagree, and there’s five of us, but in looking at the issue of a legal decision, where we have pretty much a split debate, he asked if it’s appropriate or prudent, based upon that, in fairness to the applicant, to grant the rehearing. He asked if it’s in the best interest of the City. Mr. Currier said no, we’d be hearing the same thing all over again, and didn’t think it would be in anybody’s interest. Mr. Shaw said he understands the fairness to the applicant, but also looks at it from the other side, from the abutter’s concerns and other people’s concerns, that, for us, we’re close, kind of split with the vote, a 3-2 vote, but this is also the nature of a healthy decision where there is some difference of opinion, and we’re not just rubber-stamping decisions. He said we’ve given this case a lot of attention. MOTION by Mr. Shaw to deny the rehearing request as presented by the applicant. Mr. Shaw said that the Board had already considered item #4 from the request and denied that. He said that regarding whether there were any procedural errors, the Board felt unanimously that there were none. He said the Board didn’t see any new information not presented or available from the original Public Hearing, he said that there was some limited Zoning Board of Adjustment March 11, 2014 Page 17 inconsequential information provided, but nothing that was going to cause a rehearing. He said that for the fourth point, the Board stated unanimously that there is nothing which would/could cause the Board to make a different decision. He said for the second point, about an illegal decision, and did the Board fail to completely address each of the points of law required for the special exception and/or variance, he said that there was a lot of discussion and differences of opinion on this, but the Motion is that there was nothing noted that it was an illegal decision, and while there was dissenting views on that, considered through discussion, the Board did not believe it was an illegal decision, and therefore, the Board is denying the rehearing request. SECONDED by Mr. Johnson. Mr. Reppucci asked if everything can be included in the record, such as the DES and Conservation Commission information. Mr. Shaw said he’s willing to make that amendment, he said his only concern from a procedural standpoint is that we stipulated about the Conservation Commission meeting minutes being included in the case, and we did that originally, but to introduce the DES information as part of the rehearing, almost seems like we are turning in an additional record that wasn’t part of the case. Mr. Falk said that if this does go to Court, the Legal Department will have all the applications, maps, drawings, letters, paperwork in the file. MOTION APPROVED 3-2 (Mr. Reppucci and Mr. Boucher). Mr. Reppucci said that we might not be done with this case, it may be remanded back to us. At this point, Mr. Sanossian showed up for 73 McKenna Drive. He said he unfortunately was sitting downstairs in another meeting. Mr. Reppucci said that the case was tabled, but there was no one in the audience to speak about it. MOTION by Mr. Shaw to remove the case from the Table. SECONDED by Mr. Johnson. Zoning Board of Adjustment March 11, 2014 Page 18 MOTION CARRIED UNANIMOUSLY 5-0. 2. Andrea L. Whalen & Craig Sanossian (Owners) 73 McKenna Drive (Sheet C Lot 1841) requesting variance to encroach 2½ feet into the 30-foot required rear yard setback to construct a 14’x16’ home addition. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rick Johnson J.P. Boucher Rob Shaw Jack Currier Mr. Sanossian apologized to the Board for being late, as he was downstairs in the wrong meeting. He went over the proposal, which is a variance to encroach 2½ feet into the 30 foot rear yard setback for a home addition in the back of the house off the kitchen. He said that they have a growing family and need the extra space. He said that many of the neighbors have similar additions on their homes. Mr. Shaw asked if it’s a single-story addition. Mr. Sanossian said it’s a split-level home. He said that per the plans, the addition is on posts, and asked if they decide to put a foundation underneath it, would it change the request. Mr. Shaw said the Board wouldn’t look at the foundation as a story. He said he’s more concerned about the second story going up above. Mr. Sanossian said that the addition is meeting the existing roof line. Mr. Falk said that staff looks at the overall building height and number of stories, and this request meets the ordinance. He said if there is a foundation below, it wouldn’t change the advertisement. Mr. Sanossian said that from the street, you wouldn’t see the addition. Zoning Board of Adjustment March 11, 2014 Page 19 Mr. Falk said that the addition is on the second story anyway, as the house is a split. He said it wouldn’t change the request. MOTION by Mr. Johnson to grant the variance request on behalf of the owner as advertised. Mr. Johnson stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Johnson stated that the use is within the spirit and intent of the ordinance, it is consistent with the neighborhood, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, the applicant spoke with all his neighbors and there are no concerns, and substantial justice will be served. Mr. Johnson said that as a special condition, the addition shall not exceed the current roof line. Mr. Shaw said that the addition is consistent with other additions in the neighborhood. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. REGIONAL IMPACT: The Board determined that there are no cases that have Regional Impact. Mr. Reppucci asked about the case at the airport. Mr. Falk said that staff will notify the abutting towns. MINUTES: January 28, 2014 and February 25, 2014: Mr. Reppucci said on the January 28th minutes, on page 7, there were three “Mr. Currier” statements in a row. Zoning Board of Adjustment March 11, 2014 Page 20 Mr. Falk said he’s already made the change to that. MOTION by Mr. Reppucci to approve the January 28, 2014 minutes as presented, with the change that Mr. Falk already made, waive the reading, and place the minutes in the file. SECONDED by Mr. Shaw. MOTION CARRIED 5-0. MOTION by Mr. Reppucci to approve the February 25th minutes as presented, waive the reading, and place the minutes in the file. SECONDED by Mr. Boucher. MOTION CARRIED 4-0-1 (Mr. Currier abstained) ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:25 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing