Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING July 8, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, July 8, 2014 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci Jack Currier J.P. Boucher Rob Shaw Rick Johnson Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Reppucci explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Reppucci explained how testimony will be given by applicants, those speaking in favor or in opposition to each request, as stated in the Zoning Board of Adjustment (ZBA) By-laws. Mr. Reppucci also explained procedures involving the timing light. 1. Susan & Steven Weintraub (Owners) 10 Damon Avenue (Sheet 49 Lot 209) requesting variance to encroach 5½ feet into the 6 foot required left side yard setback for a pool deck, and 5 feet into the 6 foot left side yard setback for an above- ground swimming pool. RA Zone, Ward 3. [TABLED FROM 6-24- 14 MEETING] Voting on this case: Gerry Reppucci J.P. Boucher Jack Currier Rob Shaw Rick Johnson Steven Weintraub, 10 Damon Avenue, Nashua, NH. Mr. Weintraub stated that he took to heart a lot of the items discussed at the last meeting. He said that they’ve decided to reduce the size of the swimming pool from 20 feet to 18 feet, and only have a 3 foot encroachment into the 6 foot setback, instead of 1½ feet for the pool and the deck. Zoning Board of Adjustment July 8, 2014 Page 2 Mr. Reppucci said that since the request is a lesser one, it does not need to be re-advertised. Mr. Weintraub said that the application is changed to meet the concerns heard at the last meeting, and called the business that installed the swing set, and they said it would be $400 to move it, and it would take four people to do so. He said he called another company, and they said that due to its having been in the ground for eight years, they wouldn’t do it. He said that to move it there would be a cost. He said that the sandbox has 1,800 pounds of sand, and it would also be very difficult to move. Mr. Weintraub said that there already is power to the site, so no additional electric would be needed. He said that the proposed site for the pool is the most level part of the lot to install it. He said the pool has to be level within 1/8 of an inch. He said that the proposed deck is off of the porch, but on the other side of the lot is a bulkhead, and the relief of three feet will allow for a better placed deck for the pool. He said the pool would line up with the deck very nicely. Mr. Johnson asked if he will comply with all safety regulations for the pool, including the railing. Mr. Weintraub said that every precaution and safety issue will be met. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said that the financial aspects of moving the swing set or sandbox does not come into play into any of the points of law. MOTION by Mr. Reppucci to approve the variance on behalf of the owner as advertised, with both requests considered collectively. Mr. Reppucci 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 Zoning Board of Adjustment July 8, 2014 Page 3 applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Reppucci stated that the request is within the spirit and intent of the ordinance. He stated that there will be no change to the property values of surrounding parcels. 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. Burt S. & Heather E. Raymond (Owners) 19 Dunbarton Drive (Sheet F Lot 511) requesting variance to encroach 14 feet into the 30 foot required rear yard setback to construct a 16’x20’ deck. R9 Zone, Ward 1. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Burt Raymond, 19 Dunbarton Drive, Nashua, NH. Mr. Raymond said that there is a 6’x6’ deck on the rear of the house, and the proposal is to replace it with a larger deck. He said it would be in the rear of the property, on the side of a hill, so part of the deck would be a foot off the ground, and since the land slopes down, the other part of the deck would be about six feet high. He said that there is a thirty foot setback, and part of the deck would be in the setback since it’s over four feet in height. He said if it were under four feet, it would be a different request. Mr. Raymond said that they’ve spoken to the abutters, and the deck would be hard to see. He said the property owner to the rear is about 150 feet away. He said the visibility to the deck is very minimal. He said the current deck isn’t really functional. He went over the application to the Boards satisfaction. Zoning Board of Adjustment July 8, 2014 Page 4 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION Mr. Currier to approve the variance on behalf of the owner as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, and 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 stated that it is within the spirit and intent of the ordinance. He stated that there will be no change to the property values of surrounding parcels. He said the request is not contrary to the public interest, it is located in a private setting, and substantial justice is served to the owner. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 3. IREIF III Nashua SH, LLC (Owner) Benchmark Assisted Living (Applicant) 674 West Hollis Street (Sheet E Lot 2151) requesting variance for minimum open space, 50% required – 45% proposed, to construct a 24 space parking lot addition. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Earle Blatchford, Hayner Swanson, Inc., 3 Congress Street, Nashua, NH. Mr. Blatchford said that they are requesting a variance from the open space requirement, to construct a 24- space parking lot. He said that the property was developed about 15 years ago. He said that at the time the property was Zoning Board of Adjustment July 8, 2014 Page 5 developed, the requirement for open space in the R9 district was only 20%. He stated that the parking requirement is one space per two units, and the approved plan had 50% open space, and it had reasonable expectation that there was room on the property for some future expansion. Mr. Blatchford said subsequently to the development being built, the revised Land Use Code was adopted, and the change in open space in the R9 district was to go from 20% to 50%, and the parking requirements changed from 1 space per two units to a minimum of one space per 1.9 units. He said that the applicant got a plan approved for a 1-story, 20 unit Alzheimer’s wing addition, with four additional parking spaces, and they purchased an adjacent property, formerly the Peterman property, and consolidated it. Mr. Blatchford said that with the new requirements of 50% open space, the property actually had 50.5% open space. He said that they requested a waiver on the parking for the new requirements, and thought they’d have adequate parking for the new addition. He said that the plan was approved with the stipulation that if additional parking was needed, that they’d need to come back to the Planning Board with a site plan. He said that the addition was completed in the Spring, and it’s become apparent that additional parking will be needed. He said that they’ve submitted a plan to go to the Planning Board. Mr. Blatchford said that the request is for 45% open space. He said that the Fire Marshal has reviewed the plan, and are supportive of the layout and design. He said the additional parking will be employee parking, which will free up 24 spaces on the lot, and it will be a more controlled and reasonable situation. SPEAKING IN FAVOR: Paula Cook, 26 Abbott Street, Nashua, NH. Ms. Cook said that her father was a resident of the facility, and she has volunteered there for four years. She said that there is a greater need for staff as well, and with family visits, there is no place to park. She said it is very difficult to find a place to park, and is supportive of additional parking spaces. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Zoning Board of Adjustment July 8, 2014 Page 6 Donald Drouin, 664 West Hollis Street, Nashua, NH. Mr. Drouin said he lives right next door. He said that his main concern is the traffic going very fast on West Hollis Street, and said that when they were under construction, vehicles had to almost pull out into the street to see if any cars are coming. He said he’s concerned if a truck is parked there, it would block the view of getting out of the driveway. Mr. Reppucci said that it looks as if the parking area is out of the setback. Mr. Drouin said that there about 6 pine trees, about 100 feet tall, and when the construction was going on, they excavated and cut into the roots, and is concerned that if there’s a storm, the trees would fall onto his house and property, as on one side of the trees, the roots were cut out. He said he’d prefer that the trees be taken down. SPEAKING IN FAVOR – REBUTTAL: Mr. Blatchford said that the privacy fence will end at the parking area, so it shouldn’t block any visibility or site distances. He said the fence is a privacy fence for the neighbor. He said the fence will be close to 30 feet back, and there shouldn’t be any site distance problems. Mr. Reppucci asked if there is any involvement with the pine trees for the application before the Board tonight. Mr. Blatchford said there will be a minor amount of cutting, they won’t know until they start digging. He said if the trees viability is in question, they could be taken out. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Drouin said he has some pictures of the roots. Mr. Reppucci said that isn’t before the Board’s discussion tonight, it’s just for the open space. He said it seems like there’s some good communication going on between the owners. MOTION by Mr. Shaw to approve the variance on behalf of the owner as advertised. Mr. Shaw 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 Zoning Board of Adjustment July 8, 2014 Page 7 sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance, the site needs parking to accommodate normal car usage of the site. Mr. Shaw stated that the request is within the spirit and intent of the ordinance, the incursion of open space is minimal, only 5%, and the Fire Marshal is supportive of the design and layout. He stated that there will be no change to the property values of surrounding parcels. He said the request is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 4. John J. Flatley Company (Owner) 100-300 Innovative Way and 6 Digital Drive (Sheet A Lots 798 & 1008) requesting special exception to work within a 40-foot “other” wetland and wetland buffer to construct a pedestrian trail system and an observation deck. PI, R18 & RC Zones, Ward 8. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Attorney Gerald Prunier, Prunier & Prolman P.A., 20 Trafalgar Square, Nashua, NH. Attorney Prunier said that they are continuing the trail system, and are putting in new trails to accommodate the new construction. He said that the trails are heavily used, both by the employees of the companies that are in the park and the people who live in there. Atty. Prunier said that there are a couple wetland areas that are buffers that the trail will go into. He said that the Conservation Commission has approved the plan. He said that all the special conditions are all satisfied. Mr. Shaw asked if the trail system is something that the City had asked the applicant to do. Zoning Board of Adjustment July 8, 2014 Page 8 Attorney Prunier agreed, and the trail system has worked out great so far, and it’s being used a lot. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to approve the special exception on behalf of the owner as advertised. Mr. Johnson stated that the use is listed in the Table of Uses, Section 190-112. Mr. Johnson stated that the use will not create undue traffic congestion or unduly impair pedestrian safety. He stated that it will not overload public water, drainage or sewer or other municipal systems. Mr. Johnson stated that all the special conditions and regulations are met, and that the use will not impair the integrity or be out of character with the neighborhood, or be detrimental to health, morals or welfare of the residents, the proposed use will be a benefit to the neighborhood. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 5. Donna I. Livesey (Owner) 56 Lock Street (Sheet 45 Lot 105) requesting variance for minimum lot area, 12,445 sq.ft required, 6,815 sq.ft existing, to convert a single-family house into a two-family house [previously approved by ZBA on 4-26-05]. RB Zone, Ward 3. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Zoning Board of Adjustment July 8, 2014 Page 9 Donna Livesey, Alton Bay, NH. Ms. Livesey said that the variance was approved in 2005, and is trying to sell the property right now. She said that the people she hired to put the apartment together to do the work never received a building permit, so after 12 months, the request expired. Mr. Reppucci asked if the property has been used as a two-family since 2005. Ms. Livesey said it has. She said it has two entrances. She said it was a 9-room house even before the 2005 approval, and the only thing they had to do was put in some plumbing upstairs and a new electric box. Mr. Reppucci asked if the work was done before the relief granted in 2005. Ms. Livesey said the house was used only as a single-family before the request in 2005. She said the place is rented. Mr. Shaw asked about the tax bill, whether it’s for a single- family or a two-family. Ms. Livesey said that she believes it is for a two-family. Mr. Currier asked if there have been any issues with parking at the site. Ms. Livesey said that there is a four car garage and a large driveway. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci asked if the Code was the same when they were approved by the Board in 2005. Mr. Falk said at that time, a two-family in the RB Zone required 9,000 square feet of land. He said that the current requirement in the RB zone is 12,445 square feet of land for a two-family. Zoning Board of Adjustment July 8, 2014 Page 10 MOTION by Mr. Currier to approve the variance on behalf of the owner as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is a two-family with plenty of parking, and 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 stated that the request is within the spirit and intent of the ordinance. He stated that there will be no change to the property values of surrounding parcels. He said the request is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 6. Brian R. & Patricia A. Goulet (Owners) 10 Sherman Street (Sheet 59 Lot 23) requesting variance for minimum lot depth, 90 feet required, 75 feet existing, to construct a single-family house. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Brian Goulet, 17 Charlotte Avenue, Nashua, NH. Mr. Goulet said that they are requesting a variance for lot depth, to utilize the lot to build a single-family home. He said they already live in the neighborhood. He said that they won’t be encroaching into any of the yard setbacks. He said that the lot is very similar to many other lots in the neighborhood, and it would not be out of character. He said the variance would allow reasonable use of the property. SPEAKING IN FAVOR: Letter from Joanne St. John, 25 Beauview Avenue, Nashua, NH, in support of the request. Zoning Board of Adjustment July 8, 2014 Page 11 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Glen Fisher, 8 Sherman Street, Nashua, NH. Mr. Fisher said his house is right next door, and the house sets back about 30 or 40 feet. He asked where the front of the proposed house would be. Mr. Johnson gave him a plot plan showing the proposed house location. MOTION by Mr. Boucher to approve the variance on behalf of the owner as advertised. Mr. Boucher stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance, he said that the lot has been a lot of record for many years, and there is no other method to obtain additional land. Mr. Boucher stated that the request is within the spirit and intent of the ordinance. He stated that there will be no change to the property values of surrounding parcels. He said the request is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 7. James Zabala (Owner) 21 Coburn Avenue (Sheet F Lot 96) requesting variance for accessory use area, 40% allowed – 68% proposed – to construct a 24’x26’ detached garage. R18 Zone, Ward 1. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier James Zabala, 21 Coburn Avenue, Nashua, NH. Mr. Zabala said that they’re asking for a variance for the accessory use area Zoning Board of Adjustment July 8, 2014 Page 12 percentage. He said that they’re building a 24’x26’ detached garage. He said that the existing garage attached to the house will be turned into a master bedroom suite, and they will also add about 300 square feet of living space to the house. He said he’s discussed the plans with the neighbors and they’re fine with it. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance on behalf of the owner as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is a two-car detached garage, and 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 stated that the request is within the spirit and intent of the ordinance. He stated that there will be no change to the property values of surrounding parcels. 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. MISCELLANEOUS: REHEARING REQUESTS: 1. Stephen C. & Karen M. Roebuck (Owners) 21 Gendron Street (Sheet E Lot 730) requesting variance to encroach 6 feet into the 10 foot required left side yard setback to construct an attached 23’x28’ two-car garage. R9 Zone, Ward 5. [CASE HEARD ON MAY 27, 2014] Zoning Board of Adjustment July 8, 2014 Page 13 Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Mr. Reppucci asked if there are any procedural errors. Mr. Currier said no. Mr. Johnson said no. Mr. Shaw said no. Mr. Boucher said no. Mr. Reppucci said no. Mr. Reppucci asked if it were a legal 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. Currier said he didn’t agree with a majority of the Board, he said he’d rather discuss question #3. 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. Currier said he didn’t know of the master bedroom of the abutter’s property over the garage. He said that information is impactful, and thought it was just a garage, not living space close to the incursion. He said as far as he recalls, it was not part of the discussion. Mr. Johnson said that it is new information to him. Mr. Currier said that from his site walk, he didn’t see it. Mr. Reppucci said he’s read the letter from Attorney Shepard, and said that there are some things in the letter that are completely wrong, specifically the idea that we changed the law about the setback. He said he was discussing the distances Zoning Board of Adjustment July 8, 2014 Page 14 between the buildings, not as if it were a setback. He said he fully understands that the setback is from the property line, and in no way was suggesting that the setbacks weren’t from the property line or if it were between buildings. Mr. Johnson said that the Board in no way altered the interpretation of the law, the Board clearly discussed the boundaries to the property line. Mr. Currier agreed that the Board was not changing the law. He said the Board was clear that the distances are to the property line. Mr. Reppucci said that the Board is focusing on the living space over the garage as being new information. Mr. Johnson said that in this issue, it brings to bear question #4, if it would/could cause the Board to make a different decision. Mr. Reppucci asked if the information was presented at the first hearing, and could it have been presented, so, for new information, is it new information that has come up since the first hearing, or is it something that someone just forgot to mention. He said that the information on the living space above the garage wouldn’t have changed his vote. Mr. Boucher said that during that deliberation, he said he knew from the rear of the abutter’s house that it was some sort of living space up there. He said in knowing that, he said his decision would not have been any different. He said from looking at some pictures, he knew that it was living space up there. Mr. Reppucci pointed out that the Boards conversations flow, and it doesn’t mean that if one of us raises a point or a question, that our decision is based upon a particular answer. He said that in the meeting, in the totality of the discussion, it may have been mentioned in the meeting, but the real question is it a pivotal thing, and would a vote be changed. Mr. Shaw said the wording in question #4 is if there is anything that would/could cause the Board to make a different decision. He said he tries to be fairly generous in that how possible it is that there is something that could lead to a different Zoning Board of Adjustment July 8, 2014 Page 15 decision. He said it’s sort of a gray issue. Mr. Reppucci said it wouldn’t change his vote. Mr. Shaw said that since he didn’t sit on the original case, he’s more apt to defer to the other members that sat on the original case. Mr. Currier said that he thinks the new information is a big deal, and in looking at this case in totality, it is something that would/could cause the Board to make a different decision. Mr. Johnson said that he did vote in favor of the application. He said the question could have caused the Board to come up with a different decision. He said he may have voted no. He said it is significant information. Mr. Boucher said that he’s made some assumptions, and said he doesn’t think about the case any differently than he did five minutes ago. He said from the case, he’s made assumptions, and feels that he’s the only one who knew that there was some living space up there. He said that the Board spent a lot of time talking about this case. Mr. Shaw said he believes that he wouldn’t have voted in support of the case either then, or now. Mr. Currier said that it really hasn’t been explored about living space so close to a garage. He said right now we don’t have to answer that it would or it wouldn’t, he said it’s an impactful thing, and realizes it now, so the “could” is as important as the “would”. Mr. Reppucci said if the Board goes into a rehearing, we are opening up the case completely again, it’ll start from the beginning, like we never heard it. He said that based upon the discussions tonight, there is new information that potentially could change the outcome, and we should rehear the case. MOTION by Mr. Currier to rehear the case for Stephen and Karen Roebuck, 21 Gendron Street, because there is new information that was not available at the original public hearing, and that it would/could cause the Board to make a different decision, and with that possibility, the Motion is to rehear the case. Zoning Board of Adjustment July 8, 2014 Page 16 SECONDED by Mr. Johnson. Mr. Reppucci said that the supporters of this Motion feel that the outcome could have been different. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Boucher). 2. Mary D’Amelio (Owner) Fun Properties, LLC c/o Richard Jean (Applicant) 6 East Pearl Street (Sheet 35 Lot 57) requesting variance for minimum lot area, 3,534 sq.ft existing, 10,454 sq.ft required, to convert a two-family building into a three-family building. RC Zone, Ward 4. [MAY 27, 2014 ZONING BOARD MEETING] Request submitted by Douglas Dichard. Voting on this case: Gerry Reppucci Rob Shaw Rick Johnson J.P. Boucher Jack Currier Mr. Reppucci asked if the totality of the rehearing request is the paragraph on the rehearing sheet of paper. Mr. Falk said it is. Mr. Reppucci asked if there were any procedural errors. All ZBA members responded “no”. Mr. Reppucci asked if it was an illegal decision. All ZBA members responded “no”. Mr. Reppucci asked if the request for rehearing contains any new information not presented or available to the Board at the original public hearing. All ZBA members responded “no”. Mr. Reppucci asked if there is anything that would/could cause the Board to make a different decision. Zoning Board of Adjustment July 8, 2014 Page 17 All ZBA members responded “no”. MOTION by Mr. Reppucci to deny the rehearing request, as none of the criteria were met to justify a rehearing. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. BY-LAWS REVISION: Mr. Reppucci said that the language to change the By-Laws has been amended, and this is the second time that this issue has been heard, which is consistent with the Board revising the By- Laws. MOTION TO AMEND BY-LAWS by Mr. Reppucci to allow applicants additional time for multiple applications if needed. SECONDED BY Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. REGIONAL IMPACT: The Board determined that there are no cases that have Regional Impact. MINUTES: None. ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:12 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing