Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 12, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 12, 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 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. CASE #1 IS POSTPONED, AND WILL BE RE-ADVERTISED FOR THE AUGUST 26, 2014 MEETING: 1. City of Nashua (Owner) “L” Groton Road, “L” old Ridge Road and “L” Buck Meadow Road (Sheet D Lots 516 & 336) requesting special exception to work in the 40-foot “other” wetland buffer to construct conservation trails, boardwalks and fences. R40 Zone, Ward 5. 2. W. Gean Gow (Owner) 6 Bowman Lane (Sheet B Lot 484) requesting variance to encroach 6 feet into 20 foot required front yard setback to construct a 6’x32’ front screen porch. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci J.P. Boucher Jack Currier Rick Johnson MOTION by Mr. Reppucci to Table the case until the end of the night, as no one was present to make a presentation. Zoning Board of Adjustment August 12, 2014 Page 2 SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 3. Robert & Kathleen Massicotte (Owners) 13-15 Monroe Street (Sheet 92 Lot 63) requesting variance to encroach 19 feet into the 20 foot required front yard setback (on Lewis Street) to maintain an existing 10’x12’ shed. RB Zone, Ward 6. Voting on these cases: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Robert Massicotte, 15 Monroe Street, Nashua, NH. Mr. Massicotte said that the shed has been in place for about five years. He said it was brought to his attention when another shed was proposed to be placed in the yard, and found out that this one was in violation. Mr. Massicotte said they have a corner lot of Lewis Street and Monroe Street, and the house faces Monroe Street, it has a fenced-in back yard and a lot of bushes. He said that he wasn’t aware that the side of the house, the side yard, is actually a front yard, so when the shed was placed there, tucked away in a corner of the side yard, it was done to not affect the neighbors or anything. He said the neighbors are supportive. He said the shed is 10’x12’, and he built it himself, to match the house. He said there’s no other suitable location to move the shed on the yard. 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. Zoning Board of Adjustment August 12, 2014 Page 3 Mr. Currier said that the Board finds that the variance is needed to enable the applicant’s proposed use of the property, which is a storage shed off to the side yard, and the shed is not causing any problems to any abutters, testimony is that the abutters are favorable. Mr. Currier stated that it is within the spirit and intent of the ordinance. He stated that the shed will not adversely affect property values of surrounding parcels, the request is not contrary to the public interest, and substantial justice is served to the owner to keep the shed where it is. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 4. Nashua RE Holdings, LLC (Owner) ND Acquisitions, LLC (Applicant) 575 Amherst Street (Sheet H Lot 626) requesting use variance to allow a 54-unit assisted living facility. PI Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that he objects to proceeding forward with four members instead of a full Board. Atty. Prunier handed out some information to the Board. He said the property was formerly used by NimCor. He described the surrounding land uses. He said that the property is 8.5 acres, and it abuts Pennichuck Brook to the rear. Atty. Prunier said that the existing building will be demolished. He said that the existing building is old, with a small ceiling, and no matter what use would go there, the building would have to be demolished. He said that the proposed building is a single-story, 3-wing building. He said the proposed use is for an Alzheimer’s assisted living use. He said the property will have yards, and gardens, which is important Zoning Board of Adjustment August 12, 2014 Page 4 for the treatment of patients. He said that each patient will have their own room, and they can bring their own furniture and belongings into their particular rooms. He said that Alzheimer’s is a growing problem, and the project will be a benefit to the community. He said that the area is perfectly suitable for this use, they do not need visibility from Amherst Street, and it’s not an industrial use, it’s residential, and there won’t be any impact to the Pennichuck Brook. He said it’s similar to the multi-family use nearby, and the use will generate very little traffic, as the residents will not be able to drive their own vehicles. He said that the use complies with the spirit and intent of the ordinance. Mr. Currier asked if the use and proposal meets the requirements of the Watershed Protection Act. Atty. Prunier said they’ll meet all requirements of the Watershed Protection. Mr. Johnson asked if the parking is sufficient. Atty. Prunier said that this is not the applicant’s first project like this, they have stated that the parking provided is more than enough. He said that the employees park in the back. He said that unfortunately, a lot of family members stay away, than to help, so they need less parking. Mr. Reppucci asked about the parking with respect to the Fire lanes, especially for parking on holidays. Atty. Prunier said the drive aisle goes pretty much around the whole building, and if they need to, they can put in a grassed area with gravel underneath for overflow parking, like Nashua Crossings recently just did. Mr. Boucher asked about the security, and people walking off. Atty. Prunier said that the applicant has done this use throughout New England. He said that they haven’t lost anyone yet, and they do their best to keep everyone contained. SPEAKING IN FAVOR: No one. Zoning Board of Adjustment August 12, 2014 Page 5 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the use 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 an assisted living facility. He said that the special conditions of the property is that it is a PI zone, and it’s tucked off of Amherst Street, and it abuts a water supply, and will comply with the Watershed Protection Act. 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. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 5. Linear Retail Nashua #3, LLC (Owner) 219 Daniel Webster Highway (Sheet A Lot 761) requesting variance to encroach 7 feet into the 10 foot required front yard setback to install a 112 sq.ft. ground sign. HB Zone, Ward 6. Voting on this case: Gerry Reppucci Rick Johnson J.P. Boucher Jack Currier Tim Sullivan, Barlo Signs, Hudson, NH. Mr. Sullivan approached the Board and handed out same materials. Mr. Sullivan said that the applicant was before the Board about a year ago, and received a variance for a 200 square foot free-standing pylon sign, maintaining the setback. He said that 150 square feet is allowed. He said after they began developing the property, they realized that the 200 sq.ft pylon wasn’t necessary, now, they’re asking for a smaller pylon sign at 112 square feet, but now the relief being asked for is to have it closer to the roadway, to encroach 7 feet into the 10 foot setback. He referred the Board to a photo in the package. Zoning Board of Adjustment August 12, 2014 Page 6 He said that the goal is identify the entrance where vehicles travelling south can turn. He also showed some pictures of other nearby signs that are close the sidewalks or road. Mr. Sullivan said that they feel that the sign is within the spirit of the ordinance, it’s in a highly commercial area, and the goal is to properly identify the entrance to the way finding public. Mr. Sullivan said that substantial justice would be done for the owner, it’s a highly commercial zone, with similar signs nearby. He said that the sign will help customers get to the property. Mr. Currier said that he isn’t seeing the proposal the same way. He said that in looking at the original application, the proposed sign would meet the setback. He said in Sheet 2.0, the new sign would obscure all the new wall signs for the other businesses, except Noodles. He said that coming northbound on DW Highway, there is the benefit of an extremely proud building, set high in the air, with wall signs that are very predominant. He said he’s not seeing the need for the encroachment into the setback. He said another great advantage is that by going northbound, if you miss the wall signs, there is the beauty of the U-turn, and if you’re going southbound, you have the beauty of turning into the road that goes up to Shaws. Mr. Sullivan said that the local people know where Noodles is located, but there are a lot of people who travel DW Highway from out of state, or other towns, that do not know. He said by bringing the sign out into the setback, you’re able to see it further down heading south. He said that the smaller sign will help direct drivers into the site, without having a large 200 square foot sign there, and reducing the size of the sign will help to reduce some of the sign pollution along the highway. Mr. Currier said that even when you’re driving down past Pizza Hut, you can see the Noodles sign, it’s hard to miss it, and said that the sign pollution is enhanced by having the sign in the setback. The sign would be right in the middle of a nice landscaped strip area in the front. He said he didn’t see the benefit of the sign there. Mr. Reppucci asked where the changes are coming from, either the sign company or from Linear. He said when the case was first Zoning Board of Adjustment August 12, 2014 Page 7 heard, he thought that the sign wouldn’t work, as it would block the other signs that are there. He asked if Linear is following engineering requirements behind moving the sign. Mr. Sullivan said that the direction they’re getting is from Linear, being at the site and understanding the site, it’s what they are recommending for proper identification. Mr. Reppucci asked why the sign has to be seven feet closer to DW Highway, and if there is an engineering perspective that shows that the sign being in the proposed location will be effective. Mr. Sullivan said it’s a determination between the sign company and the client seeking to have the maximum visibility at that entrance. He said that they’re concern is that potential customers will miss the entrance. Mr. Reppucci asked if the request is denied, would the client be comfortable with the sign 10 feet away. Mr. Sullivan said if it’s denied, they’d probably go back to the 200 square foot sign that has already received a variance. Mr. Johnson asked what the gain is, besides the obvious reduction in square footage of the sign, from the previous approval and the current request. Mr. Sullivan said that by relinquishing the additional square footage down to the smaller square footage, it would bring the sign out closer to the road. He said the previous sign would be too far up the hill, and it would be raised up for the 200 square feet, so by bringing it down in size and bringing it closer to the roadway, the gain is to identify the entrance properly. Mr. Boucher said that once you’re past the entrance you’re past it, and thought that the larger sign that the Board approved would be clearer than the current proposal. SPEAKING IN FAVOR: Bryan Furze, Linear Retail Nashua, Burlington, MA. Mr. Furze said that they were initially very excited about the larger sign and after building the building, and seeing the visibility, Zoning Board of Adjustment August 12, 2014 Page 8 especially heading southbound, the building has a nice presence. He asked Barlo Signs to show what the pylon would look like after putting a crane up and showing a massing of what the sign would look like. He said that their reaction would be that the building would look invisible. He said their main concern is to not screen the building, the concern of pushing the sign back another five feet, you can’t really see anything beyond Noodles if you’re sitting at the traffic light. He said by moving the sign you can see the entire length of the building. He said that they’re going from a 200 square foot sign to a much smaller sign. He said that they’re just trying to preserve as much as the view corridor as possible with the new building. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said if they don’t approve this request, he didn’t think they’d go back to the 200 square foot sign, that was a bad plan, it obstructs the building. He said he’s not a sign designer, but said he’d lower it and make it within the setback. He said the proposed sign looks like it’s right on the road. Mr. Currier said he shares the sentiment. He said that any signage obscures the building and the sign that’s already there. He said it’s not like the Old Navy store, who can say that they’re so far back, that you can’t see their sign. He said that he’s not finding support for the proposed sign. Mr. Johnson said he is intrigued about the southbound traffic, and feels like if it’s held to the ten foot setback, it would obscure the signs on the building. He said he was leaning towards favoring the proposed sign, despite the fact it is close to the road. He said he could support the variance, because it is a commercial area and there already is a lot of signage in the area. Mr. Boucher said that he could go either way, he wondered if a lesser incursion would allow them to get what they want to achieve. Mr. Reppucci said it looks as if there are two in favor of this, and two that are on the fence. He said to avoid the 2-2 vote, perhaps its best to table the case, and give them a chance to think over the proposal to perhaps make it work better, and to Zoning Board of Adjustment August 12, 2014 Page 9 hear it again when we have five members. He said it’s not really fair to have it be a tie, and the case is denied. Mr. Johnson suggested an approval this evening with a lesser incursion, say three feet. Mr. Reppucci said he didn’t want to pursue that, he said he’d rather give them a chance to reconsider. Mr. Currier said he isn’t in favor of a compromise because of that reason. He said that the Board is not sign designers, and it could be worse. He said no one is in the audience against the request, he said it’s best to look at it as giving them another shot, maybe there will be five people here next time, and it’s in the public interest in this case, because we’re not burdening any objectors, to table it. Mr. Johnson said it would give them time to do a visual assessment of a potential new sign, and by tabling it, it would give them more time. MOTION by Mr. Reppucci to table the application to the September 9, 2014 meeting. He said the reason is that the Board expects to have five voting members at that meeting. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 6. Linear Retail Nashua #1, LLC (Owner) 225 Daniel Webster Highway (Sheet A Lot 190) requesting the following variances: 1) to allow an additional sign panel on an existing ground sign for an abutting, off-premises property; and 2) to exceed maximum ground sign area, 150 sq.ft allowed, 275 sq.ft existing from Jan 9, 2007 variance - an additional 40 sq.ft proposed. HB Zone, Ward 8. 7. Linear Retail Nashua #5, LLC (Owner) 8 Spit Brook Road (Sheet A Lot 259) requesting the following variances: 1) to exceed maximum ground sign area, 150 sq.ft allowed, 210 sq.ft proposed; 2) to encroach 10 feet into the 20 foot required front yard setback for ground sign; 3) to exceed maximum wall sign area for three separate retail spaces, 49.5 sq.ft allowed each – two tenants proposed for one 80 Zoning Board of Adjustment August 12, 2014 Page 10 sq.ft sign, one corner tenant proposed for two 80 sq.ft wall signs. HB Zone, Ward 8. Mr. Reppucci suggested that both cases 6 and 7 be done in one presentation, and the other members agreed. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Attorney Thomas J. Leonard, Welts, White & Fontaine, Nashua, NH. Atty. Leonard passed out two packets of handouts to the Board members. He said that the first sheet shows Spitbrook Road and DW Highway. He said the second sheet shows the actual address numbers, and identified them. Atty. Leonard said that the first variance is related to the pylon sign at 225 DW Highway, as shown in the second packet with the La-Z-Boy sign on the front. He said that Linear owns this whole area, except for the Barnes & Noble building site. He said that they’re trying to re-brand and identify the site and have the whole site organized, and signage will tie the whole site in together. Atty. Leonard stated that the La-Z-Boy sign is Item “B”. He said that this sign has an existing variance for that sign to allow it to be 275 square feet. He said that they are asking permission for another panel at the bottom of the sign, at 40 square feet in size. He said that this panel would be for purposes of advertising a new tenant, which is going on the 8 Spit Brook Road site, for a tenant where Rug Depot was. He said that the additional panel will allow for signage for that rear tenant, to allow for some signage on Daniel Webster Highway, to give them some visibility that they don’t have, as this particular location is not visible from either Spit Brook Road or DW Highway. Atty. Leonard said for the second package, it shows the Panera Bread/former Rug Depot site. He said that there will be a façade change. He said this portion of the building is difficult to lease, and it has visibility problems, as it’s located behind Barnes & Noble. He said that the best visibility Zoning Board of Adjustment August 12, 2014 Page 11 is from that private 50-foot access road. He said that Linear Retail is trying to make some improvements to the building, and to add some signage. He said the variance request is proposed in the Barlo Signs plan. He said that there are two tenants, and in the plan it identifies “C-1 and C-2”, they are unnamed tenants as of today. He said it amounts to roughly 159 square feet. He said that it would be associated with the 50 feet of building frontage. He said it’s approximately twice what is allowed for wall signs, but the goal is to make this part of the building leasable and visible. Atty. Leonard said the last sign is in the last packet that was given to the Board. He said it is an existing ground sign for 8 Spit Brook Road. He said the proposal is to replace the existing sign with an updated sign that is consistent with the overall plan. He said the new ground sign identifies the plaza as Daniel Webster Crossing. He said the three plazas all are working together, and all have similar Daniel Webster type names. Atty. Leonard said that this sign is a replacement, the existing sign is approximately 180 square feet, and the new sign is approximately 190 square feet, not a substantial difference. He said the primary difference is that it has the name of the plaza at the top, and it has two pylons, so the increase is in the size by that small amount, and the new sign will keep the same leading edge, so that there is no additional nonconformity or inclusion in the setback. He said that the present sign encroaches in the setback, and the new sign will be in the same location, no additional inclusion. Atty. Leonard said that all of the signs have been carefully designed to be consistent, both with existing wall signs and existing pylon signs, and to be coordinated, they’re sized to address the concerns on the accessway by the old Rug Depot site. Mr. Reppucci said that to him, it’s very clear what they are asking for. Mr. Johnson asked that in cases where there is an additional pylon, what are the visual impacts to drivers, particularly the one where there is an additional 40 square feet. Atty. Leonard said that’s the 225 DW Highway site, where the panel is added to the bottom of the sign. He said the new sign Zoning Board of Adjustment August 12, 2014 Page 12 panel is 2’-8” high, but there is at least six feet to the bottom of it from the ground. Mr. Currier said that there are two things that obscure the sign, one is the Barnes & Noble building, which obscures sign C- 1, where there is a current Rug Depot sign. He said that sign C-2 there is also a current Rug Depot sign. He said that the intent is to capture southbound Daniel Webster traffic, they turn right, into the private road, and access Rug Depot, or what will be there. He said the sign that they’re looking for will be behind existing trees. Atty. Leonard said that they don’t have any control over those trees. He said from 8 Spit Brook Road, you can’t see the tenant at all. He said the focus is from the other side, not just from DW Highway, but internally from drive aisles in the development. Mr. Currier asked about the process on designating tenants on ground signs, who gets what size, and placing on the sign, and asked if they really need the additional forty feet. Atty. Leonard said that the sign has to be visible, there are cars travelling south, and it has to be of a certain size to be visible. He said that the goal of the sign is to get cars off of DW Highway as soon as they see the site, and the sign. He said a sign at this location, the letter height must be at least 6-8 inches in order to be seen and read. Mr. Currier said that for the 8 Spit Brook Road sign, there are two panels at the bottom that are currently blank. Atty. Leonard said that his understanding is that if a panel is blank, there is a vacancy. He said the panel for C-1 is blank. He said that the Rug Depot sign is for C-2. He said that there will be a panel for every tenant. He said that the panels on the ground sign for 8 Spit Brook Road are only for the tenants at 8 Spit Brook Road. Mr. Boucher asked if there is any correlation of the size of the panels on the ground sign. Atty. Leonard said that it depends on the tenant. SPEAKING IN FAVOR: Zoning Board of Adjustment August 12, 2014 Page 13 Bryan Furze, Linear Retail Nashua. Mr. Furze said that they’re marketing the properties they own in a standard manner, for parking, signage, logos and branding, to create a thoroughfare through the whole commercial area. He said that a lot of the panels, as far as their size and location on the pylon sign, depend on whether they’re an anchor tenant, and how much square footage they use within the plaza. He said the designations are also lease commitments, they’re given away at the lease, and to change or alter them would be a lease amendment, which requires the owner to give up something in exchange. He said that the panels are locked in until there is a roll-over of a tenant, they are part of a legal document. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the variance on behalf of the owner as advertised. He said that this motion is for both variances taken together, for 225 Daniel Webster Highway. 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 applicant cannot be 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. Boucher. MOTION CARRIED 3-1 (Mr. Currier) MOTION by Mr. Reppucci to approve the variance on behalf of the owner as advertised. He said that this motion is for all three variances taken together, for 8 Spit Brook Road. 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 applicant cannot be reasonably feasible for the applicant to pursue, other than an area variance. Zoning Board of Adjustment August 12, 2014 Page 14 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. Boucher. MOTION CARRIED 3-1 (Mr. Currier) 8. City of Nashua (Owner) Verizon Wireless (Applicant) 10 Whipple Street (Sheet E Lot 1487) requesting the following: 1) special exception to replace an existing telecommunications tower with a new, relocated tower of the same dimensions, along with an associated larger fenced-in equipment compound; and, 2) variance for tower setback, 400 feet required from all lot lines, 187 feet existing, 145 feet proposed. RB Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Attorney Tom Hildreth, McLane Law Firm, Concord, NH. Atty Hildreth said that this proposal is to replace a long-standing existing monopole tower at the northwest corner of the Mine Falls soccer fields. He said it is a five-carrier facility, contained within a 40’x40’ fenced compound at its base, it’s exceeding its carrying capacity today. He said they’re doing a drop and swap project. He said that the tower is 18 years old, and it wasn’t engineered to accommodate the modern requirements for equipment on the tower. Atty. Hildreth said that their proposal is that a new tower will be built, 180 feet high, and it’ll be about 35 feet to the west of the existing tower. He said that the fenced-in compound will be expanded by 35 feet, so it’ll be 40’x75’ compound when complete, with six carriers on the tower. All the equipment will migrate from the existing tower to the new tower, and then dismantling the old tower and removing it from the property. He said that they have commitments to the City to not interfere with operations of the park, or soccer games. He said that Zoning Board of Adjustment August 12, 2014 Page 15 they’ll do a superior job in screening the compound from the soccer fields. Mr. Reppucci clarified what the applicant is requesting on the Agenda. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Kenneth Kozara, 127 Ridge Road, Nashua, NH. Mr. Kozara said that his firm represents two of the carriers on the tower. He said that they don’t really have any concerns with the proposal. He said his clients are AT&T and US Cellular, are perfectly fine where they are today, and they have no real need to move to the new tower. He said that there’s the possibility of the new tower being built, and no one leaving the old tower to go to the new tower. He said that there’s nothing in the leases. Mr. Reppucci said it’s already in agreement that once the new tower is built, the old one will be taken down and removed. Mr. Kozara said that the City does not have that right. SPEAKING IN FAVOR – REBUTTAL: Atty. Hildreth said that Mr. Kozara represents a couple of carriers that are in active negotiations to amend their leases with the City. He said that Mr. Kozara is waiting on some greater considerations from the City. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: No one. MOTION by Mr. Currier to approve the variance on behalf of the owner and applicant as advertised. He said the variance is for the tower setback. Mr. Currier said that the variance is needed for the applicant’s proposed use of the property, which is a larger, more robust tower, that is set a little closer to the property line, but the Board finds that there’s no issue there, there’s no abutters nearby, and it has no impact, it’s all surrounded by large trees of Mine Falls Park, therefore, it’s Zoning Board of Adjustment August 12, 2014 Page 16 within the spirit and intent of the Ordinance. Mr. Currier stated that it will not adversely affect the property values of surrounding parcels, the Board finds that it is not contrary to the public interest, and substantial justice will be served to increase the capacity. Mr. Currier said that a special condition is that with the construction of the new tower, the old tower will be removed, so that there’s one tower now, and in the future there will be only one tower, this is not a variance to ultimately end up with two towers. There will be one tower, once the transition is completed, he said that there will be a transition when there is two when they move over, but that is only temporary. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Currier to grant the special exception on behalf of the owner and applicant as advertised. Mr. Currier said that it is listed in the table of uses, Section 190-38. Mr. Currier said it will not create undue traffic congestion or unduly impair pedestrian safety, there is no impact to public water, drainage or sewer or other municipal systems, it’ll help with data communications systems. He said that the special regulations don’t apply in this case, and the Board finds that it would not be out of character with the neighborhood, it’ll be more in character with the Mine Falls neighborhood, with the additional aesthetic buffer, than the chain link fence that is there now. Mr. Currier said that the same special condition applies. SECONDED by Mr. Johnson MOTION CARRIED UNANIMOUSLY 4-0. 9. Forrest S. Morris Jr. & Brenda L. Garneau (Owners) 19 Conant Road (Sheet C Lot 135) requesting variance to exceed maximum driveway width, 24 feet permitted - 28 feet existing. R9 Zone, Ward 5. Zoning Board of Adjustment August 12, 2014 Page 17 Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Attorney Thomas Leonard, Welts, White & Fontaine, P.A., 29 Factory Street, Nashua, NH. Atty. Leonard handed out some information to the Board members. Atty. Leonard said that the issue is where the RV is parked. He said the lot is a little over one acre, and the topography is such that the RV is parked on a lower level, to the left of the house. He said the RV is parked on a paved pad eight feet wide. Atty. Leonard said that the owners are in the middle of a subdivision process with the Planning Board, and through that process, an objection was noted where the RV parks, there is about a four foot gravel distance from the asphalt pad area to the paved Conant Road, and the Department of Public Works would like that paved. Atty. Leonard said that they don’t care if it’s connected, but need to do so because the driveway width would be exceeding 24 feet in width, and their overall driveway width would be 28 feet, therefore, the request is to allow the continuation of the pad area for the RV. He said if it gets connected to the street, it becomes a driveway by definition. He said the other driveway is 20 feet wide. Mr. Reppucci asked if they are disputing the interpretation to come to the Board for the variance. He said the City is saying that you can’t have more than 24 feet of curb-cut width. Atty. Leonard said that is the issue, but the Planning Board has not given a violation, but it’s that the Department of Public Works wishes that we make the connection to the street, so that we’re not driving over the edge of the roadway and breaking it up. He said that the pad itself extends beyond the front property line, so, the only area that is not paved is land owned by the City. He said that they are willing to move forward, and have the City do the paving, as it’s on their property. Atty. Leonard said that it is in the spirit of the ordinance and in the public benefit. He said that the request is reasonable. Zoning Board of Adjustment August 12, 2014 Page 18 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ben Casey, 17 Conant Road, Nashua, NH. Mr. Casey said that he has concerns with the driveway. He said that they have two concerns. He said the grade between the two lots goes up substantially, theirs is much higher, it’s a huge slope. He said that there was a lot of timber, and it was easier to deal with. He said the trees block a lot of the headlights, as they have a cleaning business. He said that since the trees were stripped away, there is water runoff into his yard, and there is concern it will go into the basement. He said it all runs into his yard, and they’re getting water since the trees were taken down. He said the rain goes right down the hill. Mr. Casey said that the other concern is the other people parking on the side of the driveway, they stripped the trees right up to the property line. He said it’s a parking lot, and now the business is more visible, and the drainage is an issue. Mr. Reppucci asked if the Board make a restriction that people cannot park on that side of the paved area, would that make the situation better. Mr. Casey said they’d just park on the other side of the RV. SPEAKING IN FAVOR – REBUTTAL: Atty. Leonard said that they won’t park on the gravel between the pad and 17 Conant Road, and they’ll look at the drainage, but there should be no drainage issues. Mr. Currier suggested a little visual buffer to block car lights. Atty. Leonard said that his client believes the lights are coming from the upper driveway area, so they are having a hard time seeing how a row of bushes or arborvitaes would be a benefit. He said that they could talk with the neighbor and maybe come up with something. Zoning Board of Adjustment August 12, 2014 Page 19 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Casey pointed out the tree line as the property line, where the trees were cut. He said that another row of vegetation or trees would help block the lights from the trucks that come there and load, and the headlights go right towards his house, when they turn around. Mr. Reppucci said the only subject on the agenda is the driveway width, not all the trees. MOTION by Mr. Currier to approve the variance on behalf of the owners as advertised. Mr. Currier said that the variance will enable the applicants proposed use of the property, which is essentially a storage area for an RV, on the downhill portion of their property. He said that this 8-foot wide driveway is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels. Mr. Currier said a special condition is that there will be no parking on the right side, or the 17 Conant Road side, of the driveway. Mr. Currier said that with this condition, the Board finds that it is not contrary to the public interest, and that substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Reppucci to Table the W. Gean Gow case, #2 on Bowman Lane, as advertised, to the August 26, 2014 meeting, as no one came to the meeting to present the case. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: 21 Gendron Street – Letter from Attorney Brad Westgate on behalf of the owners, Stephen and Karen Roebuck, the essence of the letter is to have the Board re-consider the decision to re-hear the case. Zoning Board of Adjustment August 12, 2014 Page 20 Mr. Currier said it is beyond the 30-day window in which to reconsider a decision. Mr. Reppucci agreed. He said he can understand how it’s unclear to the applicant. He said that they referenced the 74 Cox Street case, which this Board made a decision to deny, and then, in a timely way, reconsidered that decision, and changed it to allow a rehearing. He said all of that happened within about eight days. He said the decision was well within the 30 days, and the Supreme Court agreed, in that the Board can change any decision within 30 days. Mr. Reppucci said it’s not the same case here, as the decision to rehear was made on July 8th. He said they’d have until August 8th to reconsider that decision. He believes that Atty. Westgate’s request, being submitted within the 30 days of the Board’s decision, is adequate. He said he doesn’t think so, it’s convoluting the request for rehearing window, with the window that we have as a Board to reconsider our decision. He said he believes that the Board is past the 30 days of the decision, and it stands. Mr. Currier agreed. Mr. Reppucci said the Board does not have the option of reconsidering the Board’s decision to rehear the case at this point. Mr. Currier said that there were two elements to the rehearing request, and the Board heard one of them, the weaker one, the one about the living space over the garage. He said that there was another element with this case going before the ZBA in the 1980’s and the Board collectively erred by not knowing it. Mr. Reppucci said that issue was not brought to the Board in the rehearing request, it was presented to the Board by the applicant. He said that when the rehearing request was presented to the Board, that issue wasn’t raised. Mr. Reppucci said that the rehearing request that the Board was considering came from the abutter, the Board wasn’t considering anything from the applicant, the rehearing request was from the abutter, and the rehearing request said nothing about the previous decision or anything related to Fisher v. Dover. Zoning Board of Adjustment August 12, 2014 Page 21 Mr. Currier said it’s in our body of knowledge now, it wasn’t when we first heard it. Mr. Reppucci said that now, we’re going to be rehearing this case, and effectively, we’re rehearing it from the beginning. He said the first thing the Board will do is to consider the Fisher v. Dover situation, and make a determination on whether or not in fact it rises to that level to reconsider. He said it will be reheard when the applicant applies for it, it hasn’t been submitted or scheduled yet. Mr. Reppucci said that the Board concurs that the letter from Attorney Westgate is beyond the window that the Statute allows us to reconsider our decision, the Board has a 30-day window, and we’re past it. He said he believes that the Board has to act on it within 30 days, not that they just have to submit a request within 30 days. REHEARING REQUESTS: None. REGIONAL IMPACT: The Board determined that there are no cases of Regional Impact for the next meeting. MINUTES: June 24, 2014: MOTION by Mr. Currier to approve the minutes, waive the reading, and place the minutes in the file. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. July 8, 2014: MOTION by Mr. Currier to approve the minutes, with a minor adjustment from Page 9 that Mr. Reppucci will provide to Mr. Falk, waive the reading and place the minutes in the file. SECONDED by Mr. Reppucci. Zoning Board of Adjustment August 12, 2014 Page 22 MOTION CARRIED UNANIMOUSLY 4-0, with Mr. Reppucci’s change. July 22, 2014: MOTION by Mr. Reppucci to approve the minutes, with a minor adjustment on Page 3 that Mr. Reppucci will provide to Mr. Falk, waive the reading, and place the minutes in the file. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0, with Mr. Reppucci’s change. ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:00 p.m. Submitted by: Mr. Johnson, Clerk. CF Taped Hearing