Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 26, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 26, 2014 at 6:30 PM in the Auditorium at City Hall. Jack Currier, Vice Chair, conducted the meeting. Members present were: Jack Currier J.P. Boucher Rick Johnson Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Currier explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Currier 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. Currier also explained procedures involving the timing light. CASE #1 IS POSTPONED, AND WILL BE RE-ADVERTISED FOR THE SEPTEMBER 9, 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: Jack Currier J.P. Boucher Rick Johnson Rick DuVarney, DuVarney Construction. Mr. DuVarney said that his client has a 48-foot long wide ranch, with a garage, and the proposal is to put a 27 foot long by 6 foot wide porch. He said it was advertised as 32 feet, but they’ve shortened it. Zoning Board of Adjustment August 26, 2014 Page 2 Mr. Currier said that the application is complete, and it’s thorough. Mr. Johnson asked to confirm the dimensions, and the reason why it’s shorter. Mr. DuVarney said it’s to avoid a gas line. SPEAKING IN FAVOR: Letter submitted from Thomas Moran, 19 Bramble Drive, Nashua, NH. Mr. Moran said that Ms. Gow is a nice neighbor and they are fully supportive of her request. He said that their property is kept up very nicely. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION Mr. Boucher to approve the variance on behalf of the owner as advertised. Mr. Boucher said that the Board finds 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 it is within the spirit and intent of the ordinance, it is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 3. Douglas & Cheryl Joubert (Owners) 17 Indiana Drive (Sheet 4 Lot 21) requesting variance to exceed maximum accessory use area, 40% allowed – 42% requested, to construct a 10’x16’ shed. R9 Zone, Ward 7. Voting on this case: Zoning Board of Adjustment August 26, 2014 Page 3 Jack Currier J.P. Boucher Rick Johnson Douglas & Cheryl Joubert, 17 Indiana Drive, Nashua, NH. Mr. Joubert said that they just recently bought the house. He said that they are requesting a variance for the 40% accessory use. He said that they want to have a 10’x16’ shed. He said that their package is very complete, and there are pictures showing the yard. Mr. Currier said that the package is very complete, and that the Board members have all done site visits. He said that the application stands on its own. Mr. Joubert said that he’s spoken to all the abutters, and everyone is in favor. SPEAKING IN FAVOR: Letters from Mary Dunn, 20 Indiana Drive, and from Eleanor Good, 22 Massachusetts Drive, both in support. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the request by the owner as advertised. Mr. Boucher said that the Board finds 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 it is within the spirit and intent of the ordinance. He stated that the request is not contrary to the public interest, and substantial justice is served to the owner. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. Zoning Board of Adjustment August 26, 2014 Page 4 4. G.M. Swartz S.N. Trust (Owner) Amy Taylor (Applicant) 19 Lutheran Drive (Sheet F Lot 717) requesting variance to exceed maximum driveway width, 24 feet permitted, 20 feet existing, an additional 10 feet requested. R9 Zone, Ward 1. Voting on this case: Jack Currier Rick Johnson J.P. Boucher Amy Taylor, 19 Lutheran Drive, Nashua, NH. Ms. Taylor said that they have a two-car wide driveway, and they have an extremely disabled child, who requires 24/7 care, and there is a large van required for transportation. She said that with the existing driveway, there is not enough room to park all of the vehicles, along with the vehicle for the visiting nurse. Ms. Taylor said that if the driveway is wider, it will accommodate all the vehicles that park and visit the property. Mr. Currier asked about the extra land area to the left of the house. Ms. Taylor said that it is common land, and the driveway is not going near it. Mr. Currier said that it is a special condition of the land, and it is a unique characteristic of the property, a favorable one. Mr. Currier asked if Lutheran Drive has a lot of traffic on it. Ms. Taylor said it is a low volume street, mostly people driving to and from work. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment August 26, 2014 Page 5 MOTION by Mr. Boucher to approve the variance on behalf of the owner as advertised. Mr. Boucher said that the Board finds that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, the large common land area to the left of the home; 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 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 3-0. 5. Louis J. Pichette (Owner) Janette Lopez (Applicant) 10 Broad Street (Sheet 62 Lot 105) requesting the following variances: 1) to exceed maximum ground sign area, 10 sq.ft allowed, 32 sq.ft permitted by 3-14-95 variance - 39.1 sq.ft requested; and, 2) to allow an Electronic Message Center on proposed new ground sign. RB Zone, Ward 4. Voting on this case: Jack Currier Rick Johnson J.P. Boucher Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that he objects to going forward with less than a full Board, but will proceed. Atty. Prunier stated that this area of Broad Street has changed a lot over the years. He said that the property is allowed by variance a 32 square foot ground sign from 1995. He said that the existing sign is 28 square feet. He said that the proposed sign is 39.1 square feet, so an extra 7 square feet is being requested. Atty. Prunier said that the other request is the ability to have an electronic changing message sign. He said that the existing Zoning Board of Adjustment August 26, 2014 Page 6 sign is 10 feet high. He said that the proposed sign is 9 feet six inches high. He said that the present sign is 4 feet wide, the proposed sign would be 5 feet 1 inch wide. He said that the present sign is 28 square feet, and the proposed is 39 square feet. Atty. Prunier said that the electronic sign is very valuable, and the proposed one would be two lines of text, very small size. He said it’s important to small businesses to get the message out to the public of their services and goods. Atty. Prunier said the property abuts an LB zone, which allows a 32 square foot sign. He said that the area has changed dramatically over the past 20 years. He said that the request is within the spirit of the ordinance to allow the proposed sign. Mr. Currier said he understands the argument for the square footage of the sign, because it would be permitted in the LB zone, and it’s so close by. He said the electronic sign would be two lines of text. Atty. Prunier said that is correct, two lines of text, just like the submitted drawing. He said that they’d be willing to turn the sign off at 10:00 p.m. in the evening. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Bill Dempster, 18 Chatauqua Avenue, Nashua, NH. Mr. Dempster submitted a package of information to the Board members, and described each page. He pointed out that all the signs fit into the neighborhood. He said that an electronic message center does not belong in an RB zone. He said that the subject property is a gateway to his street and neighborhood, and they’d have to live with it. He said that the spirit of the signs is that they belong in certain neighborhoods, such as GB and HB zones. SPEAKING IN FAVOR – REBUTTAL: Zoning Board of Adjustment August 26, 2014 Page 7 Atty. Prunier said that the Board should look at the whole area of Broad Street, and in comparing the existing sign with the proposed sign, it is smaller in height, a little bit wider, and gives the general public an idea of what the goods and services are. He said the electronic sign is not big, and will serve a good purpose for the building. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Dempster said that the sign itself is not really warranted there. It’s been a business since 1995, with the same 32 square foot sign, there’s no hardship. He said that the area itself, with all the other nearby businesses are using the same signs. He said that an electronic message sign does not fit in to the area. Mr. Johnson said that he supports the first variance request, but is not comfortable with the second one. He said that this would be a sign that is capable for graphics, changing graphics. He said that with the white background, the sign will stand out, also, it will have extra space. He said that he doesn’t see the need to grant an EMC. Mr. Boucher said that he agrees with the first part of the request, and the size. He said he’s not in a position to completely discount the electronic messaging sign, as there is a benefit to the sign. He said that he does understand Mr. Dempster’s concerns and comments. He said in looking at these signs in other cities, some are done very well and they’re not glaring at you and so pronounced. He said that the Board is not enforcement, and doesn’t look at them from the point of being enforced. He said he wouldn’t be opposed to an electronic message sign with conditions put on for two lines only, with no graphics, and off at 10:00 p.m., which is reasonable. Mr. Currier said he’s struggling with the electronic message center. He said that he agrees with what Mr. Dempster said in other cases, like Gooddales. He said that the impact of an ECM is that it is a lot louder and more visible, and it does change things, and feels that the ECM isn’t in concert with the close- by residences. He said he does not see a compelling need for the ECM, and the history of them in town is mostly bad, and that there are no ECM’s stretching down the street. He said by denying the ECM, it won’t put any hardship towards the business at all, it’s been there for a while, and the intersection backs Zoning Board of Adjustment August 26, 2014 Page 8 up, so they have the advantage of traffic backing up right there, it gives drivers an opportunity to see the sign right there. Mr. Johnson said that the Board has to take into account the character of the neighborhood, and the possibility of someone else buying the business and using the sign. He said that there is the possibility of them using manually changing letters, or other things that could help them advertise. He said he’s not comfortable with the full capability of an electronic changing sign. He said he’d support the first variance. MOTION by Mr. Currier to approve the first variance, to exceed the maximum ground sign area. He stated that the variance is needed to enable the applicant’s proposed use of the property, which is a business in the RB zone. He said he believes that the 7-ish square foot growth from what is there now is within the spirit of the ordinance, and that the larger sign on Broad Street will not adversely affect the property values of surrounding parcels. Mr. Currier said that he didn’t believe the request is contrary to the public interest, and substantial justice is served to the business owner to allow that overage of sign area. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 3-0. MOTION by Mr. Currier to deny the second variance for the proposed electronic message center on the proposed new ground sign. He said that the majority of the Board finds that the variance is not needed to enable the applicant’s proposed use of the property, it has served well as a business since 1995, and the Board is approving a larger sign for it. Mr. Currier said that the Board finds that the electronic message center is out of character with this portion of the business community, and out of character with the neighboring residences, and therefore, it’s not within the spirit and intent of the ordinance. Mr. Currier said that the Board feels that the EMC would devalue surrounding parcels, and it would be contrary to the public interest to allow an EMC at this location. Zoning Board of Adjustment August 26, 2014 Page 9 SECONDED by Mr. Johnson. MOTION CARRIED 2-1 (Mr. Boucher). Mr. Johnson said that the guide says that if you get one, you have to try for the other, it says that the Board should continue the case and to try to resolve it. Mr. Currier said he sees it differently, that you need three affirmative votes, and we’re not mustering three affirmative votes on the variance, and sees it as not approved. Mr. Boucher said that in the end, the motion fails and it would not be approved. Mr. Johnson read an excerpt from the Office of State Planning, stating: if a motion to approve does not receive three votes, the application is not considered denied, so it’s the inverse in our situation, and further motion, with reasons for the denial should be offered and another vote taken. The applicant and others should be able to understand the reasons for the decision even though they may not agree with it, and if the motion fails, the members have the ability to make a different motion and act upon them, failure of a motion does not mean that the opposite prevails, and the Board should make every effort to propose a motion that a majority of the Board members can agree upon, in other words, a motion to grant a variance fails by a vote of 2 in favor, 3 opposed, it does not mean that the variance is automatically disapproved, in this case, one of the three members who disapproved should now propose a new motion. He said that basically what they’re saying, is that we should try to resolve it. Mr. Boucher said that his suggestion would be that the Board tables this to a date certain. Mr. Johnson continued reading: “whenever the Board is unable to pass a motion to approve an application with three affirmative votes, or a motion to deny an application with a majority of votes, the Board shall table the application to the next scheduled date, and will continue to do so until a definitive decision can be made”. Zoning Board of Adjustment August 26, 2014 Page 10 Mr. Currier said approved with three affirmative votes, or a majority of votes. Mr. Boucher said that these rules were written for full Boards, and said that the only thing to do is to table it, at least we’d be following some sort of a road map there, and we should table it, because we’re just going to go round and round at this point. Mr. Currier asked Mr. Falk if there was any feedback on how many members will be here at the next meeting. Mr. Falk said that he believed that there will be five members here. Mr. Currier said that if the Board tables it, would we just be deliberating on the EMC, or a case heard from the beginning. He said that the Board could table it to a date certain and hear the whole case for both variances. MOTION by Mr. Currier to rescind the decision on the first one and have that one open to the hearing next time. Mr. Johnson said that he’s not sure if the Board can rescind it. We’ve met the conditions, and passed it. He said he doesn’t see the value in doing that. He said that the Board could see if there’s a motion that we could collectively approve or collectively deny. Mr. Boucher said that he didn’t have enough in front of him to vote for it. He said that in looking at the application as it stands, and what was presented, and didn’t have enough. He said he didn’t think that anything would change his mind. Mr. Currier said it looks as if the Board is coming to a decision on letting the decision on variance #1 stand as is, and that we’re considering tabling variance #2 to a date certain, and that the EMC variance would be heard from the beginning. Mr. Johnson said that the two variances can be looked at separately, and that the first variance that was approved can still stand on its own. Mr. Currier agreed, and it’s fair to consider those two variances separately and equally. Zoning Board of Adjustment August 26, 2014 Page 11 Mr. Boucher agreed. MOTION by Mr. Currier to table variance #2, which is to allow an EMC to a date certain of September 9, 2014. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 6. Pratik & Mittalben Parel (Owner) Lifetime Construction, LLC (Applicant) 15 Jennifer Drive (Sheet C Lot 1059) requesting variance to encroach up to 8½ feet into the 10 foot required left side yard setback to construct an attached 14’x24’ garage addition with room above. R9 Zone, Ward 9. Voting on this case: Jack Currier Rick Johnson J.P. Boucher Jeremy Robitaille, Lifetime Construction, Litchfield, NH. Mr. Robitaille said that the proposed addition is fitting into the style of homes, it’s a split-level. He said that the homeowner is looking to gain additional garage space, along with an additional bedroom. He said that there is a double-wide driveway that already exists. He said that where the fence is, it’s very close to the side yard property line. He said that he does realize that the addition encroaches pretty heavily into the side yard setback. Mr. Boucher said that it’s a significant encroachment, and it’ll be only about 1½ feet from the property line. He asked if the garage space is a must-have. Mr. Robitaille said it is, they’re looking for a second garage bay. Mr. Boucher said that by putting a garage on the right side would look funny. He asked if there was any thought to go out the back of the house for a long garage. Zoning Board of Adjustment August 26, 2014 Page 12 Mr. Robitaille said that concept was brought to the homeowner’s attention, and they didn’t want to go in the back yard, it’s a nice lush lawn area. Mr. Currier said that two stories, that close, if he were living next to it, he wouldn’t be too thrilled. He said that the house is sitting on the left side of the lot, and there’s a lot of space on the right side. He asked about the possibility of converting the existing garage into living space, and build a two-bay garage on the right with living space above, possibly without a variance. Mr. Robitaille said that was looked at, and financially it was too much, and they’d still need a variance for driveway width. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Shawn Radil, 17 Jennifer Drive, Nashua, NH. Mr. Radil said that he is the abutting neighbor. He said that he’s all for pursuing the American dream, but hasn’t seen the drawing of the proposal yet. Mr. Radil looked at the drawing, and said it’s only 1½ feet away from the property line. He said they should seek other opportunities, it’s too close to the property line, and property values and resale values could be impacted. SPEAKING IN FAVOR – REBUTTAL: Mr. Robitaille said that it would be very close to the property line, but wanted to come to the meeting and see what the best interests of the town and neighborhood and the homeowner would be. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS - REBUTTAL: None. MOTION by Mr. Boucher to deny the variance on behalf of the applicant, as advertised. Mr. Boucher stated that the variance is not needed to enable the applicant’s use of the property, Zoning Board of Adjustment August 26, 2014 Page 13 given the special conditions of the property, and the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Boucher stated that it is not within the spirit and intent of the ordinance, it will not adversely affect property values of surrounding parcels, there is no testimony one way or another, there was testimony alluding to it but no concrete evidence, it is contrary to the public interest, and substantial justice would not be served by granting this area variance. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. 7. Brendan Quirk (Owner) Lowe’s Home Centers (Applicant) 22 Dudley Street (Sheet A Lot 154) requesting the following variances: 1) to encroach 5 feet into both 6 foot required side yard setbacks to construct a 24’x40’ deck around a pool; and, 2) to exceed maximum accessory use area, 40% permitted, 65% requested. RA Zone, Ward 7. Voting on this case: Jack Currier Rick Johnson J.P. Boucher Brendan Quirk, 22 Dudley Street, Nashua, NH. Mr. Quirk said that they have an above-ground pool already, and are looking to put a deck around it to get better use of it. He said that the request is to be one foot from each of the neighbor’s property line, one on April Street and one on June Street. He said that he’s met with the neighbors and has letters of support from each of them. He said that they’ve looked at other options for the deck, but there is a screened porch that limits the space on the other side. He said that the way the land slopes down, we’d have to dig deep, and there is a lot of things underneath the ground and it’s a good chance of not leveling the ground for the deck. Mr. Currier said the CAD drawing shows a sitting area by a wide wall, and asked what it is. Zoning Board of Adjustment August 26, 2014 Page 14 Mr. Quirk said the picture was done by someone other than Lowe’s, and the construction team was planning on putting in a back storage there behind the pool, but said they couldn’t do it, so they are going to put in a bench on that back side, it won’t be attached to the pool. He said it will all be a flat, one-level deck. Mr. Currier said that the pictures aren’t really reflective of what is now planned to be constructed. Mr. Quirk said if the Board members have recently visited the property, the deck on the side of the house will have the same appearance as the deck by the pool, the deck was just done the previous week. Mr. Quirk said it will be an “L” shaped deck, around the back and side, but it will be a flat level, there would not be the raised areas where the plants are, it’ll be a one level deck. He said that the picture isn’t representative of what Lowe’s would do. Mr. Currier asked about the height of the deck above grade, three or four feet above grade, and asked how much above that would the fence, or barrier be. Mr. Quirk said it would have a railing. Mr. Currier asked if the railing would be a foot in from the property line. Mr. Quirk said it would be a foot in from either of the two neighbor’s lots. Mr. Currier asked if there would be daylight between the railing and the fence. Mr. Quirk said yes. Mr. Boucher asked if the neighbors really understand all the dimensions and height of everything. Mr. Quirk said all the neighbors understand what it would be, and they’ve enjoyed all the improvements made on the house. Zoning Board of Adjustment August 26, 2014 Page 15 Mr. Currier said that the application isn’t all that clear, and as time goes by, and later on, after things get constructed, and people can get confused with what actually got approved. He said he doesn’t really think that there is a clear vision of what is proposed. He asked if the applicant can provide a drawing/picture that clearly shows the height and location of the deck, where the steps will be, so that it’s not left open to interpretation after the fact. Mr. Quirk said that they have a much better idea of what it will look like. Mr. Currier if that is the case, it could push the application back two weeks, and asked if it is a deal-breaker. He said that he’s struggling with an application that is unclear to understand fully. Mr. Quirk said if that is what the Board needs to move forward, they can do it. Mr. Johnson suggested that the drawing should be exactly what is represented, the Board needs to see what is proposed, not a general concept that could change. He said that the request is the encroachment into the setbacks, and both the neighbors and the Board needs to see exact drawings so that there are no surprises, and that if there is any opportunity to reclaim some of the encroachment that is being sought, in other words, reduce it some, it would be helpful to the applicant, and to the Board, then, there would be no question on what is being proposed. Mr. Currier said that the activity on a pool deck can be busy, and pretty significant, and if it is only one foot away from a property line, that is really close. He said perhaps if the deck is scaled back a little, it would be less of an impact to the neighbors and would still be a nice feature to have. Mr. Quirk said that they’ve already purchased all the materials, a shorter deck may work, but this project has been going on for months, and everything is already paid for. Mr. Johnson said that he’s worked with Lowe’s many times, and finds that they are good with returning materials that haven’t been used. He said that the encroachment goes to one foot from the property line, he asked about maintenance, and taking care of the lawn, trash. He said that the one foot space is not a Zoning Board of Adjustment August 26, 2014 Page 16 good service area, and asked that they consider the distance between the pool deck and the fence. SPEAKING IN FAVOR: Mr. Currier said that the Board has two letters of support, one from Justin and Pamela Reardon, 11 April Drive, and the other is from the Levebre’s at 14 June Street. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Johnson said that he’s made his point, and feels that the encroachment is too close, and thought that to table the case would be of value. Mr. Boucher agreed to table the request. He said he believes that less encroachment is great, but if this is what the applicant really wants, we’ll consider it, and we’re not telling them to reduce it, they can move forward. He said that less encroachment is better all around. Mr. Currier said that the clarity of an application is important, because after all is said and done, issues come up and some things are not clear. He said it is important to have a crystal clear design, and we don’t have that tonight, and that is extremely important. He said he’s all for minimizing the encroachment as well, which may mean a smaller deck. MOTION by Mr. Currier to table the requests to the September 9, 2014 meeting. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 3-0. Mr. Falk said if it is going on September 9th, Staff sends out the package next Tuesday, the 2nd. He said he won’t be in town until the 8th, and recommended photos of the yard area, and the more specific drawings for the Board. Mr. Currier asked if this information can be submitted by next Tuesday, the 2nd. He said that the applicant believes that it can all be done in time. Zoning Board of Adjustment August 26, 2014 Page 17 MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board determined that there are no cases of Regional Impact for the next meeting. MINUTES: None. ADJOURNMENT: Mr. Currier called the meeting closed at 8:40 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing