Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 9, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 9, 2014 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci Jack Currier Rob Shaw 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. Mr. Falk said that Case #4, for 22 Dudley Street has been postponed to the September 23, 2014 meeting. He said that Case #6, 10&26 Allds Street, has also been postponed to the September 23, 2014 meeting. MOTION by Mr. Reppucci to Table Case #4 for 22 Dudley Street to the September 23, 2014 meeting. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. MOTION by Mr. Reppucci to Table Case #6 for 10 & 26 Allds Street to the September 23, 2014 meeting. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 1. City of Nashua (Owner) “L” Groton Road, “L” old Ridge Road and “L” Buck Meadow Road (Sheet D Lots 516 & 336) Zoning Board of Adjustment September 9, 2014 Page 2 requesting special exception to work in the 40-foot “other” wetland buffer to construct conservation trails, boardwalks and fences. R40 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Michael Gallagher, 9 Old Coach Road, Nashua, also: Chair, Nashua Conservation Commission. Mr. Gallagher said that there are three specific areas within the project, it will be contracted out, using Best Management Practices, and any disturbance to the buffer that happens during the construction will be brought back to the pre-disturbed state. Mr. Reppucci asked if there were any conditions that the Conservation Commission placed on the approval. Mr. Gallagher said that there are conditions, of which they are comfortable with, and they will be included in the RFP. Mr. Reppucci asked about the special conditions in the ordinance, whether or not they’ll be met as well. Mr. Gallagher stated that all of those conditions will be met. Mr. Shaw asked about the safety issue with the pedestrian crossing on Ridge Road. Mr. Gallagher said that Old Ridge Road is currently blocked off. He said that they’re going to be using that as part of the overall trail system, and as it comes out on the Buckmeadow side, there is a crossing that has to happen across Ridge Road. He said that they observed some high traffic speeds. He said he understands that the ZBA is interested in the water crossings. He said that the Conservation Commission put in language about the pedestrian crossing because they thought it may be important to other Boards. Mr. Johnson mentioned about whether abutters were notified about a parking lot, and it wasn’t mentioned when the Resolution went Zoning Board of Adjustment September 9, 2014 Page 3 before the Aldermen. He asked if this issue has been sufficiently addressed. Mr. Falk said that the last time that this case was supposed to come before the Board, staff inadvertently left out one of the lots, so it was re-advertised and is before the Board tonight at this meeting. Mr. Gallagher said that all of the abutters were notified at the last public hearing for the parking lot. He said that they have further engaged the abutters, and that there are some conversations planned with the abutters. Mr. Currier asked about the items that look like shipping pallets, and asked if they will be replaced or upgraded. Mr. Gallagher said that they were placed by people who are out using the land, they are not part of the plan, and they are used by people who were using a creative way of keeping dry, and they will be removed. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION Mr. Currier to approve the special exception on behalf of the applicant as advertised. Mr. Currier said that the use is listed in the Table of Uses, Section 190-112. Mr. Currier stated that the use will not create undue traffic congestion or unduly impair pedestrian safety, actually, it should be enhanced. Mr. Currier said that the proposed use will not overload public water, drainage or sewer or other municipal systems, actually, the drainage could be improved. Mr. Currier said that all special regulations are fulfilled, the request was approved by the Conservation Commission, and all of the nine special regulations are fulfilled by testimony of the Conservation Commission, and the Chair is present tonight, and the Board finds that it will not impair the integrity or be out of Zoning Board of Adjustment September 9, 2014 Page 4 character with the neighborhood, or be detrimental to the health, morals or welfare of residents, actually, the proposed use is in character with the rural area of the Southwest Quadrant. Mr. Currier said that attached to the Zoning Boards’ record is the record of the Conservation Commission’s meeting minutes, and the August 12th letter by Chris Sullivan which is providing approval of the Conservation Commission and the six stipulations that go along with that. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 3-0. 2. 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. [TABLED FROM 8-12-14 MEETING] Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Attorney Jay Leonard, Welts, White & Fontaine, P.C., 29 Factory Street, Nashua, NH. Atty. Leonard passed out some information to the Board members, and had some drawings on the backboard. Atty. Leonard said that Linear Retail was before the Board on August 12th, and it was tabled to tonight, and asked if the previous testimony can be included. Atty. Leonard said that there was a variance granted for a larger sign. He said the variance request is to allow a conforming sign within the setback, three feet from the property line. He pointed out on the backboard a proposed sign that is 5 feet off the property line, and another sign that is 10 feet off the property line. He said that they are acknowledging that the Board had some concerns about the initial proposal of three feet to the property line, and said that they are willing to go to five feet from the front property line. Zoning Board of Adjustment September 9, 2014 Page 5 Atty. Leonard said another issue is the visibility. He said that Linear believes that the sign interferes with the visibility of the building itself, and the formerly approved sign might actually block the view of the building, and make it invisible. He said that the property line for this property has a jog in it, unlike the typical property lines for other properties along Daniel Webster Highway. He said that the jog is about ten feet further away from the road pavement. In effect, if the sign were to meet the Code, it would be ten feet further back from all other signs along the roadway. He pointed it out on the map. Atty. Leonard said that the request is simply a five foot encroachment. Mr. Reppucci said it is five feet from the front property line, but this is actually less of an incursion. He said it was a seven foot incursion, that they are willing to take down to a five foot incursion, therefore, it’s a lesser request. Atty. Leonard said that the sign is on the slope, and it would be 20 feet at a maximum, and the side closest to the building would be about 17 feet, so it’s not as high as the other signs. He said that the primary purpose of setbacks is probably safety, and that will be accomplished here. He said that the sign is 112 square feet in area, it complies with everything except the setback. Mr. Reppucci said that one suggestion from the first meeting was to lower the sign, as one of the concerns that was raised last time, because the sign would be blocking the signs that are on the building. He said if the sign is low, it will be visible from Daniel Webster Highway, but would not obstruct the signs on the side of the building. SPEAKING IN FAVOR: Bryan Furze, Linear Retail #3 Nashua, LLC, Burlington, MA. Mr. Furze said they really listened to the Boards comments from the last meeting. He said that they’re very happy with the look of the building, and it’s placement close to the roadway, which is very unusual, to have the parking in the back. He said that the sign is needed to provide visibility for cars going to the north from the south, that’s the primary reason for the sign. He said Zoning Board of Adjustment September 9, 2014 Page 6 that driving south, you can see the building for a long time. He said that lowering the sign hurt that, too much is lost on the hill, the sign would be too low. He said the previously approved sign was too big, and blocked the building. He said that with the architectural prominence of the building, that the view to the corner is valuable. He said in this case, overall, the five foot encroachment is the best option for the ground sign. Further discussion ensued about the placement of the ground sign. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to approve the request by the owner, however, the request is to encroach five feet into the front yard setback, not seven feet as advertised. Mr. Johnson 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, particularly the topography and placement of the sign, the character of the building, and the front property line; and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Johnson stated that it is within the spirit and intent of the ordinance. He stated that the request is not contrary to the public interest, it should not adversely affect property values, and substantial justice is served to the owner. SECONDED by Mr. Shaw. MOTION CARRIED 3-2 (Mr. Reppucci and Mr. Currier). 3. 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. [TABLED FROM 8-26-14 MEETING] Voting on this case: Zoning Board of Adjustment September 9, 2014 Page 7 Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Mr. Reppucci suggested that one of the members that was here at the last meeting for this to make a motion to reconsider the case. He said that he believes that the Board made a mistake. He said that there was a motion made to deny the application, and it was voted on 2-1 in favor to deny. He said that the Board went on to table the case, which where the mistake was made. He said that the ways that the laws work, you only need a majority to deny an application. He said to approve an application, you need three affirmative votes. He said that he believes that once the motion was made to deny, and it was voted on 2-1, in support of the motion, that constituted denial of the application. Mr. Reppucci said that then the Board went on about tabling it in its entirety. He said that technically speaking, the Board shouldn’t have done that. He said it has to be a reconsideration of the previous decision, once the Board voted 2-1 to deny the motion, by Statute, that application was denied. He said the only way to look at it again is to reconsider it. He said that the Board is within the 30-day window, it can be done. Mr. Johnson said that there are some notes from the OEP, and some notes, there’s an excerpt in there that says a three member Board is not grounds for a rehearing, and the vote shall be made on a motion to approve or disapprove the appeal, and should incorporate all the reasons for the decision. He said if the motion to approve does not receive three votes, the application is not automatically denied, a further motion with reasons for denial should be authored and another vote taken. He said that the applicant and others should be able to understand the reasons for the decision, even though they may not agree with it. He said in this case, we were not successful in getting the majority votes. Mr. Reppucci said that he believes that the mistake that was made was in looking at approvals and denials in the same light. He said it’s only an approval that needs three affirmative votes Zoning Board of Adjustment September 9, 2014 Page 8 to pass. He said it’s spelled out in the Statute that a denial is approved by a majority vote. He said that he called Corporation Counsel Bennett and asked his opinion, and his opinion agreed with mine, that the only way to get back into this case is to have a motion to reconsider. Mr. Shaw said that if there’s a motion for approval does not pass with the three votes, it doesn’t mean that it’s an automatic denial, but, if the motion was made as a denial motion, it only needs a majority of votes. He said that there was a denial motion that passed 2-1. Mr. Reppucci said that he feels that the Board that voted on this should make the motion to reconsider the case. Mr. Shaw said that the reality is, is that if there is going to be a motion to reconsider it, then the five of us should be acting on the case. MOTION by Mr. Johnson to reconsider the case for 10 Broad Street for variance #2 for the electronic message center in its entirety. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. Attorney Gerald Prunier, Prunier & Prolman P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that the sign is small, about 2 feet high by 5 feet wide. He said it will have two lines of text. He said that these signs are very important, the Highway Departments use them all over. He said that people look at them, and they get the message. He said that they’ve offered that the sign would be off at 10:00 p.m. and would not come on until 8:00 a.m., so it wouldn’t interfere with the neighborhood. Atty. Prunier said that these signs give the small businesses an opportunity to advertise changes in their business without having to get a whole new sign. He said that if an electronic sign is properly used, and the proper size, it can help the businesses out. He said that these signs are very important to the small businessman. Mr. Reppucci asked if the sign is being used to meet the code criteria, they’re not looking for graphics. Zoning Board of Adjustment September 9, 2014 Page 9 Atty. Prunier agreed. Mr. Currier asked if the Board is incorporating the testimony from the last meeting as well. Atty. Prunier said that would be reasonable. SPEAKING IN FAVOR: Beverly Frasca, 14 Ducas Avenue, Nashua, NH. Ms. Frasca said she’s struggling to see why the proposed sign would be rejected, where there are others on the street that are similar. Mr. Reppucci said that the electronic signs are allowed in certain zoning districts, and not allowed in others. He said the proposed sign is in a zone where it’s not allowed. He said that some of them came before the Board with variances to allow them. Ms. Frasca asked why this sign may be denied. Mr. Reppucci said that she is welcome to hear all the testimony and rebuttal for the proposal. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Dee Dempster, 18 Chautauqua Avenue, Nashua, NH. Mrs. Dempster said that she is concerned about public safety at the intersection of Chatauqua Avenue at Broad Street. She said it is a busy intersection and will be a distracting sign, and the addition of an electronic message center will increase hazards for pedestrians and vehicles. She said that she’s been hit twice and her husband has been hit once, trying to enter or exit their street. She said that there are a number of children that walk in this area going to the school, and the sign will make for potential increased hazards for the children and other pedestrians from drivers looking to read the electronic sign. She described the nearby businesses. Bill Dempster, 18 Chautauqaua Avenue, Nashua, NH. Mr. Dempster brought some packets for the Board members. He said that the electronic signs are not allowed in this zone. He identified the nearby signs, and what zone they are located in. He said that there are numerous nearby businesses nearby that do not Zoning Board of Adjustment September 9, 2014 Page 10 have electronic signs. He said that clearly this request is not meeting the spirit and intent of the ordinance, as the code only allows electronic message centers in the GB and HB zones. He said that there is a place for these types of signs, and this is not the place, as there are so many residences right nearby. He said that he also doesn’t believe that a hardship exists. He said that they’ve already been granted a larger sign. He said that they have access to numerous free advertising avenues, through facebook, yellow pages, social media, yelp, business sections in the newspaper. SPEAKING IN FAVOR – REBUTTAL: Atty. Prunier said that electronic media is new, it is a great way of getting out a message or service to the public, and the Board should consider. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Dempster said that the electronic signs are a good way of getting messages out, but not in a residential area, they have a place, but not in this location. Mr. Currier said that it is difficult to get in and out of Chautauqua Avenue, and said that he got to know this street when all of the Goodale’s Bike cases came before the Board. He said Chautauqua is a residential street, and this sign is right at that area. He said he’s not feeling support for the sign at this location, the businesses have been there for quite some time. Mr. Reppucci said that graphic displays on the highways are growing in leaps and bounds. He said there are a lot of them along the highways. He said he hasn’t seen even one study that says that EMC’s are more distracting to a driver than anything else, if that were the case, every time you’d drive by a CVS or a Walgreens, you’d see an increase in traffic accidents because of these signs. Mr. Shaw said he disagrees, and also can’t cite any studies about the danger of them. He said that anything changing on a sign that catches your eye isn’t good. He said that the signage for EMC’s is only allowed in the GB and HB zones. He said it’s not this Board’s purview to change the laws. He said he doesn’t Zoning Board of Adjustment September 9, 2014 Page 11 see any compelling reason for an EMC sign to go in this location and zone. He said he doesn’t see the justification for it. Mr. Johnson looked at the street, and got out of his car and walked it. He said that the expanded size sign in the first variance captures the character of the neighborhood, and said that the EMC is not warranted in this neighborhood, it does not add value, and didn’t see how substantial justice would be done if we approve this sign. He said that there are other ways to get the word out for advertising in a timely fashion. Mr. Boucher said he respects the couple’s opinions that live on Chautauqua Avenue. He said he couldn’t find a compelling reason not to allow it. He said the new sign is about the same size as the old sign, and the EMC part of the sign is 20% of the sign. He said the sign won’t be any higher. MOTION by Mr. Currier to deny the variance on behalf of the owner as advertised. Mr. Currier said that a majority of the Board finds that the electronic message center is not needed, given the special conditions of the property, the majority of the Board finds that the larger sign that was granted at the previous meeting provides adequate signage, which is larger than the sign that has been there for many years, and that having the electronic message center, the majority of the Board finds it is contrary to the public interest, because of safety factors, and because of the high residence area of Chautauqua Avenue, even though it’s close to the GI zone, it is a largely residential area. SECONDED by Mr. Shaw. MOTION CARRIED 3-2. (Mr. Reppucci and Mr. Boucher) 4. Douglas & Linda McKay (Owners) 31 Monica Drive (Sheet B Lot 1079) requesting variance to encroach 3½ feet into the 20 foot required left side yard setback to replace an attached one-car garage with a two-car garage. R18 Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson Zoning Board of Adjustment September 9, 2014 Page 12 J.P. Boucher Doug McKay, 31 Monica Drive, Nashua, NH. Mr. McKay said that they are requesting to encroach 3½ feet into the 20 foot setback on the left side, to replace a single car garage with a two-car garage. He said that on that side, there is a 6 foot tall stockade fence, and the neighbor has a hedge. He said that his neighbors garage is on the other side, so it’s garage to garage, it’s not abutting living space. He said the request is just garage space, single story, no living space above it. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. 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, which is the topography of the property, and the way the home is situated on the lot on the left side, as it relates to the property to the right; 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 said that he didn’t believe the request will adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. Special Conditions: 1. It is a single-story addition with no living space above. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 5. Linear Retail Nashua #1 (Owner) Not Your Average Joe’s (Applicant) 221 Daniel Webster Highway (Sheet A Lot 761) Zoning Board of Adjustment September 9, 2014 Page 13 requesting variance to exceed maximum number of wall signs, 3 permitted - 5 proposed. HB Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson J.P. Boucher Jeff Klaus, Viewpoint Sign & Awning, Northborough, MA. Mr. Klaus said that he is representing Not Your Average Joes restaurant. He said that they are not asking for five signs as advertised, it will only be four, so it’s one sign above what the Code allows. He said it will be the “kitchen & bar” sign that is extra. He identified the locations of the sign on the fascia. He said that they will be internally illuminated, with opaque faces, so only the lettering will be illuminate. He said that they’re very tastefully designed, and will be a nice addition to the plaza. He said that the signage meets the Code in every other way, the request is for one additional wall sign. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the variance on behalf of the owner as advertised, and as the applicant noted, they are only requesting four wall signs. Mr. Shaw stated that the four signs that are proposed do not use all of the square footage that would be allowed for wall signage, and as discussed during previous comments, the letter of the law could be met by less aesthetic, and perhaps add no benefit by pushing the three signs together to make two on the longer sided property, and the applicant did that on the eastern elevation sign to make two signs into one. Mr. Shaw said that the variance will allow the applicants proposed use of the property, given the special conditions of Zoning Board of Adjustment September 9, 2014 Page 14 the property, as noted, the building is set back from the highway, and it’s in keeping with similar signage in the area. Mr. Shaw said it’s within the spirit and intent of the ordinance, there’s no testimony that property values will be negatively impacted, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 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. Reppucci called the meeting closed at 8:39 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing