Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING September 23, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, September 23, 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. 1. Hunt Community & Area Agency Properties, Inc. (Owners) 10 Allds Street & 26 Allds Street (Sheet 16, Lots 16 & 34) requesting special exception to work in the 75-foot prime wetland and wetland buffer of Salmon Brook to construct a water main crossing. RB Zone, Ward 7. [POSTPONED FROM 9-9- 14 MEETING] Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Jim Petropulos, Hayner, Swanson Inc, 3 Congress Street, Nashua, NH. Mr. Petropulos said that they are representing Pennichuck Water Works. He pointed out the subject area on the map, along Allds Street, near the intersection of Fifield Street. He stated that Salmon Brook is flowing south, through the stone arch bridge at Allds Street, and proceeds further south. He said that earlier this year, there was a water main break in this area, and it took several days to repair it. He said that Zoning Board of Adjustment September 23, 2014 Page 2 Pennichuck has fixed the break, but in doing so they detected a section of water main through the bridge area that is rather old and not in good shape, and it’s only a matter of time before it further deteriorates. He said that the plan is to offset the water main and get it off the street, away from the bridge crossing, so the plan is to construct an offset water main that goes around the bridge and reconnects back into Allds Street. Mr. Petropulos said that there are steep slopes immediately adjacent to Allds Street, the plan is to tap into the water main, construct a traditional water main trench construction, about 160 feet into the property. He said that they will have a directional bore, a trenchless process, a drill bit will push beneath the soil, underneath the wetland and the brook, about 6 feet below the surface, and it will come out to the other side to a receiving pit, about 160 feet. He said it will go back and forth with a reamer, until there is an 18-inch opening. He said that then, there will be a high density polyethylene sleeve, for the water main. He said it will not bother the wetland. He said that on the west side, there is about 6,000 square feet of buffer impacts, including a little access road, with a total impact of about 8,200 square feet of buffer impact. He said that tree clearing will be at a minimum. Mr. Petropulos said that it’s their position that they meet all the points of law and all of the special regulations and conditions. He said that they’ll meet all of the Conservation Commission stipulations of approval as well. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Barb Beierl, 5 Shetland Road, Nashua, NH. Ms. Beierl asked if there is any heavy equipment that will be used on the project, which might damage the soil around it. SPEAKING IN FAVOR – REBUTTAL: Mr. Petropoulos said it will be standard equipment, an excavator, a dump truck, and the directional bore machine is relatively small, it’s about the size of a minivan. Zoning Board of Adjustment September 23, 2014 Page 3 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. 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. Mr. Currier said that the proposed use will not overload public water, drainage or sewer or other municipal systems, actually, the public water system should be made more robust than it is now, as it’s weak in this area. Mr. Currier said that all special regulations are fulfilled, the request was approved by the Conservation Commission, when the work is all done, it will look like it did before, and the Board finds that it will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. Mr. Currier said that attached to the Zoning Boards’ record is the record of the Conservation Commission’s meeting minutes of the September 16th meeting, with all seven stipulations of approval attached. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 2. 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. [POSTPONED FROM 9-9-14 MEETING] Voting on this case: Gerry Reppucci Jack Currier Zoning Board of Adjustment September 23, 2014 Page 4 J.P. Boucher Rick Johnson Applicant not present at beginning of case, Mr. Reppucci moved the case to the end of the Agenda. 3. DWA Hollis Properties, LLC (Owner) The Village at Mines Falls Association (Applicant) 28 Hollow Ridge Drive (Sheet E Lot 83) requesting special exception to amend a previously approved cluster development to remove a pedestrian walkway. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Pat Marino, Treasurer, Village at Mines Falls, Nashua, NH. Mrs. Marino said that they have an association with forty homes, and there’s a walkway scheduled to be installed on the right side of the property, behind about twenty houses. She said that in some yards, the walkway is very close to homes, in some cases, fifteen feet away. She said that privacy and security is very important to the neighborhood. Mrs. Marino said that it’s a very rugged walkway, in some areas, it will be difficult to walk on, the association is concerned with liability issues, as well as the upkeep of it. She said that they all feel that it isn’t necessary, as the street does have a sidewalk on it, so people can walk there. She said that they are requesting that the plan be changed so that the walkway isn’t put in. Mrs. Marino said that there are numerous emails in the package of people who live here who are in favor of removing the plans for the walkway. Mr. Currier said that there is a sidewalk, and remembered when the plan was before the Board before. He said that there was a concern about safety with the very narrow street, especially as it curves right and goes uphill. He said the walkway was initially presented as a benefit for the neighborhood, but also for the walkable community on White Plains Drive. He said that Zoning Board of Adjustment September 23, 2014 Page 5 the walkway was to allow increased walkability to the high school, etc. He said he’s surprised that at this time, it’s being asked to be retracted. Mrs. Marino said that most all of the neighbors had no idea it was being proposed when they purchased their home. She said knew nothing about it when she bought her home. She said that all the neighbors are concerned about it. She said it’s extremely rugged, and it won’t be a comfortable path. Mr. Reppucci said that the plan was from 2004, and asked how long the houses have been there for. Mrs. Marino said that the older ones have been there for about four years. She said that she heard that they just can’t remove the walkway without going to the Board for approval. SPEAKING IN FAVOR: Richard Worob, 7 Hollow Ridge Drive, Nashua, NH. Mr. Worob stated that he was the first person in the development to buy a home from the Maddox Associates. He said that it was never disclosed to him that a walkway would be put in at any time. He said that his concerns have been stated, for security and privacy. He said that there is a sidewalk. He said that his house is the closest one to West Hollis Street, and there is a limited amount of foot traffic on West Hollis Street, and the auto traffic goes fast. Mr. Reppucci asked if there are a lot of walkers on the sidewalk in front. Mr. Worob said no, there is very limited foot traffic on West Hollis Street, and it’s dangerous to walk there. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: None. Mr. Reppucci said that none of the homeowners want it, and it should have been incorporated at the beginning of the project so that the people would have known about it. Mr. Currier said that there’s a note on the plan stating that the walking trail will be completed before the last twenty Zoning Board of Adjustment September 23, 2014 Page 6 houses are constructed. He said the development has been slow in the making, as there are about twenty homes there now, and its taken ten years. He said it’s a different story tonight as compared to when the plans were here in 2004, the testimony tonight supports the walkway, because West Hollis Street is not walk friendly, so the only options you have is to go further west on Hollis Street, or around 111A. He said that this was supposed to be like a community connection, a walkable connection to allow the neighborhood to walk through to the high school area, to the walking trails. He said it was presented as a beautiful walkway, up on the hill, and it was a real reason to approve the cluster development. He said that it’s essentially a sidewalk on the other side of the houses. Mr. Johnson said he struggled to find out where the walkway would be. He said that there is some treacherous ground navigating and wouldn’t want it right up against the back of his house. He said that he agrees with the Chairman, and it’s common sense to remedy this, and to support the special exception. Mr. Boucher said he’s in favor of removing the walkway. He said even with the narrower private street, the testimony of the people who live here won’t use it. He said that he’s in support of removing it. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant, as advertised. He stated that it is listed in the Table of Uses, the walkway was a special condition approved by the Zoning Board in 2004. He said the motion is to amend that approval, and change it from requiring the walkway, to requiring no walkway. Mr. Reppucci said that the request will not create undue traffic congestion, or unduly impair pedestrian safety, testimony from the applicant is that it is not a safe place where they’re looking to put it, and it would be more unsafe than walking on the main road. Mr. Reppucci said that the use will not overload public water, drainage or sewer or other municipal systems, special regulations are fulfilled, and it will not impair the integrity or be out of character with the neighborhood or be detrimental to the health, morals or welfare of residents, actually, the Zoning Board of Adjustment September 23, 2014 Page 7 testimony is that the walkway would be detrimental to their way of life. SECONDED by Mr. Boucher. MOTION CARRIED 3-1. (Mr. Currier) 4. City of Nashua (Owner) Marshall Signs, Inc. (Applicant) 117 Elm Street (Sheet 98 Lot 43) requesting the following variances: 1) to exceed maximum ground identification sign area, 12 sq.ft allowed, 52.6 sq.ft proposed; 2) to exceed maximum ground identification sign height, 6 feet allowed – 12 feet proposed; and, 3) to allow for manually changeable copy. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Carl Marshall, Marshall Signs, 51 Lowell Street, Nashua, NH. Mr. Marshall passed out some additional pictures of other school signs. Mr. Marshall that the sign encompasses the Keefe Auditorium and the Elm Street Middle School, and has a changeable message board. Mr. Marshall went over all the points of law in the application. He said that the sign will be 52.6 square feet in area, it will be twelve feet tall, and will have the changeable copy. He said that the public will be adequately served in having the sign with the manually changeable copy. He said the sign will not be cluttered, and will not impair anyone’s traffic views. He said the sign will enhance the overall area, and messages on the sign will be valuable to parents of the school children. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment September 23, 2014 Page 8 Mr. Currier said that the sign will not be a problem to the abutters, there is a lot of activity at the school, and is supportive of the sign. MOTION by Mr. Boucher to approve the variance on behalf of the applicant as advertised, all requests taken collectively. Mr. Boucher stated that the variances are 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 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. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. 5. Douglas A. Pominville (Owner) 140 Manchester Street (Sheet 137 Lot 143) requesting variance to encroach 7’-6” into the 25 foot front yard setback (on Manchester Street) to construct an attached wrap-around porch on house. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Stacy Pominville, 140 Manchester Street, Nashua, NH. Mrs. Pominville stated that they’re seeking a variance to encroach a maximum of 7’-6” to construct a wrap-around porch. She said that they have a corner lot, so there are two front yard setbacks that require a 25 foot setback. She said that they showed on the map where the porch would go, and it only encroaches on one corner. She said that it won’t be contrary to the public interest, it’s in with the character of the home, it’s a conservative looking porch and matches with the character of the home, and will be in alignment with the quality homes in Zoning Board of Adjustment September 23, 2014 Page 9 the area. She said that the encroachment doesn’t bring the house any closer to the neighbor’s house, so it won’t impact anyone else’s privacy, and the neighbor is fine with the request. 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 will allow the applicants proposed use of the property, given the special conditions of the property, as noted, the house is oriented at a diagonal, and it has two front yard setbacks and the encroachment is facing Manchester Street, and not facing any of the abutters. He said that 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 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 4-0. 6. Maurice B. & Mary J. Laliberte (Owners) 104 Burke Street (Sheet 13 Lot 304) requesting variance to encroach 5 feet into the 7 foot required right side yard setback to construct an attached 14’x20’ carport. RB Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Zoning Board of Adjustment September 23, 2014 Page 10 Maurice Laliberte, 104 Burke Street, Nashua, NH. Mr. Laliberte stated that they’re requesting a variance for a carport to cover a handicap lift. He referred the Board to the pictures in the package. He said that the lot is somewhat pie-shaped; it’s not a square or rectangle. He said the carport would encroach on the 7-foot side yard setback. He showed from the pictures that there is a chalk line indicating where the carport would be located. He said that they don’t own a car; they just want the carport to cover the handicap lift for his wife. He said that the neighbors were fine with the request. Mr. Reppucci said that there is a provision in the State RSA’s that allows the Zoning Board to grant a variance if there is a hardship from a disability, and the burden on the applicant is much easier, as hardship doesn’t need to be shown to the Board if there is a disability. The law also gives the Board the ability to limit the approval. He asked if the carport would be permanent. Mr. Laliberte said it would, as it will be attached to the house. Mr. Currier asked what the carport will look like. Mr. Laliberte said the footings will be on sonar tubes, it will be roofed, and attached to the house, 2½ feet into the main portion of the house, and it will taper down like a shed roof. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Currier asked if there is a definition of a carport in the Code. Mr. Falk said that there isn’t one, but it’s generally a roof, not walled in, no garage door, for the purpose of parking a motor vehicle under it, and light and air can pass through it. Mr. Boucher said that it’s his assumption that it won’t be walled in, and no door. Zoning Board of Adjustment September 23, 2014 Page 11 Mr. Laliberte said there will be a roof on it, and there will be a ¾ wall on the side where the chair lift would be, that would be the only wall. MOTION by Mr. Currier to approve the variance on behalf of the owner as advertised. Mr. Currier stated that the carport will have a connection to the house, and the wall that has the handicap provision would be a ¾ wall, and the other sides would be open. He said that the five criteria are met, and it’s needed to allow the applicants proposed use of the property, which is to provide some weather protection for the handicapped access. Mr. Currier 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 4-0. 7. Brian J. & Joan L. Smith (Owners) Erickson Construction Co., Inc. (Applicant) 16 Cliff Road (Sheet B Lot 1821) requesting variance to encroach up to 15 feet into the 30 foot required rear yard setback to construct a 19’x23’ sunroom and deck. R9 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Matt Erickson, Erickson Construction, Hudson, NH. Mr. Erickson said that the request is to replace the existing deck with a new deck and sunroom, which would encroach up to 15 feet into the 30 foot rear yard setback. He showed the Board some pictures of the house and yard area. He also showed the Board a plot plan showing the layout of the deck and sunroom. He said at the closest point, the deck would be 15 feet from the property line. He said on the GIS print, he highlighted the Smith’s home in yellow, to see where and how it sits on the lot. He said the Zoning Board of Adjustment September 23, 2014 Page 12 deck would be pressure treated with composite decking. Mr. Currier said that he appreciated the pictures, and gave him a good idea of the potential impacts to the neighbors. Mr. Reppucci asked if the deck is more than four feet high. Mr. Erickson said the new deck will be one step down from the sunroom. He said it will be more than four feet off the ground. SPEAKING IN FAVOR: Brian Smith, 16 Cliff Road, Nashua, NH. Mr. Smith said that they don’t need the big, existing deck, and believe that the sunroom will be of more value. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the variance on behalf of the applicant 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, the property is located on a steep slope, 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 the spirit and intent of the ordinance is being met, 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. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 8. MacThompson Realty, Inc. (Owner) 3 Marmon Drive (Sheet A Lot 349) requesting variance to exceed maximum wall sign area, 150 sq.ft allowed - 182 sq.ft permitted from May 27, 2008 variance - 278.5 sq.ft proposed. HB Zone, Ward 7. Voting on this case: Zoning Board of Adjustment September 23, 2014 Page 13 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 moving forward without a full Board. Atty. Prunier stated that a few years ago, it was a new, three-story building, and a variance was granted for the number of signs. He said that the whole building fascia has changed, at the request of General Motors. He said that they were also required to change the tiles and the colors of the building inside to comply with the new requirements of General Motors. He said something similar happened across the street with Toyota, and they had to tear down two buildings and build a new one. Atty. Prunier said that sometimes General Motors will pay for portions of the updated work. He said that the current request is that they have these new signs, that are somewhat larger. He said that the building is about 200 feet long, by 46 feet high, three stories. He said the signs requested only covers 3% of the front side of the building. He said that the request is within the spirit of the ordinance, he said it’s a problem for these larger buildings, but to comply with the wall sign size, in view of the size of the building, is out of order. Mr. Reppucci asked if the Board doesn’t approve the request, and they’re required to stay within the present signage that’s allowed, if it would impact the situation that the Thompson Group has with GM. Atty. Prunier said yes, if they’re not in compliance with GM, it could hurt their allocation of cars. Mr. Reppucci said that basically, General Motors is saying to the City of Nashua, that you have to do this. Atty. Prunier said that they were required to take off all of the fascia, on a new building, to comply with them as well. He said that the dealership can get penalized by not complying. He said that the ordinance doesn’t take into consideration the size of the building. He said that the proposed signs don’t look out of character. Zoning Board of Adjustment September 23, 2014 Page 14 Mr. Johnson asked about the specific requirement that General Motors has with the sign, whether it’s size, height, percentage. Atty. Prunier said the size of signs, it’s attached to the letter he submitted from General Motors. Mr. Johnson asked about the design standards. Atty. Prunier said that you see this all over with car dealership signs, they all have to comply. He said that based upon the size of the building, it’s reasonable to ask. Mr. Johnson asked if there is an appeal process, and if it was followed. Atty. Prunier said that the appeal process is to do it, there is no appeal process. He said that for Toyota, they had two nice buildings, and had to tear them down, and put up a very large new building. He said that the parent companies have a lot of power, and the franchisees have been fighting in the legislature. Mr. Currier said that he noticed that the electronic changing message ground sign out by Daniel Webster Highway is out of compliance. He asked what the request specifically asked for. Mr. Reppucci said it’s the one that got hit by lightning, and had to be replaced. Mr. Reppucci said that in light of the requirement to try to comply with the corporate wishes, he said that there are far more conservative communities than Nashua, as far as signage is concerned. He asked that if a community doesn’t comply with what GM wants, do they still punish the franchisee, even though they’ve made every effort to come into compliance. Atty. Prunier said yes. Mr. Falk read the legal advertisement from 2008 relative to the electronic message ground sign. He said that there are several pages of testimony, and read the last paragraph of the Motion. Mr. Falk said that if the sign is in fact out of compliance, it is a separate issue on a separate property, and not before the Zoning Board of Adjustment September 23, 2014 Page 15 Board tonight, the only item for the Boards consideration is the wall signs on the building. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Reppucci said he is bothered by the electronic message sign. He said he defended the concept that they would respect the rules, and the sign consistently has graphics on it. Mr. Johnson agreed that the EMC sign is not before the Board. He said he doesn’t see where there’s been a case made that this is an absolute requirement. He asked what the design specs are, and what are they not compliant with. He said he didn’t think a case has been made to grant another variance. He said it’s been fine the way it was. Mr. Reppucci said that financial impact on the applicant should not be relevant to this case. He said what is relevant is the aesthetics and whether or not it complies with the ordinances in the City. Mr. Currier agreed with what Mr. Johnson said, in that the letter from GM is soft evidence, it’s not an official document, signed, release dated, that says that these are the requirements, and beyond that, saying if these aren’t met, these appropriations will happen. He said he’s struggling with the written testimony. He said that the Board is told that every case is unique, and every once in a while, there is a precedent- setting thing. He said that all corporate offices could then be coming to the Board, saying they need extra signage. Mr. Reppucci said he accepts the testimony from Atty. Prunier as being fine, and doesn’t question it at all. Mr. Boucher said that at this point, he would be in favor of the application. He said that he’s looking at the request just on face value, what they are asking for. He said all the signs are on the fascia, it’s not on the sides, and with the scale of the building and what they’re asking for, it’s reasonable. He said Zoning Board of Adjustment September 23, 2014 Page 16 that the signs are in scale with the building, and said he’d find it difficult not to approve it, it’s a three story building, a large building, and it’s just signage on the building, and it won’t overpower the building by any means. Mr. Johnson said he wants to know what the design standards are. He said he cannot believe that a franchise, a major one, would be that dictatorial, even if someone is trying to work with municipalities. He said he’s not in favor of the request as it stands right now. Mr. Currier said that there is a blatant noncompliance with the electronic changeable copy sign, he said he’d be in favor of tabling this request until the noncompliance is fixed. He said he’s also not comfortable with the evidence of why we need to bend our rules. He said he’d like to see the compliance, and what other evidence there is that they need these signs. Mr. Johnson said the letter signed by the zone manager agreeing that they have to have new signs is insufficient in this case, and is not in favor of the request. Mr. Currier agreed, he said the Board has soft evidence. MOTION by Mr. Reppucci to Table the request to the October 13, 2014 meeting, and hear the case in its entirety. SECONDED by Mr. Currier. MOTION CARRIED 3-1 (Mr. Boucher) Mr. Johnson said he wants to know the specific design requirements for sign specifications and the appeal process, if they cannot comply, what is the process for the dealership and the franchisee, and what are the consequences if it’s not complied. Mr. Reppucci said that Atty. Prunier understands what is being asked for. Mr. Falk said he thought the meeting date was the 13th, but just to make sure, the date should be the first meeting in October. Mr. Reppucci said it is tabled to the first scheduled meeting in October. Zoning Board of Adjustment September 23, 2014 Page 17 9. CPC Investments, LLC (Owner) 37 Gilson Road (Sheet D Lot 28) requesting the following: 1) variance for minimum lot area, 40,000 sq.ft required for a proposed lot to be serviced by an individual sewage disposal system - 28,837 sq.ft proposed; and, 2) special exception to maintain an accessory (in-law) dwelling unit on second floor of existing house – both requests proposed in order to subdivide one lot into two lots. R9 & R30 Zones, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Mr. Reppucci asked to clarify what will happen in order for the variance to be approved. Mr. Falk said that if the Board supports the request for variance this evening, it will have to go to the Planning Board for subdivision approval, the variance is to allow less than 40,000 square feet for a lot serviced by its own sewage disposal system. Bob Cormier, Cuoco & Cormier Engineering Associates, 74 Northeastern Boulevard, Nashua, NH. Mr. Cormier stated that the lot is 68,837 square foot lot, and the applicant wishes to keep the 40,000 square foot lot on the left hand lot with the existing home, and the second lot would be 28,837 square feet. He said that the City requires lots to have a minimum of 40,000 square feet with a septic system. He said that the request is approved by the State of New Hampshire already, the test pits are fine. Mr. Cormier said that the in-law apartment is in the existing house on the second floor, it has been there for quite some time, and the plan is to re-establish it as a viable unit. He said it is 700 square feet in size. Mr. Cormier went over all the relevant points of law for both the variance and the special exception. Mr. Reppucci asked if the in-law apartment is in compliance with Zoning Board of Adjustment September 23, 2014 Page 18 all the pertinent regulations. Mr. Cormier said he believes it is. He said the house looks like a single-family home, the entrance to the in-law is in the back. Mr. Reppucci asked the applicant if he is certain that it complies with in-law requirements, like the square footage and usable space. Mr. Cormier said he believes the size is fine. Mr. Currier asked about the subdivision approval by the NH DES, and what it’s about. Mr. Cormier said that in order to go to the Planning Board, you have to certify that the site meets the provisions for a septic system, essentially, test pits need to be done, and the State will certify if the lot will be able to be subdivided to sustain a septic system. Mr. Currier asked if it’s well or City water. Mr. Cormier said it’s City water. Mr. Currier asked why there is a requirement for the 40,000 square foot lot for septic, and why the 28,837 square foot lot could work. Mr. Cormier said the septic will be fine, as the State certifies it, it’s an adequate sized lot. He said the 40,000 square foot lot helps in having it be a more rural look. He said that there are many homes right nearby that do not meet that requirement, and it’s worked out fine with the smaller lots. He said that the proposed lot is more than adequate for a septic system, and the State has certified it. Mr. Currier asked if there is any record of an in-law apartment at this location. Mr. Cormier said it has been used that way, it has a separate kitchen facility on the second floor, and it has its own egress. He said that the owner wants it for marketability, and to continue the past use. Zoning Board of Adjustment September 23, 2014 Page 19 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant the variance request on behalf of the applicant, as advertised. 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 achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Reppucci said that the spirit and intent of the ordinance is being met, he stated that it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served, there was testimony from the professional engineer that the system would work in the requested square footage, and the septic design was approved by the State of NH. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MOTION by Mr. Reppucci to grant the special exception on behalf of the applicant, as advertised. Mr. Reppucci stated that it is listed in the Table of Uses, Section 190-32. Mr. Reppucci said that the request will not create undue traffic congestion, or unduly impair pedestrian safety, there was no testimony one way or another. Mr. Reppucci said that the use will not overload public water, drainage or sewer or other municipal systems, in fact, it’s a private septic, special regulations are fulfilled, the applicant stated that all special requirements of an in-law apartment would be met, and it will not impair the integrity or be out of character with the neighborhood or be detrimental to the health, morals or welfare of residents. SECONDED by Mr. Johnson. Zoning Board of Adjustment September 23, 2014 Page 20 MOTION CARRIED UNANIMOUSLY 4-0. 10. Carvalho Family Realty Trust (Owner) 119 East Hollis Street (Sheet 24 Lot 25) requesting special exception to expand a non-conforming use by re-building and expanding existing building by 30%. GI Zone, Ward 7. 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’s objecting to proceeding with four members, but will proceed forward. He said that the present building, which used to be an old gasoline station, would be increased in size by about 30%. He said that the purpose in doing so would be to make it more efficient in the operation of the business. He said that the use stays the same, the site stays the same, nothing changes on the site. He said that it is a legal nonconforming use, under Section 190-119 A. Atty. Prunier said the overall Dunkin’ Donuts operation is staying the same, and the new building will improve the neighborhood in this particular area. He said that it complies with all other sections of the code for a special exception, there will not be any added pedestrian safety issues, or any other traffic problems, it has all public utilities, and the character of the neighborhood stays the same. SPEAKING IN FAVOR: Richard Maynard, Maynard & Paquette Engineering Associates, 23 E. Pearl Street, Nashua NH. Mr. Maynard said that the drive- through will remain unchanged from today, there’s also no change to the parking or the traffic, it’s just an efficiency enhancement to the building. He said the pickup window will be the same. He said that the building is chopped up badly inside. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Mr. Reppucci said that there is a letter from Attorney Leonard, Zoning Board of Adjustment September 23, 2014 Page 21 dated September 23, 2014, and he read the letter into the record. 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 190-119 (A). Mr. Currier stated that the use will not create undue traffic congestion or unduly impair pedestrian safety. Mr. Currier said that the proposed use will not overload public water, drainage or sewer or other municipal systems. He said that per testimony, the special regulations have been fulfilled, and the Board finds that it will not impair the integrity or be out of character with the neighborhood, he said it’s a GI neighborhood, but has a little commercial zone, and it won’t look any different, the building will be slightly larger, and it’s the testimony that the western access border will not be impacted. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 11. Alexander Maynard Rev. Tr, (Owner) 13 Kathy Drive (Sheet B Lot 997) requesting special exception to construct a single family home on a lot of record in the 75-foot prime wetland buffer of Salmon Brook. R9 Zone, Ward 9. [ON REMAND] Voting on this case: Gerry Reppucci Jack Currier Rick Johnson J.P. Boucher Mr. Reppucci described the history of this case. He said that there was a stipulated agreement, in which the case it was approved by Superior Court Judge Temple, it is a remand from the Court. He said he has a letter from Alderman Donchess, who was opposed to the application, makes reference to this being a Fisher v. Dover case. He said that in the Fisher v. Dover case, someone can’t keep coming back to the Board for the same thing, there has to be a significant change in the application. He Zoning Board of Adjustment September 23, 2014 Page 22 said that this case is not that, it’s not a situation where we have to make a decision whether or not to rehear this. He said that the Superior Court is telling this Board to rehear it, it’s remanded back to us, and the Fisher v. Dover determination does not apply in any way, the Court is telling us to rehear the case. Mr. Johnson concurred, it is not a Fisher v. Dover issue, as the circumstances have changed per the Judge’s order. Mr. Currier concurred, it’s not a Fisher v. Dover issue. He said in some remands, there are specific instructions, but this is somewhat different, in that the Judge didn’t get any details on this, both parties went to the Judge and said that we have a “plan B” that addresses the issue, and we’re asking the Judge to remand it to not go to the Court system. Mr. Reppucci read the remand statement from the Court, and the Board agreed to go forward with the case. Attorney Andrew Prolman, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prolman said that he object to moving forward without a full Board, but will do so. He said that he agreed with everything said by the Board members about the remand, and how we got here today. Atty. Prolman said that in looking at the certified record from the City, it appears as if there’s a discrepancy in the plan that the City had versus what Mr. Maynard spoke to back in January, there were two different plans, and Attorney Bennett and myself thought that alone would be enough to remand the case. He said that the 15 Kathy Drive plan, at the January 28th 2014 hearing, there was a lot of presentation about the two lots taken together, and it was determined that there was sufficient room to grant the special exception for 15 Kathy Drive, but the Board was concerned about the 7 feet or so being presented on the back of 13 Kathy Drive, and in the letter of denial, spoke to certain points of the special exception point number 5, and point number 9 of the wetland special conditions. He said that the revised plan has been sent out, and in shifting the house over a few feet westerly, and by reducing the foundation, it serves to capture a larger back yard, which addresses the Boards concerns. He said that he wanted to incorporate for the record that the Conservation Commission approval, the approval from the State, all of that stays the same, and the house is now moved Zoning Board of Adjustment September 23, 2014 Page 23 further away from the wetland. Mr. Reppucci said that 15 Kathy Drive, which was approved by this Board, had a 12’-6” distance from the wetland. He said that the original proposal was about 7 feet from the wetland buffer, and the proposal tonight is exactly the same as the 13 Kathy Drive. Atty. Prolman agreed. Richard Maynard, Maynard & Paquette, 23 East Pearl Street, Nashua, NH. Mr. Maynard said that they’ve adjusted the size of the foundation so that in the back, they have a full 12’-6” in the back, just like 15 Kathy Drive. He said that the foundation is smaller, and the house is shifted over to the left of the lot. He read over the application with the points of law for a special exception. He said that the house will be provided with a leaching catch basin to handle runoff from the house, and it addresses the concern about groundwater recharge taken up by the house itself. He said that the City has installed two drain lines to Salmon Brook to handle street runoff from Searles Road and Kathy Drive. He said that the house is oriented to the front of the lot to minimize the wetlands. Mr. Maynard said that grading and drainage has been directed away from the wetlands towards the street, where it can receive some treatment. He said the house is located the same distance away from the wetlands as 15 Kathy Drive. He said the house received approval from the Conservation Commission, which is an expert agency. He said that the house has been located in the best possible location on the lot. He said that there will be no wetlands loss or degradation. He said that all of the asphalt and debris will be removed from the lot, and invasive species, as best as possible, will be eliminated. He went over the remaining special conditions, and all are met and will be satisfied. SPEAKING IN FAVOR: None. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Rebecca Diorio, 11 Kathy Drive, Nashua, NH. Mrs. Diorio said that their sump pump runs continuously, there is constant water, Zoning Board of Adjustment September 23, 2014 Page 24 and this past spring, the water got to 7 feet from the back door. She said that there’s just one drain that is constantly overflowing. She said she fears for the people who would reside at 13 and 15 Kathy Drive when they start seeing we’ve been seeing the past years. She said they now have to get a whole- house generator because if the sump pump is off for one hour, there is six inches of water in the cellar. She said they never have to water their lawn because the water table is so high. Mr. Currier asked about the height of her basement compared to the new basements. Sandra Abbott, 75 Searles Road, Nashua, NH. Mrs. Abbott said that she can’t believe that anyone would think to build on this lot. Barbara Beierl, 5 Shetland Road, Nashua, NH. Mrs. Beierl said she opposes the proposed development, it is wetlands property, and needs to be kept that way, not to be used for private development. SPEAKING IN FAVOR – REBUTTAL: Mr. Currier asked to clarify the plan the Board had the last time. He said that there’s a line 50 feet away from the Shoreland Protection Act, and the corner of 14 Kathy Drive was right on the edge of that. He said the plan tonight, the line isn’t demarcated, but wanted to know if the foundation cuts into that. He asked if the proposed house is within that 50-foot, and if it is, does it matter, or is it permissible. Mr. Maynard said that the old plan, it had the 7.7 feet, and by shifting the house over and making the foundation smaller, it’s now 12.6 feet. Mr. Currier said that the plan the Board voted on in January is different from the one we have tonight. Mr. Maynard said that whatever plan was in the packet was not the plan that he put on the wall, and somehow, there were two different plans. He said that there was some kind of confusion as to what plan the Board had, it wasn’t the same one as what was on the wall. He said that this is one of the prime reasons why the request was remanded back to the Board. Zoning Board of Adjustment September 23, 2014 Page 25 Mr. Maynard said that the second reason is that the foundation was made smaller. He said that the 50-foot line, in the Shoreline Protection Act, there are three lines to consider, the 50-foot is the most important one, it requires that there be a minimizing of cutting, you can cut up to 50% of the basal area. He said that the next line is the 250-foot line, which has similar lines of tree cutting. He said that there is a 1,000- foot line, which is a jurisdictional line, and there are no special rules, but they will look at it to see if there’s anything that is negatively impacting the wetlands. Mr. Currier said that the plan before the Board tonight doesn’t have that 50-foot Shoreland Protection line. Mr. Maynard said that the line is there, and it will meet their criteria. Mr. Maynard pointed out 11 Kathy Drive, and pointed out a major drainage line put in by the City. He said that whatever happens to this property will not be affected by their property, theirs was built in the 1960’s or early 1970’s, it’s old pipe construction, and it’s not built to today’s standards. He said that their lot is several feet lower in elevation. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mrs. Beierl stated that she is surprised that the engineer can expect the Board to do anything with this construction, without having actually received the correct diagram it’s packet. She said if she were a Board member, she’d ask to table it. Mr. Reppucci said that the Board has the correct plan now. He said that Mr. Maynard referred to the previous hearing, where there was a discrepancy between the plans. Mr. Johnson said that when you look at the new proposal, and listen to the testimony, with the new house location, you have 14 feet from that side, with that, it’s a wet area, for what they’re trying to do, and what is being proposed in this package, and the positioning of this house, it’s a far better job with complying with the intent and spirit of the ordinance, so given the modification, is in support of the application. Mr. Reppucci said that appeals don’t just go for perpetuity. He said that the way a determination can be made for an appeal, is Zoning Board of Adjustment September 23, 2014 Page 26 that if there is a change in the aggrieved party, that is the standard. He said initially, the Board heard the case, it was denied, it’s appealed, and we deny the appeal, you can’t keep appealing to this. He said that in this case, if we now approve this application, even though it was first heard by us, reconsidered by us and remanded by the Court, if we approve this case tonight, the recourse is not to go to Court, the recourse is to come back to the Board, because there is a different aggrieved party now, it has changed sides, so the way to appeal this is to appeal back to the Zoning Board, and it needs to be done within 30 days. MOTION by Mr. Reppucci to grant the special exception on behalf of the owner. Mr. Reppucci stated that the request is listed in the Table of Uses, Section 190-112. Mr. Reppucci said that the request will not create undue traffic congestion, or unduly impair pedestrian safety, it will not overload public water, drainage, or sewer or other municipal systems. He said that the special regulations are all fulfilled. Mr. Reppucci said that the request will not impair the integrity or be out of character with the neighborhood, or be detrimental to the health, morals or welfare of residents. He said that all of the testimony in the previous hearings on this were considered by this Board tonight, and are part of this record, and all the minutes of the Conservation Commission meetings, and all the documentation from the previous meetings are included in this case. He said that all the special wetland conditions will all be complied with as well, as highlighted in the last meeting, including all the DES materials. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Reppucci brought up the case for 22 Dudley Street, and the applicant is still not present. He said that this case was tabled from the 9-9-14 meeting. He said that they’ll give them the benefit of the doubt and table it one more time. The other Board members agreed, and Mr. Johnson’s drive-by confirmed that no new work had been done. MOTION by Mr. Currier to table Case #2, for 22 Dudley Street, to Zoning Board of Adjustment September 23, 2014 Page 27 the next meeting in October. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: No Agenda yet, there is an extra week in the schedule, and Mr. Falk will email the agenda when it’s ready. MINUTES: August 26, 2014: Mr. Johnson had some revisions about a date and other language near page 10. Mr. Falk said he’d take a look and make any necessary changes. No further action taken. ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:07 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing