Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING December 9, 2014 A public hearing of the Zoning Board of Adjustment was held on Tuesday, December 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. 1. Stephen C. & Karen M. Roebuck (Owners) 21 Gendron Street (Sheet E Lot 730) requesting special exception for a minor encroachment - to encroach 4 feet into the 10 foot required left side yard setback to construct a two-car garage. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Attorney Brad Westgate, Winer & Bennett, 111 Concord Street, Nashua, NH. Atty. Westgate said that the Board members should have a copy of the monumented survey that was sent out in the package. He said that there is an updated exhibit J-1 that was made available to the Board of the Gendron Street neighborhood, depicting the garage information. Atty. Westgate said that Section 190-16 (E)(3), and Table 16-2 Zoning Board of Adjustment December 9, 2014 Page 2 of the Land Use Code. He said that the Code allows for expansions to existing dwellings. He said that what they are proposing is a two-car garage with an entryway attached, and a sunroom in the back. He said that four feet of the two-car garage is what is within the ten foot side yard setback requirement. Atty. Westgate said that Section 190-16 (E)(3) allows special exceptions to be granted so long as the encroachment doesn’t exceed 6 feet to the side yard property line, so, they can encroach 4 feet into the 10 foot side yard setback. He said that numerous exhibits have been submitted with the application. He said that the Roebuck’s application was recently granted by this Board, and the neighbors, the Marshalls, asked for a rehearing, which was also granted. The rehearing has not been brought forward to the Board, as the Roebucks have decided to submit for a special exception instead. He said that if the special exception case is approved, the previously granted variance will become moot. Atty. Westgate said that the Roebucks sent letters to all the neighbors on Gendron Street, just to let them know that this application is in the works, and also to alert them to a website that has been established. Atty. Westgate said that one of the exhibits is a panoramic view of what the property would look like with the garage, Exhibit “H”. Atty. Westgate said the garage would be about 24 feet wide, and it tapers down in the back, it will be 22 feet in the back, but the 6 foot separation and setback will always be maintained to the property line. He said it will be one story, with storage above. He said the garage will be about 79 feet away from Gendron Street. Atty. Westgate said that the special exception criteria for minor encroachments has a Table, 16-2, and it shows that you can encroach 4 feet, to leave a 6 foot setback for the side yard. He said that Section 190-31 of the Ordinance allows detached garages and detached accessory buildings to be 6 feet away from a side property line, so, there is a consistency between 190-16 E and Section 190-31. Zoning Board of Adjustment December 9, 2014 Page 3 Atty. Westgate said that a completeness review has been done by City Staff, and it was determined that the application is complete and ready for the Boards consideration. He said that there are fundamental differences between the approval criteria for a variance and a special exception. He said that for special exceptions, there is no need to find a hardship. Atty. Westgate stated that the case is listed in the Table of Uses, Section 190-16. He said that the use will not create undue traffic congestion or unduly impair pedestrian safety. He said that the use will not overload public water, drainage, or sewer, or other municipal systems. He said that for the special regulations portion of the points of law, there really are none, other than the garage can’t be more than 6 feet away from the property line. He said that the use 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 the garage won’t have any effect on the residents, and the proposed garage is not out of character with the neighborhood, as the use itself is permitted, and an additional 4 feet of the side yard setback for a permitted use is not out of the character of the neighborhood. He said that this is a neighborhood where two-car garages are common to see, plus, the garage is 79 feet back from the street. He said that the five criteria have been met, and the application should be supported and approved. Atty. Westgate said that there is no Fisher v. Dover determination required here. He said that first and foremost, the Fisher v. Dover is a pre-Simplex case, and in 2011, the NH Supreme Court considered the case of Grant Development Company of NH v. Somersworth. He said that in this case, the Court expressly determined that Simplex itself was such a material change in circumstance that it alone removed the Fisher v. Dover determination from pre-Simplex denials, which is exactly what we have here, a pre-Simplex denial in 1986, and we’re post-Simplex now, and this is also a special exception, not a variance. He passed out some handouts, and some letters in support from the neighborhood. Mr. Currier asked about Exhibit J-1, and asked which homes have garages that are within the 6 foot or 10 foot side yard setback. Atty. Westgate said he didn’t believe any of them were within the 6 foot side yard setback. He said that he isn’t sure of the garages that are between 6 feet and 10 feet. Zoning Board of Adjustment December 9, 2014 Page 4 SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Elaine Marshall, 23 Gendron Street, Nashua, NH. Mrs. Marshall passed out some information to the Board members. She said that she believes that their application is not in compliance with the purpose statement of Section 190-16 (E)(3), it’s supposed to be for minor expansions, and the proposed construction is not a minor expansion. She said that the minor encroachments are to protect neighborhoods character, appearance, and safety. She said that there are no other properties on Gendron Street that have attached garages that are less than ten feet from the property line. She said if approved, the Roebucks expansion will change the appearance of the neighborhood. She said that their master bedroom is above their garage, and it will be garage to garage. Mrs. Marshall said that they have two old trees that have roots that may be disturbed during the foundation excavation. She said that she has a letter stating that the roots must be cut by hand to avoid contamination to the tree. She said that the proposed garage will shade some shrubs they have, and it will shade 19½ feet of their privacy fence in late afternoon, adding to increased drying time of their fence. She said that the addition will create a 6 foot wide alley between the garage and the fence, which could affect the marketability of the property. She said that they have other options to build their garage without encroaching. Mr. Reppucci said that the applicant can build their garage without even coming to the Board, if it’s not attached to the house. He asked if they could perceive the difference between the two buildings between 26 feet versus 24 feet away. Mrs. Marshall said it does make a difference, and would be able to tell. Roy Williams, 50 Gendron Street, Nashua, NH. Mr. Williams said he’s opposed to this request, and doesn’t think that 40% of the setback is a minor incursion, and objects to the encroachment, it will change the character of the neighborhood. Zoning Board of Adjustment December 9, 2014 Page 5 Sharon Berry, 28 Gendron Street, Nashua, NH. Mrs. Berry said this whole case is sad, and thinks that neighbors should respect their neighbors, and said that she wouldn’t encroach into a setback to bother a neighbor. Mr. Reppucci reminded the audience that the applicant is asking for something that is allowed by the Ordinance, and they have the right to apply, and it’s not a variance, it’s a special exception. He said that they’re complying with what the Ordinance says that they have to comply with. Joe Marshall, 23 Gendron Street, Nashua, NH. Mr. Marshall said that he doesn’t believe that the special exception should have gotten out of the administrative review process, as it clearly violates the purpose of the subsection, that it is for minor expansions. Mr. Reppucci said that the Code spells out that the language he refers to is not a standard, it’s just language in the purpose statement. Mr. Marshall said that there is no perception, the fence is on the line, and it will create a narrow alleyway there, and people driving or walking by will see how close it is. SPEAKING IN FAVOR – REBUTTAL: Atty. Westgate said that the applicant is seeking an expansion going four feet into the ten foot side yard setback. He said that property value is not a standard for approval here. He said that whether or not there is a shade impact is also not a factor, and the shade between one house or garage and another is not relevant to the character of the neighborhood, and it doesn’t violate the integrity of the neighborhood. Atty. Westgate said that the Roebucks have some design constraints, so the idea of putting the garage right up next to the house to stay within the ten foot setback will be very difficult, as the chimney is on the side, and the entry, and the ability to access the house, and garage, is ruined, and it takes away a normal function of entry. He said that the way it is designed, they are proposing a 22-foot wide garage at the rear, which is about the smallest a builder would build for a two-car garage. He said that opening car doors, steps, landings, all Zoning Board of Adjustment December 9, 2014 Page 6 will interfere with the functionality of the garage. He said that their entryway is necessary to adequately function between the garage and entering the home. He said they haven’t done this lightly, they’ve tried to figure out a solution that fits within the precepts of the zoning ordinance. He said that they meet Section 190-16 E, and find that it makes sense. He said that there was a lot of thought into the request, and the design. Atty. Westgate said the issue of whether they should be here or not has already been put to rest, as the request is already here before the Board. He said that a determination was made that the application is complete, and meets the philosophy of Section 190-16 E. He said that the purpose clause in the special exception is totally different from a variance concept. He said that stoops, stairs, chimneys, are smaller items for which we wouldn’t have to be here at all. He said that it’s only a 6% component of the overall structure. Mr. Reppucci said that the idea isn’t the total amount of space that’s being added, it’s only the amount of space that is in the incursion that should be considered as a percentage of expansion. Mr. Currier said that he has a 20 foot wide garage for two cars, and it works for him, and said he’s struggling with this request to go into the side yard setback. He mentioned Exhibit C, with respect to shading, and said that there could be shade all across the abutting house. Atty. Westgate said that there are too many factors to consider with the shade, there’s the time of year, vegetation, and the house. He said that the shade factor is irrelevant with the context of this application, and it has nothing to do with impairing the integrity or the character of the neighborhood. It’s a house to house issue, if anything at all. He said that this is a fundamentally different case than what was heard in May. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Marshall said that the shade issue is not what people see, it’s the health of their shrubs. He said that the shrubs only get sun in the late afternoon, and the photos provided show a four hour period how they get sunlight. He said that with the Zoning Board of Adjustment December 9, 2014 Page 7 garage there, most of the sunlight, if not all of it, is going to be turned into shade. He said it will be a negative impact on his property. He said that they can easily abut the garage to the house, build it behind the chimney, and there are several houses on the street that have that configuration, and building a garage roof around the chimney is not high-tech stuff, it can be done and be outside the ten foot setback. He said the purpose in the ordinance says it’s supposed to be for minor expansions. Mr. Shaw read the purpose statement in Section 190-16 E 3. He said that this is a minor encroachment. He said that his concern is that the Code specifies the intent of this section and how it’s applied, and how it states minor expansions of existing dwellings. He said it’s not like there was already a structure, and they’re adding something relatively minor onto it. He said that there’s a huge expansion of the existing home, so, it’s a minor encroachment, but there may be a conflict here. Mr. Reppucci said the italicized section is the answer. He said that Section 190-9 (C)(4) provides the description that the purpose statements throughout the ordinance summarize the Master Plan. He said that the purpose statements provide the basis for the development standards, but are not standards, in other words, an application for approval of a development cannot be denied because of a conflict with the purpose statement. Mr. Shaw said that perhaps the purpose statement is maybe inaccurate, or isn’t best stated. Mr. Currier said that the proposed breezeway could be trimmed down two feet, which makes a big difference to the abutter. He said that he’s struggling with the need of the application to be that wide for that much of an encroachment, he said that it can be smaller without a huge impact. He said that it’s a preference, a desire, it’s not really needed to accomplish the two-car garage. Mr. Reppucci asked if Mr. Currier feels comfortable denying the special exception when it conforms with the requirements laid out in the ordinance. Mr. Currier said that one of the criteria for a special exception is whether it is in the character of the neighborhood. He said that the Board has evidence of the long-established Zoning Board of Adjustment December 9, 2014 Page 8 vegetation and the shading of it. He said that a special exception should be approved with no detrimental aspect to it. Mr. Reppucci said that it’s not up to the Board to say whether or not something is needed, and it’s not up to a neighbor to tell another neighbor how to use their property. He said that they’re using their property in conformance with the ordinances that are laid out by the City, then no one should be telling anybody how to use their land. He said that anything that was mentioned before about vegetation has absolutely nothing to do with this application, it’s not before us. He said the issue of shade or shading is not an area that we should be considering, there is nothing in the ordinance or in the guidelines from the Office of Energy and Planning Training Manual that gives effect on vegetation any weight whatsoever in any kind of application. He said that the Board has had more action on this application than we’ve had on any other application we’ve ever seen and it’s a special exception. He said he believes that they conform, and it’s not a variance. He said that the applicant has reduced their request from the last time. Mr. Shaw said that they’ve used the Code to find a way to file the special exception application, and it limits them to the four feet encroachment. He said he’s going to support the case, but doesn’t like it, but it does meet the criteria. Mr. Johnson said that he supports it, based upon the criteria. He said it would be nice to have the trees hand cut, it would be a good faith, or good will effort if they do that. Mr. Boucher said he believes that they meet the special exception criteria, and will be in favor of the application. He said that the Roebucks are very sensitive to what is going on, and they will work very hard with their contractors to make sure that there is no damage done to the trees. Mr. Reppucci said that the decision made tonight by the Board is appealable within the 30-day window as set out by State Statute, it’s not the same application that we had the last time. MOTION by Mr. Boucher to approve the special exception on behalf of the owner as advertised. Mr. Boucher stated that the request is in the Table of Uses, Section 190-16 (E) (3) (a). He stated that the request will not create undue traffic congestion or unduly impair pedestrian safety, actually the pedestrian safety. Zoning Board of Adjustment December 9, 2014 Page 9 Mr. Boucher stated that the use will not overload public water, drainage or sewer or other municipal systems. He said that the special regulations are fulfilled, as they submitted a monumented survey. He 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 the residents. SECONDED by Mr. Johnson. MOTION CARRIED 4-1. (Mr. Currier) 2. Cul-De-Sac, Ltd. (Owner) Dean Baxter and Millyard Brewery, LLC (Applicant) 25 East Otterson Street (Sheet 18 Lot 10) requesting use variance to use a portion of an existing building for the brewing and distribution of craft beer. D-3/MU Zone, Ward 7. Voting on this case: Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Dean Baxter, 38 Berkeley Street, Nashua, NH. Mr. Baxter said they are looking for approval for brewing and distribution of craft beer, at 25 East Otterson Street. He said the building is across the street from the Pub Grainery, and it is near the Shaws Supermarket, and other offices to the west. Mr. Baxter said the building is made up of three units, there is the climbing gym, Vertical Dreams, the middle unit is due to be vacant shortly, and the end unit has been vacant for over 12 months. He said that the Code doesn’t allow for food and beverage manufacturing in this zone. He said it is allowed in the General Industrial and Park Industrial zones. Mr. Baxter said that they have a small craft brewery, it’ll be a one barrel system initially, and will be working within the boundaries of the nano brewery, which allows the production of up to 2,000 barrels annually. He said that they will be supporting the downtown in terms of providing employment, and services to local people and expanding businesses in the general Zoning Board of Adjustment December 9, 2014 Page 10 area. Mr. Baxter said that Martha’s Exchange also brews beer, and sells it locally in the downtown area. He said that they will observe the spirit and intent of the ordinance. He said that property values will not be negatively affected, and they are looking to upgrade the property with the new use. He said that the use will be in favor of the public interest, and substantial justice will be served by granting this request, it will add value to the downtown area to have a local brewery. Mr. Currier asked if there will be any eating on site. Mr. Baxter said that the operation of a nano brewery within the State and Federal laws allows for beer tastings, only 4 ounces, or take home beer that is purchased. He said people can sample the beer, but they won’t serve over 4 ounces, so there is no need for food. He said that the operation is strictly a nano brewery. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the use variance request 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, 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 request is within the spirit and intent of the ordinance, he said it will not adversely affect the property values of surrounding parcels. He said it is not contrary to the public interest, and substantial justice is done. SECONDED by Mr. Johnson. Zoning Board of Adjustment December 9, 2014 Page 11 MOTION CARRIED UNANIMOUSLY 5-0. 3. James Stellos Colorusso (Owner) 4 Whitford Road (Sheet C Lot 648) requesting variance for accessory use area, 40% permitted, 32% existing – 92.8% proposed – to construct a detached 30’x30’ two-car garage. R30 Zone, Ward 5. Voting on this case: Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Attorney Prunier said that he is requesting a variance for a garage that was started in 2006, with a foundation, and it’s been there ever since, until his client purchased the property, and now they want to complete the garage. He said that in 2006, a building permit was obtained, however, the permit expired. He said that they have submitted a certified plot plan, indicating that the garage does not encroach on any setbacks, also, there is a drawing of what the garage would look like. Atty. Prunier said that the issue before the Board is for the total accessory use area exceeds what is allowed under the ordinance. He said if the garage was attached to the house, this request would not be necessary. He said the difficulty in attaching the garage to the house is that the house is a split- entry, you have to go up 7 steps, and it doesn’t fit in where a garage is concerned to be attached. He said that the area is a nice residential area, with many garages. He said that the garage will allow the property to look completed, and it is a reasonable use. Mr. Johnson asked about the space above the garage. Atty. Prunier said it is just storage space, it’s not living area, it’s a single story structure. SPEAKING IN FAVOR: No one. Zoning Board of Adjustment December 9, 2014 Page 12 SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Johnson to approve the variance request on behalf of the applicant as advertised. Mr. Johnson 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. Johnson said that the request is within the spirit and intent of the ordinance, he said it will not adversely affect the property values of surrounding parcels. He said it is not contrary to the public interest, and substantial justice is done. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 4. Douglas A. Pominville (Owner) 140 Manchester Street (Sheet 137 Lot 143) requesting variance to encroach 5 feet into the 6 foot required side yard setback to construct a 10’x12’ shed. RA Zone, Ward 2. Voting on this case: Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Stacey Pominville, 140 Manchester Street, Nashua, NH. Mrs. Pominville said that there used to be an 8’x10’ shed, but the door was falling off, and rodents got into it, and the roof was battered. She said that they took it down and want to replace it with a 10’x12’ shed, which would be about a foot away from the fence. She said you’d only be able to see the peak over the existing fence. She said the backyard has the only functional space for the children, with the pool. She said that they need to make the most space of the rear yard for the children. Zoning Board of Adjustment December 9, 2014 Page 13 Mr. Currier asked what the height of the old and new shed will be. Mrs. Pominville said it was an 8’x10’ shed with a peaked roof, you could walk into it. She said the proposed one is very similar, it’s just a little bit larger. SPEAKING IN FAVOR: Frank Giarrusso, 142 Manchester Street, Nashua, NH. Mr. Giarrusso said that he is in favor of the proposed shed, and their view really won’t change. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance request on behalf of the owner as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is for a shed to encroach 5 feet into the 6 foot setback, and given the special conditions of the property, and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Currier said that the request is within the spirit and intent of the ordinance, he said it will not adversely affect the property values of surrounding parcels. He said it is not contrary to the public interest, and substantial justice is done. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 5. Alison T. Slater (Owner) Russell Slater (Applicant) 15 Colonial Avenue (Sheet D Lot 497) requesting variance for lot width, 105 feet required – 50 feet proposed, to subdivide one lot into two lots. R30 Zone, Ward 5. Voting on this case: Zoning Board of Adjustment December 9, 2014 Page 14 Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Russell Slater, 15 Colonial Avenue, Nashua, NH. Mr. Slater said that it is a R30-zoned area, but most of the neighborhood has septic, so they’re required to have 40,000 square feet of land. He said that they’re requesting a variance for the lot width requirement of 105 feet at the front yard setback. He said that the proposed variance application is not contrary to the public interest, it will have a single-family home on the lot. Mr. Slater said that the proposed lot would be on a 71,000 square foot lot, and the house would be at least 150 feet away from any surrounding home. He said the plan submitted just shows a proposed home location suggestion, the location is flexible. Mr. Slater said that they wouldn’t alter the characteristics of the neighborhood, on the other hand, they would enhance the neighborhood. He said that a majority of the homes in the neighborhood sit on 16,000 or less square foot lots. He said that the spirit and intent of the ordinance is preserved. He said the spirit of the ordinance with regards to lot width is to allow for adequate lot and air, and with a 71,000 square foot lot, there will not be any overcrowding. Mr. Slater said that for substantial justice, the proposal meets all the requirements for a variance, there are no other responsible alternative layout for the lot. He said that drawing number two in his package indicates that there is no other road access to the lot. He said it will add housing to the area, and add value to the neighborhood, which consists of all single family homes. He said that this proposal will not diminish the values of surrounding properties, and the neighborhood will benefit by the proposed lot, and the proposed lots are much larger than a majority of the homes that abut it. Mr. Slater said that in the back of the packet, he provided letters from realtors supporting the raising of property values in the surrounding area. Zoning Board of Adjustment December 9, 2014 Page 15 Mr. Slater said that for hardship, due to the unconventional shape of the lot itself, and since there’s no other access to it, this will allow the land to be put to its best possible use, the proposed 71,000 square foot lot area doesn’t really flow with the current property. He said that there is definitely more than adequate space for an additional home there. Mr. Slater said that there was an original variance requested on this lot, it was part of an original variance that was requested in 2003, however, that wasn’t part of a “T” turnaround, the neighborhood itself has actually changed, it went from three houses on that section of Colonial, and now there are five houses, and there’s a cul-de-sac that’s been added. He said that the original variance asked for a road frontage off of a T- turnaround, the T-turnaround doesn’t exist anymore, and since the T-turnaround doesn’t exist anymore, that created the need for the minimum lot width at the setback. He said that the T- turnaround was the access to that area when the cul-de-sac was built, it got rid of the T-turnaround, preventing access back there. He said that therefore, this variance application is substantially different from the original. Mr. Reppucci said that because this is on a cul-de-sac, the frontage is allowed to be 50 feet if it’s on the bulb of the cul-de-sac. He said it’s the width of that strip of land that is in question. Mr. Shaw said that is correct, and said he may have been thinking of the 2003 case, where they asked for both. Mr. Falk said that the Code has changed, the R30 zone used to have a 35-foot front yard setback, now, it is 30 feet. Mr. Shaw said that there would have to be a really wide angle to have a 50-foot frontage, and the 105 foot width at the front yard setback 30 feet back. He said it’s not a very practical section. Mr. Falk said that he believes the Land Use Code Consultants premise was that they recognized that a lot on the bulb of a cul-de-sac is going to have a smaller frontage, so they allowed a 50-foot frontage, and since it will be narrower at the property line, the width should be narrower too, so instead of requiring a 130 foot width, they arbitrarily made it to whatever the lot frontage is, that figure would be the width, so instead Zoning Board of Adjustment December 9, 2014 Page 16 of 130 feet, it’s 105 feet. He said this is what the Consultant came up with. Mr. Reppucci asked how long they have owned the lot for. Mr. Slater said his wife owns the lot, since 2001. Mr. Slater said that the feedback from the Board from the old variance application was to add a cul-de-sac. He said that they changed the look of the neighborhood, the feel of the neighborhood, the traffic flow to accommodate that. Mr. Currier said when he first looked at this, the Fisher v. Dover situation came to mind, and really wanted to see what was asked for in 2003, but in looking at the minutes of subdividing one into three, he said he didn’t have a clear picture of where the T-turnaround was, but it seemed like a substantially different application, one into three, and one into two. Mr. Reppucci said that certainly, with the cul-de-sac being put in, changes the total area from what it was in the 2003 application, but it doesn’t change this particular lot. He said it’s kind of the same. Mr. Shaw said that he was sold that we were talking about a two- lot request instead of a three-lot request, being a significantly different and with the T-turnaround versus the cul-de-sac, that third lot is not part of the lot in question, the other two were. He said that the request before us is to take this portion, and divide it into two lots, which is basically what the request was 11 years ago. He said it may be that we’re down to a cul-de-sac versus a “T”. Mr. Reppucci said if you read the application from 2003, lot frontage, 105 feet required, 50 feet proposed, and lot width, 130 feet required, 50 feet proposed. Mr. Shaw said that he believes the Fisher v. Dover question really comes down to the “T” configuration of the street, and now it’s a cul-de-sac configuration, and the fact that the Code law has changed regarding the specific dimensional aspects of the frontage and the width in that time frame. Mr. Reppucci said that the applicant has presented, and asked if the Board should go forward with the entire case. Zoning Board of Adjustment December 9, 2014 Page 17 Mr. Currier suggested that the Board consider with the case as we’ve started with it, and we’ve learned as we go along. He said people are here, and it would be prudent to move along and get information and testimony. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: David Newcomb, 9 Countryside Drive, Nashua, NH. Mr. Newcomb said that the subject property is in back of his lot, and abuts his back line. He said that it will be a declining value for his property, and, they’ve cut a lot of trees down. He said he has surface draining and groundwater issues with his property, and it all comes from the subject area. He said it’s about a 10-foot elevation drop from the back portion of the subject lot to the street, and it results in flooding of the basement. He said that his septic system is also in the back, and the leach field goes all the way to the back property line, and has issues of the tank filling. He said he has concerns of them cutting the trees as well. He said that there’s also been a traffic increase over the last 11 years, and traffic can be fast on the street too. Lisa Elliott, 11 Colonial Avenue, Nashua, NH. Ms. Elliott asked how this can come before the Board again, because it’s like what they asked for in 2003. She said the one lot in question tonight is identical to the last case. She said she feels it’s in conflict with the public interest, because it would significantly alter the character of the neighborhood. She said it will definitely affect traffic on the street, adding one more home will be a minimum of two cars. She said her well is to the left of her driveway, which would be close to the driveway to the proposed property. She said that there is a slope in the land, and gets water in her yard a lot. She said according to a real estate agent, the value of her property will be hurt significantly, about 15-20% negatively. She said she has a letter signed by other neighbors who are not in support. SPEAKING IN FAVOR – REBUTTAL: Zoning Board of Adjustment December 9, 2014 Page 18 Mr. Slater said that they will have a 20-foot tree buffer around the lot. He said that in Mr. Newcomb’s case, he’s cut most of the trees off of his property. He said that there is not sheeting water coming off of his lot, its woods right now. He said that by having a new home built that is equal or larger in size on a 71,000 square foot lot will not cause a 15-20% decrease in value, it does not make sense, and it would be contrary to add a home and clear-cut the lot. He said that they will follow State guidelines for a well and septic system. Mr. Reppucci said that the well and septic will all be addressed by the Planning Board. Mr. Slater said that there was a significant change from the T- turnaround to the cul-de-sac, it did change the neighborhood, and the lot is similar in shape to what was proposed, also, the ordinances have changed, making it substantially different. He said he has a list of direct abutters and others in the neighborhood that have no objections of the request. He said that one house should not negatively affect traffic. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Ms. Elliott said she had one additional signature in opposition. She said that the owners have moved away from the neighborhood, so they don’t have a vested interest, it’s just a monetary gain for them. She said this request will negatively affect the neighborhood, even though the lot will be a big lot. Mr. Reppucci said he didn’t feel that he’s in a position to decide whether or not this case is substantially different enough from the last case. He said he wanted to review what was discussed in 2003, and what their intent was on that vote, and the actual Fisher v. Dover case, he said the intent of that case was to present even a piece of an application, to prevent that piece from coming back, and putting the neighbors through the battle again. He said that this case very much falls in line with what the Court was saying should not be allowed to happen. He said he’d like to read more about this before saying whether or not it should go ahead. Mr. Shaw said that this looks pretty much black and white right now. He said the only difference being if you think there is sufficient merit of cul-de-sac versus “T” configuration of the road, that the request for this lot is exactly the same Zoning Board of Adjustment December 9, 2014 Page 19 dimensional request and except for the fact that the stub of the flag is a little bit longer now than it was before, and the fact that there is a slight angle, even dimensionally, it’s a 1,000 square foot difference, it’s virtually the same. Mr. Reppucci said perhaps the Board should review the 2003 minutes, and see what concerns the Board had at that time. He said he can’t say for sure what the intent of that decision was until he looks at it. Mr. Currier said he’s leaning more towards if the Board were to do an assessment of the Fisher v. Dover. He said it would be doing due diligence to assess that, and would be more inclined to have the Board assess the Fisher v. Dover first. Mr. Shaw said that in the minutes in the last case, Ms. Nesset said that homeowners concern for safety would be better met if a cul-de-sac was put in place. He said that there was a suggestion by the Board 11 years ago that a cul-de-sac should be considered, and that was done. He said the counter to why we shouldn’t meet the Fisher v. Dover test is that that was highlighted as a lack, or a safety issue, and it’s been a significant change in the last 11 years. Mr. Johnson suggested tabling the case and do a little more homework, and review the previous minutes and discussion. Mr. Currier said he’d be comfortable tabling the case and doing a little more due diligence. Mr. Boucher said it’s up to us to decide about a Fisher v. Dover issue. He said as far as the case goes, the question is whether it’s different enough or not, and what is the criteria, is it a subtle change or a big one. He said he’d need more discussion on whether the change is enough to have it be a Fisher v. Dover type of review. Mr. Currier said on one hand it went from a T to a cul-de-sac, and that’s very different. He said the plot of land under review tonight is exactly the same thing, so that’s adding to the struggle of the Board. Mr. Shaw said there is enough uncertainty about the Fisher v. Dover, and that the Board isn’t really prepared for that discussion tonight. He said he skimmed through the 2003 Zoning Board of Adjustment December 9, 2014 Page 20 minutes, but wasn’t too concerned because it was three parcels versus two, and that was enough. Mr. Reppucci said going forward, we’ve already heard the presentation, heard the application, he said that when the Board re-convenes, we’ll decide whether or not the application should go forward, and we’ll decide on the merits of it. Mr. Currier said that when we meet again, it’ll be to go over the Fisher v. Dover matter, and said that perhaps the applicant and the abutters hadn’t really considered the Fisher v. Dover in particular, and how much the neighborhood has or hasn’t changed, and maybe it would be fair to allow public comment on whether or not the neighborhood has or hasn’t changed. Mr. Reppucci said that in his opinion, it is a legal decision. He said he believes that he has enough information from the 2003 case and what is proposed now to make that determination. Mr. Shaw said he didn’t think the Board needs to open up for testimony or comment. Mr. Johnson agreed. He said his recollection on the Fisher v. Dover is that the discussion is strictly the Board that does it. Mr. Reppucci said that he does remember cases where the Board has had presentation on the Fisher v. Dover issue alone. He said that there is no requirement to advertise a case if it’s a Fisher v. Dover. MOTION by Mr. Reppucci to table this case to the next meeting, which is January 13, 2015, the public hearing has been completed, and the Board has gone into the public meeting, and the case is tabled that way, there will be no more presentation on the application. He said that the Board will have a discussion and allow the public, by the rules that we follow, in general presentation, to present to us the applicant and abutters, specifically on the issue that is covered by the reference we’re making on Fisher v. Dover, and the specific thing we are going be discussing is whether this application that is before us now is substantially different than the one that was presented to us in 2003, and, additionally, what we’re struggling with is, certainly its different in some ways, but the specific piece of land that we’re looking at, we have to determine if that is different, and if it isn’t, does it require Zoning Board of Adjustment December 9, 2014 Page 21 us to say this has been effectively been decided. He said that is what we will allow for public input. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The agenda for the next meeting is not prepared yet. MINUTES: No action. ADJOURNMENT: Mr. Reppucci called the meeting closed at 9:40 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing