Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING January 13, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, January 13, 2015 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. 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. [TABLED FROM 12-9-14 MEETING]. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Mr. Reppucci said that this case was heard at the last meeting on December 9, 2014, and the Board came to a decision that the Board must first consider the Fisher vs. Dover issue first, from their original denial by the Board years ago. He said the discussion is only whether the application can be heard by the Board tonight, as the case must be substantially different from the last denial. Russell Slater, 15 Colonial Avenue, Nashua, NH. Mr. Slater said that substantial and material changes are present in comparing Zoning Board of Adjustment January 13, 2015 Page 2 the 2003 and 2014 variance applications as required by Fisher v. Dover. Mr. Slater said that the Board will see no less than five substantial and material changes between the two applications. He said that the first one is in the 2003 application; it detailed a 4.57 acre lot being subdivided into three lots. He said the 2014 application detailed a 2.52 acre lot being subdivided into two lots. Mr. Slater said the second one is that the 2003 application detailed two variances, one for lot frontage, and one for lot width, and both were for a T-turnaround at the end of Colonial Avenue, and the 2014 application, the T-turnaround no longer exists, and only one variance for lot width exists, which is another substantial change. Mr. Slater said that the third one is that the neighborhood has changed since 2003. He said that there are 50% more homes on the west end of Colonial Avenue, increasing the number from four to six homes. Mr. Slater said that the fourth change is that in 2006, the zoning laws changed relating to cul-de-sacs, another change. Mr. Slater said number five, the 2014 application, there is now a cul-de-sac where the T-turnaround used to stand, which has improved the traffic flow in the neighborhood, and eliminated the safety concerns involving the T-turnaround that was recommended during the 2003 ZBA discussion. He said that the new cul-de-sac is yet another substantial material change. He said that any one of the five aforementioned facts will satisfy the substantial or material change requirements of the Fisher v. Dover on their own. He said that the NH Supreme Court stated under Fisher v. Dover that the Zoning Board is not required to hear the same variance request, when it will inevitably deny it on the same grounds as the first request. He said that in this case, the 2003 variance request was denied based upon safety concerns with respect to the T-turnaround, and a recommendation that a cul-de-sac be added. He said that the 2014 application cannot be denied on the same grounds, because the T-turnaround no longer exists, and a cul-de-sac was added, therefore, the Board should hear the request as a new application and grant the requested variance based upon the facts presented. Zoning Board of Adjustment January 13, 2015 Page 3 Mr. Johnson said in the application submitted in 2003 versus the 2014 application, asked how it is different from the predecessor. Mr. Slater mentioned the five points he brought up in his presentation. Mr. Reppucci said it can be looked at in two ways. He said the first application took the totality of the land, and the application before the Board in 2003 was to have three lots on it. He said the present application before the Board is four lots, so it is more intensive in total than the 2003 application. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Lisa Elliott, 11 Colonial Avenue, Nashua, NH. Ms. Elliott passed out some information to the Board. Ms. Elliott said that the shape of the property being proposed is exactly the same, other than the T versus the cul-de-sac, but it’s still the 50- foot frontage. She said that it could be argued that the new house isn’t even on the cul-de-sac, as where the driveway is, cars wouldn’t even utilize the cul-de-sac. She questioned if the new lot is really on the cul-de-sac and meets the requirements of the 50-foot of frontage versus the required R30 105 feet. She said all the concerns from the last time are the same, such as value, privacy, sound, traffic, congestion, drainage, are all the same. SPEAKING IN FAVOR – REBUTTAL: Mr. Slater said that at the last meeting, Mr. Falk stated that the area is a cul-de-sac, and the lot is on the bulb of the cul- de-sac. He said the Board must evaluate the totality of the circumstances, and asked the Board to consider and reiterate the circumstances of why this is substantially different. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. Zoning Board of Adjustment January 13, 2015 Page 4 Mr. Reppucci said that he sees this as purely a legal question. He said he’s looking at it strictly like is it substantially changed, and said he’s come to the conclusion that it’s a more intense application, as, at the end of the day, in 2003, the Board turned down three lots on this property, and now, the application is for a fourth lot. He said he understands that the request is for one into two lots. He said that the lot is extremely similar, it’s actually a little bit smaller, it went from 71,490 square feet, and the new application has it as 71,000 square feet, so it’s slightly larger. He said that there are differences, there’s a cul-de-sac there, but the cul-de-sac doesn’t change the circumstances around having it divided into four lots. He said he’s leaning towards that we shouldn’t rehear this case. Mr. Currier said he concurs with Ms. Elliott and Mr. Reppucci, and was thinking that the lot closest to Countryside was exactly the same, there’s a slight difference. He said that the 4.5 acres into three, or the 2.52 acres into two lots, and the cul- de-sac, he said he’s feeling that it’s a different application. He said that with the addition of the cul-de-sac, he said if he were to come down on one side of the fence right now, he said he sees it as a material change to the application. Mr. Falk said that the cul-de-sac was put in, and two new homes were put in by right, they didn’t require relief from the Board. Mr. Boucher mentioned a court case of Land Development Company v. City of Somerset, from 2011. He said in that case, the gentleman said he was applying for basically the same thing as he applied for years before, and said that the ZBA denied it again, as it was determined to be the same application. He said that in that case, the person argued that the ZBA was required to view his application on the merits, even though it essentially asked for the same relief. He said that there were changes in case law in interpreting the criteria. He said that the changes in law over time are interesting. Mr. Reppucci said it’s all tied to the Simplex case. Mr. Johnson said he’s leaning towards not hearing the case. He said in the case of Rupert Trustee v. Town of Freedom, there was a variance related to outside storage was turned down, and there was an application submitted later to put a fence up, to address Zoning Board of Adjustment January 13, 2015 Page 5 fire concerns. He said it was appealed, the Superior Court found that the applications were substantially the same, and the ZBA cannot reach the merits of the application, it was appealed to the Supreme Court, and they sided with the Superior Court, and remanded it back. He said that he doesn’t think that there is a substantial change here on the whole. He said he doesn’t think the Board can hear it. Mr. Reppucci said it’s looking like a 2-2 vote, and it’s going nowhere. He said the options are that denying it, or putting it on the applicant and having the Board come up with a definitive vote so that he can appeal it, or wait until we have a full five member Board. Mr. Currier suggested that the Board come up with the decision instead of asking the applicant. He said it would be in everyone’s best interest to have a full Board vote on it, and perhaps table the case to the next meeting. Mr. Reppucci said he’s happy to table the request until there are five voting members. He said the public hearing portion is over, it’s just the public meeting that would occur. Mr. Currier said that the public is welcome to attend the meeting, or if they prefer, they can watch it on TV. MOTION by Mr. Reppucci to table the case to the January 27, 2015 meeting, a date certain, simply for the Board to deliberate on whether or not the case should be heard by the Fisher v. Dover standard, and if it’s found that it should be heard, then to actually deliberate on the actual application at that time. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Slater asked if any of the Board members conferred with the City Attorney’s Office. Mr. Reppucci said that no one did. Mr. Slater asked if the Board could contact the City Attorney’s Office. Mr. Reppucci said that the Board can consider it. Zoning Board of Adjustment January 13, 2015 Page 6 2. Patricia & Goncalo Martins (Owners) 20 Gaffney Street (Sheet 122 Lot 411) requesting variance to encroach 3 feet into the 25 foot required front yard setback to construct a 6’ x 11’ mudroom entryway into home. RA Zone, Ward 6. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Patricia Martins, 20 Gaffney Street, Nashua, NH. Mrs. Martins said they are looking add a small portion on the corner of the house for a mudroom. She said that the house won’t be extended forward more than it is now, it’ll be for a front entranceway. She said it will be in keeping with the other homes in the neighborhood. She said the house will be squared off. Mr. Currier said it’s just filling in the gap. He said it won’t be any closer to the street. He said that the foundation has been there for decades, three feet into the setback. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance request on behalf of the applicant as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is to enclose an open corner of the house, 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 Zoning Board of Adjustment January 13, 2015 Page 7 contrary to the public interest, and substantial justice is done. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 3. Heidy Arango (Owner) 3 Jefferson Street (Sheet 45 Lot 241) requesting variance for minimum land area, 4,620 square feet existing, 12,446 square feet required, to convert a single-family home into a two-family home. RB Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Heidi Arango, 3 Jefferson Street, Nashua, NH. Ms. Arango said that she is requesting the variance to convert a single family home into a two-family home. She said that there will not be any physical addition onto the home. She said that they considered an in-law apartment. Mr. Reppucci asked if there is an in-law apartment there now. Ms. Arango said no, she said that her cousin is living in the basement, and the upstairs is rented. She said that there are two living areas, and they’re both occupied. Mr. Reppucci asked what the parking situation is. Ms. Arango said that she has a driveway, and it’s for three spaces, and on the other side, there is one space, it’s not really a parking spot, but it’s used as one. Mr. Reppucci asked how many cars can reasonably park on the lot. Ms. Arango said three cars. Mr. Reppucci said that the Board has a letter from Frederic Skopa, the owner of 47-51 Cross Street who said he has no objection as long as the required parking counts are met. Zoning Board of Adjustment January 13, 2015 Page 8 Ms. Arango said that the tenants upstairs have two cars, and said that her cousin parks in the driveway. Mr. Reppucci asked if more parking space area can be added to the driveway. Ms. Arango said yes, she is trying to make it better. Mr. Currier said on the uphill driveway, the place where there is one spot, asked if it is asphalt or dirt. Ms. Arango said it does have asphalt. Mr. Johnson asked if there is a curb-cut for that concrete pad, or does a car drive over a curb to get to it. Ms. Arango said she didn’t think there is one. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Ron Lavoie, 45 Cross Street, Nashua, NH. Mr. Lavoie said that his concern is parking, and gets numerous complaints from his tenants of cars blocking the driveway. He said their driveway holds two cars, and the other space, they go up over the curb into what used to be a grassed area, or a yard. He said he doesn’t have a problem with the house being converted to a two- family, but he said his main concern is about the parking. He said the driveway has a hard time parking two vehicles. SPEAKING IN FAVOR – REBUTTAL: Ms. Arango said that she wasn’t aware of any calls made about the parking, she said she will try to accommodate it better for parking. Mr. Reppucci said if the Board considers approving the request he asked if she would get a legal curb-cut, meaning hiring someone to do the work property. Ms. Arango said she’d agree to that. Zoning Board of Adjustment January 13, 2015 Page 9 Mr. Reppucci said that there is a limit of a 24-foot wide curb- cut. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: None. Mr. Currier said he’d like to have a parking plan to review before making a decision, and perhaps table the request to see the driveway plan. Mr. Johnson said the request is for land area, the Board has to deem that acceptable, that is what is before the Board. He said he’d be more in favor of a stipulation that the driveway curb- cuts be appropriately accommodated. Mr. Currier said he’d like to see a definitive plan, with dimensions of where the curb-cuts and the asphalt or concrete is. He also suggested that if it’s approved, that the certificate of occupancy would not be provided until the driveway and parking area is all complete. Mr. Reppucci said that the driveway and parking plan will have to be reviewed and approved by the Street Department, and the Planning Department. Mr. Currier said it looks like there may be a topographical challenge, as the back yard goes down, he said that parking down below may eat up a lot of open space. Mr. Boucher said it may be the best thing to put all the cars down in the back. Mr. Reppucci had Ms. Arango back up to the podium, and explained that the Board is going to table the request, and the Board is going to want to see a plan for parking that will work. He said she’ll have to work with the Street Department and the Planning Department. He said the Board wants to see a plan that will work, for curb-cuts and parking. He recommended tabling for two meetings from now. MOTION by Mr. Currier to table the request to a date certain of 2-10-15. He said the reason is that the Board is seeking to have a clearer plan on the parking situation that can Zoning Board of Adjustment January 13, 2015 Page 10 accommodate four cars. He said that the Board finds that the current plan is unclear, and there was testimony that it wasn’t working. He said the Board wants a definitive plan showing four off-street parking spaces. SECONDED by Mr. Johnson. Mr. Reppucci said that the Board would allow public testimony on parking. MOTION CARRIED UNANIMOUSLY 4-0. 4. Nashua Airport Authority (Owner) 31 Charron Avenue & 79 Pine Hill Road (Sheet E Lots 1355 & 1356) requesting variance to exceed maximum fence height, 6 feet permitted - an 8 foot high fence with barbed wire proposed. R9 Zone, Ward 1. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Nick Ippolito, Gale Associates, Bedford, NH. Mr. Ippolito showed the Board a drawing of the property with the proposed fence line, and he passed out handouts to the Board as well. He said that the Airport recently acquired these two properties on the corner of Pine Hill Road and Charron Avenue. He said that demolition plans are being prepared. He said that ultimately, the Airport would like to re-align their perimeter fence to enclose more of the property inside the Airport perimeter fence. Mr. Ippolito said that inside the package, there are four alternatives; the first is no change, and no fence alignment. He said that the second is the proposal here, which is almost a worst-case scenario, where the fence jogs out towards Charron Avenue, along it, and then down Pine Hill Road, and then back behind the third property on Pine Hill Road. He said the third option is to re-align the fence to cut off a portion of the property, but not enclose the two homes that were acquired, and the fourth would be a square alignment instead of an angled one. He said that the request is for the height of Zoning Board of Adjustment January 13, 2015 Page 11 the fence, being that it’s in a residential district, they want to continue the 8-foot fence in the same fashion that is on the Airport elsewhere. Mr. Johnson said it’s an 8-foot fence with barbed wire. He asked if the barbed wire is included in the overall height. Mr. Ippolito said the entire height of the fence is 8 feet. He said the barbed wire is mounted on an angled piece of aluminum which sticks outward, he said that the submitted photos show what it would look like. Mr. Currier asked if there is a Federal requirement or an airport security that requires the barbed wire. Mr. Ippolito said that the FAA releases a list of approved land uses within the Runway Protection Zone, and it lists uses that are more or less desirable than an open space area. He said it’s to protect the end of the runway 32 zone. Mr. Currier said that the barbed wire may give it a stockade, almost prisoner camp look around there, and wondered if there was a thought to softening the look, or some sort of aesthetics review. Mr. Ippolito said that the airport has replaced other fenced areas with an 8-foot black pvc-coated fence, and eliminated the barbed wire adjacent to the residents. He said the barbed wire helps to keep out wildlife, and there is evidence of deer jumping over an 8-foot fence. SPEAKING IN FAVOR: None. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Boucher to approve the variance request 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, and given the special conditions of the property, and the benefit sought by the applicant cannot be achieved by some Zoning Board of Adjustment January 13, 2015 Page 12 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. Reppucci. Mr. Currier suggested, as a consideration to the applicant, that they not include the barbed wire if they felt it’s not necessary for the wildlife. He said it’s a request to consider this if they don’t have to. Mr. Ippolito said at the Airport Authority meeting this month, they are going to consider the alternatives previously mentioned, and one of the major comments was about the barbed wire, so, the Airport is considering not using it if they don’t have to. AMENDED MOTION by Mr. Boucher to go forward with the request to consider not using the barbed wire as Mr. Currier suggested. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 4-0. 5. 22 Marshall Street, LLC (Owner) 2 Marshall Street (Sheet 29 Lot 65) requesting use variance to allow a 40-unit multi- family development. GI Zone, Ward 7. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said he is objecting to moving forward without a full Board. He said that the property is the old Beebe Rubber site, which has since been demolished. He said in 2002, the first variance was granted to allow residential Zoning Board of Adjustment January 13, 2015 Page 13 multi-family housing. He said the property has three zones that surround the site, and it is General Industrial. Atty. Prunier said that the last variance granted was to allow 112 multi-family units in two buildings. He said that a variance was also granted to put a restaurant on the subject site. He said the variance requested is for a 40-unit multi- family building on the subject lot, which would be in compliance with the other multi-family units on the property. Atty. Prunier stated that if this variance is approved, the whole piece of property will be multi-family. He said that there is sufficient water and sewer in the area, and drainage will be taken care of. SPEAKING IN FAVOR: Vince Iacozzi, 22 Marshall Street. Mr. Iacozzi said that the driveway on East Hollis Street is egress only, and only for eastbound. He said that they will be widening Marshall Street, and there will be a right turn lane and there will be a revised plan that also takes care of the Dollar Store and the Furniture Rental Store, so this intersection will get completely redone to conform to what the traffic department and the fire department requested. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance request on behalf of the applicant as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, 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 the 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. Zoning Board of Adjustment January 13, 2015 Page 14 MOTION CARRIED UNANIMOUSLY 4-0. 6. MSHC Enterprises, LLC (Owner) Ken Sweet (Applicant) 596 West Hollis Street (Sheet E Lot 1323) requesting use variance to convert an existing athletic club into a storage facility utilizing indoor and outdoor storage. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that he objects to moving forward without a full five-member Board. He said the site is the old athletic club near the beginning of the Ledgewood Condominium Association. He said that the club has been out of business for a while, and the proposal is to change it into a self-storage facility. He said that the building is 2 stories inside, and it will be retrofitted to allow 2 stories of storage. Atty. Prunier said that there will be storage on the exterior on the parking lot. He said that they will be pods, as shown in tab #4 of his submittal. He said that the sewer and drainage line from Ledgewood comes through this area, and if something goes wrong, the portable pods will be able to be moved. He said the pods will go on the parking lot, and nothing has to go into the ground, they’ll go on the parking lot as it exists. Atty. Prunier said that no trees will be taken down. He said in tabs #2 and 3 are the various plans of the site. He said the outside storage will not have anything exposed, everything will be inside the building or pods. He said that he has a letter from the Norwood Real Estate group that these areas are complimentary with the adjacent residential. Atty. Prunier said that the hardship is that they have a building and are trying to make it complimentary to the other buildings in the area, and to keep it quiet and have a low traffic generator. Zoning Board of Adjustment January 13, 2015 Page 15 Mr. Reppucci asked if the pods will be there permanently, or if they’re only there because they could be moved for utilities. Atty. Prunier said that the pods will be there permanently, but they are easily moved just in case. Mr. Reppucci asked if there will be any outside storage of boats or cars. Atty. Prunier said no. Mr. Currier asked if the site has a drainage easement. Atty. Prunier said that there is a drainage easement, and in Tab #3 it shows where the sewer and drainage goes. Mr. Boucher asked if it will be similar to warehouse storage inside. Atty. Prunier said there will be cells, standard sized storage units, 10’x10’ or 10’x15’ area. Mr. Boucher asked if there will be a lot of large truck traffic on the site. Atty. Prunier said that most of the traffic will be cars and pickup trucks, it’s not a warehouse with big trailers. He said that the traffic configuration is not set up for large truck traffic. Mr. Johnson asked about the large ramp on the back of the building. Atty. Prunier said that the ramp will remain there, it will be used in loading/unloading. SPEAKING IN FAVOR: None. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Roy Williams, 50 Gendron Street, Nashua, NH. Mr. Williams said that he’s opposed to the variance. He passed out a 6-page memo, Zoning Board of Adjustment January 13, 2015 Page 16 and has added 3 more pages. He said that the building has not been a good neighbor in the past, there has been a lot of noise that has emanates from the building. He said that this could easily be made into residential homes. He mentioned that in the past, there were stipulations that should carry over to this request. He said a lot of the noise is the heating/AC unit. He suggested that the Board limit the hours of operation to only daylight hours. He said that they’ve talked about a one-way access road on the east side of the building, it’s supposed to be 12 feet wide, and the way it’s drawn, they’d have to move the air conditioning unit, and if so, and they remove their air conditioning unit that would be fine. He said he’d not like to see any new openings or lights on the east side. Dale Tessier, 46 Gendron Street, Nashua, NH. Mr. Tessier said he’s concerned about lighting and light pollution, and is concerned about keeping the land buffers to the neighborhood intact. He asked about outside storage and what is going to be stored out in the pods, if there is anything flammable. Donald Harodan, 20 Ledgewood Hills Road, Nashua, NH. Mr. Harodan said he’s on the Ledgewood Hills Association, and said that they were notified of this proposal, and had a meeting with Atty. Prunier. He said that they have several concerns, with lighting, signage, line of vision entering Ledgewood Hills. He said the applicant was supposed to get back with them, and they never did. He said that in 2007, they repaved all their roads, including the access road that goes by the storage place. He said that their roads are designed for automobile, not heavy truck traffic. Mr. Reppucci asked how many units are in Ledgwood. Mr. Harodan said that there are 376 units. Mr. Reppucci said that there are 376 units that could have moving trucks, huge trucks, on that road, all the time. Mr. Harodan said that the turnover rate is very low in Ledgewood. He said that the road is not designed for heavy loads. He said that the sewer and drainage lines come through the property and come out onto Ledgewood Hills Drive onto West Hollis Street. He said the road is not designed for heavy truck use. Zoning Board of Adjustment January 13, 2015 Page 17 Mr. Reppucci asked if he was concerned that the truck activity would be much more intense at the storage facility rather than Ledgewood. Mr. Harodan said yes. He said that they are concerned about the lighting as well. Rob Gervais, 590 West Hollis Street, Nashua, NH. Mr. Gervais said he has all the same concerns as everyone else that has spoken, and asked about the hours of operation, and any clearing that would be done, fencing. SPEAKING IN FAVOR – REBUTTAL: Atty. Prunier apologized to Mr. Harodan for not getting back to him after their initial meeting. He stated that the storage place is not going to have a bar, or a restaurant, it’ll be self-storage items. He said for lighting, you cannot have any light spilling off your property, all the light has to stay on the property. He said that they don’t have to cut down any trees. He said for the sewer and drainage line, it’s known that they’re there, and will do our best to avoid any problems with the lines. He said that the storage facility won’t have heavy trucks, and there will be a lot more heavy trucks going up into Ledgewood with people moving. He said that they are going to the Planning Board and all of these issues will be addressed with them, such as drainage and sewer. Mr. Johnson asked if there will be constant security presence on the site. Atty. Prunier said that there will not be. He said that the hours of operation will be from 7am to 10pm, it won’t be 24 hours. Mr. Johnson said that getting the athletic club approved for the residential side, and now the proposal is for an industrial use, a storage use, and it’s only permitted in the GI Zone, and this is an R9 neighborhood, he asked how the proposed use is compatible and why the Board should grant relief in the R9 zone. Atty. Prunier said right now, the building is not being used for anything. He said that the Board has heard from abutters about the noise here with the health club. He said the proposed use has hardly any noise, except perhaps a motorcycle starting. He Zoning Board of Adjustment January 13, 2015 Page 18 said that all the residential units’ right next door will be the ones using the storage facility, it will help those people. He said that the use is compatible with a large scale residential use. Mr. Currier said it appears as if the site is perfectly fine for residential use, just like what is surrounding the site. Atty. Prunier said it’s not impossible for residential use, everything is possible today if you want to spend the money, you can do anything. Mr. Currier asked if there will be significant changes inside the building. Atty. Prunier said there will be, just to accommodate the storage areas. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Mr. Roy Williams stated that in 1989, the ZBA minutes listed conditions from the approval, the first one was that the owner to honor commitments in the letter signed. He said that if the storage facility is having that 12-foot wide access, its unclear where the heating and air conditioning unit will go. He said the noise from the heating and air conditioning unit will be a lot, and asked if they need hvac for a storage unit. Mr. Reppucci said if it’s a climate-controlled environment, they will. Mr. Williams said that this remains a serious issue. He said the 12-foot drive has to be addressed in such a way that it doesn’t destroy the area that is there, and the easiest way to do it is to move the equipment to the other side, and put the driveway right between the trees and the building. Mr. Reppucci said it’s clear that this Board or any other Board cannot prevent this property from being an athletic club if they choose to do so. He said he sees the proposed use as a low- intensity impact, and most of these places are ghost towns. He said that he completely rejects the discussion that the trucks and moving trucks going up and down into Ledgewood is no impact. He said he sees no downside in the proposed use. Zoning Board of Adjustment January 13, 2015 Page 19 Mr. Currier said that his initial take was that the storage facility would be an intensive industrial use. He said that some storage sites have everyone’s derelict old car or RV or boat, with rusted trailers outside. He said he has concerns that it will look like a junkyard. He said he sees it as a perfect property to develop as R9. Mr. Boucher said it’s clear that they’re not cutting down more trees in the buffer, and overall, said he’s in favor of the application. Mr. Johnson said that a lot of the issues discussed will be Planning Board issues. He said his real issue was the spirit and intent of the ordinance. He related a story of a personal friend who utilized a storage facility in a residential neighborhood near his house, and it was a complimentary neighborhood. He said that it makes sense to grant this, with this deviation from the spirit and intent of the ordinance, in this case, it’s warranted, and will support the request. Mr. Currier stated that he believes if this is to be granted, the hours shouldn’t be as late as 10pm, and the 7am – 10pm frame is pretty wide spread. He said there was testimony on the hvac system that it’s noisy, and suggested a stipulation that they aren’t going to have the hvac, or that the hvac system won’t be noisy on the east side of the building, and won’t be audible to the abutting properties. Discussion ensued about the noise levels of hvac systems. MOTION by Mr. Reppucci to approve 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, 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 the variance. Mr. Reppucci 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, and there was no testimony of that one way or another, and the supporters of this motion find more reason to think that it would not have a negative impact on property values. He said it is not contrary to the public interest, and substantial justice is done. Zoning Board of Adjustment January 13, 2015 Page 20 Mr. Reppucci said that there will be two conditions of approval, one is that the hours of operation will be from 7:00am – 10:00pm on any day of the week. He said that the second restriction will be that nothing will be stored on this property outside of any structure, and no structures will be put on this property that are not included on the plans that were presented to us, and expect that the same plan will be sent to the Planning Board. SECONDED by Mr. Johnson. MOTION CARRIED 3-1. (Mr. Currier) Mr. Currier said he’s against the motion for the hours, and the noise. MOTION by Mr. Reppucci to re-open the case to submit letters that were submitted into the record, because they won’t be in the record otherwise. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 7. Francine Ryan (Owner) Jimmy Ducharme (Applicant) 2-4 Aetna Court (Sheet 42 Lot 156) requesting variance for minimum lot area, 15,780 sq.ft existing, 41,817 sq.ft required – to maintain twelve existing dwelling units. RC Zone, Ward 3. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rick Johnson Attorney Gerald Prunier, Prunier & Prolman, P.A. 20 Trafalgar Square, Nashua, NH. Atty. Prunier said that he objects to moving forward without a full five-member Board. Atty. Prunier said that according to the assessor’s records that the building was built sometime around 1850, and has been there since. He said that the City has it as a six-unit building, however, it’s recognized as a twelve-unit building for many years. He said that in looking at the building file, there were no violations Zoning Board of Adjustment January 13, 2015 Page 21 in it, and it’s been well maintained. He said that since at least August, 1990 it’s been a twelve-unit building. He said it used to be one lot with just the building on it, since then, two other lots were purchased. He said that the Assessing Department has had it as a twelve unit since at least since 2001, and no one has done anything about it. He said it could be argued that the property is estopped, as this has been known for over twenty years, and just want to move forward in a legitimate way. Atty. Prunier said that the property has plenty of parking, and there is even room for visitor parking. Mr. Reppucci asked how this came to be before the Board. Atty. Prunier said when he looked at the records at City Hall, it said that there were either six units or twelve units. He said his decision was to come to the Board to have it legitimized, and can then follow up with the bank for loans. Mr. Reppucci said as far as 1993, the City knew it as twelve units. Atty. Prunier said that they’ve been paying taxes as a twelve units, it’s not like anything was hidden or they weren’t assessed or paying the proper taxes. He said there have been no violations, and they want to legitimize it as a twelve-unit building. He said the parking meets the ordinance, and it’s one of the better maintained houses in the neighborhood. Mr. Currier asked about the parking plan, and how long it’s been in play. Atty. Prunier said that the owner went to a surveyor and had it surveyed showing the spaces he can put in there, he said that it even has enough for visitor parking. SPEAKING IN FAVOR: Diane Ducharme, 3-9 Lucier Street, Nashua, NH. Ms. Ducharme said she abuts the property, and there’s never been any problems in the past 35 years. She said it’s been quiet and calm, and there’s no problems. She said that she’s speaking for her son, the applicant, and said it will be an asset to the City. Zoning Board of Adjustment January 13, 2015 Page 22 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, 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 the 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, and there was no testimony of that one way or another it would not have a negative impact on property values. He said it is not contrary to the public interest, the City has received taxes as a twelve- unit building, and it has been looked at by the Fire Department, and substantial justice is done. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. 8. Norman J. Davy (Owner) 620 South Main Street (Sheet A Lot 598) requesting the following: 1) Special Exception to allow an accessory (in-law) dwelling unit, and, the following variances: 2) to exceed maximum area of accessory dwelling unit, 700 sq.ft allowed – 1,000 sq.ft proposed, and 3) to exceed the maximum floor area for an accessory dwelling unit, 30% allowed – 40% proposed. RA Zone, Ward 7. WITHDRAWN PER APPLICANT REQUEST ON 1-13-15 9. Ducal Development, LLC (Owner) 39 New Dunstable Road (Sheet 122 Lot 367) requesting variance for lot depth (from New Dunstable Road), 90 feet required, 75 feet proposed – to subdivide one lot into two lots. RA Zone, Ward 6. Voting on this case: Gerry Reppucci Zoning Board of Adjustment January 13, 2015 Page 23 Jack Currier J.P. Boucher Rick Johnson Bob Cormier, Cuoco & Cormier Engineering Associates, Northeastern Boulevard, Nashua, NH. Mr. Cormier said he objects to moving forward without a full five member Board. He said that the property is at the corner of Liberty Street and New Dunstable Road. He said that the proposal is to subdivide the property into two lots, and each lot would have the minimum 7,500 square feet of land, as well as the required front and side and rear setbacks. Mr. Cormier said they’re here today because this is a corner lot, he said that the proposed house off of New Dunstable has a 75-foot lot depth from the New Dunstable Street side. He said it needs 90 feet. Mr. Cormier said that the Land Use Code has a section on corner lots, and under Section “J”, it says that corner lots or through lots shall be considered to have a front yard bordering on each street line, and a side yard opposite each front yard. He said he understands the Boards interpretation over the past few years is that lot depth has to be provided in both directions. He said that they find it a hardship to be required to have the lot depth in both directions. Mr. Reppucci asked if the Planning Department has interpreted it one way, and they did another way. Mr. Cormier said that for years, for decades, this interpretation changed in the last several years. He said that for decades, staff interpreted it that you only need lot depth in one direction. He said that apparently there was a case before the Board several years ago, where abutters objected to lot depth in one direction, and it was interpreted that they needed lot depth in both directions. Mr. Reppucci asked if he disagrees with that. Mr. Cormier said he disagrees that it’s not clear in the ordinance, it’s an interpretation. He said it used to be that the City interpreted it to be that you needed lot depth in one direction only. Zoning Board of Adjustment January 13, 2015 Page 24 Mr. Reppucci said that he did have the option to appeal that as an Administrative decision, the Planning Department said that this is the rule, and if doesn’t agree with that rule, he asked if they considered doing an appeal of that administrative decision, or just to elect to come for a variance. Mr. Falk said that for decades, staff had interpreted corner lots as you only needed the lot depth in one direction, not both. He said that there was a case in the north end, back in 2004, and it’s virtually the same case as this one, and it was the Zoning Board’s determination that you have to have the lot depth in both directions, and that staff hadn’t been interpreting the Code correctly. He said that since that time, staff has been telling everybody that you have to have lot depth for both directions. He said it isn’t in the Ordinance, but it’s been a determination by this Board. Mr. Reppucci said that the Board seldom sees professionals in the City appealing administrative decisions by the Planning Department, when they disagree with what the Department says what the laws are. He said that most people just apply for the variance. Mr. Cormier said that they had a meeting with staff, and Mr. Falk told us about this issue. Mr. Falk said it was this Boards determination of this, not staff’s. Mr. Reppucci said it was a previous Board. He said he didn’t want to exempt them from the step of appealing that decision. He said that by going for the variance, the way land use law works, by applying for the variance, and if that variance is denied, the options are closed. He said that by appealing the administrative decision that you think is not correct, if you’re upheld, you don’t need a variance, and if you’re not upheld, you can go for the variance. Mr. Falk said he didn’t offer Mr. Cormier the opportunity to appeal the decision, he said that since the decision was made by the Board, staff has just told applicants to apply for a variance if they don’t meet the lot depth in both directions. Mr. Reppucci said he wants to ensure that they are aware of all their options. Zoning Board of Adjustment January 13, 2015 Page 25 At this point, the Board took a 5-minute break to allow the applicant to consider their options. Mr. Reppucci said that for appeals, every case is specific, and unique. He said that whatever happens in this case, it is only for this case, there is no legislative authority. Mr. Reppucci said that the Board could table this case to a date certain, to the February 10th meeting. He said that the Board would hear the appeal of the administrative decision, and if the administrative decision is incorrect and the Board overturns that, he’s good to go. He said if not, and the administrative decision stands, then the Board would go ahead and hear the variance request, they can be done on the same night. Mr. Cormier said that it sounds like that is the best way to go. Mr. Falk said it would be advertised in one paragraph, and staff will need the appeal submitted as soon as possible. MOTION by Mr. Reppucci to table this application to a date certain of February 10, 2015. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 4-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board determined that there are no cases that have Regional Impact. MINUTES: 10-28-14, 11-12-14, 11-25-14 and 12-9-14: No action. Zoning Board of Adjustment January 13, 2015 Page 26 ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:05 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing