Zoning Board of Adjustment

EXPANDED DRAFT MEETING SUMMARY THIS IS NOT AN OFFICIAL TRANSCRIPT OF TAPE RECORDED PROCEEDINGS THE INFORMATION CONTAINED HEREIN HAS NOT BEEN REVIEWED OR APPROVED BY THE ZBA ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING February 10, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, February 10, 2015 at 6:30 PM in the Auditorium at City Hall. Gerry Reppucci, Chair, conducted the meeting. Members present were: Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Kathy Vitale 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, AND CONTINUED FROM 1-27-15 CANCELLED MEETING]. Voting on this case: Gerry Reppucci Rob Shaw Jack Currier J.P. Boucher Rick Johnson Mr. Reppucci said that the last time this case was heard in January, the Board was made aware of the Fisher v. Dover issue, and it is a matter of law. He said that the Board has already Zoning Board of Adjustment February 10, 2015 Page 2 heard the case, and this will be a public meeting, not a public hearing. Mr. Reppucci said that where he stands is the same place as before. He said that in his view, the application is so similar, especially to this piece of property. He said that he realizes that there are differences in the application from 2003, and finds this present application more intensive than the previous one, and the dimensions on the property are virtually the same, and is of the mind that there is not a substantial difference. Mr. Currier said that he is at the same position as the last time. He said that he’s looking at the totality of the application, and stated that he thought it is substantially different. He said that the fact that there was a “T” and a hammerhead, and now there is a cul-de-sac there, he said that he feels that it is substantially different. Mr. Boucher said he tends to agree with Mr. Currier’s point. He said that there is a difference in the T versus the cul-de-sac is a material change in the design of the properties, and believes it’s enough of a material change to hear the application. Mr. Shaw said he believes it’s the same application, and it’s materially the same. He said the “T” and cul-de-sac comparison isn’t a material change in the application, and believes it’s essentially the same application. Mr. Johnson said that at the last meeting he felt that the cul- de-sac versus the “T” wasn’t a substantial change. He said that since then, he reviewed the Brandt Development v. Somersworth; it took under consideration circumstance which could create a substantial change in zoning or rules. He said that he’s reconsidered his position on this and finds that it’s not substantially different, and will be voting to not hear this case. Mr. Reppucci said it looks like a motion would carry that it doesn’t meet the standard requirement that the Court lay out in the Fisher v. Dover case, and that we find it the same, or similar enough and not be heard. He asked if the Board can include anything else. Zoning Board of Adjustment February 10, 2015 Page 3 Mr. Currier said that the Board has discussed this thoroughly at three meetings, and the Board is where we are. Mr. Shaw said that ultimately, the proposal was initially for three lots, and now it is for four lots. MOTION by Mr. Reppucci that the Board finds that the application is not substantially different, in consideration of the 3-25- 2003 application that was denied by the Zoning Board of Adjustment. He said that the Board finds that the application is similar to that case, to the point that our Board shall not hear it and the original 2003 decision should stand. He said the Brandt v. Somersworth case was considered in the deliberation of this case, as well as Fisher v. Dover. SECONDED by Mr. Johnson. MOTION CARRIED 3-2 (Mr. Currier and Mr. Boucher). 2. Pennichuck Water Works, Inc. (Owner) Bay State Forestry Service (Applicant) “L” Tinker Road (Sheet G Lot 490) requesting special exception to work in the 75-foot prime wetland buffer of Bowers Pond to remove dead trees between Tinker Road and Bowers Pond. R40 Zone, Ward 2. [CONTINUED FROM 1-27-15 CANCELLED MEETING] Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson At this point, Mr. Reppucci said that the Board is going to hear Case #5, to accommodate Alderman Donchess before the Board of Aldermen meeting. 3. Ducal Development, LLC (Owner) 39 New Dunstable Road (Sheet 122 Lot 367) requesting the following: 1) Appeal of Administrative decision that a corner lot needs required lot depth from both streets, and/or 2) 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. Zoning Board of Adjustment February 10, 2015 Page 4 Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Mr. Reppucci said that they will be dealing with the administrative decision first. Bob Cormier, Cuoco & Cormier Engineering, 74 Northeastern Boulevard, Nashua, NH. Mr. Cormier said that the lot is at the corner of New Dunstable Road and Liberty Road, and pointed it out on the map. He said it has approximately 15,000 square feet of land, and the request is to subdivide the lot into two lots, each about 7,500 square feet which would meet all dimensions and regulations in the Nashua Ordinance. Mr. Cormier stated that upon submitting the plans, they were told that they’d need a variance because they didn’t meet the lot depth in two directions, so this is the appeal to that direction. He said that the Ordinance has a specific section that deals with corner lots. He said that corner lots have two front yards and two side yards, the reason being is to have a 25-foot setback in both directions on the corner. He submitted a colored rendering of what a lot would look like with the front and rear setbacks. Mr. Cormier said that the ordinance is trying to help a corner lot by having two fronts and two sides, and to make it less restrictive on the sides. He said that the intent for lot depth is to have a rear yard for the home. He said that in this zone, there is a 90 foot requirement for lot depth. He said that they have 100 feet from Liberty Street back. He said that nowhere in the ordinance does it state that you have to have lot depth in both directions for a corner lot. He said nowhere does it say what you have to do different for a corner lot as far as lot depth goes. He said that if 90 feet were required in both directions, the lot would need to be at least 8,100 square feet, where the minimum is 7,500 square feet in the RA Zone. Mr. Cormier said that they’re following the ordinance as written, in their opinion, and are seeking relief to go to the Planning Board to subdivide this parcel. Zoning Board of Adjustment February 10, 2015 Page 5 Carter Falk, Deputy Planning Manager/Zoning, City of Nashua Planning Department. Mr. Falk said for about 40 years, the Planning staff had been interpreting corner lots as only needing lot depth in one direction for a corner lot, not both directions. He said that there was a case in the north end on Wellington Street about 8 years ago that is similar to the subject case. He said that neighbors appealed the City’s position on having lot depth from only one of the two streets, and the Board sided with the applicants, and did not support Staff, and since that interpretation, Staff has been telling applicants that they need lot depth in both directions for a corner lot. He said everything has been pretty quiet until the application before the Board this evening, in which Staff pointed out the Wellington Street decision, and the Boards decision at that time is the subject of the appeal. Mr. Falk said that Staff’s decision is really a decision that the Board made from the Wellington Street case. He said that the current applicant believes that they can move forward to the Planning Board for a subdivision of one lot into two lots. Mr. Reppucci said that the staff memo that Mr. Falk provided to the Board, it states that there was no ordinance requirement then or now that requires corner lots to measure lot depth in both directions. He said the City has always did it the way the applicant wants to do it, except for that one decision on Wellington Street. He said that Staff sent that application directly to the Planning Board, and an appeal of that was made, and the Zoning Board heard that appeal, and interpreted that rule had to be applied in both directions, and from that point on, solely because of that decision, the Planning Department has been telling applicants that they need depth from both streets. Mr. Shaw said it appears as if the Planning Department doesn’t agree with the Wellington Street decision and that there shouldn’t be the two lot depth requirement. He said he understands that Staff has followed the ZBA’s guidelines, but the Code doesn’t support that. Mr. Falk said that is the way Staff had interpreted the Code for so long, over 40 years, and right or wrong, that’s how our Staff has interpreted it, whether it’s administrative gloss or not. He said that Staff has honored the decision and interpretation Zoning Board of Adjustment February 10, 2015 Page 6 Mr. Johnson asked if the Zoning Board of Adjustment back then, if this went to the Board of Aldermen back then, and if so, what was the outcome. Mr. Falk said it didn’t go to the Board of Aldermen, and there was no recommendation to amend the Code from the Wellington Street decision. Ald. Jim Donchess, 4 Rockland Street, Nashua, NH. Ald. Donchess said he doesn’t see any problems with the subdivision. He said that there are two ways that the Board could proceed, either the Board changes the administrative ruling, or a variance is granted from the interpretation of the administrative staff. He said that he’s advocating that if the Board wishes to allow this, that the Board simply proceed with a variance. He said that there was a legal basis for the decision of the Zoning Board back then, as it began with the definition of the front lot line, which is defined as the property line dividing a lot from a street right of way, and a corner lot, both streets are divided by a lot line, and from that definition, it flowed that if you have two front lot lines, and two rear lot lines, that’s the legal basis. He said that the Wellington Street case went on and on, there were a lot of people here, many meetings, and people felt very strongly about it. He said that the Board decided this legal issue in the context of many facts and a lot of testimony presented on both sides, and after the neighborhood went through that whole process, and spent a lot of money on that case, it would be unfortunate that when this subdivision could be granted through a variance, it would be unfortunate to overturn the legal approach taken by the ZBA back then, and in effect, reverse the Wellington Street case without hearing from all those people again. Mr. Reppucci said that the Board is not touching the Wellington Street case, that case wouldn’t be reversed. Ald. Donchess said that if the ruling is reversed, the Wellington Street case could go forward. He suggested taking a more narrow approach in the subject case instead, and let them go for a variance. Mr. Reppucci said that Zoning Boards are specifically forbidden to make legislation of zoning law. He said that they can’t change rules. He said that the Board hears individual applications, and consider them specifically, and there are no Zoning Board of Adjustment February 10, 2015 Page 7 precedents for other applications. He said he thinks the Planning Department made a great error by following a decision on a specific application from that point forward. He said the Wellington Street decision, which was denied, and not allowed to go forward, that decision was specific to that piece of property. Ald. Donchess said that the Board was interpreting a zoning law, and when the Board decided the Wellington Street case, the Board interpreted the zoning law. Mr. Reppucci said it was only specific to that application. Ald. Donchess said if the Wellington Street application came in tomorrow, how could it be turned down, as the zoning law was applied in a particular way, and now it’s being done the opposite way for a different case. Mr. Reppucci said if that application comes forward again, and it is the same application that was decided upon by a previous Board, that applications have to be substantially different for the Board to even consider. He said if that application comes back to this Board, it’d be the same application as before, and by the Fisher v. Dover case, the Board couldn’t even consider hearing the case again, as it wouldn’t be substantially different. Ald. Donchess said if the decisions are one way, then another, then back to the first interpretation, it opens up a lot of problems and would be an issue at the Court level. Mr. Reppucci said one avenue would be to have an Alderman propose some legislation with the way that the Code should be, that would be the right way to do it, then, there’s no question. Ald. Donchess said in 2006, the Code was interpreted one way, in doing it the way the Board of Aldermen thought it should be, and there was no reason to change the Code at that time. Mr. Shaw said that he thinks that the Board of Aldermen could really help define this by bringing forward some revised legislation. Mr. Johnson said if the Code was updated, it would help citizens and developers in knowing exactly what is expected. Zoning Board of Adjustment February 10, 2015 Page 8 Peter Vincent, 67 Wellington Street, Nashua, NH. Mr. Vincent said that he was involved with the decision originally. He said that it was a unanimous decision by the Board to turn it down, and didn’t think it was an interpretation of the law relative to that case, it was an interpretation of the law period. He said that there were a lot of people interested in the original case on Wellington Street and it took a long time, and didn’t want to see it overturned. Mr. Reppucci said that there is no precedence. He said that there is no connection between these cases, and there is no interpretation that changes the zoning ordinances in the City of Nashua. He said that the Board is forbidden from doing that. He said that the Wellington Street case carries no precedence to this case, he said that the Board would not be overturning anything. Mr. Cormier said it’s probably a difference of opinion, but he said he doesn’t believe that the first case was a legal approach, there are no written ordinances to support that decision on two lot depths. He said that the ruling affected the entire city, and the testimony surrounding that case was that there was a big concern about lot size. He said that in this appeal, there is nothing written in the ordinance about requiring two lot depths for a corner lot, the definitions are for front, side and rear lots, and there is a specific definition for corner lots, in writing, but it does not imply that you need lot depth from both streets. He said that it states that a corner lot has two front and two side yards, no rear. He said that this is a case of interpretation versus the written law. He said that the Planning staff has interpreted it one way for over forty years, establishing a lot of precedence, and in this time, the Board of Aldermen accepted it and never took any action. He said that the Wellington Street was the only case in which this was appealed. He said the written law should be upheld, it says nothing about two depths on a corner lot, all it says is two front and two side yards. Mr. Shaw said that the Code is silent on lot depth from the front yard, leaves it open to interpretation and ambiguity. He said that this Board is left to determine what it means. Mr. Falk said that at this point, there has been a lot of discussion from both sides on this issue, and from a staff Zoning Board of Adjustment February 10, 2015 Page 9 perspective, we’d just like some direction on how we should interpret this, as staff will need to direct applicants appropriately in the future. Mr. Shaw said that if the Board upholds the administrative decision, there’s a fairly clear indication of how the Planning staff would proceed, but if the Board does not uphold the administrative decision, then it seems like the Planning Department is left with the Wellington Street decision and this new case that would seemingly interpret this in the opposite way. Mr. Falk agreed. He said that during the past eight years, staff was going on what we thought was a pretty clear decision, in that if you have a corner lot, you need lot depth from both directions, and staff wants to give a consistent, accurate answer. Mr. Boucher asked Mr. Falk, as a professional Planner, if he were to look at the City’s Code book, how would he interpret a corner lot to be. Mr. Falk said that if he were from out of state, and looked at our Code, to see what setbacks he’d need for a corner lot, he said that the definition for a corner lot is that you need two front yards and two side yards, it doesn’t say anything about lot depth from two streets. Mr. Reppucci said that to answer Mr. Falk’s question, he said that what Staff should do is to interpret the ordinances as they are written, not the way the Board interpreted it on one specific application. He said that the Planning Department should interpret the Code and ordinances the way they see it. Mr. Falk said that they try to be consistent with interpretations and advising applicants on how to proceed. He said the Code is not easy to understand and follow at times. Mr. Reppucci said that the Zoning Department can’t make laws. Mr. Johnson said that the Board doesn’t make law, or case law, we are quasi-judicial, and agreed with Mr. Reppucci. Mr. Currier said that he’s still feeling the same way as he did earlier, and the Wellington Street case became a big issue with Zoning Board of Adjustment February 10, 2015 Page 10 how the corner lot was applied. He said in this case, the interpretation on Wellington Street and this one, they are two different cases from two different neighborhoods. He said that he believed that the Wellington Street decision was a valid one for that neighborhood. He said he’d prefer to opt for the more restrictive side. He said he disagrees with the appeal. Mr. Shaw said he’s more inclined to not support the appeal, and thinks that the problem remains no matter what the Board decides now, and which direction, and said he still thinks there is an ambiguity in the Code that should be clarified. Mr. Boucher said he’d support the appeal. He said that he understands that there is some ambiguity in the Code, and if there is an issue with something not being clear in the Code, then it should be changed. Mr. Reppucci said in staff’s memo, it states that staff contends that there have been numerous corner lots that have been reviewed and approved over the past few decades, and the Wellington Street case was the only one that was appealed in which lot depth from both streets was raised, and that certainly this issue would have been brought forward years ago if staff had interpreted the ordinance incorrectly. He said the Planning Department has been doing it this way forever, and this one case prevailed, and it’s changing the way the Planning Department has functioned, and they’ve since followed the way this Board voted on. Ms. Vitale asked if there have been any other corner lots in the Wellington Street neighborhood that have come under this issue. Mr. Falk said he did not remember any. Ms. Vitale said that the Board could allow one, like at Wellington Street, and the decision was right at that time, the other one was more neighborhood-specific for that time. She said she could not recall another similar case like this one. Mr. Falk said that there was one recently at King Street at Tetreau Street, that’s the only one that comes to mind. He said that the Board supported that variance. Ms. Vitale said that we have to discuss whether what is requested fits in with the neighborhood, and one neighborhood Zoning Board of Adjustment February 10, 2015 Page 11 might not be the same as another neighborhood, depending on how it was built and developed over time. She said that corner lots are defining lots in the neighborhood. Mr. Reppucci said he thinks the Wellington Street application, although it’s not before us, that system worked perfectly, exactly the way it’s supposed to work, as the Planning Department interpreted the ordinance the way it’s written, they sent the application to the Planning Board for review, and it was a zoning related appeal, it got appealed to the Zoning Board, and the Zoning Board of Adjustment found a certain way, it was precisely the way it’s supposed to work for that application. He said that that particular application is not undermined at all, the Wellington Street decision stands. Mr. Shaw said that the problem he has is that no matter what, the Planning Department is to interpret the Code and apply it, and guide applicants as to whether they need any variances or special exceptions. He said that in some ways, there are two levels of the spirit and intent of the ordinance coming at each other in a collision, that every zone has several dimensional criteria, and we also have this very specific part of the code that relates to corner lots having front and side yards, but doesn’t get to how to define what is the front yard and where the lot depth is defined from. He said he sees an ongoing ambiguity here. He said he is concerned that there could be two decisions that are very much in conflict with one another, and said that the Code needs to be changed, but until then, the Board has to help out in the process. Mr. Currier said that the Wellington Street neighborhood is not like the one that is before the Board tonight. He said that the challenge is how to look at the language on applying lot depth for a corner lot in both directions. He said that the interpretation was more appropriate for the Wellington Street case, it was more restrictive, but it doesn’t stop anyone from going forward and having the Board take a look at it. MOTION by Mr. Boucher to approve an appeal of an administrative decision that a corner lot is required to have lot depth from both streets. He said that the Board finds that no variance is required, and that there is agreement with the applicant that Mr. Falk’s interpretation, or the Planning Department’s interpretation is incorrect, and that there is agreement with the applicant in this case, the Board finds that the applicants Zoning Board of Adjustment February 10, 2015 Page 12 application is conforming with current zoning law, and it does not need a variance to proceed. SECONDED by Mr. Reppucci. MOTION CARRIED 3-2 (Mr. Currier and Mr. Shaw) Mr. Reppucci said it is possible that someone can appeal this decision back to us, and they’d have 30 days in which to do so. 4. Pennichuck Water Works, Inc. (Owner) Bay State Forestry Service (Applicant) “L” Tinker Road (Sheet G Lot 490) requesting special exception to work in the 75-foot prime wetland buffer of Bowers Pond to remove dead trees between Tinker Road and Bowers Pond. R40 Zone, Ward 2. [CONTINUED FROM 1-27-15 CANCELLED MEETING]. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson JP Boucher Mike Powers, Bay State Forestry Service. Mr. Powers said that back in 2008 they wrote a Forest Management Plan for the area, and it was updated in 2013, and it calls for the subject area, where there are 30-40 large, dead trees on Pennichuck’s land, and they are a potential hazard for both vehicles and pedestrians. They just want to remove these dead pines. He said that the Conservation Commission has already approved the plan, and they requested that a couple of them remain for bird nesting, they’re called snag trees. He said that there will be no staging of equipment in the buffer, it will all be on Tinker Road. Mr. Reppucci asked if they are able to meet all the special regulations from the Conservation Commission. Mr. Powers said yes. Mr. Shaw asked what is entailed with a snag tree. Mr. Powers said that it’s a dead tree that will remain standing, Zoning Board of Adjustment February 10, 2015 Page 13 and they’re utilized by birds that will hollow out the tree for a cavity for nesting. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the special exception as advertised on behalf of the applicant. Mr. Currier stated 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, in fact, it will increase the safety by removing those dead trees. He said it will not have any impact on any municipal systems. Mr. Currier stated that the nine special regulations, by testimony, are all fulfilled, and by removing these dead trees, it will not have any significant impact on the neighborhood, it’s a heavily treed area, and it will not be obvious that the trees are gone, and it will help allow new growth. Mr. Currier said that the special condition is that the December 16, 2014 Conservation Commission approval is incorporated, with their 6 stipulations, along with the meeting minutes. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Reppucci said that for the previous case, it was not totally closed out. He said that the Board said that the variance wasn’t needed, and questioned what to do with it. Mr. Currier said the need for the variance was covered. Mr. Shaw said for completeness, we could move to not hear the variance. MOTION by Mr. Shaw that the Board finds no need for the area variance for 39 New Dunstable Road, the variance for lot depth, Zoning Board of Adjustment February 10, 2015 Page 14 as advertised, the Board finds that there is no need to hear this variance, and it is no longer needed due to the positive support for the appeal of the administrative decision, and the variance is not required. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 5. Masonic Building Association (Owner) Burque Jewelers (Applicant) 196 Main Street (Sheet 32 Lot 19) requesting variance to exceed maximum projecting sign area, 10 square feet allowed, 29 square feet proposed. D-1/MU Zone, Ward 4. [CONTINUED FROM 1-27-15 CANCELLED MEETING]. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson JP Boucher Ken Mermur, President, Burque Jewelers, Nashua, NH. Mr. Mermur said that Burque Jewelers is the oldest retail establishment in Nashua, since 1909. He said they’ve been on West Pearl Street since 1909, and are a four-generation business. He said that they have an iconic sign, and it was made twenty years ago, and it was hand-carved. He said that their current building was sold, and the new owner has forced their hand to move, and they have found a location on Main Street, at the Masonic Temple Building. He said it is on the second floor, and fits their needs. Mr. Mermur said that the sign is about 5’x6’, with some cutouts. He said that it is a projecting sign, and will be installed by a professional sign installer. He said it will be detrimental to their business to not allow signage, and to not have the iconic sign that has been on West Pearl Street for twenty years. He said that they feel that their request is reasonable, it’s not detrimental to the neighborhood. He pointed out where on the building the sign would be installed. SPEAKING IN FAVOR: Zoning Board of Adjustment February 10, 2015 Page 15 No one. 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 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. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 6. 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. [TABLED FROM 1-13-15 MEETING]. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson JP Boucher Heidy Arango, 3 Jefferson Street, Nashua, NH. Ms. Arango said she is back to demonstrate how the cars will be parked on the lot. She said that she’s provided the Board with a sketch of the driveway showing the 10’x25’ parking space on the other side of the house. She said she used to live in the house, and could accommodate four cars in the driveway. Zoning Board of Adjustment February 10, 2015 Page 16 Ms. Arango said it is 14’ wide by 57’ deep, and on the back of the house, there is a 15’x21’ space as well. She said four cars can park here. Mr. Reppucci said it was his understanding that the Board was going to get an official plan, a designed plan, that was done by a professional. He asked if she had met with the Street Department. Ms. Arango said that she called the company that did her driveway, and they were not able to quote something due to all the snow there. She said that she checked with DPW and they said it could be done. Mr. Currier asked about the 14’ wide driveway, and if the first car goes up and parks to the right. Ms. Arango said it would be that car off to the right, and three straight in, that’s how it was done in the past. Mr. Currier asked if she is going to be putting in a designated curb on the other side. Ms. Arango said that she called DPW, and it’ll be supported once better weather is available. Mr. Reppucci read some excerpts from the previous meeting, and mentioned that Mr. Currier said he’d like to see a definitive plan for parking, with dimensions, and that a Certificate of Occupancy won’t be provided until it is done. He asked if she has brought anything forward to the Planning Department. Ms. Arango said she did talk to staff about the dimensions. Mr. Reppucci said that his recollection was that the Board wanted a more official plan, not something drawn up by a lay person, a plan that the Planning Department and Street Department reviewed, and we don’t have that. He said he thought that the direction was clear moving forward. Ms. Arango said that perhaps she misunderstood, but she did check with the City. Mr. Johnson asked if the request has to be approved by the Planning Board. Zoning Board of Adjustment February 10, 2015 Page 17 Mr. Falk said that it does not require Planning Board approval. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Johnson said that if anything changes with the request, she may need to come back before the Board. Mr. Reppucci said his concern is that she gets the permits to convert the house to a two-family, and nothing gets done with the parking spaces. He said that there is a topography issue, it’s more than just the number of spaces required, and the parking area has to function properly. Mr. Shaw said that the Planning Department and Street Department will be reviewing her plan to make sure it works, her previous testimony was that the driveway can accommodate three cars, now her testimony is that the other space on the other side of the house will be able to work, thereby accommodating four spaces. Mr. Currier said he’s comfortable with the new 10’x25’ driveway being permitted, that the parking will be satisfied. 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, from the last meeting, there is testimony that the area in this part of the City is primarily two-family homes and the Board’s key issue was that parking has to be accommodated, and with this approval, the Board is providing a stipulation that the second driveway on the side of the house, the 10’x25’ space, would be a curbed and paved driveway, and it must be fulfilled to complete the Certificate of Occupancy, along with whatever else is required by the Planning and Building Departments. 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 February 10, 2015 Page 18 contrary to the public interest, and substantial justice is done. SECONDED by Mr. Boucher. MOTION CARRIED 4-1 (Mr. Reppucci). 7. JB Nashua Retail, LLC (Owner) 565 Amherst Street (Sheet H Lot 625) requesting variance to allow a portion of a parking lot to encroach 4 feet into the front yard setback to a private way (Nimcor Drive), where a 10 foot setback is required. GB Zone, Ward 2. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw Rick Johnson JP Boucher Attorney Morgan Hollis, Gottesman & Hollis P.A., 39 East Pearl Street, Nashua, NH. Atty. Hollis said the property is just before Best Ford, at the intersection of Nimcor Drive. He said the property is zoned GB, and the owner is proposing to subdivide and develop into three separate uses, and the access would be off of Nimcor Drive. He said that Nimcor Drive is a private drive, created from the subdivision of the Nimcor property, and Nimcor is no longer in existence, it has been approved for an Alzheimer’s facility. Atty. Hollis said that Nimcor Drive is a separate, single lot, with covenants. He said that Nimcor Drive is owned down the middle between the subject lot and Best Ford. He said even though it is a private drive, it’s been interpreted by the Planning Department that the frontage requirements of a private way apply to Nimcor Drive. He said that there isn’t access from Amherst Street, although there is frontage. He said that Nimcor Drive is being treated as a public way, and as such, there are frontage requirements. He said that there is a ten-foot front yard setback, and have submitted a design plan showing some spaces encroaching about four feet into the ten foot setback. Atty. Hollis said it is an unusually shaped lot, with a private driveway, and subdivision of the lot is allowed as long as there Zoning Board of Adjustment February 10, 2015 Page 19 is an internal circulation plan, which will be provided. He said that there will be a 3,000 sq.ft building on the front lot, and a 5,000 sq.ft building in back of it. He said if the parking lot is pulled back, the buildings just won’t fit on the lot. He said that there is a provision in the ordinance to go to the Planning Board, but it’s exactly the same criteria as going to this Board, so they have elected to go for the variance, and Section 190-194 (G) requires that all parking must be out of the front yard setback, which in this zone, is 10 feet. Mr. Reppucci asked if it is inappropriate to come before the Board, and if the Planning Department is getting this right. Atty. Hollis said they did not elect to challenge the decision made by Staff. He said that they’re trying to obtain the variance, and believes it meets the criteria for a variance. He said it’s not contrary to the public interest, as there will be no loss of visibility, it’s not a public way, and Nimcor Drive will not ever be widened, and there will be plenty of space between the parking spaces and the edge of pavement. Atty. Hollis stated that the encroachment will not alter the character of the neighborhood, as there are numerous parking lots close to the right-of-way in this area, and there is no threat to safety or visibility. Atty. Hollis said it will observe the spirit and intent of the ordinance, the proposal will provide for widening in the right- of-way itself, and still give 6 feet, not 10 feet to the parking area. Atty. Hollis said that the request will provide substantial justice, and it will not harm any public or private entity. Atty. Hollis said that the property values of surrounding properties will not be negatively impacted, and although there is no independent appraisal, it’s believed that there will not be any impact to any property values. Atty. Hollis said that the hardship is met, it is an unusually shaped lot, it is a GB zone, it has frontage on Amherst Street, but no access to Amherst Street, there is access on a private street, and there is no impact to the property. Zoning Board of Adjustment February 10, 2015 Page 20 Mr. Currier asked who plows Nimcor Drive. Atty. Hollis said that it is maintained by the group under the Covenants. Mr. Currier asked about trash pick-up. Atty. Hollis said it will be done by an independent company, as its commercial property. Mr. Currier asked if at any point the property owner could petition to have Nimcor Drive be a public street. Atty. Hollis said it’s really not possible, it’s not the way the subdivision was envisioned or approved. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Mr. Currier said he’d feel more comfortable if there was a stipulation that Nimcor Drive remains a private way. Atty. Hollis said that would be fine. 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 a three lot subdivision with access via Nimcor Drive. Mr. Currier said that the request is within the spirit and intent of the ordinance, as Nimcor Drive is privately owned and maintained, and asks that a stipulation be added that this variance be approved with a stipulation that Nimcor Drive remain a private road, that it current serving as. 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. Zoning Board of Adjustment February 10, 2015 Page 21 MOTION CARRIED UNANIMOUSLY 5-0. 8. EDCO Nashua, LLC c/o Pep Boys Tax Department (Owner) Barlo Signs (Applicant) 274 Amherst Street (Sheet E Lot 2136) requesting the following variances: 1) to exceed maximum ground sign area for a corner lot, two signs at a maximum of 100 sq.ft each allowed – one existing sign at 145 sq.ft. existing – one additional ground sign at 80 sq.ft proposed for a total of 225 sq.ft; and 2) to allow for off-premises advertising on proposed ground sign. HB Zone, Ward 1. Voting on this case: Gerry Reppucci Jack Currier Rob Shaw J.P. Boucher Rick Johnson Tim Sullivan, Barlo Signs, Hudson, NH. Mr. Sullivan said that the Board has received a revised site plan. He said that the Planning Department has requested that they seek input for a traffic engineer, there is a lot of concern with what is going to happen at this intersection with the Whole Foods Plaza, and there is a lot of traffic at the intersection. He said they are looking to change the traffic pattern, where the jug-handle will be removed, and the lanes will be increased. Mr. Sullivan said that one of the main concerns is that they have a second entrance into the property. He said that the second entrance will be off of Charron Avenue, coming in behind the Pep Boys property, coming in to the proposed plaza. Mr. Sullivan said it will allow the traffic coming up Charron Avenue to avoid Amherst Street altogether, and traffic coming out from this plaza into the jug-handle will avoid this area. Mr. Reppucci asked if anything will be changed at the Pep Boys site. Mr. Sullivan said nothing will be changed at that site. Mr. Sullivan said that the sign proposed is an entrance sign at the back of the Pep Boys site off Charron Avenue. He said that Zoning Board of Adjustment February 10, 2015 Page 22 the main Pep Boys identification sign will remain. He said the proposed sign will help to direct traffic into the entrance. He said that there are two variances, one to allow a new 80 sq.ft ground sign, and the other one is to allow for off-premises advertising. He said that corner lots can have two signs at 100 sq.ft each. Mr. Sullivan said that this sign will be in excess of 300 feet from the Amherst Street intersection, so the goal is to allow some visibility at this area to enter the property. Mr. Reppucci said that the proposed sign is less than the 100 sq.ft allowed. Mr. Sullivan said that the Pep Boys sign is already at the largest it can be, it’s 145 sq.ft for the single lot, and at the time it was permitted, it could be 150 sq.ft. He said that they’re at 225 sq.ft, which is close to the 200 sq.ft aggregate total size. Mr. Shaw said he didn’t see if the proposed sign would help anyone on Amherst Street to try to get into the plaza. Mr. Sullivan said that there will be a left-turn lane at the intersection. Mr. Falk said that the proposed sign will help drivers on Charron Avenue mainly, as it will help them to turn into the plaza without going all the way to Amherst Street. Mr. Sullivan said that the main idea is to get drivers coming off of Charron Avenue to the new plaza. Mr. Currier said that it looks as if the names of the new tenants will be on the sign with Pep Boys, and asked if that is the off-premises variance. Mr. Sullivan agreed, and said that for both properties, there is the same owner. SPEAKING IN FAVOR: Brian Leahy, EDCO Nashua. Mr. Leahy said that with respect to traffic, they already have had a joint traffic study with the Zoning Board of Adjustment February 10, 2015 Page 23 Whole Foods Plaza and the Traffic Department, and the approvals by the Planning Board include two options, one is to have the existing jug-handle remain as is with some minor widenings. He said that they’d like to do a dedicated left-turn coming Amherst Street, and an additional left turn will be there heading east, so it will eventually become a full intersection. He said that they also are proposing a double-left turn coming out of Charron Avenue, which will greatly improve traffic. He said that they have worked with the Traffic Department on this, and Pep Boys is right in the middle of this, and they have asked for signage on the back side as proposed. Mr. Currier said he sees the need for the off-premises sign. He said a concern is why they didn’t propose a 55 square foot sign instead of an 80 square foot sign to meet the ordinance. Mr. Leahy said that the sign could even be 100 sq.ft, but the existing sign out front would have to be modified. He said that there are several tenants, a multi-tenant plaza, and the new portion could have as many as six tenants, and it’s needed to allow for proper identity on the sign. Mr. Reppucci asked how large a sign could be placed in the front of the new shopping center parcel. Mr. Leahy said it can be 150 sq.ft. Mr. Reppucci asked if they plan on a larger sign, and coming back for a variance. Mr. Leahy said that their proposal for the shopping center will be 150 sq.ft or less. Mr. Reppucci asked if they’d be comfortable with a stipulation that if tonight’s request is supported, that no other area variances would be asked for these properties combined. Mr. Leahy said on the pylon sign, he felt comfortable with that. He said he’s not sure of the bylaws for the wall signage. Mr. Leahy reiterated the location and size of the existing and proposed ground signs, there will be three total, two on the Pep Boys parcel, and one for the new shopping center. Mr. Currier asked Mr. Falk if he has the complete sign package Zoning Board of Adjustment February 10, 2015 Page 24 that they’re proposing. Mr. Falk said it hasn’t been submitted yet. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the variance requests on behalf of the owner as advertised, with both requests considered collectively. Mr. Shaw stated that the variance is needed to enable the applicant’s proposed use of the property, he said that there are some unique aspects to not only this property but the fact that it’s part of a greater complex of new proposed retail shopping center that the applicant has in ownership with the Pep Boys lot that borders between the new center and Charron Avenue. He said that the plan overall has a new change to traffic flow improvements and signalization, etc., and the entrance on Charron Avenue where the new second sign will be located will help to bring traffic into the plaza and to Pep Boys from Charron Avenue rather than have to get onto Amherst Street, as well as by the allowance of off-premises advertising for those new retail businesses, will also identify them as in that entrance, and to bring traffic in from Charron Avenue and help with the traffic flow. Mr. Shaw 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. He said that the Board did hear the intent is for the one ground sign which will be part of the new retail center, and that sign will not exceed the allowable square footage of 150 square feet, and the Board did look at the fact that there will be three signs, ultimately as proposed for the plan for the overall site, including the sign for Pep Boys, and the new sign on Charron Avenue for the retail center. SECONDED by Mr. Johnson MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: Zoning Board of Adjustment February 10, 2015 Page 25 None. REGIONAL IMPACT: The Board determined that there are no cases that have Regional Impact. MINUTES: 1-13-15: The Board stated that there are some pages missing at the end, it stops on page 20. Mr. Falk said that he will send out a complete set for the next meeting. 10-28-14: MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place in the file. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 11-12-14: MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place in the file. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 11-25-14: MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place in the file. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 5-0. 12-9-14: Zoning Board of Adjustment February 10, 2015 Page 26 Mr. Johnson pointed out on page 21, second line, it should be the word “is” . MOTION by Mr. Reppucci to approve the minutes as presented, waive the reading, and place in the file. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. 1-13-15: As previously discussed, Staff will send these minutes out again. Mr. Currier said on page 5, the sentence he said that the public is welcome, he said his intent was that the public did not have to attend, and they can watch it on TV, but they are certainly welcome to do so. Mr. Reppucci said for page 18, it says that this Board can prevent this or any other health club to come here, when it should say “cannot” prevent. OFFICERS: Mr. Reppucci said he likes being the Chair, and would like to continue. Mr. Currier asked if the newer members had any interest in moving up. Mr. Johnson said he’s used to being Clerk. He said that this will probably be the last term he will serve. He said at this point, he’d be interested in doing a little more, and is willing to try. He said he’d like to try to be the Chairman. Mr. Boucher said he’d entertain being the Clerk, if no one else wants the position. He said he’s also happy contributing just as is. He said that Mr. Reppucci has done a great job as Chair, he’s very well prepared for our meetings, and is supportive of Mr. Reppucci. Mr. Shaw said that when he was first on the Board, there was always an opportunity for each one of us to be the Chair, and Zoning Board of Adjustment February 10, 2015 Page 27 cycle on and off. He said he appreciates Mr. Reppucci’s efforts as the Chair, and said he’d also like to support Mr. Johnson for an opportunity as the Chair. Mr. Currier said that Mr. Reppucci has done yeoman’s job as a Chair. He said it was a goal of his to become Chair, and feels that it’s a good perspective to support the Chairman, and would be supportive of Mr. Johnson to be the Chairman. Mr. Shaw said that Mr. Currier, Mr. Reppucci and himself has been the Chair at one time or another. Mr. Johnson said he’s willing to give it a try, and would be honored, and would do his very best. He said he’d accept a nomination. NOMINATION by Mr. Currier for Mr. Boucher to be the Clerk. Mr. Boucher said he’s indifferent right now, he said if the slot is empty, he’d be happy to serve as the Clerk, if no one else steps up. Mr. Shaw said that he was once Clerk, and it helps you to pay attention in a different way, and it’s a good experience, and it’s a responsibility too. Mr. Currier asked Mr. Reppucci if he had an interest in being the Vice Chair. Mr. Reppucci said no. Mr. Currier said he’s content to stay as the Vice Chair. Mr. Shaw asked Mr. Reppucci if he were interested in being the Clerk. Mr. Reppucci said no. NOMINATION by Mr. Shaw for a slate of Officers to have Mr. Johnson as Chair, Mr. Currier as Vice Chair, and Mr. Boucher as Clerk. SECONDED by Mr. Currier. MOTION CARRIED 4-0 (Mr. Reppucci abstained). Zoning Board of Adjustment February 10, 2015 Page 28 ADJOURNMENT: Mr. Reppucci called the meeting closed at 10:13 p.m. Submitted by: Mr. Johnson, Clerk. CF - Taped Hearing