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 March 24, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, March 24, 2015 at 6:30 PM in Room 208, City Hall. Rick Johnson, Chair, conducted the meeting. Members present were: Rob Shaw Jack Currier Gerry Reppucci J.P. Boucher Rick Johnson Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Johnson explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Johnson 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. Johnson also explained procedures involving the timing light. 1. Nashua 281 Realty Ventures, LLC, c/o Charles River Realty (Owner) DXL Men’s Apparel (Applicant) 281 Daniel Webster Highway (Sheet A Lot 975) requesting variance to exceed maximum ground sign area, 150 sq.ft allowed, 150 sq.ft existing, an additional 50 sq.ft proposed for a total of 200 sq.ft. HB Zone, Ward 7. Voting on this case: Rick Johnson Rob Shaw Gerry Reppucci Jack Currier J.P. Boucher Bruce Bailey, Bailey Signs, Westbrook, Maine. Mr. Bailey said that they are seeking to increase the square footage at the site; he said it’s a unique parcel because it has two lots, where Bobs Furniture and Eastern Mountain Sports are there, and the upcoming DXL Men’s Apparel. He said it is a corner lot with Zoning Board of Adjustment March 24, 2015 Page 2 frontage on Daniel Webster Highway. He said that the existing ground sign is 150 square feet, and it is split between the two tenants. He said to add the DXL sign, he said that instead of having two signs because it is a corner lot, they thought it would be better to consolidate and have all the sign panels on one structure. Mr. Bailey said that for addressing the points of law, the most important one is the safety issue. He said that by combining the square footage for three tenants into one freestanding sign makes it possible to list all the tenants in one place, rather than have multiple signs along the roadside, reducing the distractions on the right-of-way. He said that a multi-tenant sign is in conformity with many other multi-tenant signs in the area. Mr. Bailey said that the sign will not harm the public safety or the welfare of the public, and the deviation from the ordinance would be consistent with helping the health and safety of the public by limiting roadside clutter, and combining multiple freestanding signs into one structure, and it will be more convenient for the public. Mr. Bailey said that substantial justice will be done to the property, as allowing the increased square footage will allow for increased direction for the way finding public without the second freestanding sign. He said that the sign would be compatible with other freestanding signs in the area. Mr. Bailey said that the proposal will not diminish property values, by adding additional square footage to this already existing freestanding sign, it eliminates the need for an additional freestanding sign at this location, therefore it reduces roadside clutter. He said the sign is aesthetically pleasing. Mr. Bailey said that there is no available room for the multi- tenanted center, it sits back from the road several hundred feet, much farther than other commercial centers in the area, and the sign panel does need to be legible for passing motorists to be effective. He said that by allowing the variance, it will allow all the tenants to have signage on one sign instead of multiple signs. He said the best alternative is to have just one sign with all the tenants represented on it. He said that there have been several other businesses, such as TJ Maxx and Zoning Board of Adjustment March 24, 2015 Page 3 Sun Plaza that have been granted variances in the area for additional square footage, and the request is reasonable. He said that since they have a corner lot, they could have two ground signs. Mr. Currier asked if another sign could go on Danforth Avenue, and what the space was before it was the DXL store. SPEAKING IN FAVOR: Justin Ferris, Charles River Realty. He said that it used to be Borders Books, and Eastern Mountain Sports took their signage, but they didn’t take the entire space, they left about 5,000 square feet, which is being used by DXL. He said that Eastern Mountain Sports has been there since about 2012. He said that Eastern Mountain and DXL are on one parcel, and Bob’s Furniture at 283 Daniel Webster Highway is on another parcel of land. Mr. Shaw said that the Code does allow for two signs on a corner lot, but with these two lots, he asked if the City if each lot would be allowed to have their own ground sign. Mr. Falk said that the number of lots is really irrelevant, the site plan was approved with the two lots together, and it’s really one premise, one site plan. He said that for example, the Nashua Mall has about nine different lots, but they only have two ground signs, along with an old non-conforming highway sign. He said the sign at the corner services all the tenants in the building. Mr. Currier asked what the “plan B” would entail if the Board didn’t support this request. Mr. Ferris said that they’d look into what they could get for DXL being set so far back from the highway, its key for them to have signage that’s in line with others along Daniel Webster Highway, as well as the other tenants on this premise. Mr. Falk said that the front of the store is about two football fields back from Daniel Webster Highway. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. Zoning Board of Adjustment March 24, 2015 Page 4 MOTION by Mr. Currier to approve the variance request on behalf of the owner as advertised. Mr. Currier stated that the variance is needed to enable the applicant’s proposed use of the property, which is to allow the third tenant at this site to have some signage on the existing sign at 281 DW Highway. Mr. Currier said that the request is within the spirit and intent of the ordinance; he said that the applicant can have a separate free-standing sign on Danforth Avenue, but would prefer to be on Daniel Webster Highway. He said that it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, being that it’s an HB zone and heavily trafficked and there is a lot of signage in that area. Mr. Currier said that it is the intent of the Board that it is allowing this overage at this location in lieu of signage on Danforth Avenue, and it is the Boards expectation that this will be the only sign, and the area of the sign is 200 square feet already. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: 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 1-13-15 MEETING; AND CONTINUED FROM 1-27-15 CANCELLED MEETING]. Mr. Falk said that at the last meeting on March 10, 2015 the Board discussed this case, and there were only four members present, and the Board decided to table the request to tonight’s meeting. Mr. Johnson asked Mr. Reppucci if he’s had a chance to review the minutes. Zoning Board of Adjustment March 24, 2015 Page 5 Mr. Reppucci said that he watched the meeting, and said he’s completely familiar with the case. MOTION by Mr. Shaw to remove the case from the table. SECONDED by Mr. Johnson. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Johnson said that on February 10, 2015, the Board heard the case, and determined that this needs to be looked at as a Fisher v. Dover case. He said that the Board had originally felt that they wouldn’t proceed any further, and the owner brought forward a letter with seven points raised. Voting on this case: Rick Johnson Jack Currier Gerry Reppucci Rob Shaw J.P. Boucher Mr. Johnson said that this was about the Fisher v. Dover issue. He said that the best way to handle this is to do it one point at a time. Mr. Johnson read the seven different points raised in the owners letter. He asked if there was any procedural error, which includes improper notice, denying someone the right to be heard, etc. Mr. Currier said no. Mr. Shaw said no. Mr. Boucher said no. Mr. Reppucci said no. Mr. Johnson asked if it was an illegal decision, in other words, did the Board fail to completely address each of the points of law required for the special exception and/or variance. Mr. Currier said no. Zoning Board of Adjustment March 24, 2015 Page 6 Mr. Shaw said no. Mr. Boucher said no. Mr. Reppucci said he didn’t believe that the question was applicable to this, the question is more applicable to an actual variance or special exception rehearing request, it’s not applicable to what we are deciding, which is to actually consider the case. He said the question is whether or not it’s an illegal decision is a good question, but the people that supported not hearing the case think the decision is one way, and the people that supported hearing the case think another way. He said that the question isn’t really proper, and it’s not a hearing to consider those things. Mr. Johnson concurred, in this circumstance. Mr. Reppucci said that he doesn’t think that the Board did anything illegal in making our decision. Mr. Johnson asked if there is any new information not presented or available to the Board at the original public hearing. Mr. Currier said no. Mr. Shaw said no. Mr. Reppucci said no, nothing of substance. Mr. Boucher said at the last meeting, he may have said no to the wrong thing, he said he still has questions on this. Mr. Johnson said he still has questions too, with respect to number three or four. Mr. Johnson asked if there is anything which would/could cause the Board to make a different decision. Mr. Currier said no. Mr. Shaw said no. Mr. Reppucci said no. Zoning Board of Adjustment March 24, 2015 Page 7 Mr. Johnson said for him, the issue had to do with the T versus the cul-de-sac, that’s where he said he was struggling, because of the 2006 code, and the changes that were brought forth from that. He said when the case was first denied in 2003, does that typically make that a substantive change. Mr. Boucher said that he and Mr. Johnson have the same opinion but for different reasons. He said the material change, not in the land, but in circumstances affecting the application, so in Brandt Development v. Somersworth, they talked about changes that happened, if it had come today, it would have been granted, so there was a change in the code, so that today the decision was that it could not be denied because of that reason, because it was a change in circumstance around that code. Mr. Johnson said that is what he struggled with, that the codes changed. Mr. Boucher said they have the right to come back, and it can’t be looked at as a second bite of the fruit, and it doesn’t necessarily mean that it’ll be approved the second time around, it just means that things have changed enough that they should be allowed to come back. He said that the decision may be no different from the first time. Mr. Reppucci said that in the Brandt case, the substantial change in the code affected the way that property would be considered, the relief that property was requiring, in this case, was exactly the same relief that they applied for in 2003, it was the same. He said that he’s looking at this in kind of a simple way, at the end of the day, the property that was contemplated by the ZBA in 2003 and was denied, is now requesting, in its totality, a more intensive use than it was in 2003 when it was denied, and this particular specific piece of property, and the relief that they’re requesting isn’t impacted by the code changes in 2006, it’s exactly the same on that piece of property, the cul-de-sac or the T has nothing to do with it. He said he didn’t see the code changes as relevant, unless it changed the required relief that they need for this property. Mr. Shaw said that it was originally three lots, and now there would be two, which removed one of the variance requests, and we’re back to the same footprint and the same application. He said the thing that is slightly different is the new request only seeks to have one variance relief for the lot width, 150 Zoning Board of Adjustment March 24, 2015 Page 8 feet is required, and 50 is proposed. He said that because of the cul-de-sac placement, now they don’t need to ask for the frontage variance, so on one hand, they’re looking at a slightly lower hurdle because the code did change, but the actual request is virtually the same. Mr. Reppucci said that the letter brought up his comment about that the Board should consult the City Attorney, and he didn’t do that. He said he was just thinking out loud, and it wasn’t a decision for this Board, and it wasn’t a question that was appropriate to ask them. MOTION by Mr. Currier on behalf of the owner to not rehear the application again, and let the Board’s initial decision that it does not meet the Fisher v. Dover test. He said that a majority of the Board answers the four questions as no. SECONDED by Mr. Reppucci. He said that the Board sees the use of this specific piece of property so similar to the original application, that that specific piece of property is what we’re finding so similar that it doesn’t deserve to be reconsidered. Mr. Johnson said that he’d like to add that some of the members of the Board find that the Brandt v. Somersworth case was discussed and considered the laws changing and the ability to rehear the case. Mr. Reppucci said he doesn’t oppose the Brandt v. Somersworth reference being in there, but as a general practice, the Board doesn’t make motions that include the dissenting point of view. He said the fact that people don’t support the motion indicates that they have the dissenting point of view, and the record of the discussion is what goes forward. Mr. Johnson said that the Board has had motions in the past where there has been some discussion, or dissent. Mr. Shaw said that he’s agreeing with Mr. Reppucci, he said he didn’t see the need for that, its part of the record, and it shows what topics we’ve covered to come up with our decision. MOTION CARRIED 3-2 (Mr. Johnson and Mr. Boucher). MISCELLANEOUS: Zoning Board of Adjustment March 24, 2015 Page 9 MINUTES: 3-10-15: MOTION by Mr. Currier to approve the minutes as presented, waive the reading, and place in the file. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. REGIONAL IMPACT: Mr. Falk said that there is an extra week in the schedule, and Staff is still accepting applications. He said once the Agenda is set, he’ll email a copy to all the members. BY-LAWS: Mr. Johnson said that in the past, there has been discussion about Alternate member participation. He gave Members a handout of other city’s by-laws with respect to Alternates. Discussion ensued about Member and Alternate member roles, participation, and voting rights. The Board decided to leave the By-Laws as they are. ADJOURNMENT: Mr. Johnson called the meeting closed at 8:00 p.m. Submitted by: Mr. Boucher, Clerk. CF - Taped Hearing