Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING May 12, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, May 12, 2015 at 6:30 PM in Room 208, City Hall. Jack Currier, Vice Chair, conducted the meeting. Members present were: Jack Currier Gerry Reppucci (left at 7:15) Rob Shaw J.P. Boucher Kathy Vitale Carter Falk, AICP, Deputy Planning Manager/Zoning Mr. Currier explained the Board's procedures, including the points of law required for applicants to address relative to variances and special exceptions. Mr. Currier 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. Currier also explained procedures involving the timing light. 1. Rita Jean Family Trust (Owner) Dan Bergeron Building and Development, Inc. (Applicant) “L” Underhill Street (Sheet 14 Lot 474) requesting variance for minimum lot width, 60 feet required, 52.16 feet proposed for two lots – to subdivide one lot into two single-family lots. RB Zone, Ward 7. [POSTPONED FROM 4-28-15 MEETING] Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Kathy Vitale J.P. Boucher Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier stated that he is representing Dan Bergeron Building. He passed out a package to the Board members. He said that all density, setback and frontage requirements are met, the only item that isn’t met is the lot width, in which 60 feet is required at the front yard setback, and 52.16 feet is proposed. Zoning Board of Adjustment May 12, 2015 Page 2 Atty. Prunier pointed out tab “B”, which shows the character of the area, and many of the lots are 50 feet wide. He said tab “C” is a letter from Keller Williams Realty, stating that there will not be any diminution to property values, and tab “D” indicates other similar cases approved by the Zoning Board. Mr. Reppucci asked if this is one or two variances. Atty. Prunier said it will be two lots and the variance is for lot width for the two lots. Mr. Falk said it would be one variance per lot, each one for lot width. He said it’s one big lot now. He read the advertisement, and said that staff is comfortable with how it reads. Atty. Prunier said the intent is to have two single-family residences. Mr. Shaw said that if the plan was to make one single-family lot meet all the code requirements, the second lot would not meet the frontage and width requirements, so, in essence, there would be two variances on a single lot, where in this case, it’s a single variance for two lots. He said that the proposed arrangement is more agreeable. Atty. Prunier said that the proposed arrangement is more in character with the neighborhood. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the variance requests on behalf of the owner as advertised. Mr. Reppucci stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property; 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. He said the intent is to approve the Zoning Board of Adjustment May 12, 2015 Page 3 identical variance for both lots that will be divided, so it’s two variances Mr. Reppucci said that the request is within the spirit and intent of the ordinance. He said that it will not adversely affect the property values of surrounding parcels; it is not contrary to the public interest. He said that substantial justice is served. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 1. Michael McInerney (Owner) 9 Chapel Hill Drive (Sheet F Lot 734) requesting variance to encroach 19 feet into a 30 foot rear yard setback to construct a 10’ x 34’ deck. R9 Zone, Ward 1. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Kathy Vitale J.P. Boucher Michael McInerney, 9 Chapel Hill Drive, Nashua, NH. Mr. McInerney said that they’re looking to build a deck, and it would encroach onto the rear setback. He said that two variances were granted for additions from the previous owners, and there is some wasted space that should be utilized for the deck. Mr. Currier said that the Board has all the written application and have all been out to the site, and asked if the application is to stand as is. Mr. McInerney agreed. Mr. Currier said that in his site visit, the backyard slopes down a lot, and said that no one would really even see it, except for maybe one neighbor on the left. Mr. McInerney agreed, and said that one neighbor is in attendance. Zoning Board of Adjustment May 12, 2015 Page 4 SPEAKING IN FAVOR: Jesse Fodero, 11 Chapel Hill Drive, Nashua, NH. Mr. Fodero said he’s lived there for 30 years, and is in favor of the request. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No One. MOTION by Mr. Shaw to approve the variance request on behalf of the owner as advertised. Mr. Shaw stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, with a steeply sloped back yard, 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. Shaw said that the request is within the spirit and intent of the ordinance. He said that it will not adversely affect the property values of surrounding parcels; it is not contrary to the public interest. He said that substantial justice is served. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 5-0. 3. Julian Morillo (Owner) 12A-12B Hanover Street (Sheet 86 Lot 100) requesting variance for minimum lot area, 2,975 sq. ft. existing, 13,939.2 sq. ft. required – to convert a three-family dwelling into a four-family dwelling. RC Zone, Ward 4. Voting on this case: Jack Currier Rob Shaw Gerry Reppucci Kathy Vitale J.P. Boucher Julian Morillo, Jr. 12A-B Hanover Street, Nashua, NH. Mr. Morillo said that last year, his father received approval for going from a two to a three family building. He said that there Zoning Board of Adjustment May 12, 2015 Page 5 was a misunderstanding, it was actually going from a three family to a four family. Mr. Currier asked where the fourth unit is located. Mr. Morillo said on the third floor, the top floor, the attic. Mr. Currier asked how the other units are oriented in the building. Mr. Morillo said there’s one unit on the first floor, there’s one on the second floor, the back is the studio, and in front of the attic is the fourth unit. Mr. Currier said that the last request, they were asking for a three family. He asked what it was before, if it was a two- family. Mr. Morillo said that they had the first floor unit, the second floor unit, and the studio in the back of the attic. He said there were three units when they bought it. He said that they are adding the fourth one. He said that there was a misunderstanding about the studio apartment. Mr. Currier asked how many kitchens are in the building. Mr. Morillo said that the studio has its own kitchen. He said that the unit in front of the attic has one too, and the other units do too, there are four kitchens. He said that when they bought it, it had three, and one was built about two years ago. Mr. Currier asked about the parking. He said it looks like there is some parking on the left side, and asked if there is any off-street parking. Mr. Morillo said that there is off-street parking, it’s approved. He said that they have four spaces, and the street parking. Mr. Currier asked if it is two spaces on the right and two spaces on the left. Mr. Morillo said that there are three on the left, and one in the front. Zoning Board of Adjustment May 12, 2015 Page 6 Mr. Currier asked if the one in the front is on the sidewalk, or beyond the sidewalk. Mr. Morillo said it is right off the sidewalk. Ms. Vitale asked of the existing three apartments, how many vehicles are there. Mr. Morillo said that there are five vehicles. Ms. Vitale asked in the wintertime, there is no on-street parking during snow emergencies, and asked where people park. Mr. Morillo said right down the street, there is a place to park where they are allowed to park, they have no problem with it. Ms. Vitale asked in the snow removal, if it still allows for four cars to park there. She said it’s a very tight street, and to add another apartment on a lot where 13,939 square feet is required, and the existing lot is 2,975 square feet, to add another apartment, she said that is a huge difference between what is there and what is required. Mr. Morillo said that the four cars you can park there with no problems. He said that the one in the back, the studio, he said that they let them know in the application that there is no parking, so they don’t rent it to anyone with cars since there’s no parking. Ms. Vitale asked about the third apartment, from the last set of Minutes, about the Fire Department and the property and the way it’s broken up, the fire escape. She asked if had been checked out for safety purposes. Mr. Morillo said that everything has been checked out, he said that they have a building, but they’re just waiting on this. He said that they’re just waiting on the Zoning Board for this approval. Mr. Currier said that there have been a lot of articles about the overnight parking in the newspaper, and asked if this is one of the streets that prior to the approval, you couldn’t park on the street at night, and now you can if you buy a permit. Zoning Board of Adjustment May 12, 2015 Page 7 Mr. Reppucci said he believes that there are spaces on Hanover Street, he said that they have them on Badger Street and Pierce Street, and Pierce is further west than Hanover Street. Mr. Currier said that if there is a snow emergency, there is no on-street parking, so people have to move their cars around. Mr. Shaw asked how many other two-family, three-family or four- family homes are on Hanover Street. Mr. Morillo said the one on the right is a two-family, the one on the left is a two-family, across the street is a single- family, the next one is a three or four family. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. At this point, the Board took a 5-minute recess. Mr. Reppucci said he wasn’t feeling well, and left the meeting at 7:15 p.m. Four members remain for the voting. Ms. Vitale said that in the notice, that some portion of the apartment did not meet Code, and asked what needed to be brought up to Code. Mr. Falk said he believed it had to do with ingress/egress for the third unit, he suggested having the applicant go over it. Ms. Vitale asked if we know if it has been brought up to Code. Mr. Falk said he didn’t see anything in the building file. Ms. Vitale said that is her biggest issues, the parking and the amount of land needed to put a fourth unit in this area. She said she realizes that there are multi-family units in the area, and it’s packed through there. Mr. Currier said that Mr. Falk has a letter from March 4, 2014, from the Code Department about the additional dwelling unit, stating that the attic unit is not a habitable dwelling unit and Zoning Board of Adjustment May 12, 2015 Page 8 should not be rented out or occupied until the permit issues with the City of Nashua Building Safety Department are taken care of. Mr. Falk said that the file does not contain a copy of the building permit. He said that after any ZBA action, the applicant is required to obtain a building permit for that additional unit. Mr. Currier suggested suspending the rules to talk to the applicant. MOTION by Mr. Currier to suspend the rules to allow the applicant to answer additional questions. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Currier said the question that the Board is trying to figure out is that the applicant was here before, and asked if a building permit was obtained, in other words, the Board granted a variance for three units, and the next step is to obtain a building permit for the three units. He said that there doesn’t happen to be one in the file for the three units. He asked if the building permit was obtained for the third unit. Mr. Morillo said it was obtained, but there was some confusion, as they thought it was three, but it was actually four units, so that’s why they said we have to come back to the Zoning Board. Ms. Vitale asked if that means is there a building permit for four units. Mr. Falk said the first time they came to the Board last January, they should have come in that time requesting four units. He said that subsequently, when Code Enforcement went out there, there were four units and doing work without a permit, that was actually the fourth unit they were working on. Ms. Vitale said there is no idea how big these units are. Mr. Currier asked how big the units are in the attic. Zoning Board of Adjustment May 12, 2015 Page 9 Mr. Morillo said it’s front to back. He said the back unit is the studio, they got confused and thought it was just a room, but it has a kitchen, a bathroom. Mr. Currier asked if the studio is on the third floor. Mr. Morillo said yes, third floor, in the back. Mr. Shaw asked how many bedrooms are associated with each unit. Mr. Morillo said the one in the back, the studio, it’s all one big room. He said the one in the front has one bedroom. He said the other two units have three each. After a brief discussion, it appears as two members look to support the request, and two not supporting it. The members all wanted to see a copy of the building permit for the three units. Mr. Currier said if it is approved for four units, the owners will have to get a site plan approved by the Planning Department. MOTION by Mr. Currier to TABLE the request to the May 26, 2015 meeting, with the Board looking to review a copy of the building permit for the three units. SECONDED by Ms. Vitale. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Currier said by tabling the request, it’s working out to the owners advantage, because there is an expectation that we’ll have five members, in two weeks, it will be a Public Meeting, not a Public Hearing, and they’ll be no public testimony. POSTPONED TO 6/9/15 MEETING: 4. William M. Prizer (Owner) 378 Main Street (Sheet 2 Lot 5) requesting variance to allow a professional law office. RA Zone, Ward 7. 5. 1617 Southwood Drive, LLC (Owner) 201 Main Street Realty, Inc. (Applicant) 1617 Southwood Drive (Sheet G Lot 557) Zoning Board of Adjustment May 12, 2015 Page 10 requesting variance to allow a retail store. PI Zone, Ward 2. Voting on this case: Jack Currier Rob Shaw Kathy Vitale J.P. Boucher Attorney Gerald Prunier, Prunier & Prolman P.A., 20 Trafalgar Square, Nashua, NH. Atty. Prunier said he’s objecting to proceeding without a full Board. He passed out a handout to the Board members about the proposal. Atty. Prunier said it is a two-story office building, it used to be Sun MicroSystems, and for the past ten years, it has been vacant. He said the reason that it’s been vacant is that there is no need for office space in this area. He said the building is 48,000 square feet in size, two floors, the first floor has about 38,800 square feet, and there is about 9,600 square feet on the second floor. He said the site has great exposure on the Somerset Parkway and is easily accessible from all the surrounding roads. Atty. Prunier said it is in an area of mixed use, there are hotels, medical offices, shopping and storage facilities. He said that the proposed use is for a retail shoe store that has outgrown its existing facility. He said that customers to the shoe store come from all over the state and Massachusetts. He said that the employees have to go downstairs or up 3 flights of stairs to an adjacent building to acquire inventory. He said the proposed building would allow for much easier operations. Atty. Prunier said that there is ample parking, and better storage. He said that the Park Industrial zone does allow some retail, as long as it’s up to 25% of the building, and it has to have industrial/manufacturing uses in it. He said the office use and warehouse uses are allowed in the district. He said that they would use about 15,000-16,000 square feet in the first floor for retail, and the rest of the building would be used for storage and for office space. He went over the points of law, consistent with the application. He said in tab “A” is plan of the property. He said that there is ample parking for the use. He said in tab “B” is the use plan that shows the mix of uses in Zoning Board of Adjustment May 12, 2015 Page 11 the area. He said in tab “C” is a letter from Chet Rogers, Independent Property Appraiser, and states that the proposed use will not affect any abutting property value. He said tab “D” is a letter from Sam Tamposi, Jr., owner of an abutting property, who states that it is a good use and has no objection. He said that the Crown Plaza Hotel is a major abutter and they don’t have a problem with the proposed use. Mr. Shaw asked to confirm that 15,000 – 16,000 square feet of space would be used for retail. Atty. Prunier said that the building is 48,000 square feet, and about 35,000 square feet would be used for the warehousing, storage, and retail floor. Mr. Shaw asked what percentage of the building would be used for retail. He said he understands that if it were less than 25%, they wouldn’t be here. Atty. Prunier agreed. He said the retail floor area would be about 15,000 – 16,000 square feet. Mr. Shaw said it would be about one-third, and numbers-wise, it’s not too far off from the 25% area. Mr. Shaw asked if the applicant is going to be coming back for any sign variance requests. Atty. Prunier said that this opportunity came about very fast, and signage hasn’t been thought of completely. Mr. Currier said that the way the advertisement reads, you’d think they’re changing the whole building to retail. Atty. Prunier said that they’ll be using warehousing, storage and office too, and only one-third of the building would be the retail area. Mr. Falk said that up to 25% of the building can be used for retail uses, as long as the other 75% is used for uses listed as in the manufacturing and industrial portion of the Table of Uses. He said that all retail stores have spaces for storage, if you look at Best Buy, or Target, or a supermarket, they all have products in the back, and keep rotating their stock, he Zoning Board of Adjustment May 12, 2015 Page 12 said that the main overriding use is a shoe store, but they do happen to have a larger storage space for the shoes. SPEAKING IN FAVOR: John Koutsos, 3 East Dunstable Road, Nashua, NH. Mr. Koutsos said that their business is a full service shoe store. He said that what you see in the store is small, only 4,000 square feet, but below it is 10,000 square feet, and packed to the gills with inventory. He said that when they moved in, it was Miller’s Department Store, and it’s 45,000 square feet of space, and all of the space is taken up. Mr. Koutsos said that the ground sign has a panel for use, and there’s another one on the site as well. He said that they will be looking at the signage with an architect, and whatever is designed will be very tasteful. Mr. Koutsos said he will be purchasing the property, and plan on occupying the entire first floor, and maybe find an office tenant for the second floor, or perhaps use a small part of it for office space. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the variance request on behalf of the owner as advertised. Mr. Shaw stated that the variance is needed to enable the applicant’s proposed use of the property, he said about one-third of the space would be used for active retail floor space, with the remainder of the property to be used for warehouse, storage space and more classic PI usages. Mr. Shaw said that the request is within the spirit and intent of the ordinance. He said that one appraiser noted that it will not adversely affect the property values of surrounding parcels; it is not contrary to the public interest. He said that substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED 3-1 (Mr. Currier). Zoning Board of Adjustment May 12, 2015 Page 13 6. John J. Flatley (Owner) 15 Tara Boulevard (Sheet A Lot 995) requesting the following variances: 1) to exceed maximum ground sign height, 20 feet allowed, 60 feet proposed, and 2) to exceed maximum ground sign area, 100 sq. ft. allowed, 256 sq. ft. proposed. PI Zone, Ward 8. Voting on this case: Jack Currier Rob Shaw Kathy Vitale J.P. Boucher Attorney Gerald Prunier, Prunier & Prolman, P.A., 20 Tragalgar Square, Nashua, NH. Atty. Prunier said he’s objecting to proceeding without a full Board. He passed out a packet for the Board’s review. Atty. Prunier said this variance is proposed for the new Homewood Suites in back of the Radisson. He said that there used to be a freeway-oriented section in the Sign Ordinance which would have allowed the signage. He said that when the Ordinance was redone, this section was taken out. He said that the Radisson sign is 90 feet tall, and there are a few others like the Holiday Inn. Atty. Prunier said in tab “A”, there is a picture as you’d be travelling north showing the Radisson sign, and superimposed is the Homewood sign, and the sign proposed for this sign is 60 feet, versus their 90 foot high sign. He said that tab “C” is where the location of the sign would be on the northeasterly side of the building, and the next two pages are an email from Mr. Falk and his investigation into the history of the sign ordinance with respect to these signs, and the Radisson sign was done by right. He said that the last two show the 60 foot tall sign, and the other sign in the front of the driveway, which both of them are 256 square feet. Mr. Currier said he appreciates the digital picture renderings. He said from the picture, it looks like the sign is above the tree-line, and it stands out. Atty. Prunier said it has to be above the tree-line so that people can see it. Zoning Board of Adjustment May 12, 2015 Page 14 Mr. Currier said he’s struggling with the overall height of the sign. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Chris Tarris, representing Radisson Hotel, 11 Tara Boulevard, Nashua, NH. Steve O’Brien, representing Radisson Hotel, 11 Tara Boulevard, Nashua, NH. Ms. Tarris wanted some clarification about the proposed sign, and was given a copy of the drawings. They also wanted to see the smaller ground sign by the driveway entrance to Homewood Suites. No Rebuttal either in favor or in opposition to the request. MOTION by Mr. Shaw to approve the variance requests on behalf of the owner as advertised. Mr. Shaw stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, it is a hotel by the turnpike, and the high sign is necessary to get some visibility at the roadway. Mr. Shaw said that the request is within the spirit and intent of the ordinance. He said that it will not adversely affect the property values of surrounding parcels; it is not contrary to the public interest. He said that substantial justice is served. SECONDED by Mr. Boucher. MOTION CARRIED 3-1 (Mr. Currier). 1. Linda C. Borofsky (Owner) Peter J. Mamos/Educational Success Tutoring Services, LLC (Applicant) 24A Broad Street (Sheet 61 Lot 73) requesting variance to convert an existing tutoring business into a private high school. GI Zone, Ward 4. Zoning Board of Adjustment May 12, 2015 Page 15 Voting on this case: Jack Currier – RECUSED Rob Shaw Kathy Vitale J.P. Boucher Pete Mamos, 14 Todd Road, Nashua, NH. Mr. Mamos said he’s intending to purchase the property for his business, and sometime in the future would like to have a high-school day program, an alternative high school between 5-10 students there, for kids that need an alternative program. He said that the existing zoning district is GI, and the proposed use is not allowed. Mr. Boucher asked what the impact would be to the property itself. Mr. Mamos said that it’s currently an attorney’s office, and the volume of traffic going in and out would be the same, there wouldn’t be any difference to the neighborhood. He said that the students they have are high-school age, and there would be a high-school day program that would be the same age. He said about half of the students get dropped off, and some park there. Mr. Boucher asked if this case has to go to the Planning Board. Mr. Falk said that it hasn’t been fully determined yet, it may be an administrative review, they’re not doing any changes to the site outside of the building. He said that there were preliminary discussions about adding a couple spaces in the back. He said that they’d certainly need a building permit for the change of tenant, and should this Board approve the case, they’d have two years in which to do so. Mr. Shaw asked if there are any special circumstances that they’d need to follow, such as serving food. Mr. Mamos said that they won’t be serving food, and based upon the size of the location, that’s what it’ll be maxed out as. He said that nothing will be done to add classrooms or anything. Mr. Boucher asked about handicap access. Zoning Board of Adjustment May 12, 2015 Page 16 Mr. Mamos said it’s all set up for handicap access, and it will meet all Fire Code issues and State of New Hampshire guidelines. SPEAKING IN FAVOR: Neal Barrett, Colliers International. Mr. Barrett said that Mr. Mamos has to have a location in place before he can get all the school certifications. He said all abutters are ok with it, and it will be a nice looking site. He said any changes to the site will not even be noticeable. He said it meets the parking requirements. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Ms. Vitale to approve the variance requests on behalf of the owner as advertised. Ms. Vitale stated that the variance is needed to enable the applicant’s proposed use of the property, given the special conditions of the property, and the benefit sought by the applicant cannot be reasonably achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance, there was testimony that there would be up to ten students for more of a private high school for students in need. Ms. Vitale said that the request is within the spirit and intent of the ordinance. She said that it will not adversely affect the property values of surrounding parcels; it is not contrary to the public interest. She said that substantial justice is served. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 3-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: Zoning Board of Adjustment May 12, 2015 Page 17 The Board did not find that any of the cases have Regional Impact. MINUTES: None. Mr. Currier found out that the Mayor has nominated Ms. Vitale to go before the Personnel and Administrative Committee to be elevated to becoming a full Member, and anticipates that it will go on their June 2, 2015. He said that once Ms. Vitale is a full Member, that would be an opportune time to vote on the officers. ADJOURNMENT: Mr. Currier called the meeting closed at 8:42 p.m. Submitted by: Mr. Boucher, Clerk. CF - Taped Hearing