Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING August 11, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, August 11, 2015 at 6:30 PM in Room 208, City Hall. Gerry Reppucci conducted the meeting. Members present were: Gerry Reppucci J.P. Boucher Rob Shaw 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. 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. [TABLED FROM 5-12-15 MEETING] Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Kathy Vitale Julian Morillo, Jr. 12B Hanover Street, Nashua, NH. Mr. Morillo said that they did obtain the building permit to go from two to three units as the Board requested back in May. He said that they’ve been working with the Building Department. Mr. Reppucci asked if the building has been completely converted to the three-family. Mr. Morillo said it’s completed. Zoning Board of Adjustment August 11, 2015 Page 2 Mr. Reppucci asked if the Building Department is aware of the long term plan of putting in the fourth unit in the attic. Mr. Morillo said that they know what is proposed. Mr. Shaw said that these are not significantly large units, there is a one-bedroom unit, and a studio unit, it is a fairly low intensity but high count. Mr. Reppucci said it’s good that the City has been involved with the building permits, it’s going to be up to Code, and will be safe SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the variance application as advertised, on behalf of the owner. Mr. Reppucci said that the variances are needed to enable the applicant’s proposed use of the property, given the special conditions of the property, and the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. He said that the applicant got all their permits and inspections in order, which the Board requested in May, and they’ve satisfied them. Mr. Reppucci stated that the use will be within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it will not be contrary to the public interest, and substantial justice is served. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. 1. Redstab, LLC (Owner) Cotton Mill Square, LLC (Applicant) 36 Front Street (Sheet 78 Lot 96) requesting the following variances: 1) to allow an off-premises ground sign; and, 2) to allow a ground sign on a lot having 18 feet of frontage, where 100 feet of frontage is required. GI/MU Zone, Ward 3. Zoning Board of Adjustment August 11, 2015 Page 3 Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Kathy Vitale Attorney Morgan Hollis, Gottesman & Hollis, P,A., 39 East Pearl Street, Nashua, NH. Atty. Hollis said that the property is located in the Mixed Use District, in which you can have less than the required frontage if you have a stand-alone lot. He said that the property was divided into two parcels, one for the apartment building and the other one is vacant. He pointed out the two separate lots, shown in green and pink on the drawing. He passed out a drawing showing the lots to the Board. Atty. Hollis said the lot in green is the subject lot, and the lot in pink is the apartment lot. He said the lot in question was created with 18 feet of frontage, with a long, narrow tie to the lot in the back. He said one of the lots has 52 feet, and the other has 18 feet of frontage. He said that all the driveways are under a cross-access easement. Atty. Hollis said that when they went for site plan approval, a ground sign location was shown on the plan, and when you come down Front Street, the safest and most logical place for the sign was not at the corner when cars come in, but rather, at an inside corner, which happens to be not the lot where the apartments are located on. Atty. Hollis said it wasn’t noticed until after the fact that the sign was built, that it was on someone else’s lot, and that a permit and variances were needed, for improper frontage, and being off-premises. He said that under the Industrial zone, you are allowed to have lots than 100 feet in frontage, and in the Sign Ordinance, to have a ground sign in the Industrial zone, you must have 100 feet of frontage. Atty. Hollis went over the points of law for the variance requests. He also passed out, and read, a letter from a property appraiser, Chet Rogers, who said that the sign will not affect anyone’s property values. Mr. Reppucci asked if they put the sign up without a permit. Zoning Board of Adjustment August 11, 2015 Page 4 Atty. Hollis said that when they were building the site, they put the sign up, because they had a site plan approval which showed the sign location, and because it was under a mixed use overlay zone, and it was approved by the Planning Board, that it was all one package of approval. He said that months later, someone asked about the sign, and it was then discovered that they need the variances. Mr. Falk said that in the GB and HB zones, the zoning districts require 50 and 80 feet of lot frontage, respectively, where the sign ordinance requires 100 feet of lot frontage to allow a ground sign. SPEAKING IN FAVOR: None, other than the letter that Atty. Hollis read into the record from Chet Rogers. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the variance application as advertised, with both requests considered collectively. Mr. Shaw said that the variance is needed to enable the applicant’s proposed use of the property, there is minimal frontage in a strangely configured area, and the two lots share this driveway, and the placement of the sign wasn’t intended to be off- premises, but nonetheless happened this way, and the sign will help with direction and information. Mr. Shaw stated that the use will be within the spirit and intent of the ordinance. He said it will not adversely affect the property values of surrounding parcels, it will not be contrary to the public interest, it is not contrary to the public interest, it will help direct people to these properties, and substantial justice is served, and the limitations of frontage requirements, in this case where it’s not a highly congested area, but the lots are large with unique frontages. SECONDED by Mr. Boucher. MOTION CARRIED UNANIMOUSLY 4-0. Zoning Board of Adjustment August 11, 2015 Page 5 3. Croteau Real Estate Holdings & 256 Investment Associates, LLC (Owners) 621 & 625 Amherst Street (Sheet I Lots 1 & 25) requesting special exception to work within the 75-foot prime wetland buffer of Pennichuck Brook to consolidate and redevelop the subject lots with a new three unit retail building, parking lot, stormwater management system and related improvements. GB Zone, Ward 2. Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Kathy Vitale Attorney Morgan Hollis, Gottesman & Hollis, P.A., 39 East Pearl Street, Nashua, NH. Atty. Hollis said that there are two separate lots with two separate owners. He said that one is Brusters Ice Cream, and the other lot is a small house. He said that the intent is to tear down both buildings, combine the lots, and construct a new approximately 4,600 square foot building to house Brusters and other enterprises. He said that proposed parking for the site would be 49 spaces. Atty. Hollis said that Paul Chisholm from Keach Nordstrom & Associates, and passed out a package, stating that the first map is a locus map showing the buffer, he said that this is a request to encroach into the buffer, not the wetlands. He said that the second plan shows the existing site, colored in yellow, what’s encroaching now into the buffer. He said that the small house is an office, with a garage for storage, and those two currently encroach into the buffer zone, and nothing on the Brusters site encroaches into the buffer. Atty. Hollis said that there will be some parking that will encroach slightly, 10-12 feet, and a number of parking spaces at the lower parking level, shown on the plan. He said that he Conservation Commission has recommended approval with conditions, which will be abided by. He passed out a copy of the approval letter to the Board. He said that they also meet the nine special conditions as well, it is the best alternative to make reasonable use of the property, one which already has an existing encroachment into the buffer. He said that currently, the encroachments drain towards the Brook, which was the old style, and the new method is that everything on the parking area Zoning Board of Adjustment August 11, 2015 Page 6 will be drained towards a catch basin and into the municipal stormwater system, so all pollutants will go away from the Brook, a big improvement. He covered all the relevant points of law for a special exception. He said it will be going to the Planning Board as well. He said it will be a one-way in, one- way out traffic pattern, and there is a median strip in the street. Mr. Shaw asked about the snow storage areas, and where it will be stored. Atty. Hollis said that originally, there was going to be snow storage all behind the parking spaces. He said that the Conservation Commission asked that it be revised, and he pointed out the two revised areas on the plan, and it’s noted on the plan where the snow will be stored. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to grant approval for the special exception as advertised. Mr. Reppucci said that it is listed in the Table of Uses, Section 190-112. He said that it will not create undue traffic congestion, or unduly impair pedestrian safety. He said that it will not overload public water, drainage, or sewer, or other municipal systems. Mr. Reppucci stated that all special regulations are fulfilled, it was approved by the Conservation Commission, as indicated in their letter dated August 6, 2015, with seven stipulations of approval. He said that the use will not impair the integrity or be out of character with the neighborhood or be detrimental to the health, morals or welfare of the residents. He said for special conditions, the Conservation Commission meeting minutes are incorporated into the record. SECONDED by Ms. Vitale. MOTION CARRIED UNANIMOUSLY 4-0. Zoning Board of Adjustment August 11, 2015 Page 7 4. Christina N. & Raymond G. Presenti (Owners) 15 Fairmount Street (Sheet 62 Lot 199) requesting variance for minimum lot area, 20,760 sq.ft existing, 31,114 sq.ft required, to maintain and legitimize an existing five-unit multifamily building. RB Zone, Ward 4. Voting on this case: Gerry Reppucci Kathy Vitale Rob Shaw J.P. Boucher Raymond Presenti, 12 Shattuck Street, Nashua, NH. Mr. Presenti said that he and his daughter are the property owners. He passed out sheets 2 through 5 of Addendum “G”. He said that the variance requested is for minimum lot area,, 20,760 sq.ft existing, 31,114 sq.ft required, to maintain and legitimize an existing 5-unit multi-family building. He said it’s really about apartment #5, on the first floor. He said that the property has been assessed as a five-unit building since 2007, and prior to 1998. He said that there are no code violations, and no changed proposed to the existing conditions. Mr. Presenti pointed out the listing sheet when he bought the property, listing it as a five-unit, as shown on Sheet 5. He said it’s been financed as a five-unit multi-family building, and it has all separate utilities, with five gas meters, five electric meters and one additional house meter, and five trash containers, and there is insurance on the property for five units. Mr. Presenti said that the reason they’re here is that when applying for a building permit, there was no permit on file in the Building Department for the five units, only for four units. He said that taxes and assessments have been paid since 2007 as a five-unit building. He said that prior to 1998, it was also assessed as five units, and submitted an old assessment report showing the five units. He said it is a reasonable request with a lot of history for five units. He said that there is more than enough parking, and the neighborhood has multi-family buildings in it, so it is not out of character with the neighborhood. Zoning Board of Adjustment August 11, 2015 Page 8 Mr. Shaw said that the owner did a very thorough due diligence when he bought the property, and presented a very detailed application. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Shaw to approve the application as advertised on behalf of the owners. Mr. Shaw said that the variance is needed to enable the applicant’s proposed use of the property, the usage of the property has been in most regards recognized by the City and the Assessor’s Office and other records have been used as a five-unit property, except for that nine-year period where it was identified as converted to an office, and back again to a dwelling unit. He said that the applicant by all accounts had done sufficient research and due diligence in trying to ascertain and make sure that they were indeed buying a five- unit, and had every reason to believe that it was. He stated that the property has plenty of parking and has a history of being used as a five-unit building, and by all accounts, has worked quite well. Mr. Shaw stated that it is within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it is not contrary to the public interest, and substantial justice is served. SECONDED by Ms. Vitale. MOTION CARRIED UNANIMOUSLY 4-0. 5. Timothy Hogan & Pamela Day (Owners) 29 Sullivan Street (Sheet 61 Lot 110) requesting the following variances: 1) to exceed maximum accessory use area, 40% allowed, 58% proposed; and, 2) to maintain the 6-foot setback of an accessory structure under 12 feet in height, where 10 feet is required for an accessory structure over 12 feet in height. RA Zone, Ward 4. Zoning Board of Adjustment August 11, 2015 Page 9 Voting on this case: Gerry Reppucci Rob Shaw Kathy Vitale J.P. Boucher Tim Hogan, 29 Sullivan Street, Nashua, NH. Mr. Hogan said that they’re asking permission to increase the square footage of the garage. He said that they have a large yard, but a small house, so it’s easy to go over the 40% requirement. He said that the proposed garage is 24’x26’. He said that there are other garages in the neighborhood that are that size, and because the yard is large, there won’t be a negative effect on the green space. He said that the roof height will be right around 13 feet, meaning that they are one foot over the 12 foot rule within 10 feet of the property line. Mr. Shaw asked about the height requirement for an accessory structure, and if this had been communicated to the applicant. Mr. Falk said he believed so, and the height is measured as the mean between the eave and the ridge, whatever that midpoint value is the height. He said the setback is six feet, but the height cannot exceed 12 feet within ten feet of the setback, and after ten feet away, you can go to 20 feet high. Mr. Shaw said that the numbers for the height should be verified, because it’s a little confusing. Mr. Falk said that the language is confusing, sometimes it’s easier to draw it out. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Reppucci to approve the variance application as advertised, with both cases taken collectively. Mr. Reppucci said that the variances are needed to enable the applicant’s proposed use of the property, and the benefit sought by the Zoning Board of Adjustment August 11, 2015 Page 10 applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Reppucci stated that the use will be within the spirit and intent of the ordinance, it will not adversely affect the property values of surrounding parcels, it will not be contrary to the public interest, and substantial justice is served. SECONDED by Mr. Shaw. Mr. Shaw asked if special conditions could be added that it be a single-story structure, and not to be used for a dwelling unit. Mr. Reppucci agreed. MOTION CARRIED UNANIMOUSLY 4-0. 6. 238 Amherst Street, LLC (Owner) OKORP Associates (Applicant) 238 Amherst Street (Sheet E Lot 305) requesting variance to allow an off-premises directional sign. HB Zone, Ward 1. Voting on this case: Gerry Reppucci Rob Shaw J.P. Boucher Kathy Vitale -RECUSED Owner/applicant not present to make a presentation. A brief discussion on the location of the sign ensued. Mr. Reppucci said that the Board would like the applicant to be here to make a presentation and answer questions. Mr. Shaw said it appears as if the request is fairly straightforward, but was looking forward to some testimony by the applicant, and the Board may have some questions on the sign. Mr. Boucher said it’s best for all of us for them to be present to answer questions. Zoning Board of Adjustment August 11, 2015 Page 11 MOTION by Mr. Shaw to Table the request to a date certain, to the 8-25-15 meeting. He said that the Board would like a little bit more information regarding the specifics of the application. SECONDED by Mr. Reppucci. MOTION CARRIED UNANIMOUSLY 3-0. At this point, Ms. Vitale re-joined the Board. MISCELLANEOUS: REGIONAL IMPACT: The Board determined that there are no cases of Regional Impact. MINUTES: No action taken. Mr. Reppucci said that he’d like to discuss 9 Manchester Street, which was decided at the last meeting. MOTION by Mr. Reppucci to re-open that case for discussion, he said that the Board is within the window of time to do so. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. Mr. Reppucci said that Mr. Teeboom filed a letter asking for his recusal, a rehearing request which hasn’t even come to the Board yet. He said he answered that letter, and believed it’s proper to discuss this. Mr. Reppucci said the reason why he thinks its important tonight is that from his point of view, Mr. Teeboom has no standing in this case. He said if he waited until September 8, the rehearing request date, the window for the rehearing request would have closed, as the case was heard on July 28, 2015, and it would need to be submitted by August 26th. He said that the Boards next meeting is August 25th, so if this information were not to be discussed until then, Mr. Pierce wouldn’t have a window of time to respond, because the Board cannot be flexible on the 30-day timeframe. He said that because of that time- Zoning Board of Adjustment August 11, 2015 Page 12 frame, this is why he’d like to take the case off the table and discuss it with the Board on the public record, that in his reply he urged Mr. Teeboom to urge Mr. Pierce to get either counsel or to understand the process for a rehearing, and if he wants a rehearing on this case, then he has to file it as an abutter. He said he just wants the process to be fair and in the proper window of time. Mr. Shaw said this touches on the context of Mr. Teeboom representing Mr. Pierce, when they were here for the original case, and perhaps, if the rehearing request is coming from Mr. Teeboom at the behest of Mr. Pierce, in the representation, then it’s much like having an attorney represent you. He said he wasn’t sure of the legalities of that, with legal counsel representing a client, but in this case he thought perhaps Attorney Bennett should be consulted for an opinion. He said it’s sufficiently clear that Mr. Pierce has had Mr. Teeboom at his behalf. Mr. Reppucci said that this is strictly coming from Mr. Teeboom, like it’s his appeal, not Mr. Pierce’s. He said that Mr. Pierce is not mentioned in the letter. Mr. Shaw said that there is reason for concern, yet, this is a unique situation, and in fairness of the process and that they understand that, he agreed that somewhere along the way that that communication is coming in, and that Mr. Pierce is an abutter of standing, and perhaps the letter has an intent, but it’s just not stated, and the Board doesn’t have that certainty, and to basically prevent a technicality, it’s fine. Mr. Reppucci said that basically, he got a communication, and wanted the Board to know about it. Ms. Vitale asked what would be sent out to him. Mr. Reppucci said his response to the recusal request would go to him. Mr. Shaw said that typically, any discussions about recusals or discussions about biases are discussed amongst the Board as part of the record. He said he didn’t want to see anything, such as correspondence outside of the forum, or as part of the rehearing request, to be outside of the way we handle our business. Zoning Board of Adjustment August 11, 2015 Page 13 Mr. Reppucci said that the Board could take no action on it until our next meeting, which would give Mr. Pierce one day within the 30-day window. Mr. Falk said that staff does not advertise the rehearing request until after the 30 days are over. He said that after the window is closed, whatever applications or rehearing requests that have been submitted, they’ll go on the next, or following agenda. He said that the next meeting is August 25th, the meeting was on July 28th, with day one being July 29th. He said he thought the 30th day was August 27th, so it would be past the deadline. He said that the rehearing request would go on th the September 8 meeting agenda. Mr. Reppucci said an alternative may be, that if the Board takes a break, and he has a copy of his reply of the recusal, and a copy of the rehearing request, while the case is open before us right now, he said he can give it to everybody, that is perfectly proper, then it can go out. He said that is an option. Mr. Falk said if the Board so chooses, he said he can forward all three letters, the two from Mr. Teeboom and the one from Mr. Reppucci, to Attorney Bennett, and perhaps get a legal opinion or advice before going forward. Mr. Shaw said that his biggest concern is that the communication be something that is shared and open to the whole Board, and thought if the copies are ultimately part of the public record, as correspondence as part of our packet, it could just be the printed copy in our next agenda, and we’d have it available. He said that having the correspondence as part of the public record, makes it much cleaner for everyone involved. Mr. Reppucci asked Mr. Shaw if he’d be satisfied if all of the members of the Board get copies of the rehearing request for that case, the recusal request, and his reply to the recusal, if the members get all three of those things, would that be satisfactory that it would all be done in the light of day. Mr. Shaw said yes. Mr. Falk said he could scan the letters in and e-mail them to the members tomorrow morning. Zoning Board of Adjustment August 11, 2015 Page 14 Mr. Shaw said that is open communication. Mr. Reppucci agreed. MOTION by Mr. Reppucci to close the case. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 4-0. REHEARING REQUESTS: None. ADJOURNMENT: Mr. Reppucci called the meeting closed at 8:10 p.m. Submitted by: Mr. Boucher, Clerk. CF - Taped Hearing