Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING November 24, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, November 24, 2015 at 6:30 PM in Room 208, City Hall. Gerry Reppucci, Chair Jack Currier, Vice Chair J.P. Boucher, Clerk Rob Shaw Kathy Vitale Mariellen MacKay 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. Ryan Cady (Owner) 9 South Street (Sheet 35 Lot 46) requesting variance to encroach 4 feet into the 6 foot required right side yard setback and to encroach 4 feet into the 6 foot required rear yard setback to construct an 11’-6”x16’ shed. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rob Shaw Mariellen MacKay Ryan Cady, 9 South Street, Nashua, NH. Mr. Cady said he’s requesting a variance to encroach 4 feet into both the side and rear yard setbacks to construct an 11’-6”x16’ shed. He said that the application is complete, and there are pictures too. Mr. Cady said he’s a new homeowner in the City, and didn’t know he needed a permit, he said that any shed under 200 square feet in size, doesn’t need a building permit, but was unaware of the setback requirements, until the Code Enforcement Department told him. Zoning Board of Adjustment November 24, 2015 Page 2 Ms. Vitale asked if the shed is closer to any of the neighbor’s houses than his house. Mr. Cady said that it is a tight-knit neighborhood, all the abutters are ok with it, he said the lot is small, and by using a 6 foot setback, the shed would be in the middle of the back yard. Mr. Currier said that he saw several other sheds in the neighborhood that looked like they were right on the property line, it seems like it’s prevalent in the neighborhood. He said that the back yard is somewhat small. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Mr. Currier to approve the variance application as advertised on behalf of the owner. Mr. Currier said that the variance is needed to enable the applicant’s proposed use of the property, which is essentially using the back yard as its intended and keeping the shed closer to the edge. He said that the Board finds it as a reasonable benefit for the applicant to do this encroachment, and therefore this encroachment in the setback is within the spirit and intent of the ordinance. Mr. Currier said that the request is not contrary to the property values, the shed is a nice looking shed and should increase property values, and the Board finds that it is not contrary to the public interest, as there are other sheds nearby that are close to the property line, and substantial justice is served by allowing the shed as requested. SECONDED by Mr. Shaw. MOTION CARRIED UNANIMOUSLY 5-0. 2. John J. Flatley Company (Owner) Expose Sign & Graphics, Inc. (Applicant) 1 Tara Boulevard (Sheet A Lot 721) requesting variance to allow for a 44.2 square foot off-premises tenant Zoning Board of Adjustment November 24, 2015 Page 3 panel on an existing ground sign for Homewood Suites, (located at 15 Tara Boulevard). PI Zone, Ward 8. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Rob Shaw Mariellen MacKay Andrew Clark, Expose Signs & Graphics, Hopedale, MA. Mr. Clark stated that it’s an existing sign that has been out there for about twenty years. He said that they’re looking to switch the tenants on it, paint it, and make it look nicer as it’s old. He said that Homewood Suites was just built further up into the park, and the existing sign has Radisson on it, it’s also an existing off-premises sign on it. He said that the square footage and the overall structure is staying the same, it’s just a replacement of tenant panels on it to update the sign. Mr. Shaw said it looks like there would be three tenants on the sign, Bright Horizons, Radisson and Homewood Suites. Mr. Clark said that currently, it has the Radisson, the health club inside the Radisson, and the Homewood Suites would take the headline position. Mr. Reppucci stated that if the square footage of the sign isn’t being changed, why would the applicant be here. Mr. Shaw said it’s because there is a new business on the sign, the Radisson sign has always been there, and there are two more businesses going on the sign. Mr. Falk said that the reason why they’re here is that the Homewood Suites is the new hotel up on the hill, in back of the Radisson, about a half-mile away, so, it’s an off-premises sign. He said that they recently came before the Zoning Board for a large highway-oriented sign and wall signs. He said this panel is completely off-premises. Mr. Reppucci asked about the Radisson, sign, and whether that is off-premises, too. Zoning Board of Adjustment November 24, 2015 Page 4 Mr. Falk said that the Radisson portion of the sign has been on the sign for quite some time, over 20 years. Mr. Clark confirmed that the Radisson sign has been there a very long time, the name has changed from the Sheraton Tara and a couple other incantations of that name over the years, but it’s always been the Radisson hotel site. He said that the Homewood Suites sign is a completely new sign, and it’s an off-premises sign. He said that the Radisson portion of the sign is also an off-premise sign as well. Mr. Shaw said if he understands the history of this property, it used to be one entire lot many years ago when the original Tara hotel was there, subsequently, there was a subdivision of the lot to have the parcels up front. He said seemingly, there was never any action to account for the sign being off-premise. Mr. Currier said that the Radisson is stating that it’s their sign, and it’s being adjudicated in Court as he understands. Mr. Clarke said that he is not privy to the Court case issue, he said as far as he knows, the sign is completely owned by the John J. Flatley Company, it’s on their property. He said that they wouldn’t be doing anything with the sign until that issue is resolved. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Attorney Fred Coolbroth Jr., Rath, Young & Pignatelli, Concord, NH. Atty. Coolbroth said that according to the letter sent in by his firm, his client respectfully objects to the granting of this variance at this time. He stated that this sign has been the personal property of the Radisson Hotel. He said that the property under the sign has been under dispute, and is currently in litigation. He said that they’ve filed a temporary restraining order. He said that Counsel to the Flatley Corporation said that they wouldn’t be moving forward with the variance application until the litigation is resolved. He said that he feels that this request is premature, and the owners of this sign respectfully request that this Board deny the variance. Zoning Board of Adjustment November 24, 2015 Page 5 Mr. Boucher asked if the physical sign was paid for by the Radisson. Atty. Coolbroth said yes, the physical sign has always been the property of the hotel, they paid for it, they pay for the electricity, they make sure the snow in front of it gets plowed, and that has been true for thirty-five years. He said that what is in dispute is the property entrance into the land. Mr. Reppucci said that he read the entire package that was sent to the Board. He said in reading it, they didn’t really dispute that the applicant owns the sign, the argument was more that they have used it for such a long time. Atty. Coolbroth said he doesn’t believe that is the case. He said that their consistent position is that the physical sign itself is the property of the Radisson. Christine Tarris, AFPIOS Corp, Nashua, NH. Ms. Tarris said she is an employee of the hotel, and the sign has always had a history of being owned by the Radisson. She said that from the hotel’s perspective, being set off the road, the hotel attracts 60,000 people to the hotel a year, for accommodations and functions, and the sign is very important to the hotel, and don’t want to see it changed. MOTION by Mr. Reppucci to allow Atty. Coolbroth to come up to the podium for additional testimony. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Reppucci said in reading the entry to the Superior Court, he said that number 11, Thomas Flatley sought permission to erect a sign on the north side of Spitbrook Road, several feet off the road, to advertise the hotel, and in May, 1981, the City of Nashua issued a permit for construction of the sign. The sign has always been used to advertise the hotel, but it doesn’t say anything about the hotel buying the sign or owning the sign. Atty. Coolbroth said it’s just their complaint, it’s a very early Court finding, and they haven’t done any discovery yet, Zoning Board of Adjustment November 24, 2015 Page 6 it’s all very preliminary, and they certainly expect to develop the facts. Mr. Reppucci said in section 16, it says that each successive owner of the hotel has behaved as if there is an easement for the sign. Atty. Coolbroth said he believes that there is entitlement to an easement, and takes the position that the physical sign itself is our property. He said that the land that the sign is on, what are the legal and equitable rights of the hotel to use the land that the sign sits on. Mr. Currier said that Atty. Coolbroth said that they’re seeking ownership of the sign. Atty. Coolbroth said not necessarily ownership, but an easement or equitable right. Mr. Currier said that in reading the history, the sign was probably there when the property was one lot, and when it was divided, essentially it was made to be an off-premises sign, and now there is an implied easement for use of the sign on that spot. Atty. Coolbroth said that they are developing their understanding of the hotel’s rights to the land. He said that they believe it is not controversial, that the hotel owns the plastic and the metal that makes up the sign, they believe that it’s clear that the sign itself is the hotels. Mr. Currier said that if the Board approves the request, and that Atty. Coolbroth’s firm prevails in Court, wouldn’t it make the Board’s decision moot. Atty. Coolbroth said that would have to be part of their litigation posture, certainly he doesn’t know what the Judge would do, or find, so they’re taking the position that this is premature, and any decision on the variance should be deferred. Mr. Currier said he’s struggling with the decision that the Board would render. Atty. Coolbroth reiterated that they’re early in the process with the Court, and are still coming up with discovery to Zoning Board of Adjustment November 24, 2015 Page 7 request documents from the other side, as well as the same thing from us, it allows both sides to develop theories and to determine things about the sign and the property. Mr. Boucher said that the Flatley Company is not here to say anything one way or another, they’ve sent the Sign Company representative who’s doing the best job he can for the variance. He said he’s struggling with the issue of whether or not the Board is in a position to make a decision at this time. Atty. Coolbroth said the question he’d propose to the Board is if the Board denies the variance, and Flatley decides to appeal, what is to stop them from coming back before the Board and asking for the variance that they seek today. SPEAKING IN FAVOR – REBUTTAL: Mr. Clark said they were just asked to get the permit to move forward with the sign, he said that they are aware of the litigation. He asked if the variance is denied, whether they can come back before the Board again on an appeal, or if this is it. Mr. Reppucci said yes, if the Board makes a decision and denies anything, and if a similar application comes back to the Board, the Courts don’t like to see that, they like a finality to decisions, the Board would have to determine if it’s a substantially different application, or if the neighborhood has substantially changed, and if so, perhaps the Board could consider the request. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL: Ms. Tarris said that on behalf of the hotel and the company, we are here to speak in opposition to the variance. Mr. Reppucci said that the Board never looks at the content of signs, he said that there are Court decisions about this, and it’s beyond the Board’s purview of what people put on their signs. He said all the Board looks at is the actual size of the sign and the use of the sign. He said if someone changes what’s on their sign, they don’t need to come to the Board. He said this sign is the same size, they’re not making it any larger. Zoning Board of Adjustment November 24, 2015 Page 8 Mr. Shaw said that Homewood Suites has requested an off-premises sign, it’s because there is an off-premises business with advertising. He said that the Board doesn’t get into any of the design characteristics of the sign, and generally if a tenant changes over and they aren’t doing anything else, we’d never get involved. He said we would in this case because it’s off- premises. Mr. Reppucci said that the sign that’s there now is an off- premises sign. He said they’re just changing the message on it, but it’s still the same thing, he said that clearly, there will be questions on the sign, and it’s more involved because we got a 100-page document on it. Mr. Shaw said that there isn’t a question about the Radisson’s usage, they started out as an on-premises sign. Mr. Shaw said if the Radisson text stays on there, that’s been the practice for over 30 years, and now, another business is part of the equation, and if Valentino’s up the hill wanted to be on that sign also, they just couldn’t automatically do that, it’s an off-premise sign. Further discussion ensued about off-premise signs in other locations. Mr. Currier said he feels that it’s appropriate for the sign to be before the Board for an off-premises sign request, and there’s no record of the Radisson sign being before the Board for an off-premise sign. He said he appreciates that they’re not adding a second sign on the property. He said he feels that the hardship test is being dependent upon the way the Court resolves the situation. He said he feels as if the Board shouldn’t be making the first move here, we should be second, and perhaps table this, and let the Court adjudicate this first. Mr. Reppucci said that in the thick packet that was submitted by the attorneys, there is a schedule in it with deadlines for being served, and appearing in Court, with timeframes. MOTION by Mr. Currier to table the request as advertised, as what is before the Board tonight is unclear information as to who owns the sign, and it is being adjudicated in Hillsborough County Superior Court, and this Board finds it more prudent to Zoning Board of Adjustment November 24, 2015 Page 9 table this case until that is resolved, so that the hardships and situation is clearer before us. Mr. Reppucci said that the Board should table it to a date certain. Mr. Currier said if they’re not ready, we can always table it again. Mr. Falk said since it would be tabled about four months from now, staff would most likely re-advertise the case again. Mr. Currier said that the Board will table the case to the March 8, 2016 meeting, so that the clarification on the ownership of the sign can be clarified in Court, and to this Board. SECONDED by Mrs. MacKay. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: The Board did not see any cases that will have any Regional Impact for the next agenda. MINUTES: None. BY-LAWS: Mr. Boucher asked about the By-Laws revision. Mr. Reppucci said that the change was read at two successive meetings, so it’s all set. Mr. Falk said he’d get a copy of the revised By-laws out to the Board for signature. Zoning Board of Adjustment November 24, 2015 Page 10 ADJOURNMENT: Mr. Reppucci called the meeting closed at 7:53 p.m. Submitted by: Mr. Boucher, Clerk. CF - Taped Hearing