Zoning Board of Adjustment

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETING December 8, 2015 A public hearing of the Zoning Board of Adjustment was held on Tuesday, December 8, 2015 at 6:30 PM in Room 208, City Hall. Gerry Reppucci, Chair Jack Currier, Vice Chair J.P. Boucher, Clerk 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. Lawrence Berger (Owner) 5 Scotia Way (Sheet C Lot 1736) requesting variance to encroach 7 feet into the 10 foot required left side yard setback to construct an attached 8’x16’ shed onto left side of garage. R9 Zone, Ward 5. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Kathy Vitale Mariellen MacKay Larry Berger, 5 Scotia Way, Nashua, NH. Mr. Berger said he built a shed, attached to the garage, and was under the assumption that since it’s less than 200 square feet in size, that a permit was not required. He said that he was building it for two days, and then got a stop work order, and learned that a variance was required because it was too close to the property line. Mr. Reppucci read a letter of support into the record from Adam Varley, at 3 Scotia Way. Mr. Berger said he spoke to both of the side yard abutters, and both of them are ok with it, and the abutter at 7 Scotia Way was Zoning Board of Adjustment December 8, 2015 Page 2 actually helping him build it. Mr. Currier asked what would be in the shed. Mr. Berger said a lawnmower, snow blower, yard tools. Ms. Vitale asked if it will be finished off to look like the house. Mr. Berger said yes, it will look the same as the house, and will all tie in. SPEAKING IN FAVOR: Mr. Reppucci read the letter into the record from Adam Varley. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: Joe Tringali, 12 MacDonald Drive, Nashua, NH. Mr. Tringali said that his house is behind. He asked if the 8’x16’ structure is going to be made any bigger on the side or in the back of it. Mr. Reppucci said that the shed that the applicant started to build will be finished off like the rest of the house, per testimony. He said that there is nothing else before the Board for this property except the proposed request. SPEAKING IN FAVOR – REBUTTAL: Mr. Berger said that nothing else is going to be built, and the only people who can see the shed are the neighbors at 7 Scotia. He said that nothing else is going to be built on the property. Mr. Currier said it’s a benefit that the finish of the shed will look just like the house, and the abutter is fine with it, also, there is enough room to maintain it to get to the back of the house, so there shouldn’t be any safety issue. Mr. Reppucci said he’d agree to it, and liked the testimony that the owner would have it sided to match the house, perhaps by the end of Spring, because right now, it looks out of place. MOTION by Mr. Currier to approve the variance application as advertised on behalf of the owner. Mr. Currier said that the Zoning Board of Adjustment December 8, 2015 Page 3 variance is needed to enable the applicant’s proposed use of the property, the special conditions of the property is that the property is like a cul-de-sac, where the property lines that widen as you go back, so the front of the lot is the thinnest part, and if you want to have an attached structure, this property has a special situation where the house is existing up front, and if you want to have an attached structure you’re right up against the property line. He said if the house were placed back some, you’d have all kinds of room. He said that you can walk around it to the left and get a vehicle around on the right. Mr. Currier said that it’s within the spirit and intent of the ordinance, is not contrary to the property values, it is not contrary to the public interest, and substantial justice is served by allowing the shed as requested. Mr. Currier said for a special condition, the shed must be promptly finished and to match the rest of the house, which is the testimony of the homeowner, by the time of the certificate of occupancy that this would be effective. Mr. Reppucci suggested the spring time, in case there is bad weather. Mr. Currier said it should be done by the end of March. SECONDED by Mrs. Vitale. MOTION CARRIED UNANIMOUSLY 5-0. 2. Jason Dionne (Owner) 110 Ridge Road (Sheet C Lot 20) requesting variance to exceed maximum accessory use area, 40% allowed, 57% existing – 63% requested, to construct an 80 square foot shed. R40 Zone, Ward 9. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Kathy Vitale Mariellen MacKay Zoning Board of Adjustment December 8, 2015 Page 4 Jason Dionne, 110 Ridge Road, Nashua, NH. Mr. Dionne said he just wants to put up an 8’x10’ pre-fab shed on the side of the yard, it’s going to be a nice looking shed. He said he’s not sure why he had to apply for a variance. Mr. Reppucci said that the Code requires that you can have a maximum of 40% of accessory space on your lot, to make sure that there are not too much of structures on a piece of property. He said that this shed will cause him to exceed it further than the 40%. He said it may be a nonconforming situation with the size of the pool. Mr. Currier asked about the location of the shed. Mr. Dionne said that there is an old foundation where a chicken coop used to be, the shed will be put there. Mr. Currier said that the lot is large, and is not overcrowded. Mr. Falk said that the house is small, and the lot is about an acre in size. He said that there is plenty of room on the lot. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Ms. Vitale to approve the variance application as advertised on behalf of the owner. Ms. Vitale said that the variance is needed to enable the applicant’s proposed use 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, due to the size of the applicants house in relation to the size of the property. Ms. Vitale said that it’s within the spirit and intent of the ordinance, is not contrary to the property values, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Currier. Zoning Board of Adjustment December 8, 2015 Page 5 MOTION CARRIED UNANIMOUSLY 5-0. 3. Haywards Ice Cream Stand, Inc. (Owner) Barlo Signs (Applicant) 7 Daniel Webster Highway (Sheet 110 Lot 32) requesting the following variances: 1) to exceed maximum ground sign area, 10 sq.ft permitted, 32 sq.ft existing – 27 sq.ft proposed; and 2) to exceed maximum height, 6 feet allowed, 11’-6” proposed – both requests to replace an existing ground sign. RA Zone, Ward 6. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Kathy Vitale Mariellen MacKay Paul Martin, Barlo Signs, Hudson, NH. Mr. Martin said that the existing sign was put up in the 1980’s, at 32 square feet in size. He said that the use has been here since the early 1940’s, and he passed around some old photographs, and there has been a sign on the site since then. He said that all of the old signs are larger than what is being requested tonight. Mr. Martin said that the proposed sign will fit in nicely with the neighborhood, and will complement the new signage that Rivier College recently installed. Mr. Currier asked what the height is of the current sign. Mr. Martin said it’s about 9 feet, versus the proposed height of 11’-6”, but the sign is a little bit smaller in area. Mr. Martin said that the signs will have gooseneck lighting shining downwards on the sign, they won’t have internal illumination. Mr. Currier asked why the sign is proposed to be a little higher. Mr. Martin said that they’ve done some landscaping in the area, and there are some bushes that will grow up around the sign. Zoning Board of Adjustment December 8, 2015 Page 6 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, with both requests considered collectively. Mr. Currier said that the variance is needed to enable the applicant’s proposed use of the property, the special conditions of the property being that it’s a long-standing sign, the business has been there a long time and pre-dates many of the homes in the area, 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. Currier said that it’s within the spirit and intent of the ordinance, the sign is actually a little bit smaller than the existing sign, it is not contrary to the property values, it is not contrary to the public interest, as it’s consistent with some of the updates in the area, especially with Rivier College, and substantial justice is served. SECONDED by Mrs. MacKay. MOTION CARRIED UNANIMOUSLY 5-0. 4. Southern New Hampshire Medical (Owner) Barlo Signs (Applicant) 17 Prospect Street (Sheet 18 Lot 4) requesting variance to exceed maximum wall sign area, 6 sq.ft allowed, 48.6 sq.ft allowed by ZBA on 11-13-12 - 56.25 sq.ft requested to replace previously approved wall sign. RC Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Kathy Vitale Mariellen MacKay Paul Martin, Barlo Signs, Hudson, NH. Mr. Martin said that a Zoning Board of Adjustment December 8, 2015 Page 7 variance was approved in the past for the existing wall sign, it was 7’-6” x 6’ wide. He said that the hospital has changed their logo, and the new sign will be 7’-6” x 7’-6”. He said the reason why they’re asking for the extra square footage is to cover up the mounting of the existing sign, the building is fairly new, and instead of seeing patch marks on the wall, the new sign could cover the whole area with the slightly larger sign. SPEAKING IN FAVOR: No one. SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS: No one. MOTION by Ms. Vitale to approve the variance application as advertised on behalf of the owner. Ms. Vitale said 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 achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. She said it is a benefit to put the new sign up without doing patch work, and the additional square footage is minor. Ms. Vitale said that it’s within the spirit and intent of the ordinance, it is not contrary to the property values, it is not contrary to the public interest, and substantial justice is served. SECONDED by Mr. Currier. MOTION CARRIED UNANIMOUSLY 5-0. 5. Ballinger Properties, LLC & BT Realty Limited Partnership, Joanne Charron and Towers Motor Parts Corporation of Nashua (Owners) 242 Main Street, 1 & 5 East Hollis Street (Sheet 31 Lots 1, 2 & 6) requesting a determination whether a material change of circumstances affecting the merits of the application has occurred, or that the application is for a use that materially differs in nature and degree from the variances denied by the ZBA on 8-26-03; and, if so, requesting the following variances: 1) to allow an Zoning Board of Adjustment December 8, 2015 Page 8 electronic changing message center sign on a portion of a new ground sign, 2) to exceed maximum ground sign height, 10 feet allowed, 24 feet proposed, 3) to exceed maximum ground sign area, 50 sq.ft allowed, 88 sq.ft proposed, 4) to exceed maximum wall sign area, 100 sq.ft allowed, 112 sq.ft proposed, 5) to allow an additional wall sign on the building, two permitted, an additional wall sign proposed for eastern façade for a total of three wall signs, and 6) to exceed maximum wall sign area, a total of 200 sq.ft allowed, 285 sq.ft proposed for all three wall signs. D-1/MU Zone, Ward 4. Voting on this case: Gerry Reppucci Jack Currier J.P. Boucher Kathy Vitale Mariellen MacKay Mr. Reppucci said that there was an application before the Board in 2003 that was denied for signage at this property. He said that the Planning Department has determined that the applicant must prove that there is a substantial change in the application before the Board proceeds. He said that the court case was the Fisher v. Dover case. Attorney John Sokul, Hinckley Allen & Snyder, P.A. Concord, NH. Atty. Sokul stated that the sign company representative hoped to be here this evening, but had another hearing in another town, and will not be able to attend. He said he’d like to request a continuance until next January. He said he could wait until then to discuss everything, or can go over just the legal issue this evening. Mr. Reppucci said that the Fisher v. Dover issue is relevant. He said he had no problem with just going over the legal matter, and table the rest of the case until January. Mr. Currier agreed, and believed that the Board can just go over the Fisher v. Dover tonight. Ms. Vitale agreed that they can do the legal matter tonight. Mr. Reppucci said that the Board is fine with Atty. Sokul just going over the Fisher v. Dover matter tonight. Zoning Board of Adjustment December 8, 2015 Page 9 Atty. Sokul submitted a letter to the Board relative to the Fisher v. Dover issue. He said that a variance was denied for this site in 2003 for both wall signs and a ground sign. He said that there are some similarities, but also many differences. He said that there is also NH Supreme Court law that says that a change in the law governing variances in between the original application and the new application can constitute a change in circumstances. He said that the variance standard has evolved since the 2003 decision. He said that in 2003 the Simplex Technologies was in effect, and in 2004 that standard was modified by the Boccia decision that created different standards for area and use variances, which was subsequently repudiated by the New Hampshire legislature in 2009, which came up with a 5-pronged standard, which is similar to the Simplex, and there has also been some New Hampshire case law that deal with sign variances that is relevant. He said that the change in law alone is sufficient. Atty. Sokul said that it’s also a completely different site, two additional properties have been added to the site, the former Charron Medical Supply, and the Asian Restaurant. He said that the building location is also different, the sign locations are all different, and the ground sign location is 180 feet further to the south. Mr. Reppucci said that his impression on the property is that there are changes, enough to justify hearing the application again. Ms. Vitale agreed, she said that with the addition of the other two properties, the change of the location of the building, the whole configuration, it’s a substantial change. Mr. Currier asked if the two old buildings were the same ones in 2003. Mr. Sokul said yes, and the buildings on those properties have been demolished. Mr. Currier asked what the old square footage was, versus the proposed square footage of the new building. Atty. Sokul said that the existing building is about 9,600 or so square feet, and the new building is proposed for 13,000 square Zoning Board of Adjustment December 8, 2015 Page 10 feet and change. He said it’ll be a bigger building. Mr. Currier asked what the square footage was for the two buildings that were demolished, and if they were equivalent. Atty. Sokul said that his understanding is that the total proposed signage that we are asking for would be less than the existing CVS site and the two buildings that were added, so there is less signage overall. Mr. Currier said that in the end, the square footage of the new structure will be about the same as the existing ones. He said that also, the proposed signage is equivalent, or less, than the three buildings that were there. Atty. Sokul said that what he’s been told is that the signage that will exist on the new CVS property, assuming the variances will be granted, will be less than the existing CVS and the signage on the two other buildings. Mr. Currier asked that whether to support a Fisher v. Dover decision, if it’s important to consider not only the particular property, but also of the neighboring properties as well, and what’s happening in the area. Atty. Sokul said that the purpose of the Fisher v. Dover ruling was to prevent Zoning Boards from having to consider repetitive applications, and a change in the neighborhood can qualify as a change in circumstances that would take it out of the Fisher v. Dover holding. He said that there has been a change in circumstances here, but it doesn’t necessarily relate to the surrounding neighborhood per se. Atty. Sokul said that another major change is that there will be direct access to the site from Medical Drive to the rear, and parking will all be to the rear. Mr. Currier said he believes that overall, there is a material change in the site. Mr. Reppucci said that if the Board votes on the legal issue, there would be a 30-day window on that decision, which will probably be beyond our next meeting date, which is January 12, 2016. He asked what would happen if someone appeals a decision should the Board supports a Fisher v. Dover determination within Zoning Board of Adjustment December 8, 2015 Page 11 the next 30 days. Mr. Currier said it would, if a request came to the Board about a rehearing within the 30 days, a valid request, the Board would have to act upon it within 30 days. Mr. Reppucci said that the request would have to come in within the next 30 days, not necessarily our action on it. He said if someone does submit for a rehearing on the Fisher v. Dover decision, we’ll consider it if it comes in. Mr. Falk said it’s certainly proper for the Board to consider just the Fisher v. Dover case, and if they want to table the dimensional variances until the first meeting in January, that’s fine. MOTION by Mr. Reppucci to re-open the Public Hearing to allow Atty. Sokul to speak SECONDED by Mrs. MacKay. MOTION CARRIED UNANIMOUSLY 5-0 Atty. Sokul said if we had the entire meeting tonight, the Board, at the beginning of the meeting, would have made a determination on the Fisher v. Dover piece, and assuming that determination came out positively, we would have continued on to the balance of the variances. He said he’d prefer that the Board make their determination, and continue the public hearing until January 12th, and not have it be a final decision by the Board. Mr. Reppucci said it could cause the Board other problems, procedurally, we may not have the same Board the next time, then, we’d have to go over this. He said that he believes that we’d be better off making a decision on this tonight, and the 30-day clock would start ticking on that piece. Atty. Sokul said he’d leave it to the Board’s good judgment. Mr. Falk said he wanted to make sure that Atty. Sokul is good with the first meeting date in January, which is January 12, 2016. Atty. Sokul said that they’d like to go as soon as possible. Zoning Board of Adjustment December 8, 2015 Page 12 Mr. Falk said it would be tabled to a date certain of January 12, 2016, the first meeting in January. Mr. Currier asked if the Board can get a full-sized plan, the one that is submitted is somewhat small to read. Mr. Falk said if we can get them by year-end, he’d make sure that the Board gets them, seven copies would be good. MOTION by Mr. Reppucci that this Board finds that there are some substantial differences in this application, and the application is fit to be heard by the Board. SECONDED by Mrs. MacKay. MOTION CARRIED UNANIMOUSLY 5-0. Mr. Currier said that he believes that the neighborhood hasn’t really had any substantial changes, but there is a substantial change on this property. He said they’re not taking a bite from the same apple here, the application is very different. Mr. Boucher agreed. He said he believes that there is a material change in the law. MOTION by Mr. Reppucci to table the dimensional variances for signage to the January 12, 2016 meeting. SECONDED by Mrs. MacKay. MOTION CARRIED UNANIMOUSLY 5-0. MISCELLANEOUS: REHEARING REQUESTS: None. REGIONAL IMPACT: No agenda. Mr. Falk said he’d email the next agenda to the Board when it becomes available. MINUTES: Zoning Board of Adjustment December 8, 2015 Page 13 None. ADJOURNMENT: Mr. Reppucci called the meeting closed at 7:45 p.m. Submitted by: Mr. Boucher, Clerk. CF - Taped Hearing