Mr. Boucher explained the Board's procedures, including ...

ZONING BOARD OF ADJUSTMENT PUBLIC HEARING AND MEETINGNovember 12, 2019

A public hearing of the Zoning Board of Adjustment was held onTuesday, November 12, 2019 at 6:30 PM in the Auditorium, 229Main Street, at City Hall.

Members in attendance were:

JP Boucher, ChairMariellen MacKay, ClerkSteve Lionel, Vice Chair

Carter Falk, Deputy Planning Manager/Zoning

Mr. Boucher explained the Board's procedures, including thepoints of law required for applicants to address relative tovariances and special exceptions. Mr. Boucher explained howtestimony will be given by applicants, those speaking in favoror in opposition to each request, as stated in the Zoning Boardof Adjustment (ZBA) By-laws. Mr. Boucher also explainedprocedures involving the timing light, as well as the projectorin front of the stage for plans to show the audience.

1. Christos P. & Denise B. Scumniotales (Owners) GC Pizza Hut(Applicant) 303 Main Street (Sheet 100 Lot 5) requesting thefollowing variances from Land Use Code Section 190-41 (B) (4 &5): 1) for minimum stacking space length, 160 feet required,86 feet proposed; and, 2) for minimum distance to drive-thruexit, minimum of 60 feet required – 31 feet proposed. D-3/MUZone, Ward 6.

POSTPONED TO THE NOVEMBER 26, 2019 MEETING.

2. RASP, LLC (Owner), Peter Dolloff (Applicant) 5 Everett Street(Sheet 85 Lot 81) requesting to amend stipulation of approvalfrom June 27, 2017 Zoning Board meeting to allow a 5-foot tallblack iron bar fence along Stevens Avenue instead of a solidstockade fence. RC Zone, Ward 4.

Voting on this case:


Zoning Board of AdjustmentNovember 12, 2019

Peter Dolloff, RASP, LLC, 2 Knightsbridge Drive, Nashua, NH.Mr. Dolloff said that when this case was originally approved,there was some concern by the neighbors on Stevens Avenue thatsome of the residents might park over on Stevens Street and goin the back door of the building, it’s a narrow street with alot of residents and driveways.

Mr. Dolloff said that they agreed to put up a stockade fence up,and showed the map indicating a dark black line with thestockade fence, which is already installed, it goes along theparking lot, along the back of the property, and ties into thebuilding, so there’s no way to get through. He said that theproposed fence is the green line on the drawing, which would bea black wrought-iron fence as opposed to a stockade fence.

Mr. Dolloff said that when they started the project, they wereunaware of a rectifier on Stevens Street. He said it is anapparatus put in by Liberty Utilities, and takes electricity andtrickles a small amount into the gas lines to prevent them fromeroding over time and rusting. He said that it is on thecorner, a couple feet off of Stevens Street, and they requireaccess to it from Stevens Street, so a stockade fence cannot bein front of it. He said if they put the stockade fence here, itwould literally run right through the bark mulch bed, seven feetfrom the building, and the windows on the first floor would notbe able to look outside.

Mr. Dolloff said that instead of the stockade fence, they wantto put in a black wrought-iron fence, and tie it into the othercorner of the building, go out to the street, and go along thestreet, so, in the end, the same goal would be achieved. Hesaid that the back door on Stevens Street does not have a knob,so there is no way to enter it from Stevens Street, you can onlyegress the building.

Mr. Dolloff said that this will be safer, as people would not beable to hide behind a fence, and will allow drivers to look atthe nice building instead of a solid fence line. He said thatthe proposed fencing is much more expensive as well. He saidthat aesthetically, it will look a lot nicer, and prevent blindspots so safety will be increased. He said that with thestockade fence, it would be a large canvas for spray-paintingand graffiti. He showed the Board some photos of the site.


SPEAKING IN FAVOR:

No one.

SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS:

No one.

Mr. Boucher said that the applicant made some really goodarguments to have the black wrought-iron fence, besides theissue of the utilities, it will look nicer and will be safer.He said that the see-through part of the fence will be better.

Mr. Lionel said he doesn’t object to it, and generally, theBoard defaults to a stockade fence for separation or privacy,but it’s not the only choice, and agrees with the applicant’schoice.

Mrs. MacKay agreed as well, for all the reasons previouslystated.

MOTION by Mr. Boucher to approve the amended request assubmitted from the June 27, 2017 ZBA meeting to allow a fivefoot tall black iron bar fence along Stevens Avenue instead of asolid stockade fence, and the applicant has submitted a plan, soit is per the submitted plan.

SECONDED by Mr. Lionel.

MOTION CARRIED UNANIMOUSLY 3-0.

3. John C. Olapurath (Owner) Benchmark Construction Consultants(Applicant) 6 Woodfield Street (Sheet B Lot 1454) requestingvariance from Land Use Code Section 190-16, Table 16-3, toencroach 8.5 feet into the 20 foot required front yard setbackto construct an attached 5’x7’ front entry portico, whereexisting house is 16.5 feet from front property line. R9Zone, Ward 9.


JP Boucher, ChairMariellen MacKay, Clerk


Steve Lionel, Vice Chair

Michael Corda, Benchmark Construction, 39 East Dunstable Road,Nashua, NH. Mr. Corda said that the setback is actually 16 feetfrom the front property line, and the proposed portico comes offthe house by five feet, so it would result in an eleven footfront yard setback. He said that the owner is also adding atwo-car garage and re-doing the whole house, however, thoseitems all meet the ordinance. He said that there are no safetyissues with the neighborhood. He said that even though thehouse is 16 feet from the front property line, the house sits 28feet from the curb. He said that they’re trying to define theentry of the house, and give it a little more character as anentrance. He said that the portico would come off the housefive feet, and it would be seven feet wide.

SPEAKING IN FAVOR:

No one.


No one.

Mr. Lionel said that several other houses in the neighborhoodhave front porticos, so it would not be out of character.

Mrs. MacKay agreed, and said that several houses had porticos oroverhangs, and it is a logical addition for the weather.

Mr. Boucher said that it’s the only house that sits this closeto the street, and the addition will fit the house.

MOTION by Mr. Lionel to approve the variance application onbehalf of the owner as advertised. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, given the special conditions ofthe property, he said that the house is pushed far forward onthe lot, and the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance.

Mr. Lionel said that the Board feels that it is within thespirit and intent of the ordinance, and the Board notes that


there are other homes in the neighborhood that have similarporches.

Mr. Lionel said that there is no indication that it wouldnegatively impact surrounding property values.

Mr. Lionel said that the request is within the public interest,and substantial justice is served.

SECONDED by Mrs. MacKay.


4. Victoria M. Horan Rev. Tr. (Owner) 4 Holly Drive (Sheet 138Lot 261) requesting variance from Land Use Code Section 190-16, Table 16-3 to encroach 4 feet into the 30 foot requiredrear yard setback to construct an attached 10’x16’ three-season porch. R9 Zone, Ward 1.



George Fillipides, 4 Holly Drive, Nashua, NH. Mr. Fillipidessaid that they are seeking a four foot variance into the 30 footsetback to add a three-season sunroom. He said that the projectoriginally started as back deck with a roof. He said that theremay have been some confusion with the front deck and back deck,and the end result ended in applying for the variance for thethree-season sunroom.

Mr. Boucher said that the Board has the pictures, andconstruction has already started, it is a one-story addition.

SPEAKING IN FAVOR:

No one.


No one.

Board members expressed support for the application.


MOTION by Mr. Boucher to approve the variance application onbehalf of the owner as advertised. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, given the special conditions ofthe property, and the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance, it is verystraightforward, the applicant has a deck and they wish toenclose it, and the incursion is very minor.

Mr. Boucher said that the Board feels that it is within thespirit and intent of the ordinance.

Mr. Boucher said that there is no indication that it wouldnegatively impact surrounding property values.

Mr. Boucher said that the request is not contrary to the publicinterest, and substantial justice is served.



5. 1987 Tamposi Limited Partnership (Owner) 57 NortheasternBoulevard (Sheet 140 Lot 68) requesting variance from Land UseCode Section 190-101, Table 101-7 to exceed maximum number ofground signs, one permitted – two proposed. PI Zone, Ward 6.



Attorney Gerald Prunier, Prunier & Prolman, 20 Trafalgar Square,Nashua, NH. Atty. Prunier said that he objects to movingforward without a full Board, and feels it’s unconstitutional tohis client’s rights.

Atty. Prunier said the property is 2.2 acres in size, zoned PI.He said that due to the size of this property, it could besubdivided into three lots, and as such, each lot could have


their own individual sign. He said that the variance is toallow two ground signs, one on the western side of the building,and another on the easterly side of the building. He said thatthe reason why they want two ground signs is that the westerlyside of the building is going to be used primarily for a bank,and the other side of the building will mostly be used forretail office space, and the main entrance to that is on theeasterly side. He said that it will help with traffic to thepublic to drive into whatever driveway they need to forservices. He said that the building is pretty much constructed,it matches the other buildings in the area.

Atty. Prunier said that the signs will not exceed the area thatis permitted in this zone, the only request is for the number ofthe signs. He said the signs will help the general public fordirection, as they’ll see the signs for where they need to go.

SPEAKING IN FAVOR:

No one.


No one.

Mrs. MacKay said it makes logical common sense to identify the uses, and didn’t see anything negative about it.

Mr. Lionel said it is fine, it’s a large building, and there aretwo distinct parking lots, and there are two independent uses ofthe building.

Mr. Boucher said that he is in support of the application.

MOTION by Mr. Lionel to approve the variance application onbehalf of the owner as advertised. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, given the special conditions ofthe property, it is a large building with two distinctentrances, and the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance.

Mr. Lionel said that the Board feels that it is within thespirit and intent of the ordinance.


Mr. Lionel said that there is no indication that it wouldnegatively impact surrounding property values.

Mr. Lionel said that the request is not contrary to the publicinterest, and substantial justice is served.



6. Nicole Giberson (Owner) 53 Blossom Street (Sheet 94 Lot 20)requesting variance from Land Use Code Section 190-16, Table16-3 for minimum land area, 4,334 sq.ft existing – 12,445sq.ft required, to convert a single-family dwelling into atwo-family dwelling. RB Zone, Ward 6.



Nicole Giberson, 53 Blossom Street, Nashua, NH. Ms. Gibersonsaid that they are requesting to convert the home from a single-family to a two-family. She said that the home is surrounded onall sides by multi-family homes. She said that the footprint ofthe house would remain the same, and the driveway provides ampleparking for four cars. She said that she values the community,and feels that the use will fit right in, and will be a welcomechange. She said that the house had a fire in July, and hasbeen out of the house since then, and now would be a goodopportunity to rebuild as a two-family. She said her short-termgoal would be to rent the property, and then occupy it when herchildren are older, since it is a two-bedroom and a one-bedroomunit.

Mr. Lionel asked what the surrounding properties are.

Mr. Jim Wagner, Elite Construction. Mr. Wagner said that theystudied the neighborhood.

Ms. Giberson said to the front, across Blossom Street, is afour-family. She said the house to the right is a two-family.She said the house to the left is a two-family, and out the


back, it is a two-family. She said that there are a few singlefamily homes on the street, but they’re mostly multi-family.

SPEAKING IN FAVOR:

No one.


No one.

Mr. Boucher said that in looking at the scope of the request, hedidn’t see any impact, and in looking at the neighborhood, thereare a lot of multi-family uses, so it does fit into theneighborhood.

Mr. Lionel said his initial impression in looking at the lot wasthat it was very small, but there are other similar sized lotsin the neighborhood that are two-family. He said it doesn’tseem to be out of character.

Mrs. MacKay said that the request is in keeping with the rest ofthe neighborhood, and no one from the neighborhood is presenttonight with concerns.

MOTION by Mr. Boucher to approve the variance application onbehalf of the owner as advertised. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, given the special conditions ofthe property, and the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance, he said that thereare many other multi-family buildings surrounding this home, andthis area of the City is predominantly small sized lots, andmany of them are lower than the minimum code sized lots, but theBoard finds that this use will fit into the character of theneighborhood.







7. NWGM Title Holding Company II (Owner) Robert Tourigny,NeighborWorks Southern New Hampshire (Applicant) 40 PineStreet (Sheet 83 Lot 80) requesting the following variancesfrom Land Use Code Section 190-16, Table 16-3: 1) to encroachup to 9.72 feet into the 10 foot required front yard setback(on Central Street); 2) to encroach up to 1.64 feet into the10 foot required front yard setback (on Pine Street); 3) foropen space, minimum of 35% required, 33.9% proposed; 4) forminimum lot area, 3,329 sq.ft existing – 6,970 sq.ft required;and, 5) variance from Land Use Code Section 190-209 (C) toallow a driveway within 50 feet of a street intersection, 40feet proposed – all requests to construct a two-familydwelling on vacant lot. RC Zone, Ward 4.



Robert Tourigny, NeighborWorks Southern New Hampshire. Mr.Tourigny said that the lot was purchased by the City of Nashuain 2010 as part of the Broad Street Parkway expansion, and in2017, the City published an RFP to sell the property to provideresidential development on the site. He said that his companyis trying to increase owner occupancy of the neighborhood, andpurchased the property from the City.

Mr. Tourigny said it took about two years to close on theproperty, as there were many right-of-way issues that needed tobe resolved and some takings, so the small lot got a littlesmaller.

Mr. Tourigny said that they want to develop it as a two-familyproperty, it would be owner-occupied with one rental unit.

Kevin Anderson, Meridian Land Services, 31 Old Nashua Road,Amherst NH. Mr. Anderson said in 2010, the property was bought


by the City, and the structure was demolished as part of theBroad Street Parkway. He said in 2017, the City issued an RFP,and NeighborWorks was awarded it in January 2018. He said inJune, 2018, the City performed a taking on the land, 237 squarefeet of right-of-way to encompass some utilities. He said inSeptember, 2019, the parcel was finally owned by NeighborWorks,and the RFP had specific requirements, which was high quality,owner occupied, a complement to the neighborhood and provide afinancial return to the City. He said that they are requestingfive variances from the Board, and pointed them out on the plan.

Mr. Anderson said that he believes that the proposal meets whatwas in the City’s RFP. He said that the applicant’s productwill be high quality, owner occupied, and the financial returnto the City.

Mr. Lionel asked who the owner would be.

Mr. Tourigny said that NeighborWorks would be the developer ofthe property, but will sell it to an owner occupant, to anindividual who will live there and be a landlord, and as of now,a new owner has not been identified. He said that there wouldbe a deed restriction on the rental unit to have the tenant rentat 80% of the median income in the area. He said that thefinancing of the property will also require that it be owneroccupied. He said that the deed restriction will outlast thefirst owner should it sell.

SPEAKING IN FAVOR:

Mr. Falk said that he is speaking on behalf of Tim Cummings,Economic Development Director, who is in favor of this request,as it will improve the neighborhood and help property values inthe area.


No one.

Mr. Lionel said that normally when he sees an application withthis many requests, it becomes skeptical, but this property hasan interesting history, and many of the issues why they are herewere created by the City. He said that the proposal is good,and will have many benefits to the neighborhood and the City.


Mr. Boucher said that he is in favor, and the driveway can onlyreally go where it is proposed. He said he is in favor of therequest.

Mrs. MacKay said that she is in favor as well, for all thereasons and testimony heard.

Mr. Boucher said that they’d consider the first four variancestogether, and then number five separately.

MOTION by Mr. Lionel to approve the variance application onbehalf of the owner as advertised. He said that this motion isfor the first four variances. He said that the Board believesthat the variance is needed to enable the applicant’s proposeduse of the property, given the special conditions of theproperty, this site has an interesting history, having beeninvolved with a taking by the City, sold back by the City, andpart of the land being taken away for right-of-way, and thebenefit sought by the applicant cannot be achieved by some othermethod reasonably feasible for the applicant to pursue, otherthan the variance.


Mr. Lionel said that this will improve the surrounding propertyvalues.

Mr. Lionel said that the request is not contrary to the publicinterest, and substantial justice is served for these fourvariances.



MOTION by Mr. Lionel to approve the variance application onbehalf of the owner as advertised. He said that this motion isfor the fifth variance for the driveway. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, the property is unusually shapedand on a corner, and there is no other place to put thedriveway, so the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance.



Mr. Lionel said that this will not impact the property values ofsurrounding parcels.




8. SAVCAM, LLC (Owner) NH #1 Rural Cellular, Inc. (Applicant) “L”Silver Drive (Sheet A Lot 993) requesting the following: 1)Special exception from Land Use Code Section 190-15, Table 15-1 (#276) to construct a 130-foot tall monopole communicationstower with an associated service truck containing radioequipment; and the following variances: 1) from Land Use CodeSection 190-38 (C)(1) to allow a setback of 23’-8” to nearestproperty line – 400 feet required; and 2) from Land Use CodeSection 190-38 (C)(2) to allow a tower within one mile of anexisting tower. GB Zone, Ward 7.



Bob Gashlin, KJK Wireless, representing US Cellular. Mr.Gashlin said that they have a site in southern Nashua, on atower in the Costco parking lot, space is leased on this towerfrom Crown Castle, and Crown Castle is losing its rights tooperate that tower, and it will be dismantled sometime inDecember or January. He said that they are therefore forced tofind another site to maintain their operations per their FCClicense.

Mr. Gashlin said that they are only looking for a temporarytower, as they don’t have time to find a permanent site, whichis a difficult and lengthy process, and that may take a year todo, as there are leases, engineering work, plans, zoning.


Mr. Gashlin said that their existing site at Costco is animportant site, as the service area is extensive, and there maybe 100,000 vehicles that meander that area per day. He saidthat it is very important that they keep operating.

Mr. Gashlin said that the proposed site is “L” Silver Drive,it’s a parking lot about 80’x140’ in size, and it’s currentlyused for overflow parking for Honey Baked Ham and the Lui LuiRestaurant. He pointed out the site location with abutting landuses. He said that for the foliage, there are many trees about55-60 feet in height, so there is a pretty significant buffer.

Mr. Gashlin said that they are planning on leasing a 50’x50’area, and within it, there will be a 30’x30’ construction fence,and within that will be the 130 foot tall tower, and the radioequipment will all be encompassed within a truck parked there.He said that they will only drop the equipment there, and therewill be no digging or impact to the parking lot. He said thatall of the equipment will be in the truck. He said that therewill be no cutting or grading on the lot, and after theequipment is gone, it will look as it does now. He said thatthey would like it to be here for 12-18 months.

Mr. Gashlin said that they have submitted a radio frequencyreport. He said on page 8, it states that by installing theproposed tower, at an antenna height of 125 feet will replacecoverage capacity needed in the targeted coverage areas,including Route 3, DW Highway, the mall and surrounding roadsand neighborhoods. He said that without the installation, USCellular will be unable to maintain their existing 4G LTEwireless communication service in this area. He said that theydid submit a balloon study in the package, it was 130 feet high,and pictures showed in five different locations where the towercould be seen. He said that the picture with the two balloonsshows one at 150 feet tall, to stabilize it.

Mr. Gashlin said that he doesn’t believe the variances arerequired, and said that they should be waivers. He said thatthe Costco tower would be removed, so that one variance would goaway. He said that the ordinance specifies that the tower mustbe 400 feet from all lot lines, or the tower’s height, whicheveris greater. He said that they believe they can get a waiver forthis, as this setback would require an 11.5 acre site.

Mrs. MacKay asked how many subscribers would this affect, if


there was no tower, and asked if they could use other carrier’stowers.

Mr. Gashlin said that carriers don’t really work with oneanother, each one has a specific license from the FCC forservice area. He said that whatever Verizon, Sprint or any ofthe other carriers do, it’s all totally separate. He pointedout the coverage drawings indicating the current coverage, ascompared to what it would look like without any coverage. Hesaid that if this is not approved, it would go from one of themost important locations to zero coverage for this area.

Mr. Lionel asked if the Costco tower is shared by AT&T andVerizon, and if so, asked what their future plans are.

Mr. Gashlin said that he does not know what they are doing, theymay have some alternate locations, and they have different FCClicenses, different operating compensities, and they havedifferent frequencies, and they have a whole different coverageperspective.

Mr. Boucher asked if they have any alternative plans.

Mr. Kenneth Kozyra, KJK Wireless. Mr. Kozyra said that they areinvestigating three or four potential solutions, nothing hasbeen decided yet. He said it can be a 12-18 month process forleasing, permitting, and constructing a tower. He said thatthis temporary tower is what they do in emergency situations inother parts of the country, as a system like the one proposedcan be up and running quickly. He said that they want to be asclose to the Costco site as they can. He said that they do nothave a license to operate in Massachusetts, so that is not anoption, as US Cellular only has licenses in New Hampshire, Maineand Vermont, no tower can physically locate in Massachusetts.

Mrs. MacKay asked if the time frame for approval can beconditioned.

Mr. Kozyra said that the Board can condition the approval, andif the time frame isn’t feasible, they’d have to come back tothe Board.

Mr. Boucher asked when their company found out about the leaseexpiring.


Mr. Kozyra said that they were told two years ago that they werenegotiating to extend it, and in October of this year, theyreceived a letter saying that Costco didn’t want to extend it,and it expires on December 15th.

Mr. Boucher asked how much noise will be made.

Mr. Kozyra said that the utility truck is air conditioned, justlike any equipment shelter is, and it’s no louder than astandard air conditioner at home. He said that the unit isfacing towards McDonalds. He said that there is a generator onthe truck, but there is no reason to deploy it unless the powergoes out.

SPEAKING IN FAVOR:

No one.


Attorney Mike Loikopino, Manchester NH. He said that he is onbehalf of PRM Properties, which owns the Pheasant RunApartments, 341 units, abutting the property, with about 600residents living there. He asked if the applicant has filed aCity-wide tower location plan, which is required by theOrdinance. He said that they object to the applicant filing fora waiver, as they received notice about only the specialexception and the two variances.

Mr. Falk said that the applicant is here only for the specialexception for the use, and the two variances as advertised, andthe Zoning Board is not here for any waivers.

Atty. Loikopino said that this application just does not makeit. He said that it does not serve the public interest, thepublic interest is twofold, the most is for public safetybecause these towers do fail, they do get fires, which is whythe special exception requires a 400 foot setback. He said thatthe proposed setback is substantially less at 28 feet, and theyhave failed to demonstrate that substantial justice has beenserved by this. He said that they have done a viewshed analysisdone from everywhere but from where the 600 City residents live,there is none from there. He said that they never even askedhis client if they could go. He said that residents would belooking directly at this tower. He said that the parking lot


and a tennis court is right in the fall zone, where if the towerwould fall, it is dangerous as people play there, and cars andother valuable property are stored in the parking lot. He saidthat there is no hardship here, there is no such thing as atemporary hardship, it should be about the land, and it seems asif this is a business problem, not a problem about whether thislot has a hardship, and all of this creates a reason to deny.

Attorney Jeff Brown, General Counsel for Princeton Properties.Atty. Brown said that Princeton owns and manages about 7,500multi-family units throughout New England. He said that thereare significant elevation changes that occur as you go up SilverDrive. He said that the tower would be at the base of the hill,it then ascends quite steeply up into the apartment area, andcontinues to ascend more steeply to the top of the hill. Hesaid that the applicant mentioned there are 60 foot trees, withplenty of buffer, however, they estimate that the trees are 30-40 feet tall. He said that the residents in the upper buildingslook down on those trees, and look down on Daniel WebsterHighway, so the foliage mentioned is really a non-factor here.He said that the tower will be in the direct sight-line to allthe residents up Silver Drive, and will have a significantimpact to these people. He said that this will also detractfrom the ability to attract and retain renters, temporary toweror not. He said that the tennis court is heavily used, and willbe negatively impacted. He said that remarkably, there is not asingle picture taken from the balloon test from the perspectiveof his clients, and what you see from the Daniel Webster Highwayis not indicative to what the residents would see in theresidential three-story buildings. He said that they didn’teven receive notice of this until last Friday.

Mr. Falk said that they noticed all the towns within therequisite 20-mile radius as required by the RSA’s, as well asall the abutters within the required time limit. He said thatafter their notices go out, they have no control of the mail.

SPEAKING IN FAVOR – REBUTTAL:

Mr. Gashlin said he, along with Mr. Kozyra would like to speak.

MOTION by Mr. Boucher to accept both of the applicants to speak.




Mr. Kozyra said that the attorney mentioned the City-wide towerplan, and in the packet there is a drawing of all the facilitiesthat US Cellular has within the City. He said that theopposition brought up the 400 foot setback, and they believe itis arbitrary and capricious, and doesn’t serve any purpose. Hesaid he doesn’t believe any of the towers in the City meet thatsetback, and it wasn’t in place back in 2011 when a tower waspermitted at 129 Ridge Road. He said he’s not sure where the400 foot setback came from, and what purpose it serves. He saidthat when they do viewshed analysis, they do not go on privateproperty, it is their policy. He said that in regards to thefall zone, they don’t fall like a tree, they typically fail at amid-point area, and the proposed monopole is made up of threepieces of steel set on top of one another, and they overlap, ifanything fails, it would fail at one of those three points. Hesaid that the diameter at the top of the tower is 18 inches ofsteel, approximately 4-5 feet including the antenna, so this onewon’t look like a typical tower, it is significantly smaller,and they’ve done everything possible to minimize its size.

Mr. Boucher asked if there is anything that is compelling theBoard to support this tower.

Mr. Kozyra said absolutely, as the FCC has mandated in theTelecommunications Act that the Board may zone for towers, andmust allow them to fill the substantial coverage gaps as best aspossible to meet the ordinance. He said if the Costco towergoes away, there will be a substantial gap over several miles inthe busiest part of the City, affecting thousands of people.

Mr. Boucher said that there are a lot of other large parkinglots nearby, and asked if other locations were considered.

Mr. Kozyra said that they checked every single parcel in thisarea of the City, some of the owners were not interested. Hesaid that the proposed lot has substantial tree growth around itto buffer it.

Mr. Boucher asked what the impacts would be to the coverage ifthis is not supported.

Mr. Kozyra showed a map of the existing coverage, and anotherone if the tower was not there. He pointed out that the green


coverage area goes to all white or yellow, meaning virtually nocoverage or very limited calls, or dropped calls. He said itwould result in huge gaps of coverage.

SPEAKING IN OPPOSITION OR WITH QUESTIONS OR CONCERNS – REBUTTAL:

Atty. Loikopino said that the applicant mentioned the FederalTelecommunications Act, and Nashua has dealt with that, byallowing towers as a special exception in every zoning district.He said that he is urging the Board to deny the request, or totable it to provide a viewshed analysis from the apartmentcomplex.

Atty. Brown said that the 400 foot setback is in the ordinance,it has to do with public safety, it is not arbitrary. He saidthat if the tower were to fall, it is very close to theirparking area and the tennis court, and the front part of abuilding. He said that the 400 foot setback is critical to themfrom a safety standpoint.

Mr. Lionel said that the applicant did not have a plan to comeup with temporary service for their customers. He said that itis clear that the tower can be seen in this area of the City.He said if this were a permanent site, this would be different,and it will be no more than 18 months. He said it is a lesserimpact than a permanent tower would be, and understands theobjections to the tower. He said that the FCC laws providecarriers to allow coverage in areas where there are substantialgaps. He said he is inclined to vote in favor of this.

Mrs. MacKay agreed, she said it’s an emergent situation. Shesaid that they had no time with respect to the other tower beinggone. She said that 18 inches in diameter at the top is prettysmall. She said it is temporary, and it can be conditioned inthe motion, and overall this is for the greater good.

Mr. Boucher said he understands the construction of the tower.He said he is concerned for the apartments.

Mr. Lionel said that they’re licensed on an 850 MHz band, anddifferent cellular companies are all licensed on differentbands. He said that what would likely happen is that theircustomers in that area would find dropped calls, maybe one barof coverage. He said that if this were a permanent towerlocation, he would say no, it’s not the right place.


Mr. Boucher asked if there were any hazards in a motion madethat would cause a problem in the future.

Mr. Falk said that the applicant mentioned an 18 month limit. Hesaid that the Board could make a stipulation that the tower bede-constructed after 18 months, or they could always come backfor additional time. He said that the site plan for Lui Lui’sRestaurant would have to be amended as well, as they would bereducing their required parking by 8 or 10 spaces.

Mr. Boucher said that he wouldn’t make a motion, but wants thetime frame stipulation made in the motion, and at the end of 18months, does not want to see anything there. He said that he isconcerned for safety.

Mrs. MacKay said that the scope is limited, it’s not somethingwe normally do.

Mr. Lionel said that this may happen again, as AT&T and Verizonalso use this tower, but maybe they have different coverages.

Mr. Boucher said that he has concerns, and is sympathetic to theabutters, and understands what the applicant is looking for.

MOTION by Mr. Lionel to approve the request on behalf of theapplicant as advertised. He said that it is listed in the Tableof Uses, Section 190-15, Table 15-1, #276.

Mr. Lionel said that the use will not create undue trafficcongestion or unduly impair pedestrian safety, as there will beno pedestrians around it, and there is sufficient fencing.

Mr. Lionel said that per testimony, it will not overload publicwater, drainage, or sewer or other municipal systems, in fact,it won’t be connected to any of those systems.

Mr. Lionel said he didn’t believe that there are any specialregulations.

Mr. Lionel said that given that this is a temporary siting, theBoard believe that it will not permanently impair the integrityor be out of character with the neighborhood, or be permanentlydetrimental to the health, safety of residents. He said it willhave a temporary visual disturbance, but the need for thetemporary tower overrides that.


Mr. Lionel said that for a special condition, at the end of 18months, that all of the equipment placed there will be removedand the site will be restored to what it looks like today.


Mr. Falk said that for future dates, there is a 30-day appealperiod starting tomorrow. He said this also has to go to thePlanning Board.

Mr. Falk suggested 18 months after final Planning Boardapproval.

Mr. Boucher suggested amending the motion that it should be 18months after final Planning Board approval.

AMENDED MOTION by Mr. Lionel that 18 months after final PlanningBoard approval, that all equipment shall be removed from thesite, and the site restored to the appearance it has today.



MOTION by Mr. Lionel to approve the variance application onbehalf of the owner as advertised, with both variancesconsidered together. He said that the one mile distance is tothe existing Costco tower site, which is being dismantled, andthis is a temporary siting which will disappear in 18 months,and finds that the Board believes the variance is needed toenable the applicant’s proposed use of the property, there arereally no special conditions of the property other than this isonly available spot in the southern part of the City that wouldwork, and the benefit sought by the applicant cannot be achievedby some other method reasonably feasible for the applicant topursue, other than the variance.

Mr. Lionel said that the Board feels that it is within thespirit and intent of the ordinance in favor of providingcellular coverage to residents of Nashua.

Mr. Lionel said that this will not permanently adversely affectthe property values of surrounding parcels.



Mr. Lionel said that the special condition is the same 18 monthcondition that was made on the special exception, in that 18months after final Planning Board approval, this area variancedisappears.

Mr. Falk said as long as this is the stipulation that was agreedupon, and the applicant brought it up, normally variances runwith the land, but the applicant proposed the time limit.



9. Robert A. McIntosh, Jr. (Owner) 15 New Street (Sheet 28 Lot15) requesting variance from Land Use Code Section 190-264 toexceed maxi mum accessory us e area, 40% permitted, 75% existing– 80% proposed, to construct a 4’x20’ addition to detachedgarage. RB Zone, Ward 7.



Robert McIntosh, 15 New Street, Nashua, NH. Mr. McIntosh saidthat the purpose of the extra four feet addition is to park alimousine from the Davis funeral home inside. He said that thebusiness operations staff changed, and there is no place to parkthe limo, and want it inside the garage.

Mr. Boucher said that the lot is pretty large.

Mr. McIntosh agreed, and it’s the last house on the street.

SPEAKING IN FAVOR:

No one.


No one.


Board members all expressed support for the application, sayingit is very straightforward.

MOTION by Mr. Boucher to approve the variance application onbehalf of the owner as advertised. He said that the Boardbelieves that the variance is needed to enable the applicant’sproposed use of the property, given the special conditions ofthe property, and the benefit sought by the applicant cannot beachieved by some other method reasonably feasible for theapplicant to pursue, other than the variance, he said that it’sthe last house on the street, it’s a large lot, and an extrafour feet on the garage is very minimal.






MISCELLANEOUS:

REHEARING REQUESTS:

BCM Environmental & Land Law, PLLC, for 1 Hardy Street, Nashua,NH.

Mr. Boucher said that before the Board gets into the rehearingrequests, he’d like to discuss them. He asked whether or notthe initial application should have even been to the Board, orif it even should have been heard. He said that it was thePlanning Department’s interpretation of the outdoor storage, andwas it germane to this application, and the question is whetheror not it should have even come to the Zoning Board. He askedif that rings a bell with anyone.

Mr. Lionel said that when the Board first heard this, he wasreally scratching his head about what we were being asked to


consider. He said the ordinance doesn’t say dog day care, itsays animal services. He said that by applying this retaildisplay section to the dog day care is just truly weird. Hesaid he was uncomfortable with the whole thing. He said that heis not sure that the Board did the right thing, and is sure thatthe Board did not do the right thing.

Mrs. MacKay agreed, she said it’s not storage, and asked if theBoard has the ability to challenge that decision. She said thatshe hopes that we do, and perhaps the right call was not made,and doesn’t think that the Board should have heard it. She saidshe didn’t think it should come here, it’s a permitted use,absolute permitted use.

Mr. Lionel said that what we’re being asked is do we want tohave another go at this. He asked if it would be the same partof the ordinance that we would vote on.

Mr. Boucher said that the Planning Department does a fantasticjob, however, sometimes the Board sees things differently. Heasked what options the Board has at this point.

Mr. Falk said that the case was advertised for the outdoorstorage, which was the closest code section we have for theoutdoor area. He said that if the Board believes that by usingthat section was not proper or erroneous or not the best fit,because it is a permitted use in the Land Use Code for thezoning district. He said that permitted uses generally gostraight to the Planning Board with a site plan. He said thathe is not an attorney, but if the Board thinks that if thatdecision wasn’t proper, that they don’t even need to come tothis Board, and can go straight to the Planning Board. He saidthat the Board has two rehearing requests, and if they areapproved, they would be back to this Board, but the question iswhat would they be coming back for, something that is notproper?

Mr. Lionel said that there are other points in their requests,though.

Mr. Falk said that the Board can still go over them, though. Hesaid that they are here for the outdoor storage, and if theBoard determines if that wasn’t the proper procedure, then it’sa moot point.


Mr. Lionel said that they would fail item #1.

Mr. Falk said that the Board can still go over the four points,and answer them. He said that for example, the first point, ifthere was a procedural error, the Board could agree that therewas a procedural error because this should not have come beforethe Board in the first place. He said that as far as theillegal decision, if the Board completely addressed the pointsof law for the variance or special exception, the Board couldsay that it is possibly not legal because they shouldn’t havebeen here in the first place. He said that for the third point,the one about new information, both the requestors of therehearings have questioned the outdoor storage, and it’sexplained in much more detail, and even the applicant questionedit. He said that for the fourth point, if there is anythingthat would or could cause the Board to make a differentdecision, the Board could say that it wasn’t proper for them tobe there in the first place.

Mr. Lionel asked that for a rehearing, is there a mechanism thatthe Board could say that this ordinance applies, and what wouldhappen.

Mr. Boucher stated that if the Board goes through the points ofthe rehearing, and agrees that it shouldn’t have come before theZoning Board, and describe why, and asked if the rehearingrequest can still be denied, and should it come back to theBoard.

Mr. Lionel said that the Board should just deny the request andthey can go to the Planning Board.

Mr. Falk said that if the requests were approved, they wouldn’tbe able to come back here for about 30 days, and they’ve alreadybeen in the process for a while, and asked what they would comeback for. He said that the rehearing requestors probably wantthis to come back to the Zoning Board but the bottom line isthat if the Board thinks that it was not proper for them to comehere in the first place, then they shouldn’t be coming backhere.

Mrs. MacKay said that the Board can deny the rehearing, it’s apermitted use and it should go straight to the Planning Board.


Mr. Lionel said that for the outcome that we want to see, whichis that this needs to go to the Planning Board and that theZoning Board should not have taken this up, that we would denythe rehearing request, and the applicant still needs to go tothe Planning Board, and the abutters have the opportunity tosupply all this information that may be pertinent to thatmeeting. He said if the Board grants the rehearing request,they are back to square one with that retail display ordinance,that really doesn’t fit, and doesn’t see the point of doingthat.

Mrs. MacKay agreed, she said that the Board should deny based onthe fact that it’s a permitted use, and belongs at the PlanningBoard.

Mr. Lionel said if there was an ordinance that was in ourpurview, that really mattered, then he would grant the rehearingrequest, because a lot of information that was not available atthe time of the previous meeting has been supplied, allegations,but would certainly want the opportunity to examine them again,but given that the only thing we were asked to rule on issomething that none of us think is applicable, then the properresponse is to deny the requests, and have them go to thePlanning Board, and the abutters can present their case to thePlanning Board.

Mr. Boucher said that the Board has the right to change ourdecisions, and change our view.

Mr. Falk said that the Land Use Code is not easy to read, it isvery complex.

Mrs. MacKay said that we are all human, and we recognize that,and we’re rectifying it.

Mr. Boucher said that they will go over the rehearing requestnow from BCM Environmental Land Law.

Mr. Boucher asked if there was any procedural error, includingimproper notice, denying someone the right to be heard, etc. Hesaid at this point, he believes that the Board shouldn’t haveheard this case under the code for the outside storage.

Mr. Lionel said that he doesn’t think that there was anyprocedural error, in that we followed the rules, we did what we


were supposed to do, and doesn’t believe that there was anyreason to think that there was any improper notice, or thatanyone was denied the right to be heard. He said his answer foritem 1 is no.

Mr. Boucher said that the procedural error was that he didn’tthink that we should have had that in front of us.

Mr. Lionel asked if it is required for all of us to say no toall four of these points to not grant the rehearing request, orcan we just write our reasons and make a motion to grant or denythe request.

Mr. Boucher said we go around to see where everyone is at, andthen a motion is made, and that’s what the final vote is, up ordown.

Mr. Lionel said that the Board shouldn’t have heard this.

Mrs. MacKay said that we should not have heard this.

Mr. Boucher agreed.

Mr. Boucher asked if it was an illegal decision, in other words,did the Board fail to completely address each of the points oflaw required for the special exception and/or variance. He saidthat if he believes that it shouldn’t have been heard, then it’snot a legal decision, and we’re just coming back correctingthat. He said the Board made a decision that doesn’t hold anywater, he said in his view it’s not illegal or binding, butdoesn’t believe we should have heard it.

Mrs. MacKay said it’s like the fruit of the poisonous treedoctrine, anything that was wrong at the inception, and anyensuing decision is based upon that first wrong issue, where wesee it, we shouldn’t have heard the case, and made decisionsbased upon what was in front of us then, now, we’re saying itwasn’t an illegal decision, but not correct.

Mr. Boucher said he feels that he made a decision that wasn’tproper.

Mr. Lionel said that the Board followed the rules, and didn’tthink that the decision the Board made was made illegally, andthat the fruit of the poisonous tree doesn’t really reflect


here. He said that we feel that we did our jobs correctly, andfollowed the law.

Mr. Boucher said that it wasn’t an illegal decision at the timewe made it.

Mr. Lionel said that the Board followed the law.

Mr. Boucher asked if the request for rehearing contain any newinformation not presented or available to the Board at theoriginal Public Hearing.

Mr. Lionel said absolutely it does.

Mr. Boucher said he believes so.

Mrs. MacKay agreed.

Mr. Boucher asked if there is anything that would/could causethe Board to make a different decision.

Mr. Lionel said yes, ignoring the fact that the Board shouldn’thave heard it in the first place, but if it had been for areason that was in our purview, given the new information thathas been presented, if substantiated, would probably have made adifferent decision.

Mrs. MacKay agreed.

Mr. Boucher said he’s on the fence with this, but it’s not goingto change his decision.

MOTION by Mr. Boucher on behalf of BCM Environmental & Land Lawregarding 1 Hardy Street as advertised to deny the rehearingrequest based upon the discussions that the Board has had onthis so far.



Mr. Boucher said that there is another rehearing for the sameowner, from Clayton and Georgette Alexander, for the case at 1Hardy Street.


Mr. Boucher said that we can refer from the same discussion.

Mr. Falk said that they brought up some different points, butthe end result will be the same.

Mr. Lionel said that his answers to the first one would apply tothe second one.

Mr. Boucher said that his answers would also apply.

Mrs. MacKay said so would hers.

MOTION by Mr. Boucher to deny the rehearing request relative tothe case at 1 Hardy Street, again, for all the discussions thatthe Board had, and for the same reasoning’s why we denied theprevious rehearing request for the same property.



MINUTES:

10-22-19:

MOTION by Mr. Boucher to approve the minutes as presented, waivethe reading, and place the minutes in the permanent file.



REGIONAL IMPACT:

The Board did not see any cases of Regional Impact for the 11-26-19 Agenda.

MEETING DATES FOR 2020:

MOTION by Mr. Boucher to approve the 2020 meeting and deadlinedates.

SECONDED by Mr. Lionel



ADJOURNMENT:

Mr. Boucher called the meeting closed at 9:44 p.m.

Submitted by: Mrs. MacKay, Clerk.

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