Town of Kensington
Minutes for Zoning Board of Adjustment
April 2, 2002 Public Hearing/Meeting
Approved May 7, 2002
Roll call: Acting Chairperson
Joan Skewes, Paul Kimball, and John Ronan - Katherine Clark arrived at 8:00 pm.
The Meeting was called to order at 7:35 pm.
1) Application of Peter Kuegel, 250 N. Haverhill Road, for an Appeal from an Administrative Decision in accordance with NH State Statutes, RSA Chapter 677. Attorney Dan Jones requested that the application be heard later in the meeting since only three Board members were in attendance. Their request was granted.
2) Application of Arthur and Carlene Wiggin, Jr., 237 Amesbury Road, for a Special Exception for a two family dwelling in accordance with Article 8.3.I.C of the Zoning Ordinance and Land Use Regulations. Mr. & Mrs. Wiggin explained that they want to make an apartment over their existing garage. Joan Skewes read the pertinent sections of Article 8.3. All requirements were met by the applicants, including lot size and road frontage. There were no abutters present. Paul Kimball moved to accept the application, seconded by John Ronan with all in favor. Joan Skewes moved to approve the application of Arthur and Carlene Wiggin, Jr., 237 Amesbury Road, Kensington, NH for a Special Exception for a two family dwelling in accordance with Article 8.3.I.C of the Zoning Ordinance and Land Use Regulations. This was seconded by John Ronan with all in favor. Approval was granted subject to Site Plan Review by the Planning Board.
3)
Application of Steven Lamb, 27 Osgood Road, for a Special Exception for a home
occupation in accordance with Article 8.3.I.B of the Zoning Ordinance and Land
Use Regulations. Mr. and Mrs. Lamb
spoke with the Board. Mr. Lamb
explained that he has an oil heating business, uses a Ryder Rental Moving Truck
for storage and does not have any employees.
Joan Skewes asked about the materials being burned and Mr. Lamb replied
he no longer does this. Joan Skewes
read the applicable requirements of Article 8.3.I.B. Abutters Peter Lenane and Steve Abiss said they had no issues
with the granting of a Special Exception.
Paul Kimball moved to accept the application, seconded by John Ronan
with all in favor. Joan Skewes moved to
approve a Special Exception for a home occupation for operation of a heating
service at 27 Osgood Road limited to one box truck, one van, and 1 pick up
truck, no hazardous material to be brought to or stored at the site, seconded
by Paul Kimball with all in favor. The
approval was granted subject to: 1)
Site Plan Review by the Planning Board, 2) Limited to one box truck, one van
and on pickup truck, 3) No hazardous materials, rags, oil, filters, or other be
brought to the site or stored at the site.
Paul Kimball felt the intent regarding the hazardous materials should be
clarified; since Mr. Lamb may on occasion service a furnace such as in the
evening and return home with a used filter, etc., which would not be a
problem. The members agreed and a note
was added to the approval, “The intent is no hazardous materials to be stored
on the site.”
Application of Peter Kuegel, 250 N. Haverhill Road – Attorney Dan Jones and applicant Peter Kuegel met with the Board to discuss an appeal to the decision by the Planning Board denying the use/operation of a rock crusher. He stated that Mr. Kuegel’s position is that bringing in a rock crusher a couple of weeks a year is an ordinary part of the gravel pit operation. The Planning Board’s decision is based on a letter from Attorney Tucker, but since they have not been able to review the letter they do not know what information Attorney Tucker might have. He has requested that they be provided with a copy of the letter, but to date they have not. Attorney Jones said he had talked with Attorney Tucker prior to the Planning Board meeting who had told him the Town was concerned that Mr. Kuegel was operating a rock crushing operation and selling crushed rock. If that is the information that was provided to Attorney Tucker, it is incorrect. Mr. Kuegel does not do this and sends anyone looking for crushed rock to Newmarket Sand and Gravel. He stated this was the problem with this case as they don’t know what the Planning Board based its decision on. If in fact that is the basis for the decision, it is essentially erroneous and Mr. Kuegel was not given an opportunity to rebut it because he did not know what the information was about. Attorney Jones explained that an ordinary part of the operation of a gravel pit is that the excess rock is crushed. He referred to the Felch pit and that there was a specific requirement that the excess stone be crushed. What Mr. Kuegel has done the last couple of years, is once a year he rents a portable rock crusher for a few days, five days, ten days, and crushes the rocks that have resulted from screening and which have been piled up.
Joan Skewes asked if operating a rock crusher was ever discussed at any of the meetings. Attorney Jones replied no, it was never brought up since it is a normal part of gravel pit operations. Joan Skewes replied that might be part of the problem, since they may have assumed it, but it was not brought to light at a public hearing that it would be used. Mr. Kuegel said he has letters that say all the material must be processed before it can leave, from both Superior Court and the Town.
Joan Skewes replied that she thought it was on a different issue, material being brought into the site. She referred to a letter detailing what issues were resolved at the Superior Court hearing, which dealt with crushed rock, but in the light of material being brought into the pit. Crushed rock was to be mixed with other material for reclamation. Unfortunately in that hearing, operating a rock crusher was never discussed.
Mr. Kuegel said he felt Attorney Tucker was led to believe that a rock crusher is set up and they are doing a crushing operation and therefore he would be right, you can’t do that. But he uses a portable crusher, which he used three days last spring and five days last fall.
Joan Skewes asked if they had gone to the Planning Board for a change of operations. Mr. Kuegel replied that there was no change, that this is normal gravel business as all gravel is spec’d according to the Department of Transportation’s specification list. In order to do that, there is a certain percentage of fractured rock that must be crushed. Attorney Jones interjected at this time stating that anyone operating a gravel pit has a rock crusher come in a couple of times a year to break up the cobbles. Mr. Kuegel stated this was on site rock.
Joan Skewes said you’re operating a gravel pit and then a rock crusher and perhaps the Planning Board was unaware that the rock crusher activity was going to be involved in the operation of the gravel pit because it was never discussed. Attorney Jones explained that other items, such as screening gravel, were also not discussed, as they are part of the day to day operation and members of the Planning Board have inspected the pit and seen the pile of rocks.
Joan Skewes said the purpose of the meeting was not to reargue the gravel pit operations. She referred to the agreement from Superior Court, which Attorney Jones said was not about the operation of the gravel pit, but about grandfathered rights, which the Court had decided it was. He further explained that all materials must be processed.
Mr. Kuegel stated that he thought it’s a misunderstanding, but could not discuss with the Planning Board and had to come to the Zoning Board of Adjustment. Joan Skewes said she felt he was exercising his right to appeal the Planning Board decision.
Paul Kimball said he had visited the site and felt the rock crushing appeared to be a normal part of the operation for processing gravel.
Abutter Carl Hayden said the first time he heard the rock crusher was in 2000 and if this is a usual part of the operations, why not before? He said he has lived there ten years before hearing a rock crusher.
Abutter Peter Lenane disagreed with the amount of days the rock crusher has been used.
Attorney Jones said the decision was done without a hearing or input from Mr. Kuegel, and appears to be based on incorrect information.
K. Clark read a section from the Jan. 6, 2000 Planning Board minutes that stated “he would do his processing with the loaders for now.” She felt this indicated there was discussion of processing. Joan Skewes reiterated that this referred to the issue of bringing in material and mixing it for reclamation vs. selling the material. Mr. Kuegel said this is not the current issue, which is crushing his own rocks.
Paul Kimball moved that Mr. Kuegel be granted a rehearing by the Planning Board. There was no second. Paul Kimball moved that Mr. Kuegel be allowed to crush his own rock materials on a temporary basis ten days, once a year. There was no second.
Joan Skewes moved to deny the application for rehearing, seconded by John Ronan. Skewes, Clark and Ronan voted in favor, Kimball was opposed. Motion carried. Subject to reasons read, “Crushing of any materials with any mechanical device was never approved by the Planning Board and shall immediately cease as ruled by the Planning Board in the February 8, 2002 letter to Peter Kuegel.”
Attorney Jones requested the record show based upon statute that good reason was not shown in the motion. He also requested a copy of the confidential letter, which Joan Skewes stated she did not have the authority to release.
Paul Kimball made a motion for reconsideration of the vote; however, Joan Skewes stated the vote had been taken. Mr. Kimball also added that the applicant was not given the opportunity to respond to any of the allegations or to present his case prior to the vote of the Planning Board. He felt this was not discussed. Mr. Kuegel stated this was a fact and felt that in accordance with Robert’s Rules he should be allowed to state his case. After the second he should have had a chance to discuss. K. Clark explained that the discussion is relevant to the motion and second.
Approval of February 5, 2002
minutes – Paul Kimball moved to
accept the minutes as distributed, seconded by Joan Skewes with all in favor.
Paul
Kimball moved to adjourn at 9:50 pm, seconded by Joan Skewes with all in favor.
Denise
Gregson
Administrative
Assistant