Town of Kensington
Zoning Board of Adjustment Minutes
October 1, 2002 Public Hearing/Meeting
Amended and
approved November 5, 2002
Roll
call: Chairman Joan Skewes, Paul Kimball, and Eric Peterson
The Meeting was called to order at 7:48 pm.
1. Continuation of the application of Wesley Rosencrantz, Route 107, Kensington, NH for a Special Exception for commercial use in accordance with Article 8.4.I.A of the Zoning Ordinance and Land Use Regulations. Applicant is requesting to use the property for the existing John Deere Tractor dealership.
Wesley, Kevin, and James Rosencrantz,
accompanied by Attorney Scott LaPointe, presented a “Memorandum of Law and Fact
In Support of the Application for Special Exception, Wesley
Rosencrantz/Rosencrantz & Sons” he had prepared and a letter from Mr.
Hennessey, a real estate broker, who had done an appraisal around 1980 when the
business was already well established, and a picture showing commercial use
from around 1966. Chairman Skewes
offered the applicants the opportunity to postpone since there were only three
Board members in attendance, but the applicants requested to proceed. Joan Skewes explained that Board members had
walked the site September 8, 2002, but no determinations were made at that
time. Essentially the Board had
observed, with the Rosencrantzs and abutters giving testimony.
Attorney LaPointe addressed two
issues. The first was non-conforming
use, explaining that the business opened in 1948 and by agreement within the
family, the property of Wesley Rosencrantz has been used continuously by the
Rosencrantz John Deere dealership since approximately 1968. James Rosencrantz’s use has been over 30
years, thus it predates zoning and the storage of equipment is continuous and
ongoing. The purpose of the storage
building is to store the equipment, much of which is outside. Currently there are thirteen trailers being
used for storage and these would be removed once the building is erected. He emphasized that very large equipment,
such as hay wagons, etc., would continue to be stored outside as they would be
too large for the storage building.
The second issue was the special
exception. Attorney LaPointe read from
Article 8.4 I of the Zoning Ordinance and Land Use Regulations, “…no use will
be permitted which could cause any undue hazards to health, safety or property
values or which is offensive to the public because of noise, vibration,
excessive traffic, unsanitary condition, noxious odor, smoke or other similar
reasons.” He discussed each
restriction, explaining how it did not apply to this situation. He referred to Mr. Hennessey’s letter, whose
letter read in part: …”It is my opinion
that Mr. Rosencrantz’s construction of the building and its use to store his
equipment and his other related business activities around that building would
in no way cause any diminution in value to surrounding properties. I should point out that diminution, if any,
to surrounding properties would already be in place due to the existing
business and the addition proposed would in no way add any further diminution
or other negative impact in the sale or marketing of surrounding
properties.” Attorney LaPointe detailed
that a special berm has been built to address the issue of noise and summarized
that the applicants meet the criteria for the special exception; adding that
the courts have allowed non-conforming uses to expand. In response to a question, he answered that
there is no set Supreme Court case that talks about the percentage of
expansion.
Joan Skewes read from the municipal
book, “The Board of Adjustment in New Hampshire”, August 2001 edition, pages 21
and 22, “A legal test for expansion of nonconforming uses has been established
by the NH Supreme Court from cases such as New London Land Use Assoc. v. New
London Zoning Board, 130 N.H. 510 (1988).
In reviewing whether a particular activity is protected as within the
existing nonconforming use, the following factors, or tests, must be
considered:
·
To what extent does the challenged activity reflect the
nature and purpose of the existing nonconforming use;
·
Is the challenged activity merely a different manner of
utilizing the same use or does it constitute a use different in character,
nature and kind from the nonconforming use; and
·
Does the challenged activity have a substantially different
impact on the neighborhood.
Attorney LaPointe replied that the
applicants would basically be storing items inside the storage building rather
than outside and the use would remain essentially the same. Joan Skewes stated that the Board had heard
testimony regarding noise and traffic and asked how it could be done so as not
to impact the neighborhood. Attorney
LaPointe said he was not sure the activity would be more, since basically it is
the same use and level of activity.
Kevin Rosencrantz explained that the
procedure now requires a good deal of activity since the equipment requires
being moved twice. The new building
would allow direct storage of equipment, thus reducing activity. Their plans for the future include attaching
the building, which would further reduce the activity and provide for greater
safety. He added they had addressed the
lighting issue by changing to lamps that reflect down rather than out. Eric Peterson commented that as stated, it
appeared there would be some diminished activity.
Joan Skewes commented that the plan was
not complete and asked where the loading docks are located. Kevin and James Rosencrantz detailed the
current docking situation and Chairman Skewes requested the details be added to
the plan. Attorney LaPointe said this
would be done during the Site Plan Review process.
Paul Kimball commented that he felt the
land has been shown to have been used and this is a continuing use. Eric Peterson said he had read the minutes
and comments from the abutters and assured everyone that the Board listens to
the impact to abutters.
Chairman Skewes opened the hearing to
the public. Chris Chetsas presented a
letter he had prepared to the Board detailing his objections. He reiterated that the current use by the
Rosencrantzs has impacted his property.
He emphasized that seven years ago there were no problems; the problems
began approximately a year and half ago.
He read excerpts from the Master Plan and stated he has a 1996 video of
his property showing no trailers or equipment.
He again stated to the Board that the property doesn’t have 250 feet of
frontage. He presented pictures showing
hazardous waste in the berm and added that the berm won’t stop noise. He acknowledged that the Rosencrantzs might
have used the property a little, but not with all the equipment they have now
and emphasized that they are operating illegally on this lot. He added that the current storage building
was built in the right of way and is too close to his lot line. Also, the zoning law clearly states that
there has to be vegetation and trees, not just a dirt berm. He stated that the Supreme Court had
overruled the lower court judgment in New London Land Use Association v. New
London, which had granted a special exception for continuation of a
nonconforming use. This was appealed by
an abutter. The Supreme Court with
regard to the nonconforming use related to the commercial operation in a residential
district that enlargement or expansion may not be substantial.
James St. Cyr said he talked to the
realtor who sold him his home and he had told him that if the business expands,
it could have a detrimental impact on his property value.
B. Boudreau explained that the Master
Plan says to be more stringent with special exceptions and she is worried that
people will move out. She also
expressed concerns with the decision since only two members sitting on
tonight’s Board attended the site walk.
Kevin Rosencrantz asked to view the
photos provided by Mr. Chetsas. He
explained that the pictures were of an area they had cleaned up and stressed
that the tires have been removed. He
also argued that there is no hazardous material in the berm. He said he would check tomorrow to see if
there is any remaining material. He
also offered to remove the berm if the Board prefers. Mr. Chetsas responded that the material is all through the berm
and he would rather see residential homes than the business.
Paul Kimball commented that the picture
shows continuing use. Eric Peterson
commented that testimony has been given that there has been increased activity
for a year and a half and also thirty to forty years, which is quite a gap for
the Board to consider. Joan Skewes
asked if the Rosencrantzs could validate or verify the early use. Kevin Rosencrantz replied that Paul Kimball
had been in town for a long time and could verify the fact. James Rosencrantz stated that they got out
of the industrial business in 1971 and started with John Deere. Joan Skewes asked how long the trailers have
been there; could they produce receipts.
Mr. Chetsas stated he felt Paul Kimball should step down since he
appears to be friends with the Rosencrantzs.
Attorney LaPointe clarified that the proposed use meets the criteria for
a special exception.
Paul Kimball motioned that the special
exception be granted, with the particular conditions involved with it, that the
land comes under the ownership of the Rosencrantz business and additional trees
be planted on top of the berm to intensify the sound barrier. Eric Peterson asked if the Board had
addressed the issue of frontage as being part of a subsequent process? Joan Skewes replied that it was her
understanding that if the special exception was granted they would have to go
through subdivision through the Planning Board and then abandon the lot
line. Eric Peterson seconded, adding
that with testimony that the property has been used for this activity for a
great number of years, there should be restrictions on it. There were two votes in favor, with Joan Skewes
voting opposed.
Conditions were placed on the property
as follows:
1.
Property to be owned by James Rosencrantz following
subdivision and site plan approval required by the Planning Board.
2.
Vegetated berm suitable for sound barrier.
3.
Storage of equipment outside limited to three contiguous
acres. Remaining land for equipment
demonstrations and events of present Wesley Rosencrantz.
Eric Peterson explained that he voted on
the continuing use being improved by a better process, not an expansion, and
Joan Skewes added that the proposed building was granted tonight to clean up a
bad situation and improve the process without any commercial expansion. Any changes must be brought back to the
Board.
2. Application of William and Brenda Rand, Jr., 42 Cottage Road, Kensington, NH, for a variance from provisions in Article 8.3, Section III.A. Variance requests allowing a porch to be located less than 25 feet from the property line as required by Zoning Ordinance and Land Use Regulations.
The Rands explained they are requesting a variance to build a porch 22 feet from the lot line. The abutters, William and Lyn Peterson Fiske, were present and explained that they had no objections. They had also submitted a letter expressing this.
Eric Peterson motioned to grant the application for variance, seconded by Paul Kimball with all in favor.
Approval
of September 3 and 8, 2002 minutes – The members elected to postpone this until
more members who had been in attendance during those meeting were present.
Joan
Skewes moved to adjourn at 9:55 pm, seconded by Paul Kimball with all in favor.
Denise Gregson
Administrative Assistant