Joan Skewes addressed the issue of special
exception, explaining she had consulted with Attorney Charles Tucker regarding
two ways for special exception to be determined: 1) Special exception as
outlined in the Municipal Law Lecture Series #3 and 2) Special exception in
accordance with Kensington zoning regulations, which state the applicant
must meet all requirements.
Wesley, James, and Kevin Rosencrantz and Attorney Scott LaPointe, legal representative, presented their case to the Board. Attorney LaPointe requested to incorporate all documents from the prior hearing. He presented letters of support from the following abutters: Philip and Gloria Lariviere, 170 South Road; Nelson Seng, 183 South Road; Virginia Rudis, 185 South Road; Westley and Michael Bailey, 187 South Road; and Daniel Rosencrantz, 181 South Road. Attorney LaPointe also presented a redrafted memorandum of law, stating that this replaced the prior memorandum of law.
Attorney
LaPointe provided a history of the business and the site. The John Deere Tractor business was founded
in 1948. In 1968 there was an informal
agreement between Wesley and James Rosencrantz that Wesley’s property would be
used for storage of equipment, open houses, shows and demonstrations. Attorney LaPointe presented a photograph
depicting the storage use in 1968 explaining that in 1959 zoning rules were
established in Kensington, in 1985 residential/agricultural zoning was
established, and in 1980 Kensington adopted the Site Plan Review process. Attorney LaPointe stated he had reviewed the
Master Plan and found nothing that prohibits or discourages commercial use and
emphasized that the Rosencrantz property is portrayed in the Master Plan as an
example of non-conforming use.
Non-conforming use may be expanded if it meets criteria set down by the
Supreme Court in the case of New London Land Use Association vs. the New London
Zoning Board: 1) To what extent does
the challenged activity reflect the nature and purpose of the existing
non-conforming use? Attorney LaPointe
stated that the erection of this building to replace storage trailers to store
equipment and machinery clearly reflects the nature and purpose of the non-conforming
use with no real change. 2) 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
non-conforming use. Attorney LaPointe
reiterated that the erection of a storage building to replace the storage
trailers is clearly a continuation of the present use. 3) Does the challenged activity have a
substantially different impact on the neighborhood? He stressed that the erection of
the storage building to replace the storage trailers could not be considered a
substantially different impact on the neighborhood. In summary, the New Hampshire Supreme Court has said where there
is no substantial change in the use’s effect on the neighborhood; the land
owner will be allowed to increase the volume, intensity or frequency of the
non-conforming use. The Rosencrantzes
are basically requesting to be allowed to erect a storage building.
Attorney LaPointe argued that the Town of
Kensington Zoning Ordinance 8.3 does allow special exceptions to single family
residences unless the use would cause undo hazard. These hazards include excessive exposure to risk or peril; to the
health of the community, to the safety of the community and to property
values. He emphasized that they
presented letters from abutters who do not feel it is, and a letter from a real
estate professional who says it isn’t.
The proposed building will be replacing current storage trailers. Would this proposed use be offensive to the public due to noise? He countered that their proposal would reduce noise, vibration, and traffic and stressed that the expansion doesn’t create unsanitary conditions or an increase in odors because less equipment will be running. There would be one building rather than storage trailers and an earthen berm was built to reduce noise. He added that the Zoning Board can place restrictions on the approval and the Rosencrantzes would need to present a Site Plan Review with the Planning Board addressing lighting, traffic, etc.
Joan Skewes commented that the application is for commercial use for the John Deere Tractor Dealership and the eight acres involves more than just a building. Attorney LaPointe said the rear portion of the property would continue to be used for demonstration of equipment, open houses, etc., nothing more than done in the past. Kevin Rosencrantz stated that there are one or two open houses per year, an equipment demonstration in April and in the fall, the sponsoring of an Antique Tractor Club, a tractor pull and routine equipment customer demonstrations. They would also need to continue storing large equipment that would not fit into the storage building, such as balers and hay wagons as they have done since 1968. The primary commercial section would be approximately 150’ x 500’.
Dan Chaisson asked why they had come before the Board if the use is the same. The Rosencrantzes stated the Board of Selectmen had requested they obtain a special exception for erection of the building. They are requesting eight acres, as they would like to continue to demonstrate their equipment.
Joan Skewes opened the hearing for public comment. Christopher P. Chetsas, an abutter, explained that he had built his home in 1996. He had checked that the area was zoned residential/agricultural, built his home on the back part of his lot and enjoyed peace and quiet until the summer of 2001 when he observed the Rosencrantzes extending the commercial business onto Wesley Rosencrantz's lot. He showed a video taken January 11, 1996 scanning the lot, map 2, lot 4-10, stating it shows the back of the Rosencrantz's business building but shows no equipment at that time, but later video showing stored equipment. He emphasized that the noise issue did not start for him until the summer of 2001. He played video taped November 16, 2002 demonstrating that the earth berm is not effective for stopping noise. Video taped November 19, 2002 showed buried tires, a mechanical part and other miscellaneous debris. Video taped November 26, 2002 demonstrated tractor noise and video taped January 3, 2003 demonstrated noise that could not be identified and the backup alarm of some equipment. Mr. Chetsas requested he be allowed to submit the video for opposing evidence.
Peter Stanhope, a Certified General Appraiser/Consultant, presented a comprehensive, detailed report of his analysis stating he had been retained by Mr. Chetsas to conduct an analysis of impact with regard to the Rosencrantz’s proposal. He listed his numerous qualifications, including 35 years of experience, and stated he visited and walked the property, reviewed the town’s tax maps, etc. The two main issues are the commercial use and the 14,040 sq. ft. building, which lacks conformity with the existing area. He walked to the berm and could very audibly hear equipment running. His report states, “Based on these observations I conclude the addition of a commercial use 14,040 sq. ft. non residential improvement to the site adjacent to your property will increase the level of non conformity by the number of buildings on and density of coverage of the adjacent site. Additionally the expansion of area dedicated to commercial use and the location of the 14,040 sq. ft. non residential improvement will both be closer in proximity to your home increasing its exposure to non conforming externalities. This change in use will result in an increase in diminution of market values of any residential real estate abutting, opposite or in the immediate neighborhood of the Rosencrantz site. This relationship will increase diminution in value of your real estate if the special exception is approved.” Mr. Stanhope explained that externality is a negatively adjusted value used by appraisers. He stated that approval of this special exception by the Zoning Board of Adjustment would diminish value, but it is difficult to determine how much.
Barbara Boudreau, a resident of Osgood Road, urged the Board members to be stingy in granting a special exception as she feels it is important to preserve the rural character of Kensington.
Meriba Nadler, an abutter at 177 South Road, stated that the business is very noisy all day, starting very early in the morning.
Les Briggs, an abutter at 157 South Road, stated that he felt the video did well portraying the noise as he didn’t realize there was so much noise. He stated there is a new home to be built soon and the owners might also be concerned with the noise. He argued that the abutters providing letters of support for the Rosencrantzes live across the street. He asked the Rosencrantzes if it was absolutely necessary to have an addition to run the business and if there were any other location they have considered? Joan Skewes asked that Mr. Briggs wait for an answer until the public portion of the meeting was completed.
Jacqueline St. Cyr reported she lives in front of the Chetsas property and finds the noise has increased.
Attorney LaPointe addressed Mr. Stanhope’s Appraisal, stating that he had not stressed that the Rosencrantzes have been in business for many years and when Mr. Chetsas purchased the property, which had already been diminished, he gained because he paid less at the time due to the commercial activity already in existence. Attorney LaPointe also emphasized that Mr. Stanhope had said he could not measure the extra diminution in value, if any, because of storing equipment in the building. Attorney LaPointe also disagree with the interpretation of the zoning, since the Town allows commercial activity by way of special exception, and the erection of the building does not represent undue hazard. Attorney LaPointe said that he felt Mr. Briggs was suggesting they leave the area. Noise does exist and has since 1948 with the commercial use of farming equipment. He argued that the building would reduce noise. Kevin Rosencrantz said he felt the video tape was not a valid representation as part of it showed white snow, while the other part was video taped from the property line and zoomed in considerably. He said he couldn’t identify the humming noise, but the beep was the back up alarm, which is required by law. The building would reduce this since they currently have to spend considerable time unloading just to get one piece of equipment.
K. Clark asked what has occurred creating a dramatic change in activity. The Rosencrantzes replied that they disagreed with Mr. Chetsas, stating the activity level has remained fairly constant. James Rosencrantz said he opened another location in New Hampshire in 1996, but the equipment comes to the Kensington location. Joan Skewes commented that the record does reflect that there has been increased activity, including the Board of Selectmen minutes.
Dan Chaisson stated that a reasonable expansion or increase in activity is permissible. He added that if the land has been used as depicted in the picture, the question is where does it go? If the activity expands and then increases, this would not be consistent with the spirit of the zoning. Eight acres would more than double the available land for this expansion. He questioned if this was the end of the proposed expansion. Attorney LaPointe answered that they are only requesting to continue with what they have been doing. Dan Chaisson said adding buildings to this proposal changes the nature and the grounds upon which this application was presented. Attorney LaPointe replied that he felt the noise and the activity would be reduced. Mr. Chetsas repeated that he abuts a residential lot, and the commercial equipment and activity has spilled over illegally. Attorney Charles Tucker clarified the Board of Selectmen involvement.
Mr. Chaisson suggested putting the building on the existing site. Attorney LaPointe and the Rosencrantzes replied that they do not believe they could squeeze the building in, as it would leave them with no parking. Dan Chaisson responded that he isn’t sure all the option have been investigated and would like to see an alternative plan. John Ronan and Eric Peterson agreed. Dan Chaisson said he feels an alternative plan needs to be investigated further before the Board could go further with this matter. Dan Chaisson moved that the application be denied as presented, seconded by John Ronan. Roll call vote: John Ronan, Dan Chaisson, K. Clark and Joan Skewes in favor, Eric Peterson opposed. The motion carried. The notice of decision was signed noting reasons as: 1) other options to be explored, and 2) offensive noise.
Re-application
of Howard G. and Deborah A. Wadleigh, 4 Cottage Road, Kensington, NH, for a Special
Exception for commercial use in accordance with Article 8.3.I.A of the Zoning
Ordinance and Land Use Regulations.
Applicant is requesting to continue the use of the property for a
firewood processing operation.
Attorney Charles Tucker addressed this case explaining that the Wadleigh’s had agreed to a settlement with David Buxton, Selectman, and Joan Skewes, Chair of the Zoning Board of Adjustment, present. Joan Skewes read the following into the minutes:
CONDITIONS OF SPECIAL EXCEPTION
The
applicant will limit using it for silvaculture, cutting and splitting trees as
follows:
1.
This use would only run from September 1 through May 31;
2. Cutting with a chain saw would only occur
during Monday through Friday during the hours of 9:00 a.m. to 4:30 p.m and on
Saturday only during the hours of 10:30 a.m. to 1: 30 p.m., and not on Sunday;
3. The wood splitter; a
lawnmower size engine, would have no restrictions, except that its use would
stop the earlier of sundown or 7:00 p.m.;
4.
There would be no work whatsoever on the following holidays and their
associated weekends:
(a) Memorial Day,
(b) Labor Day,
(c) Columbus Day, and
(d) Thanksgiving
5. There would be no work whatsoever on the
following holidays only:
(a) Christmas Day,
(b) New Years Day, and
(c) Any legal holiday.
6. The owner only would
be allowed to conduct this use, with no others being allowed to use his
property in this manner and would not use any employees or independent
contractors;
7. The owner would agree to work with his neighbors not to cut on weekends
if the neighbor is having a family gathering, or similar function, as long as
he was notified beforehand.
Duncan Chambers, 7 Cottage Road, an
abutter, read from the November 6, 2001 minutes, and stressed that on December
4, 2001 and February 5, 2002, the Wadleighs were denied. He stressed that the zoning laws must be
reasonable, must show hardship, but not self inflicted. He affirmed that chain saws are very noisy.
Attorney Charles Tucker explained that
special exception does not require showing hardship. Joan Skewes said she had an opportunity to review the file at the
court and agrees with the proposal worked out.
Several abutters were in support.
John Rochwarg, 9 Cottage Road, asked if the Saturday hours could be
eliminated, but Attorney Peter Hatem replied that the Wadleighs had already
compromised on that. They are only
allowed three hours and no Sundays.
Paul Kimball moved that the document
presented with conditions negotiated at Superior court be accepted and grant
the special exception as so stated here, seconded by Eric Peterson. Roll call vote: Paul Kimball, Eric Peterson, Katherine Clark, and Joan Skewes
voted in favor. Dan Chaisson voted
opposed. The notice of decision was
signed subject to the conditions of special exception as drafted.
Approval of November 5 and 14, 2002 minutes – Paul Kimball asked to amend the minutes of November 5, 2002 by changing the word paints in the sentence, “Paul Kimball asked if lead paints were used.”, in the fourth full paragraph, to “glazes”. Paul Kimball moved to approve the minutes as amended, seconded by John Ronan with all in favor.
Paul Kimball moved to adjourn at 10:22 pm, seconded by K.
Clark with all in favor.
Respectfully submitted,
Denise Gregson
Administrative Assistant