Town of Kensington

Zoning Board or Adjustment Minutes

April 1, 2003 Public Hearing/Meeting

Approved May 6, 2003

Roll call: Joan Skewes, Dan Chaisson, Katherine Clark, Paul Kimball, Eric Peterson and John Ronan.

The meeting was called to order at 7:33 p.m.

1) Continuation of the application for Appeal from an Administrative Decision. ArcSource, Inc. is appealing the Kensington Planning Board’s November 7, 2002 decision denying Site Plan Review approval, finding that the proposed usage did not conform to the intent of Articles 9 II.6, III.4 and III.5 of Chapter II of the Zoning Ordinance and Land Use Regulations.

Attorney Craig Solomon, representing the applicant ArcSource, Inc. and the property owner, Katim, Inc, introduced Steve Nichols, Wayne Morrill of Jones & Beach Engineers, Inc., and Dennis Francoeur, Jr. an Environmental Health & Safety consultant of RPF Associates, Inc., whose resume was presented to the Board. Attorney Salomon presented a factual presentation that related to both the appeal from the Planning Board and the variance.

Wayne Morrill presented the site plan consisting of 14.5 acres situated at the corner of Rte. 107 and Rte. 150. The plan includes a metal prefab 26,400 sq. ft. building with 5,000 sq. ft. reserved for retail, north end truck dock, tanks and pipes to tanks inside at the rear of the building, and parking. The remainder of the land will be undeveloped. He reviewed the entrance configuration as determined by the Department of Transportation, including a 10 foot deceleration lane. Behind the building will be a 6 foot high chain link fence. Oxygen, nitrous oxide, helium, argon, nitrogen and carbon dioxide will be stored along the back wall of the building with a firewall and sprinkler system designed for both the inside and the outside, propane will be stored underground and there will be a 30,000 gallon fire cistern. The building will have textured cinder block construction for the gases to be permanently vented. Septic approval and Site Specific approval have been received from the Department of Environmental Services, and the Department of Transportation is waiting for final review from the Planning Board and the Zoning Board of Adjustment before issuing the permit.

Dennis Francoeur of RPF Associates explained he has been doing Health and Safety consulting since 1985, dealing primarily with OSHA compliance and with facilities that use, store or deal with these gases. He emphasized that since the definitions for flammable, hazardous and explosive are not in the Town’s ordinance, he referred to definitions and ratings done by the Department of Transportation (DOT) Hazardous Materials classification, MSDS data sheets and the National Fire Protection Agency (NFPA). He presented a fact sheet to the Board and displayed an enlarged copy for the public of various ratings for each of the gases. Under NFPA guidelines using a rating of 0-4, all are 0-2 with the exception of acetylene and Maap gas, which were 4. Flammability was 0, except for propane, hydrogen, acetylene and Maap gas, which were 4. He acknowledged these four gases have a potential to explode, but added that the most likely occurrence would be a leak and the gas would escape and dissipate into the environment. He referred the Board to the Department of Transportation’s guide book, 49CFR172.101 (Code of Federal Regulations).

Mr. Nichols explained that the product would be coming on trucks and then the tanks in the back of the building would be filled. He added that the acetylene, hydrogen and Maap gases would be delivered already in cylinders. Reactivity was discussed, with Mr. Francoeur explaining that some of the gases can be corrosive to some metals, but not explosive.

Attorney Solomon summarized by explaining that the Planning Board refused to accept jurisdiction over this site plan due to three sections of the ordinance, stressing that the state permits have been received and the Town’s engineering review has been done. Section 9.II.6 permits light industry, conditioned upon not whether something might burn, but rather whether it is an unreasonable hazard. Section 9.III.4 restricts the production or storage of hazardous materials, however the flammable gases, propane, hydrogen, acetylene and maap will be either stored underground or inside, and even the filling of the tanks will be inside the building. He reiterated that as Mr. Morrill had stated, safety precautions have been built in with the part of the building containing the gases having reinforced walls, and venting to the outside. The tanks are separated from the driving area, the chain link fence provides protection from vandals and there are barriers protecting the gases against a vehicle that might get out of control. On the issue of fire hazard, there are some gases that under highly unusual circumstances could burn, but precautions have been taken to minimize the risk. Since the ordinance does not define the terms hazardous or explosive materials, they have used the Federal Regulations for hazardous materials and the Department of Transportation’s ranking. None of these gases are classified as hazardous to human health; however, if a cylinder were to rupture, the gases could escape very quickly and injure someone in the immediate vicinity, but not the public, as the gases would dissipate. He continued that the Planning Board found an unreasonable risk of fire, yet the first six items are not even flammable. The Planning Board found that some of these were explosive, yet the Department of Transportation says no. With regard to hazardous, none are hazardous to human health. If there is a fire, they have a fire suppression system, a fire wall to protect anything outside the building from those flammable gases with the exception of propane, which is buried, a sprinkler system and the flammable gases are separated by the fire wall from anything that might accelerate a fire, such as oxygen which is stored far away from the propane. Attorney Salomon stressed that a property owner has the right to use his property as he sees fit unless there is a reasonable regulation controlling or prohibiting it. The word reasonableness has to be applied to any zoning ordinance and they feel the Planning Board should accept jurisdiction over the following non flammable gases; air, oxygen, nitrous oxide, helium, nitrogen, carbon dioxide and argon, as well as the remainder of the site plan.

The public was invited to speak, with numerous residents participating. Diane Chigas of Stumpfield Road stated she had consulted the NFPA ratings and argon, helium, hydrogen, oxygen, nitrogen and nitrous oxide are liquefied and according to the MSDS and the NFPA, they are labeled as #3 for health hazard; an explosion could cause serious temporary or residual injury. She argued that Mr. Nichols had said the gases were not hazardous to health, but they are listed on the hazardous material table from the Department of Transportation. She read the definition of hazardous substances used by FEMA, and presented a photograph of an ArcSource truck with a red hazardous sign. Ms. Chigas added that in the CFR all the gases are flammable because they are compressed. Mr. Francoeur replied that the 3 rating is primarily dealing with responders to a chemical spill, workers working in a fire scenario and from a health standpoint, air and oxygen are vital to life. It also deals with frostbite since some of the gases in a liquid state can be very cold. These issues would apply more to workers, not the public.

Ken Cohen, Amesbury Road, asked about the BTU potential, and cascade effect? If there were an explosion, what would be the bomb equivalent since the canisters could become shrapnel? Mr. Francoeur pointed out that hazardous materials are used everyday, such as propane for heat and gasoline for automobiles. He stressed that some of the gases would suppress a fire, and those are placed between the accelerant gases. Mr. Nichols explained that the volumes of the gases that would be stored are: propane at 4,000 gallons; oxygen, nitrogen and argon would be 6,000 gallons; nitrous oxide would be 14 tons and carbon dioxide 31 tons. Dan Chaisson asked about the number of canisters of hydrogen, acetylene and Mapp on site at any one time. Mr. Nichols explained that an average would be 24 of hydrogen, typically 20 of the Mapp, and 75 of acetylene.

Paul Kimball asked about the frequency of delivery. Mr. Nichols replied that the Mapp gas would be picked up approximately every three weeks, with deliveries of acetylene on a weekly basis, hydrogen every two weeks, and the bulk gases every two to three weeks.

Steve Nickologanies, Old Amesbury Road, asked about worse case scenarios, for example a lightening strike, and how large an area would be affected. Mr. Nichols replied that he had investigated this and the expert opinion was that lightening was a non-factor. Mr. Francoeur added that the propane being underground protects it and reiterated the numerous safety features that have been incorporated into the plan. Joan Skewes added that it might be that nobody can predict a worse case scenario.

With regard to questions about traffic, Attorney Salomon explained that this issue would be dealt with during site plan review and stressed that the building meets the requirements of the State Fire Marshall.

Jim Webber asked about protection from terrorism and asked if there was additional security beside the chain link fence? Attorney Salomon replied that the flammable gases are either stored underground or inside the building; the fence is to keep people away from the non-flammable gases. Mr. Nichols explained that there have been no terrorist warnings to anyone in his business. John O’Connor, South Road, emphasized that the expert was here for the applicant, not the public. Despite this, he has acknowledged that four of the gases are flammable and potentially explosive.

Lauren Curtis, Amesbury Road, pointed out that the building is on top of an aquifer and felt this should be taken into consideration. Mr. Nichols responded that none of these gases contaminate ground water as they dissipate into the air, stressing they are not chemicals.

Terrie Steeves, Amesbury Road, commented that there has been a gas line running along Rte. 107 for 25 years and there have been no explosions. A resident commented that the government was recently very concerned with a ship coming into the harbor because of the potential for terrorism and explosion. Another resident commented that if the materials are not hazardous, why would the drivers be trained in Hazmat certification. Mr. Nichols replied that this is required if transporting. Less than 1,000 gallons does not require training.

Diane Chigas presented photographs showing rusting canisters at Mr. Nichols’ current establish in Amesbury, MA. Paul Steeves stressed that Mr. Nichols has had no incidents at this business and felt the residents were trying to make more of the situation than was being presented. John Chigas asked about the time of deliveries, and Mr. Nichols replied that he could request that there are no deliveries outside of business hours.

Chairman Skewes closed the public session at 9:00 pm. Dan Chaisson said there appears to be some hazard and he thought it was within the Planning Board’s jurisdiction to deny. Paul Kimball agreed stating the intent regarding hazardous materials is in the ordinance. Joan Skewes agreed, stating she felt the Planning Board made the correct decision as hazardous, flammable and potentially explosive are applicable. Eric Peterson moved to deny the appeal and uphold the Planning Board’s November 7, 2002 decision of denying the site plan review approval finding that the proposed usage did in fact not conform with the intent of Articles 9.II.6, III.4 and III.5 of Chapter II of the Zoning Ordinance and Land Use Regulations, seconded by K. Clark with all in favor.

2) Continuation of the application for Variance. ArcSource, Inc. has also submitted an application requesting a variance from Article 9 II.6, III.4, and III.5 if the appeal is denied.

Attorney Salomon said the evidence had been presented and reviewed the five separate standards for facts supporting the request. 1) The proposed use would not diminish surrounding property values because this is proposed for a commercial zone. The tanks are in the rear of the building, the site will be landscaped, safety precautions have been incorporated, state permits have been received, the town’s engineering review is acceptable and there is no unreasonable risk associated with the proposed use. A registered appraiser wrote a letter to the Board stating that a commercial building in this location would not diminish property values if properly established and maintained. 2) Granting the variance would not be contrary to public interest based upon the comments of various local and state public officials at the November 7, 2002 Planning Board meeting, including supporting the tax base. 3) Denial of the variance would result in unnecessary hardship to the owner. Attorney Salomon explained the hardship test established by the New Hampshire Supreme Court on January 29, 2001 in “Simplex Technologies, Inc. vs. Town of Newington”, which he said is essentially a balancing act between the benefit to the applicant and the harm to the public or private interest. a) He reiterated the safety features and approvals from the state and town that have been received and stressed that the zoning restriction as it applies to the property interferes with it reasonable use, considering the unique setting of the property in its environment. Denying Mr. Nichols the variance would prevent him from making reasonable use of his property. b) The purpose of the zoning ordinance is to protect the public health and safety and these are addressed by the construction technique and technology incorporated into the storage tanks. c) The variance will not injure the public or private rights of others as property values will not be impaired, the tax base will be improved, and the technology involved in the proposal is such that no significant risk exists to individuals or the public in general. 4) Would it do substantial justice? Attorney Salomon stressed that granting the variance would impose a standard of reasonableness upon the strict language of the ordinance given the special nature of the applicant’s proposal including the construction and technology related to the storage of tanks. 5) The use is not contrary because the land is zoned for commercial and industrial purposes including service activities, which would normally be considered supportive to business. Attorney Salomon said he felt the applicant meets all five criteria and the variance would be appropriate under Simplex.

Paul Kimball explained that the lot as shown is incorrect as not all of the lot is commercial. As passed on March 10, 1987, only a small portion of that lot was zoned commercial. The Board reviewed a small version of the commercial area map, which appeared to support Mr. Kimball’s statement.

Public comments included John Andreasse stating the variance requests to set aside what was already decided. Diane Chigas said she had contacted Real Estate companies who did feel property values would be diminished. Nancy Mardirosian commented about the issue of hardship, stating Mr. Nichols could sell the land and thought it would be appropriate for senior housing.

The Board discussed the issue of the commercial zone, which will need to be determined. Chairman Skewes explained that there are special circumstances that allow granting a variance. Joan Skewes moved to continue the hearing to May 6, 2003, at 7:30 pm, seconded by Paul Kimball with all in favor.

3) Continuation of the Request for Rehearing by James R. Rosencrantz, Jr., Ruth Ann Rosencrantz, and Wesley Rosencrantz of the Zoning Board of Adjustment’s decision of January 7, 2003, denying their application for special exception for commercial use on South Road. The Board members will be deciding whether or not to grant the request for rehearing. If granted the hearing will be held at a future time, which will be legally noticed.

Paul Kimball recused. Wesley and Kevin Rosencrantz and Attorney Scott LaPointe, legal representative, presented a detailed plan regarding alternatives as suggested at the previous meeting. The members agreed that this appeared to be the same proposal, but with more detail. Chairman Skewes explained a rehearing should only be granted if there was new evidence or the Board had made a mistake. She added that although this is additional information, a more detailed plan could have been submitted at the last hearing. Attorney LaPointe argued that he felt the Board had responded to a loud noise on the video tape and felt the matter should be revisited. Also, it was his recollection that the Board had requested a more accurate depiction of the site. Dan Chaisson replied that there was some confusion regarding what was used when and to what extend, but did not feel that constituted a sufficient error.

Chris Chetsas, an abutter, said he felt the Board’s decision had been correct, as a special exception cannot be granted if it does not meet the criteria.

Mr. Chaisson stated that what had been presented did not appear to be new evidence, but rather a reconfiguration of what had been previously presented. Dan Chaisson moved that the appeal for rehearing be denied on that ground, and that he didn’t think the Board had made a mistake in not allowing the commercialization of the eight acre parcel, seconded by John Ronan with all in favor.

Approval of March 4, 2003 minutes - K. Clark moved that the minutes of March 4, 2003 be approved as distributed, seconded by Paul Kimball with all in favor.

K. Clark moved to adjourn at 10:15 pm, seconded by Dan Chaisson with all in favor.

Respectfully submitted,

Denise Gregson

Administrative Assistant