Continuation of the application of Gary Densen for property at Map 16, Lot 4, with property addresses listed as Linden Rear, Kensington, NH and 142 Powder Mill Road, Exeter, NH, currently owned by Katharina Britton, 142 Powder Mill Road, Exeter, NH. The applicant is requesting variances from the Kensington Zoning Ordinance and Land Use Regulations, Chapter II, Article 8.5, Housing for the Elderly: 1) Section B.1 to allow persons 55 years of age or older – current regulations are for age 62 years of age and older and 2) Section C.6 to allow 60 bedroom units – current regulations are for a maximum of 45 bedrooms.
At the request of the applicants, the
Board had moved at the September 2, 2003 meeting to continue the hearing to
September 16, 2003, conditioned upon ‘one or more members’ the members
of the original ordinance being able to attend and provide information
regarding the intent. Elaine Kaczmarek,
who had chaired the committee formulating the ordinance, entitled Housing for
the Elderly, explained that she had conferred with the other members regarding
the intent of the ordinance. They
wanted to provide affordable elderly housing; age 62 had been determined after
checking with other towns and considering the constraints and loss of control involved
with HUD programs; and the number of bedrooms had been determined using a
septic formula of 150 gallons per unit with 45 units as maximum. Additionally, it was felt that having some
units limited to one bedroom created greater affordability.
Neither Attorney Pelech nor Gary Densen was able to attend and Dan Driggers represented them. He commented that HUD helps to control costs and that septic perk rates and designs are regulated by the state, which is 75 gallons per day per person. Dick Parker stressed that while the state does have regulations, it also defers to more stringent town regulations.
Chris Ogden, the engineer for Mr. Densen, said he had obtained a copy of the aquifer as prepared by the US Geological Survey and the area was classed as a stratified drift aquifer.
Joan Skewes read the following letter from Attorney Pelech into the record: (while the contents are the same, some space saving formatting changes have been made.)
September 16, 2003
Kensington Zoning Board of Adjustment Town of Kensington
95 Amesbury Road
Kensington, New Hampshire 03833
RE: Britton Property -
Application of Gary Densen
Dear Members of the Board:
I am unable to attend this evening's meeting of the
Board regarding Mr. Densen's application for Elderly Housing, as I have a
previously scheduled Zoning Board meeting in the City of Portsmouth. I did, however, wish to share with the Board
additional information regarding the request for variances.
Mr. Densen's request for a
variance to allow occupancy of the proposed units by individuals 55 years or
older, rather than the 62 years of age or older as mandated by the Ordinance,
is the result of Mr. Densen's desire to construct an "Assisted Living"
Community.
In 2002 the New Hampshire
Legislature enacted New Hampshire RSA 161-J entitled "Assisted Living
Residences and Housing for Older Persons".
This Chapter became
effective January 1,2003.
RSA 161-J: 1 sets forth the
purposes of the Chapter, which was to establish standards for the uniform
disclosure of information to consumers, cost and services provided by assisted
living residences and housing for older persons, as well as to establish rules
and policies governing advance payments, rate increases, termination of
agreements, as well as the rights and responsibilities of residents, to enable
consumers to make informed choices and comparisons.
RSA 161-J:2 the "Definitions"
section of the chapter defines in subsection III "Housing For Older
Persons". Housing for older
persons, means housing (b) "intended for and solely occupied by, persons
62 years of age or older; or (c) intended and operated for occupancy by at
least one person 55 years or older per unit."
"Assisted Living
Facilities" and "Housing For Older Persons" must provide or
assists a resident in obtaining one or more services. These services range from assistance with activities of daily
living such as grooming, toileting, eating, dressing, getting in or out of bed
or a chair or walking or monitoring or supervising medications. The second category of "Personal
Assistance" or services is assistance with instrumental activities of
daily living, such as doing laundry, cleaning of living areas, food
preparation, management of money and business affairs, or engaging in
recreational or leisure activities.
Mr. Densen's proposal is to construct housing for
older persons as it is defined in RSA 161-J: 2(III) and to provide one or more
of the personal services as required.
The "Housing For Older Persons" proposed by the applicant
would require execution of a residential services agreement between the
developer and a resident, as well as a disclosure forms adopted by the
Commissioner of the Department of Health and Human Services.
With regard to Mr. Densen's second variance request,
which was to allow each dwelling unit to contain two bedrooms, would allow each
unit owner to accommodate a "personal assistant" if and when it
became necessary.
Thus, Mr. Densen is requesting the second variance
to allow the thirty units to have a total of sixty bedrooms. As I indicated at the previous meeting, we
do not believe that allowing the additional fifteen bedrooms would in any way
be contrary to the spirit and intent of the Zoning Ordinance, as the majority
of the units would still be occupied by only one or two persons. Intensity of use would certainly not be
increased, nor would the effect on surrounding properties.
I would hope that once the Board has had an
opportunity to discuss with members of the Ad Hoc Committee who were
instrumental in developing the Ordinance, the Board will determine that Mr.
Densen's request for the two variances is not contrary to the spirit and intent
of the Zoning Ordinance. I believe the
overall intent of the Elderly Housing Ordinance when it was enacted was to enable
elder housing to be developed within the Town, as there is a demonstrated need
for this type of housing which creates a low demand for municipal services, but
does provide needed housing and an enhancement to the tax base of the
Town. Mr. Densen has no desire or
intension of utilizing federal funds for these units, nor would the units in
any way be "subsidized" units or "low income" units. It is
anticipated that these condominium units would be sold at market rate.
Since I will be unable to attend this evening's
meeting, neither Mr. Densen nor I have any objection to the Board again
continuing its deliberations on these two requests for variances until its next
scheduled meeting. However, should the
Board wish to deliberate and vote on the requested variances this evening, I would hope that the Board
would agree that the five criteria necessary for the Board to grant the
requested variance as I outlined at the last meeting, have been met by the
application and that the variances should be granted. We would have no objection to the Board placing conditions upon
the grant of these variances such as the Board sees fit.
Thank you for your cooperation in this matter.
Sincerely,
Bernard W. Pelech
cc: Gary Densen (end of letter)
Several Board members commented
that an assisted living facility had not been brought up at the previous
meeting and emphasized that this was not necessarily elderly housing. Joan Skewes reviewed the Fair Housing Act
Senior Housing Exemptions which include: It is occupied solely by persons who
are 62 or older or it houses at least one person who is 55 or older in at least
80 percent of the occupied units and adheres to a policy that demonstrates
intent to house persons who are 55 or older.
Resident Betty Willoughby of
Drinkwater Road said she voted on the warrant article for age 62 and up. She explained that they had felt they were
losing people in town because there was no housing for residents wanting to
downsize. Had the warrant article been
for age 55, she would have voted against it.
Paul Kimball, Kimball Road, who had been a member of the committee,
added that age 62 coincided with early retirement, which was the intent, not
age 55.
Warren Hanson of Exeter, submitted the following letter in opposition to granting the variances: (while the contents are the same, some space saving formatting changes have been made.)
Kensington Board of Adjustment Meeting Sept 16, 2003
Chapter II Article 85 Housing
for the Elderly
Section B.l to allow persons 55 years of age or older
Attorney Pelech stated the State Elderly Housing
Code allows housing units for people age 55 or age 62. Somehow for that reason this meets the
requirement for a hardship.
The state statutes talk to both elderly housing
projects that have a 62 age requirement and a 55 age requirement. These two options are like night and day.
·
One
is solely intended for and solely occupied persons 62 years of age and older.
·
The
second is intended and operated for occupancy by a least one person 55 years or
older per unit. It has the following
for housing qualifies as housing for persons 55 or older.
·
At
least 80 percent of the units are occupied by at least one person 55 or older.
These two options are extremely different. The Town of Kensington voters selected the
62 year old option. The Board of Adjustment
needs to be very careful about the precedent it is setting.
There are five requirements that a variance must
meet. Three of these requirements are
met; however two are not!
·
The
use must not be contrary to the spirit of the ordinance. The ordinance specifies age 62 as the
minimum age. As mentioned, this
violates the purpose of the ordinance.
This is something that should be dealt with a town meeting if it is felt
necessary to change the age requirements.
The change should not be done by the Board of Adjustment
·
Denial
of the request would result in unnecessary hardship to the owner. There is no hardship here. The ordinance allows the owner to have
elderly housing units for people age 62 and older.
Section C.6 to allow 60 bedroom units
The town ordinance allows for a mixture of 30 one and two bedroom units not to exceed 45 bedrooms.
This area includes Linden Street from second
bridge to Kimball Road and Powder Mill Road which goes from Kimball Road to
Route 111. This stretch of road has
been designated by the Town of Exeter as a scenic road. Also, on this 1.6 miles of road, there are
20 single family homes with 10-11 having no minor children. There is no other
type of usage.
There are five requirements that a variance must
meet. Two of these requirements may be
met; however three are not!
·
No
diminution in the values of surrounding properties would be suffered. The ordinance in allowing this type of
cluster housing lowers surrounding property values and would make it more
difficult to sell these properties if so desired. Increasing the number of bedrooms by one-third makes the project
even larger and more difficult to sell surrounding properties.
·
The
use must not be contrary to the purpose and intent of the ordinance. The ordinance allows a mix of one and two
bedroom living units. The single
bedroom apartments would be more affordable for some of the elderly. Changing this aspect of the ordinance
effectively changes the zoning ordinance.
This also should be dealt with at town meeting.
·
Denial
of this request would result in an unnecessary hardship to the owner. There is no hardship! The ordinance allows the owner to build 30
one and two bedroom apartments on this 18-acre site. Even this use increases the number of living units by 150% on
this scenic road.
Susan L Hanson Warren
L Hanson
137 Linden St
Exeter, NH 03833 (end of letter)
Jerry
Burke of Exeter said he felt the greater density would have a disastrous
impact; Donald Willoughby of Kensington emphasized that he had voted for age
62; Betty Willoughby stressed that
assisted living is a different category; Wendy MacArthur of Exeter expressed
concerns with wells and the drain on services, such as ambulances; and Claudia
Scofield of Kensington stated she is supportive of elderly housing but urged
the Board to keep with the intent of the ordinance. Chairman Skewes closed the public comment at 8:55 pm.
Mr.
Driggers made several comments during rebuttal: that many of the surrounding
communities and towns have 55 as an age; one bedroom units do not sell well due
in part to the costs of building them and said he feels the ratio of 30 units
to 45 bedrooms doesn’t work due to costs; and from experience most people don’t
want just one bedroom. He also added
that there was never an intent to do assisted living.
Mr.
Ogden commented that there had been good input from residents for the Board to
consider and suggested the hearing be continued. The Board responded that the applicants had requested this
special meeting rather than wait until the regularly scheduled meeting and
proceeded to review the five criteria for granting a variance. The members concurred that granting the
variances would not be of benefit to the public interest, that an unnecessary
hardship did not exist since literal enforcement of the zoning ordinance can be
met given the conditions, granting the variances would be against the spirit of
the ordinance, and that based on the evidence presented by the committee that
developed the ordinance, the voters present and research by the Board, the use
contemplated by the petitioner as a result of obtaining the variances would be
contrary to the spirit of the ordinance.
John
Andreasse moved to deny both variances on the grounds that neither variance
meets the criteria, seconded by Michael Motherway with all in favor.
The Board members reviewed the minutes of
September 2, 2003, amending the first sentence of paragraph three under the
“Application of Gary Densen” by adding the words, “he said” for clarification
that Attorney Pelech was making the statement that the application appeared to
meet the five criteria. Dick Parker
moved to accept the minutes with the one revision, seconded by Michael
Motherway with all in favor.
Board members agreed to discuss member status
at the next regular meeting with potential changes to be made.
Dick Parker moved to adjourn at 9:25 pm,
seconded by Michael Motherway with all in favor.
Respectfully submitted,
Denise Gregson
Administrative Assistant