Continuation of the Application of James Rosencrantz, db/a
Rosencrantz & Sons, Inc., South Road, Kensington, NH for a Special
Exception for commercial use in accordance with Article 8.4.A & B of the
Zoning Ordinance and Land Use Regulations.
The applicant is requesting to erect a building for use in the
applicants’ business, and other improvements, and to use the parcel of land for
outside parking and demonstration of equipment. Richard Parker recused and
Joan Skewes chaired this hearing.
Attorney Charles Tucker, on behalf of the town, explained to the Board
that the standards for Special Exception had changed at Town Meeting and
suggested that although the change was not great, the Board apply both
standards, not just the standards in place at the time of the application. Joan Skewes read both.
Attorney LaPointe,
representing Rosencrantz, presented the application, detailing that there were
four significant changes to this new application: 1) The request has been reduced to 2.3 acres; 2) The building has
been moved further away from Mr. Chetsas and an enclosure has been added; 3)
There has been a significant noise reduction; and 4) Alternate locations have
been provided. He presented signed
statements from all the abutters, except Mr. Chetsas, stating they had seen the
plan and approved it.
Peter Landry reviewed the
details of the plan. Photos, including
aerial, of 1968, 1974, 1986 and 1998 showed the land use for the business,
which included a portion of Bonnie and Wesley Rosencrantz's property. The proposed plan locates all buildings on
land that has always been used for the business, dating back approximately 30
years. The building design will
eliminate the storage trailers and the daily need for the use of the skid steer,
which is a major cause of noise. In
addition, the connector building will allow the fork lift vehicle to remain
inside, further reducing noise.
Appraiser, Paul Brown,
addressed the issue of diminution of value to surrounding properties. He explained that he took photographs and
had to stand behind the berm before he could see other homes. He emphasized that the business has been in
existence for more than 50 years and many expensive homes have been built in the
area with no loss in value.
Tom Esslinger, of Noise
Reduction Products, Inc., an industrial and community noise specialist for
twenty years stated the berm was an excellent sound barrier, however it must be
determined where the noise is being generated and who is hearing it. The proposed plan of enclosing the equipment
is best. Dan Chaisson asked if the
building was insulated. Kevin
Rosencrantz replied that he wasn't sure, but it could be. Mr. Esslinger further commented that Mr.
Chetsas' video tape was a reasonable depiction of the noise for his
property. The addition of fir trees and
shrubs on the berm would further help to reduce noise. He provided decibel data, stating that a 10
db drop is half the noise on average.
The current skid steer is about 70 to 80 db outside, but inside the
decibel level would decrease to 20, which is half of the half. Kevin Rosencrantz added that the skid steer
would not need to be used inside as they would only need a fork truck.
Joan Skewes asked if the
proposed area would be fenced or barriered in some way. The Rosencrantz consented to do this.
The public was invited to
speak at this time. Abutter Gloria
Lariviere said she had no objections and doesn't see a problem with noise.
Attorney John Ryan,
representing Mr. Chetsas, said there were two primary issues. 1) Is the application barred as in the case
of Fisher v. Dover for the use being substantially similar? When the plans are compared, it is the same
building, parking and storage. The only
difference in this current plan is the building has been turned and a connector
has been added. He cautioned that if
otherwise the same then the Board could not take jurisdiction and asked that
they decide if the case could go forward.
2) Do they meet the standards?
In 2001 they added the trailers and Mr. Chetsas complained. He showed photographs to the Board of Mr.
Chetsas' property building his home in 2001.
At that time there was nothing on the Rosencrantz land. He stressed that the Rosencrantzes are now
trying to make a bad situation created after the fact better. He pointed out that Mr. Stanhope had also
done an appraisal for Mr. Chetsas in 2002 showing that this would have a
negative affect on surrounding properties.
Mr. Chetsas explained that
he bought 14 acres in 1996 and placed his home toward the rear of the property
for privacy. He stressed it was
peaceful until 2001. He played a
lengthy video tape showing the Rosencrantz property use changes from 1996 to now
as well as the noise issues.
An opportunity for rebuttal
was offered. Attorney LaPointe
commented that the video didn't show the Rosencrantz property in the winter,
was taped from up by the berm in an open area and stressed that the noise will
be reduced 99% with a perceived value of 75%.
He added that he believes the plan is substantially different and in
Morganstern v. Rye the applicant is allowed to come back to address concerns
the Board may have had. Under the old
standards there is no undue hazard, noise is reduce by 75%, and the value of
the view cannot be reduced as it can't be seen. Under the new standards the use is compatible with the
neighborhood and emphasized that the neighborhood has grown up around the
Rosencrantz business with no adverse impact.
Don Grover of Muddy Pond
Road, Dick Welsh of North Road and Peter Poole of North Haverhill Road, who
works for the Rosencrantzes, spoke in favor of approval. Joan Skewes closed the hearing at 9:30 pm.
Board deliberations
ensued. Joan Skewes addressed the
question of jurisdiction stating that she felt the plan was different, Dan
Chaisson added that he felt the Rosencrantz have made an effort to mitigate
problems and Eric Peterson said that under case law they could come back to the
Board. All members agreed. Dan Chaisson expressed concerns with storage
outside the property lines and Eric Peterson commented that the Rosencrantz had
consented to a fence or physical barrier.
Eric Peterson said he did not feel there was a hazard to health, and
although property values could be arguable, the plan represented an improvement
in the area. John Ronan argued that the
2.3 acres was expanding toward Mr. Chetsas' property and the Rosencrantz were
cleaning up something that shouldn't be there to begin with. Joan Skewes commented that the proposal
diminishes the noise issue. John Ronan
agreed in regard to the skid steer but stressed that because they were
expanding toward the Chetsas property they would be increasing other noises.
Joan Skewes read from the
criteria worksheet: 1) The exception is
allowed. John Andreasse said he wasn't
sure the issue of property values was resolved but Eric Peterson stressed that
the business has been there a long time, property values were already affected
and the current proposal could be seen as a positive value. 2) Evidence presented and conditions applied
to mitigate any health hazards. 3)
Noise and diminution in value of the property diminished with evidence
presented and conditions set forth below.
4) The granting of this exception does meet the minimum lot size
requirement of 2 acres. 5) The granting
of this exception does meet the minimum frontage requirement of 250 on an
approved street.
The following conditions
were made a part of the approval: 1)
Screen fence to run from the chain link fence to the southeast corner of the
property. 2) No storage outside of the
delineated area on the plan showing extent of lot lines. 3) Evergreens to be planted on the top of
the berm. 4) Building to be insulated
for noise reduction. 5) Berm to be
extended to antique tractor building.
The majority of members agreed that this application met both the old
and new ordinance standards. Dan
Chaisson moved to approve the application as presented with the conditions as
defined, seconded by John Andreasse.
All voted in favor with the exception of John Ronan who was opposed.
Dick Parker returned to the
Board as Chairman.
Application of John and Ruth Doyle, 60 Cottage Road,
Kensington, NH, Map 8, Lot 41, for a Special Exception in accordance with
Article 8.4 A.5 for an In-Law Apartment.
Ruth
Doyle presented the application explaining that the in-law apartment was
already in existence. Dick Parker read
the requirements for approval with members noting that the following
information was still needed: Statement
from the Board of Health that they are satisfied with the septic system; a
sketch of the parking and square footage; review by the building inspector; and
a copy of the letter to be filed at the registry. John Andreasse moved to
continue the application for an in-law apartment for Doyle to the next meeting
to furnish proof of Section 8.4 f, g, h, i and j, seconded by Joan Skewes with
all in favor.
Application James D.
Perkins, 123 South Road, Kensington, NH, Map 4, Lot 37, for a Special
Exception in accordance with Article 8.4 A.5 for an In-Law Apartment. Mr. Perkins presented the application
explaining that he would be building a new home to replace the existing mobile
home. The plan is for a 2600 sq. ft. 3
bedroom home and a 768 sq. ft. 1 bedroom in-law apartment. The requirements were reviewed with all
being met. David Patten, 119 South
Road, asked if the mobile home would be removed. It was explained that this would be done at the Board of
Selectmen level when the applicant applied for a building permit. Joan Skewes moved to approve the Special
Exception for an in-law apartment as presented, seconded by John Ronan with all
in favor.
Approval of December 2, 2003 minutes – Joan Skewes moved to approve the December 2,
2003 minutes, seconded by Dan Chaisson with all in favor.
John Ronan moved to adjourn at 10:50 pm,
seconded by John Andreasse with all in favor.
Respectfully
submitted,
Denise Gregson
Administrative Assistant