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Zoning Board of Adjustment Minutes 04/10/07
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ANTRIM ZONING BOARD OF ADJUSTMENT

April 10, 2007 meeting
Members & Staff Present:
Doug Crafts                     John Giffin                     Bradley Houseworth              John Kendall (Recused)  Len Pagano                      Frank Scales                    Paul Vasques                    Don Winchester           Paul Young              

Member & Staff Absent:  Carol Court     
                                                
Public Attendees:
Peter Beblowski         David Boule             Scott Burnside          Diane Chauncey
Tom Davis               Ann Edwards             Tim Ferwerda            Mike Genest             
Ron Haggett             Freda Halett            Jeanne Lapointe Ronald Lapointe
Shelly Nelkens          Martha Pinello          Ben Pratt               Bill Prokop
Geraldine Rabideau      Michele Rabideau        Renée Rabideau          Andrew Robblee
John Slango                     Paige Spaulding Anne-Marie Sommer   Frank Sommer
Kris Stewart            Lisa Stewart            Bernadette Todd          Andrew Vaiciulis
        
Chairman Winchester convened the meeting at 7:15 PM, introduced himself, and stated that the meeting will be recorded.  He moved to hold the Sommer and Lapointe public hearing before the Landsite, LLC public hearing due to the number of abutters present for Landsite, LLC hearing.  Mr. Young seconded the motion, which unanimously passed.  Chairman Winchester outlined the procedure to be followed for the public hearings and asked the Board members to introduce themselves to the applicants and the audience.

Sommer and Lapointe, LLC; File # 2007-03ZBA:  Chairman Winchester opened the public meeting on the request of Frank and Anne-Marie Sommer and Ronald Lapointe for three (3) separate area variances from Article VIII, Section C.1, C.2, and C.3 to permit a lot line adjustment for two non-conforming lots located at 327 Elm Avenue (Tax Map 7A, Lot 31) and 37 Algonquin Avenue (Tax Map 8A, Lot 63) in Antrim, NH 03440 in the Lakefront Residential District.  Chairman Winchester asked the applicants to stand and present their proposal to the Board.  

Mrs. Anne-Marie Sommer introduced herself, her husband, Mr. Frank Sommer, and her abutting neighbors, Mr. Ronald and Mrs. Jeanne Lapointe.  Mrs. Sommer explained that it has recently come to their attention that a portion of her house, driveway, and septic system is on the Lapointe’s abutting property.  She explained that at the time that these structures were built, the Lapointe’s owned both lots.  She stated that now that they own one of theses lots, it is a problem, and they are working with Mr. and Mrs. Lapointe to resolve the issue by requesting a lot line adjustment from the Planning Board.  Mrs. Sommer explained that before they can go to the Planning Board for a lot line adjustment, they must obtain three (3) separate area variances from the Zoning Board of Adjustment because both of the two lots in question are existing, non-conforming lots.  She stated that the first area variance is from Article VIII, Section C.1, regarding the minimum lot size requirement of ninety thousand (90,000) square feet, because neither of the lots currently meets this requirement and after the proposed lot line adjustment is completed, only their lot will meet the minimum lot size requirement.  She explained that the second area variance is from Article VIII, Section C.2, regarding the minimum lot width requirement of two hundred (200) feet, because neither of the lots currently meets this requirement and neither will meet this requirement after the proposed lot line adjustment.  She stated that the last area variance is from Article VIII, Section C. 3, regarding the minimum front yard setback of fifty (50) feet from the street or road right-of-way.  She explained that when they built their garage in 2000, they were unaware of the paper street portion of Hillside Drive, which is approximately thirty eight (38) feet from the garage, and therefore they need a variance to the minimum front yard setback as well.

Chairman Winchester asked if any abutters are present that would like to speak in favor of the proposal.  Mr. Lapointe stated that they are trying to work with the Sommers on this issue and they are in favor of having the proposed lot line adjustment completed.  Mr. Lapointe added that he has recently switched mortgage companies, and they will be involved in the hearings of the lot line adjustment, in order to assure that the proposal meets the criteria of the new mortgage company.  Chairman Winchester asked if any other individuals present would like to speak either for or against this proposal; there were none.  He asked the members if they have any questions for the applicants; there were none.  Chairman Winchester stated that it seems that this is primarily an issue between the Lapointes and the Sommers.  He asked if the audience has any other comments to make regarding this proposal before he closes the public hearing.  Mr. Pratt stood up, introduced himself, and explained that he is not familiar with all of the details and the background of these problems but stated that they result apparently from a series of errors and miscommunications with some of the original surveys.  He explained that it is an unfortunate situation that has caused the applicants a lot of expense and inconvenience, and he hopes that it can be resolved as easily as the Board can see fit.  Chairman Winchester made a motion to close the public hearing, which was seconded by Mr. Young and was unanimously approved.

Chairman Winchester moved to conduct the roll call vote; which was seconded by Mr. Young and was unanimously passed.  Mr. Houseworth stated that a roll call vote will be done separately for each of the three (3) area variances and suggested to the Board that he read aloud the five (5) criteria for the granting of an area variance prior to conducting the roll call votes.  The Roll Call Votes are as follows:
For all three (3) area variance to Article VIII, Section C.1, C.2, and C.3, the roll call votes were the same and as follows: (Please refer to file # 2007-03ZBA for the roll call sheets)
1.      The value of surrounding properties will not be diminished.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.
2.      The variance will not be contrary to the public interest.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.
3.      Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship as follows:
A) An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.
B) The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.
4.      Substantial justice is done.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.
5.      The variance is consistent with the spirit of the ordinance.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Pagano – aye, and Mr. Kendall – aye.

Mr. Houseworth stated that all three (3) area variances have been granted and the applicants will receive a notice of decision in the mail, signed by the chairman.  Chairman Winchester thanked the applicants for coming.

Landsite, LLC; File # 2007-02ZBA:  Mr. Kendall recused himself from the Board.  Chairman Winchester appointed Mr. Giffin to sit for Mr. Kendall.  He opened the public meeting on the request of Landsite, LLC for a Special Exception to permit the operation of an excavation site on property located on the northwest corner of Elm Avenue and Smith Road, Antrim, New Hampshire 03440 (Tax Map 8A, Lots 18, 19 and 20) located in the Rural District.  Chairman Winchester asked Mr. Houseworth to provide some background information regarding this case and why the applicant must obtain a special exception from the Board to establish a new excavation site in Town prior to going to the Planning Board for an excavation permit.

Mr. Houseworth explained that essentially the applicants propose to establish a new excavation site in Town.  He stated that according to the current Antrim Zoning Ordinances, new excavation sites are prohibited from being established in Town because they are neither a permitted use nor a permitted use by special exception in any of the existing zoning districts.  He explained that because the Town of Antrim Zoning Ordinances do not address the subject of excavation sites, we must refer to RSA 155-E, regarding state requirements for earth excavation sites, for guidance.  He stated that section III of RSA 155-E:4 specifically allows excavation sites to be deemed to be a use allowed by special exception in municipalities which have zoning ordinances which do not address the subject of excavations.  He explained that in order for the local Zoning Board of Adjustment to grant this special exception, it must determine whether or not the excavation site will meet the four (4) special exception criteria in section III, subsections (a) through (d) of RSA 155-E:4.  Mr. Houseworth stated that subsection (d) of section III of RSA 155-E:4 specifically states that the excavation must also comply with other special exception criteria as may be set out in the applicable local ordinances.  He explained that all special exceptions are covered in the Antrim Zoning Ordinances under Article XIII, and must meet the six (6) special exception criteria on page 1.  He explained that therefore the Zoning Board of Adjustment must find that the excavation meets the four (4) special exception criteria in section III of RSA 155-E:4, in addition to the six (6) special exception criteria required by Article XIII of the Town of Antrim Zoning Ordinances, for a total of ten (10) special exception criteria, which must all be met in order for the Board to be able to grant the special exception.  Mr. Houseworth read aloud the ten (10) special exception criteria to the Board and the audience.  

Chairman Winchester asked the applicants to present their proposal to the Board.  Mr. Burnside introduced himself and explained that he would like to address the special exception criteria one at a time, providing some information and answering any questions, starting with the four (4) special exception criteria from subsection III of RSA 155-E:4.  He stated that the first criteria (a) states that: “The excavation will not cause a diminution in area property value or unreasonably change the character of the neighborhood.”  He explained that he currently operates the Chauncey pit on Smith Road in Antrim and the property has been appraised twice since Landsite, LLC has been operating the pit.  He stated that both times the appraisal has risen and he hopes Ms. Chauncey will speak to this matter.  He also provided to the Board two property cards for properties that directly abut the Chauncey pit, which both have increased in value since the operations of the pit began.  He explained that he hasn’t found any information that shows any devaluation of property since the operations of the Chauncey excavation site began.  In addition, he stated that if the special exception is granted, the two (2) abutting properties would go up in value because the materials on the site have value.

Mr. Burnside stated that the second criteria (b) from subsection III of RSA 155-E:4 reads: “The excavation will not unreasonably accelerate the deterioration of highways or create safety hazards in the use thereof.”  He explained that Landsite, LLC is not adding any trucks to the fleet.  He stated that they currently operate the Chauncey pit, which is estimated to run out of material by the end of 2007, so he is essentially moving the operation from one parcel of land to another, and there will be no increase in truck traffic to what already exists.  He also provided a letter to the Board from the Road Agent, Mr. Bob Varnum, regarding his comments about the proposal.  Mr. Burnside stated that the third criteria (c) from subsection III of RSA 155-E:4 reads: “The excavation will not create any nuisance or create health or safety hazards.”  He stated that the Antrim Police Department has reviewed the site, he presented the Board with a letter from the Police Chief, Todd Feyrer, regarding the proposal, and he stated that any other concerns would be addressed during the site plan review by the Planning Board.

Mr. Burnside stated that the fourth criteria (d) from subsection III of RSA 155-E:4 reads: “The excavation complies with such other special exception criteria as may be set out in applicable local ordinances.”  He stated that in Article VII (Rural District) of the Antrim Zoning Ordinances, Home-based businesses are a permitted use while restaurants, business and professional offices, veterinary clinics, hospitals, hotels, motels, social clubs, and building materials are permitted uses by special exception.  He explained that building materials are very similar to excavation sites and are in harmony with the Town Zoning Ordinances, and although the Town doesn’t address it specifically for excavation sites, sand and gravel are considered building materials.  He stated that the basic concept of the Town Zoning Ordinances, and the recommendations from the 2001 Master Plan, set the precedent for zoning and excavation sites seem to be consistent with other similar, permitted activities in the Rural District.  He explained that as far as traffic goes, all of the other permitted uses by special exception in this district will have substantial increases in traffic, for example a hospital or hotel.  He stated that a building materials site will increase heavy truck traffic no more than what an excavation site would.  He explained that the intent of the ordinance for special exceptions is consistent with the operations of a sand and gravel operation.

Mr. Burnside cited RSA 674:33, IV, stating: “A local zoning ordinance may provide that the zoning board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance.  All special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general or specific rules contained in the ordinance.”  He explained that when he reads the Master Plan, and the other permitted uses by special exception in this district, excavation sites are in harmony with the other permitted uses and would be an allowed use by special exception.  He stated that all of the traffic issues, aquifer issues, and all of the specific details of the operation would be safeguarded by the Antrim Earth Excavation and Reclamation Regulations during the site plan review by the Planning Board before an excavation permit is issued.

Mr. Burnside then addressed the six (6) special exception criteria of Article XIII (Special Exceptions) of the Antrim Zoning Ordinances.  He stated that the first criteria (1) states that: “The proposed use may be similar to one or more of the uses already authorized in that district and is in an appropriate location for such a use.”  He explained that there are currently four (4) active pits on the following lots: Map 8A, Lot 23; Map 4, Lot 49; Map 2, Lot 64; and Map 8A, Lot 8.  He stated that the second special exception criteria (2) states that: “Such approval would not adversely affect the neighborhood, nor otherwise be injurious, obnoxious or offensive.”  He explained that a lot of this that will be addressed at the Planning Board level during the site plan review.  He stated that the operation would not be injurious, obnoxious, or offensive because it would have limited hours of operation and would have to adhere to the Earth Excavation and Reclamation Regulations.  He stated that section 2 of these regulations, the purpose and scope, states that: “For the purpose of identifying and utilizing existing sources…”; and in this particular area of Antrim, is usually where most of the sand and gravel resources are in Town, and there is very little material in the Town of Antrim in general.  He stated that unfortunately for the citizens, there is no control over where these resources are deposited in Town.  He continued to read from section 2 of these regulations stating: “…as recognized by the New Hampshire State Legislature, while at the same time minimizing safety hazards which can be created by open excavations and ensuring that the public health and welfare will be safeguarded and natural resources and the environment protected, no earth materials shall be removed except in conformance with these regulations.”  He explained that essentially Landsite, LLC must go to the Planning Board for a site plan review to safeguard any environmental issues or natural resources.

Mr. Burnside stated that the third special exception criteria (3) states that: “The use will not create excessive traffic congestion, noise, or odors in the neighborhood where it is proposed.”  He explained that the amount of noise will not change because the existing operation will be moved from one parcel to another about a quarter mile down Smith Road, and he believes there wouldn’t be any odors from the proposed operation.  He stated that the fourth special exception criteria (4) states that: “Such approval would be consistent with the intent of the Zoning Ordinance, after having given due consideration to recommendations received from the Planning Board.”  He explained that the Planning Board Meeting Minutes from the March 1, 2007 meeting have been presented to the Board.  He stated that Article I – General Provisions of the Antrim Zoning Ordinances includes section 2 – Purpose, which states that, “6. To facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.”  He explained that sand and gravel are public requirements because anyone that has a septic system that wants to protect the aquifer needs sand.  He stated that the fifth special exception criteria (5) states that: “Adequate and appropriate facilities will be provided for the proper operation of the proposed use.”  He explained that Landsite, LLC will have to abide by the Earth Excavation and Reclamation Regulations when coming in front of the Planning Board and all sanitary or traffic facilities would be addressed under those regulations.  He stated that the sixth special exception criteria (6) states that: “If the proposed special exception is listed in Article XIII, D, then it must meet all conditions of that Article.”  He stated that they revert back to the state RSA 155-E:4, III, since the Town Zoning Ordinances don’t address excavation sites.

Chairman Winchester asked the Board if they have any questions for Mr. Burnside; there were none.  He asked if there were any abutters present that would like to speak in favor of the proposal.  Mr. Kris Stewart introduced himself and stated that he owns Zeke and Mack Realty, LLC and operates a sand and gravel site that abuts the proposed property on Elm Avenue.  He explained that the sand in this area is of high quality and is a good natural resource for the Town and may be necessary at some point for winter operations.  He explained that he runs a number of excavation sites and hasn’t seen any deterioration of land values or any loss in sales of abutting properties.  He stated that Landsite, LLC runs a great operation, are very careful with their equipment, have an excellent record, and maintain pits in a responsible manner.  Chairman Winchester asked if anyone would like to speak in favor of this proposal.  Mrs. Diane Chauncey introduced herself and explained that Mr. Burnside has operated the Chauncey Pit since 1999 and the land has been appraised three (3) times in the past seven years and each time the land has increased significantly.  She stated that it has not devaluated her land in any way.  Mr. Kendall stated that the impact this excavation site will have ecologically if it is in Town will be less than if the excavation materials are trucked in from neighboring towns due to the additional pollution, noises, fumes, and traffic.  He explained that the more we self sustain ourselves locally, and do it properly, the less impact it will have on the environment in our own Town.  Mr. Houseworth explained to the Board that he received a letter from an abutter that is in favor of the proposal.  Mr. Houseworth read the letter aloud from Mr. Edward A. Lemire, who lives at 237 Elm Avenue (Map 8A, Lot 79), which essentially states that the applicant should be allowed to utilize their personal rights in relation to the property they own.

Chairman Winchester asked if there were any abutters present that would like to speak against this proposal.  Ms. Spaulding introduced herself, stated that she is a direct abutter to the proposal, and has lived at 332 Smith Road (Tax Map 8A, 17) for the last ten years.  She explained that although the Chauncey pit might increase in value, her property will not increase in value if an excavation site is allowed to operate next door.  She stated that the dust, dirt, and noise will be offensive; the diesel fumes will be noxious; and the truck traffic will increase, cause shaking, and be very injurious to the neighbors quite, peaceful road in this area of Antrim.  She stated regardless of what anyone says, would you want a gravel pit outside, fifty (50) feet from your house?  She explained that she wants to quote the wise words of Mr. Prokop from 2002 when he was interviewed about cell towers: ‘He doesn’t agree with the cell towers because they would virtually be in his back yard.  He is not against them but they would muddy up the scenery.’  She explained that her house is less than fifty (50) yards from this pit and she is not against gravel pits per say, but it will in fact, muddy up her backyard.

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Ms. Renee Rabideau introduced herself and stated that they own Tax Map 8A, Lots 74, 75, 22, 21, 77, and 78.  She explained that she has heard RSA 155-E:4 read many times tonight but one thing that keeps being left out is the following excerpt: “…to be a use allowed by special exception as provided in RSA 674:33, IV, in any non-residential area of the municipality…”  She stated that due to the number of people attending the meeting, this is obviously a residential area of Town.  She explained that although the site is in the Rural Zoning District, it is still in a residential area, and therefore this proposal should not even be heard by the Zoning Board of Adjustment because it is not in a non-residential area.  She cited the purpose section (A) of Article VII – Rural District of the Antrim Zoning Ordinances: “The rural district is intended to be a district of rural residential dwellings complemented by other traditional rural/ agricultural uses.”  She stated that excavation sites are not permitted nor permitted by special exception in the Rural Zoning District.  She explained that in regards to the first special exception criteria (a) of subsection III of RSA 155-E:4, she believes that the proposed excavation site will diminish the value of the surrounding properties and cited two examples: the other Chauncey property across the road from the existing Landsite, LLC pit has been on the market for over a year and has not been sold, and the Fowlers property down on Smith Road has not sold.  She stated that if her mother gets sick and needs to sell her property to pay for medical expenses, she probably won’t get the full value of her property because who wants to live fifty (50) feet from an excavation site?  She explained that if this proposal is approved, their properties would be virtually surrounded on all sides by either a road or two excavation sites: one that is thirty six (36) acres and the other proposed site is fifteen (15) acres; these are not small operations.  

She stated that this excavation operation will change the character of the neighborhood of Elm Avenue and Smith Road and both roads have been designated as scenic roads by the Town of Antrim.  She explained that another word for ‘scenic’ is picturesque or attractive, while an excavation pit is neither.  She stated that an excavation site with large trucks hauling materials from the site will create safety hazards due to their size and the pavement widths on these roads are only eighteen (18) feet wide because these roads were designed for residential travel and not for commercial trucks.  She explained that these trucks will deteriorate the roads as evidenced by the road sinking in front of her house and the current state of North Main Street due to the heavy commercial truck traffic traveling on a residential road.  She explained that in regards to the third special exception criteria (c) of subsection III of RSA 155-E:4, the proposed excavation site will cause a nuisance due to the dust that is created and the noise from the trucks operating and backing up.  She explained that they can already hear from their property the trucks backing up and operating from the existing Chauncey Pit, and the proposed excavation site will be even closer to their property.  She stated that the proposed excavation will not allow the abutters to enjoy the use of their properties due to the noise created by the pit.  She explained that these are all reasons why excavation sites should not be in a residential/ rural district, they should be in a commercial area.  

She explained that in regards to the first special exception criteria (1) of section A of Article XIII, the proposed excavation site is not similar to any of the permitted uses in the Rural District and all of the excavation sites in this district are existing pits that were grandfathered, not permitted by the zoning districts, and therefore have not been required to come in front of the Zoning board of Adjustment for a special exception.  She explained that in regards to the second and third special exception criteria of section A of Article XIII, she has already addressed them and the proposed excavation site will adversely affect the neighborhood, will create excessive traffic, noise, and odors, stating that she doesn’t know of anyone that likes the smell of diesel fumes.  Ms. Renee Rabideau stated that in regards to the fourth special exception criteria (4) of section A of Article XIII, the proposed excavation site did receive a recommendation from the Planning Board but the topic was just brought on to the Board and they weren’t informed of it ahead of time.  She explained that RSA 155-E:4, III, was never read to the Planning Board so the members never knew that it had to be in a non-residential area.  She explained that she didn’t even realize it either until she got home and reviewed RSA 155-E:4.  She stated that the applicant has stated that sand and gravel are building materials, so does that mean a concrete or asphalt plant can be built in the Rural District because these materials are used to build roads and houses?  She explained that the applicant has stated that there is a limited amount of material in he Town of Antrim, and she believes that four (4) active pits is not limited and that is a lot of material already being excavated; why should there be anymore?  She stated that the applicant has stated that a lot of these issues and concerns will be addressed by the Planning Board, but she feels that all of these issues and concerns should be addressed now by the Zoning Board of Adjustment because this is a special exception.

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Ms. Todd introduced herself and stated that she agrees with everything Ms. Renee Rabideau has said.  She stated that she lives right across the road from the proposed excavation site, on Elm Avenue, has a young granddaughter living with her, and the front of her house was yellow and now is completely black due to all of the heavy truck traffic already traveling on the road.  She explained that it is very annoying having heavy trucks ‘jake’ braking down the road all day long and she can not sleep in any days at her house except Sundays due to the noise coming from the existing excavation sites.  She stated that this is simply just not the area for an excavation pit.  

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Mr. Beblowski introduced himself, stated that he is an abutter on Smith Road (Tax Map 8A, Lot 16), provided a written testimony to the Board, and stated he also has a few photos.  He read his written testimony/ letter into the record, dated April 10, 2007 regarding the granting of a special exception for the proposed excavation site, and is in the planning board file # 2007-02ZBA at Town Hall.  Mr. Beblowski’s testimony was partially focused on the first special exception criteria (a) of RSA 155-E:4, III, regarding the diminution in area property values or the changing of the character of the neighborhood.  He stated that if this project is allowed to move forward it would have a substantial visual impact along approximately six hundred and fifty (650) linear feet along Elm Avenue and approximately four hundred and fifty (50) linear feet along Smith Road.  He asked the Board if they felt an excavation site with this amount of disturbance would likely reduce the value of abutting and adjacent properties.  He also pointed out that the proposed lots for the excavation site have approximately four thousand (4,000) linear feet of external property lines that could reduce the usable area to excavate by up to five (5) acres if all of the abutters are disapproving abutters, requiring a fifty (50) foot setback from the excavation pit.  Mr. Beblowski asked if they would like to own a house or property within less than four hundred (400) feet of an excavation site.  He stated that the proposed excavation site is a little more than one hundred (100) feet away from Ms. Spaulding’s house and less than two hundred (200) feet to the driveway from the Slango’s house.  He asked the Board if they think they will be able to hang their wash out or sell their property when they are that close to an active excavation site.

Mr. Beblowski stated that in regards to the first special exception criteria (1) of section A of Article XIII of the Antrim Zoning Ordinances, the proposed excavation site is in a district with grandfathered pits but this one is a particularly bad location for the reasons cited above and a ‘no’ vote should be the response to this criteria.  He explained that in regards to the second special exception criteria (2) of section A of Article XIII, he stated that this criteria cannot be answered in the affirmative, because clear cutting the property and running heavy equipment during limited operating hours of 7 am to 5 pm Monday through Friday will not make the visual impact, sounds, and dust less obnoxious and offensive.  He stated that in regards to the fourth special exception criteria (4) of section A of Article XIII, he stated that it appears that the Planning Board did not read the purpose of the Rural District in the Antrim Zoning Ordinances and an excavation that is highly visible on two scenic roads is not consistent with the intent of this zoning ordinance and therefore a ‘no’ vote should be the response to this criteria.  He explained that in regards to the sixth special exception criteria (6) of section A of Article XIII, a ‘no’ vote should be the answer because it will cause a diminution in area property value or unreasonably change the character of the neighborhood and the excavation will create a nuisance, health, and/ or safety hazards.

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Ms. Michele Rabideau introduced herself, stated that she lives on Elm Avenue at Tax Map 8A, Lot 76, and explained that she can set her clock at Zeke and Mack time, 7 am in the morning, and she can not only hear the operations but actually feel the rumbling due to the activities.  She stated that she lives down the hill from the existing Zeke and Mack, LLC excavation site, which is an existing/ grandfathered site, but this proposed excavation site will be parallel to her lot on Smith Road and will go in under unduly conditions and requested a ‘no’ vote be made for this criteria.

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Ms. Pinello introduced herself, stated she is an abutter on Smith Road (Tax Map 8A, Lot 17), and spoke in general about the nature of the Rural District and the nature of Scenic Roads.  She stated that the nature of the intersection of Smith Road and Elm Avenue is an important point to consider in this decision.  She explained that both of the roads are mostly lined by stonewalls on either side but where they are missing is primarily due to the Town making improvements to the roads from the 1930s to the present.  She stated that both of these roads are primarily tree lined, another aspect of scenic roads, and the trees are generally denser along scenic roads than other non-scenic roads.  She explained that a lot of the buildings, homes, and structures tend to sit closer to the scenic roads and the road was originally put there due to the proximity of the older houses that still exist today.  She stated that their house is from 1790 to 1810 and is literally on the very edge of Smith Road.  She explained that due to their property location on Smith Road, there is an echo and they can unintentionally hear discussions taking place in the existing Chauncey Pit across the road when hanging out the laundry.  She stated that these considerations must be addressed when deciding to grant a special exception for an excavation site in a Rural Area on two historic, scenic roads.  Ms. Pinello stated that the Town must be careful when granting special exceptions and about the profit motives of applicants proposing to conduct these types of land use operations, especially in a Rural District.  She explained that these motives need to be balanced by all of the private landowners’ interests, in which they have invested in modest homes, along these scenic roads in this Rural District.

Chairman Winchester asked if there were any other abutters that would like to speak against this proposal.  Ms. Geraldine Rabideau introduced herself, stated that this special exception is supposed to be for non-residential areas, and if this proposed excavation site is allowed, she will have a pit on either side of her property.  She stated that it will decrease the value of her property, it will change the character of the neighborhood by clear cutting and excavating, and it will create objectionable noise.  Mr. Vaiciulis introduced himself, stated that he lives across the street from Ms. Spaulding, and he can in fact hear the noise from the existing gravel pit that already exists and putting in a new pit at the intersection of Smith Road and Elm Avenue will change the character of the neighborhood.  Ms. Lapointe introduced herself, stated that she lives across the street from the existing pit, and has lived there for thirty (30) years.  She explained that due to the clear cutting on the existing excavation pit on Elm Avenue, the drainage of surface water on the lot has changed and all of the wildlife are gone.  She explained that she spends a lot of time outdoors, the wildlife sightings, tracks, and markings are gone.  She asked the Board what will hold the soil in place now that the trees are gone.  She stated how can anyone say it won’t impact someone?  She stated there is a safety issue, there is a visual impact, and asked what happens to the quality of the nearby surface waters?

Mr. John Slango introduced himself, stated that he lives across the street from the proposed site at 329 Smith Road, and is representing himself and his father.  He read an e-mail from his father into the record.  His father expressed concerns regarding the devaluation of real estate values of surrounding properties, it being a noise nuisance, and a safety hazard.  Mr. Slango stated that the applicant has stated that the property values won’t go down, but he asks the Board if he can prove it, can he show everyone a study that proves it.  He stated that constant and excessive noise is a rapid deterioration of your body, making you uneasy, short tempered, and sick all of the time.  He explained that he likes to open his windows during the day but can’t do it if an excavation pit is allowed to open.  He expressed concerns about wildlife not being around as much as it used to.  He read aloud a letter from Robert Varnum to Mr. Burnside stating: “I have again reviewed the driveway access for the above and I find no problems with your plans as discussed.”  Mr. Slango stated what plans is he referring to?  He asked is this a driveway or a road?  Why is it on the property boundary?  What driveway requirements does it meet?  He also pointed out that he already has problems with noise, diesel fumes, and odors due to the existing sand and gravel operations.  He explained that Elm Avenue and Smith Road are quickly deteriorating due to all of the heavy, commercial truck traffic, and he is worried they may one day take out his granite post mailbox.  He also wondered what the hours of operation will be and who will pay for the necessary signs to be put up for the excavation operations.  Lastly, he stated that he would like to see some studies done or written proof how the neighboring properties will not be reduced.  

Chairman Winchester asked if anyone else would like to speak against the proposal.  Ms. Nelkens introduced herself, stated that she is not an abutter, but would want not to be an abutter to this proposal.  She stated that she has some serious concerns regarding the safety of the ingress and egress on to the proposed lots due to the driveway being located on top of a small hill.  She explained that the safe sight distance for driveways is required to be two hundred (200) feet in all weather and driving conditions.  She stated that there is one hundred and fifty (150) feet safe sight distance one way while one hundred and seventy-one (171) feet the other way.  She also explained that North Main Street is already in very poor condition and allowing another excavation pit to operate on Elm Avenue will increase traffic on North Main Street, further degrade the conditions of the road, and will be a huge mistake.  She stated that when the heavy trucks go by, it shakes her whole house, and all of her windows rattle.  Mr. Houseworth informed the Board that he received a letter from an abutter who is opposed to the proposal.  Mr. Houseworth read the letter aloud, dated April 4, 2007, from Mr. and Mrs. Bill and Johanna Hein at 335 Elm Avenue, regarding numerous concerns regarding safety, noise, and odors due to the already heavy truck traffic that exists from the existing excavation operations.

Mr. Burnside stated that as far as the existing driveway goes, he explained that he met with Mr. Varnum when he originally logged the property, and the driveway was originally put in for the purposes of entering the lots to log the three parcels.  He explained that a new entrance could be made anywhere on the road frontage along Smith Road in order to properly excavate the material from the sites and address any safety concerns or safety hazards.  Mr. Burnside stated that at this point in the process, for a special exception to be granted, these driveway issues are site plan issues that will be addressed by the Planning Board and are not why we are here tonight.  He stated that he thinks if the Town checks with Town Counsel regarding what constitutes a nonresidential area, he believes Town Counsel will find that the Rural District is not a residential area because it is not the Residential District and the residences are not as dense in the Rural District as they are in the Residential District.
Mr. Houseworth stated that he would like to speak to the ‘non-residential area’ issue.  He explained that when the planning staff tried to interpret RSA 155-E:4, III, the question was brought up: what is a residential area vs. a non-residential area?  The Town zoning ordinances do not provide for a definition of residential or non-residential areas nor does the State of NH have a definition.  Furthermore, if the planning staff were to deem that the Rural District, or this portion of the Rural District, is a residential area, then RSA 155-E:4, III, does not address it and we assume it is prohibited by State law.  Mr. Houseworth stated that he spoke with Town Counsel on the subject, and it was deemed that since there is no definition for a non-residential area, we must assume that the word ‘area’ is synonymous with the word ‘district’, and therefore this operation is in the Rural District and is in a non-residential area as opposed to being in a residential area in the Residential District.  Mr. Houseworth explained that residences are allowed in every zoning district in Town, and the word ‘residential’ is in every purpose section of these zoning districts, so it could be interpreted that we essentially have no non-residential areas in Town and every zoning district is a residential area.  He stated that if we follow this line of thinking, it seems that this is the exact reason why RSA 155-E:4, III, was drafted in the first place.  He stated that he also spoke with Ms. Mary Pinkham-Langer regarding this topic and she explained that it is very difficult to interpret section III of RSA 155-E:4 because it is a run-on sentence and it is hard to determine what portion of this long sentence does the phrase ‘in any non-residential area’ pertain to.  Did the legislators intend for individuals to only allow special exceptions in non-residential areas or does it mean that special exceptions are allowed in Towns which do not speak of excavation sites in non-residential areas?  He stated that due to the input and advice we received from Town Counsel and Ms. Langer, the planning staff decided it was enough to allow the public hearing to be heard by the Zoning Board of Adjustment.

Mr. Burnside stated that in regards to the abutters’ concerns about traffic on North Main Street, he would have no problem altering the routes that the trucks take and could work with the Planning Board on that issue.  He stated that in regards to the diesel smells and fumes, Landsite, LLC has recently updated their trucks to newer trucks (1999 and 2000), they meet all of the EPA tier 2 requirements, and they use very low level sulphur fuels.  He stated that the trucks probably have fewer emissions then most of the cars in Town.  He stated that they have been conscious of the environmental issues and that is one reason why they updated to new trucks that meet the EPA standards.  He provided the Board with a plan of the three lots showing the existing topographical contours where the excavation operation is proposed.  He stated that their plan is to start at the back of the properties, away from Smith Road and Elm Avenue, and work towards the front of the properties, reclaiming behind them as they go.  He explained that the idea is that by the time they punch through the front of the lots, most of the excavated areas would already have been reclaimed in order to prolong the visual disturbance as much as possible and try to buffer some of the sound.  Mr. Burnside stated that two of these lots are not really buildable lots until the terrain is reshaped properly to site buildings upon them.  Mr. Davis stated that both he and Mr. Burnside have been long time residents of Antrim and this isn’t just opening a pit, excavating the material, and walking away.  He stated that they want to see a nice development there when they are done and a lot of these concerns of the abutters are really for when they appear in front of the Planning Board.
Mr. Slango stated that he has a question about the word ‘neighborhood’, and believes that neighborhood is essentially synonymous with the word ‘residential.’  He stated that at least nine houses in this area are stating that they don’t want this operation, they are his neighbors, and their area of Town can be considered a neighborhood.  Ms. Renee Rabideau explained that the purpose section of the Rural District specifically states that the district is intended to be a rural residential area and is therefore a residential area.  Ms. Nelkens stated that she was looking at a house near Elm Avenue, they were disturbed by the noise from the nearby tree cutting operations, and they noticed that the price has been dropping on the house since, from $180,000 to $145,000.  Mr. Beblowski stated that he had the intention of placing a large portion of his property into a permanent conservation easement but because of the existing gravel pits in the immediate area, he will no be able to do this because land trusts will not accept the property due to the proximity of the property to these existing gravel operations.  Ms. Stewart introduced herself, stated that a land trust has expressed interest in obtaining a site from them that was an excavation site, and the excavation site in question is temporary and will only last five (5) to ten (10) years.  Mr. Stewart explained that Landsite, LLC only owns two trucks and can only haul out so much material on a daily basis.  Mr. Burnside stated that he averages about four (4) loads of material a day and some day there may be less loads and other days that they have more loads.

Chairman Winchester moved to close the public hearing, which was seconded by Mr. Pagano and unanimously passed.  He asked the Board if they have any further questions for Mr. Burnside.  Mr. Crafts stated that according to the Planning Board meeting minutes from March 1, 2007, Mr. Burnside stated: “…if the Zoning Board of Adjustment denies his request for a Special Exception, his course of action would be to re-subdivide the land and propose some type of residential development (cluster housing, condominiums, etc.), which would include the removal of some materials from the site as incidental excavation for building construction.  He (Mr. Burnside) stated that regardless of which of the two options is pursued, materials will be removed from the site.”  Mr. Crafts stated that he just wanted to read that aloud to the audience so that everyone understands that material will be leaving the site one way or another, regardless of the outcome of this meeting.  Mr. Crafts asked Mr. Burnside if this excavation pit will be temporary and how long he estimates the pit will last.  Mr. Burnside replied under ten (10) years but it really depends on the design review of what they pick for proposed grades and what they end up with in terms of volume and material.  He stated that at this point, he has not proposed any finish grades.  

Mr. Young asked Mr. Burnside that if he develops the properties for building lots, there would be some incidental removal of material that would be completed in a short amount of time, would it be less than a year?  Mr. Burnside replied that it would be at an extremely accelerated rate to move that material out under the incidental excavation.  Mr. Young asked Mr. Burnside if it is allowable to change the contours of the property, and remove material from the site, in order to utilize and develop these lots.  Mr. Burnside stated that it is his understanding under the current zoning ordinances and RSA 155-E, that he can apply for a building permit and move the necessary material to place the house on the site.  He stated that he can also have any appropriate grading that he desires around the house and would be allowed to come within ten (10) feet of the abutting property lines under this scenario.  Mr. Young asked Mr. Burnside if he would be able to establish the same final elevations under the incidental excavation approach as he would if he obtained an excavation permit.  Mr. Burnside replied that it really depends on the design criteria that they come up with.  He stated that if he were to just develop the lots as is, he would fill out the state form, check the incidental excavation to construction box, and he could excavate the material without having to adhere to the Town of Antrim Earth Excavation and Reclamation regulations or the state regulations under RSA 155-E.  Mr. Young stated that it seems that the only difference between these two approaches would be the period of time and the way or manner in which the material is removed from the site. Mr. Burnside replied yes.  Ms. Renée Rabideau stated that under RSA 155-E:2-a, incidental excavations are for minor topographical adjustments.  She explained that he is planning on removing seventy six (76) vertical feet of material from the site, which is not minor topographical adjustments, so he would not be able to remove the same amount of material as he would if he obtains an excavation permit from the Planning Board.

He asked the Board if they have any further questions for Mr. Burnside, there were none.  Mr. Pagano stated that he would like to discuss this among the Board members prior to moving to a roll call vote.  He stated that he has the highest regard for the applicant, Mr. Burnside, and understands he runs an excellent business, however, he truly feels that in this case the Board would be ill serving the interests of the abutters whose opposition to this application is robust and unanimous.  He stated that it would be a huge disservice to the abutters at large if this application was approved.  He explained that he appreciates Mr. Kendall’s point of view on this matter but he feels strongly that the interests of the property owners adjacent to this property should be held it very high regards as far as what their concerns, interests, and opinions are.  He stated that in terms of the geographical location of the parcel, it is in a delicate area in terms of road elevation, curvature, and the location on Elm Avenue and Smith Road, and he feels that the Board should deny this application primarily based on the overwhelming opposition voiced by the abutters.  Mr. Pagano stated that the bottom line is that what we are dealing with tonight is unanimous opposition from abutters who do not want a special exception granted because they don’t want the accompanying noise and trucks and other things that they see as hazards or degradation to their rights as adjacent property owners.  He explained that this is not a venue for ‘let’s make a deal.’

Mr. Vasques suggested that the Board take the opportunity to review each of the ten (10) special exception criteria, discussing each item before going to a vote, so that the record reflects the position of the Board on each special exception criteria.  Chairman Winchester agreed and stated that they would go through each special exception criteria, staring with the six (6) from Article XIII of the Antrim Zoning Ordinances.  He read aloud the first criteria: “The proposed use may be similar to one or more of the uses already authorized in that district and is in an appropriate location for such a use.”  Mr. Crafts stated that he believes the proposed use is similar to one or more of the uses already authorized in the Rural District.  However, Mr. Pagano stated that it is not an appropriate location for such a use.  Mr. Giffin stated that it is essentially a yes for the first section of the criteria and a no for the second section of the criteria.  Mr. Crafts stayed that it is similar to the two other existing excavation pits in the area but is not in an appropriate location.  Chairman Winchester read aloud the second criteria: “Such approval would not adversely affect the neighborhood, nor otherwise be injurious, obnoxious or offensive.”  He stated that it is clear from the abutters that the operation would affect the neighborhood and is obnoxious or offensive to a number of the abutters present.  He read aloud the third criteria: “The use will not create excessive traffic congestion, noise, or odors in the neighborhood where it is proposed.”  He stated that based on the overwhelming responses from the abutters it seems that there will be excessive noise and odors in the neighborhood.  

Chairman Winchester read aloud the fourth criteria: “Such approval would be consistent with the intent of the Zoning Ordinance, after having given due consideration to recommendations received from the Planning Board.”  Mr. Young stated that they have received a recommendation from the Planning Board.  Mr. Giffin explained that because there is no definition for a ‘non-residential area’, we have to go by zoning districts, and it seems it would fit in this district.  Chairman Winchester read aloud the fifth criteria: “Adequate and appropriate facilities will be provided for the proper operation of the proposed use.”  He commented that they have already addressed this and it is mostly a Planning Board issue.  He stated that the sixth criteria is essentially a mute point because the proposed special exception is not listed in Article XIII, D, and therefore, there are no additional conditions to meet.

Chairman Winchester then addressed the four (4) special exception criteria from subsection III of RSA 155-E:4.  He read aloud the first criteria (a): “The excavation will not cause a diminution in area property value or unreasonably change the character of the neighborhood.”  He stated that although there is the existing Chauncey pit in the neighborhood, it appears that the character of the neighborhood would be changed.  He read aloud the second criteria (b): “The excavation will not unreasonably accelerate the deterioration of highways or create safety hazards in the use thereof.”  Mr. Giffin stated that due to the operation being moved from the Chauncey pit to the proposed excavation site, the operations will not accelerate the deterioration of highways but believes that it will cause a safety hazard due to the complexity of the corner or intersection.  Chairman Winchester read aloud the third criteria (c): “The excavation will not create any nuisance or create health or safety hazards.”  Mr. Crafts stated that it will most likely cause a nuisance, as proven by the abutters’ objections.  Chairman Winchester read aloud the fourth criteria (d): “The excavation complies with other special exception criteria as may be set out in applicable local ordinances,” and stated that the Board has addressed these.
Mr. Young moved to go to the roll call vote, which was seconded by Mr. Scales and was unanimously approved.  The Roll Call Vote for the granting of a special exception to operate an earth excavation site is as follows:
1.      The proposed use may be similar to one or more of the uses already authorized in that district and is in an appropriate location for such a use.  Roll call vote: Mr. Scales – nay, Mr. Young – aye, Mr. Giffin – aye, Mr. Pagano – nay, & Mr. Winchester – nay.
2.      Such approval would not adversely affect the neighborhood, nor otherwise be injurious, obnoxious or offensive.  Roll call vote: Mr. Scales – nay, Mr. Young – nay, Mr. Giffin – nay, & Mr. Pagano – nay.
3.      The use will not create excessive traffic congestion, noise, or odors in the neighborhood where it is proposed.  Roll call vote: Mr. Scales – nay, Mr. Young – nay, Mr. Giffin – nay, & Mr. Pagano – nay.
4.      Such approval would be consistent with the intent of the Zoning Ordinance, after having given due consideration to recommendations received from the Planning Board.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Giffin – aye, & Mr. Pagano – nay.
5.      Adequate and appropriate facilities will be provided for the proper operation of the proposed use.  Roll call vote: Mr. Scales – aye, Mr. Young – aye, Mr. Giffin – aye, & Mr. Pagano – nay.
6.      Requirements per RSA 155-E:4, III: (a) The excavation will not cause a diminution in area property value or unreasonably change the character of the neighborhood.  Roll call vote: Mr. Scales – nay, Mr. Young – nay, Mr. Giffin – nay, & Mr. Pagano – nay.
(b) The excavation will not unreasonably accelerate the deterioration of highways or create safety hazards in the use thereof.  Roll call vote: Mr. Scales – nay, Mr. Young – aye, Mr. Giffin – aye, Mr. Pagano – nay, and Mr. Winchester – nay. (c) The excavation will not create any nuisance or create health or safety hazards. Roll call vote: Mr. Scales – nay, Mr. Young – aye, Mr. Giffin – nay, & Mr. Pagano –nay.

Mr. Houseworth informed Landsite, LLC that the granting of the special exception to operate an earth excavation pit in the Rural District had been denied and stated that the applicants will receive a notice of decision in the mail, signed by the chairman.  Chairman Winchester thanked the applicants, abutters, and citizens for coming.

Approve ZBA Meeting Minutes:  Chairman Winchester made a motion to approve the minutes of the February 27, 2007 meeting as presented, which was seconded by Mr. Young and unanimously passed.

Paul Vasques – Letter of Resignation:  Mr. Vasques provided the Board with his letter of resignation, dated April 2, 2007, essentially stating he is resigning as Town Planner and Secretary to the Planning Board and Zoning Board of Adjustment effective June 1.

NH OEP News – 14th Annual Spring Planning and Zoning Conference:  Mr. Vasques reminded the Board that the NH OEP is holding a planning and zoning conference in the spring on Saturday, April 28, 2007 at the Center of NH, Radisson Hotel, in Manchester, NH.  He stated that the registration deadline is Friday, April 20, 2007.

Mr. Young moved to adjourn the meeting.  Mr. Pagano seconded the motion which passed.  Chairman Winchester adjourned the meeting at 9:45 PM.

Respectfully submitted,



Bradley J. Houseworth, Planning Technician,
Antrim Zoning Board of Adjustment


 
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