Zoning Board of Adjustments
ZONING BOARD OF ADJUSTMENT
APPROVED MEETING MINUTES
July 9th, 2020
Public Hearing/Meeting
Members & Staff Present:
John Giffin (Chair), Bob Holmes (Member), Shelley Nelkens (Member), Ray Ledgerwood (Member participating by Zoom), Diane Kendall (Member), Christopher Parks (Alternate), Carol Ogilvie (Planning Consultant), and Ashley Brudnick-Destromp (Assistant)
Absent:
Public Attendees: Virginia Dickenson (Self participating via Zoom), Keith Wolsiefr (Self participating via Zoom), Michael Redmond (Self participating via Zoom), Carol Dahlberg (Self), Dave Dahlberg (Self), Bernadette Todd (Self), Joyce Davis (Self), Tom Davis (Applicant), Ann Edwards (Self), John Cronin (Attorney for applicant), Martha Pinello (Self), Brad Cathewson (Meridian participating via Zoom), Peter Beblowski (Self participating via Zoom), Barbara Beblowski (Self), Joanna Day (Self), and Richard Day (Self)
*Due to COVID-19 this meeting was conducted with social distancing and also made available to public access via Zoom*
Opening of Meeting: Chair Giffin opened the meeting at 7:02 pm.
The Assistant informed the Board she had spoken to attorney Buckley from NHMA Legal regarding the meeting on Tuesday. The statue states that, if at any point the public hearing cannot be heard, it needs to be stopped. Therefore, the meeting on Tuesday needs to be restarted this evening from the beginning.
Motion: Mr. Holmes made a motion to re open the meeting from Tuesday July 7th, Ms. Kendall second it.
Discussion: There was a brief discussion on the proper way to start the meeting over.
Vote: John Giffin “Aye”, Bob Holmes “Aye”, Diane Kendall “Aye”, Shelley Nelkens “Aye”, and Ray Ledgerwood “Aye”.
Motion: Mr. Holmes made a motion to start the meeting from the beginning, Ms. Kendall second it.
Discussion: The Board will start from after the application was accepted as complete
Vote: John Giffin “Aye”, Bob Holmes “Aye”, Diane Kendall “Aye”, Shelley Nelkens “Aye” Ray Ledgerwood “Aye.”
I. Public Hearing: JT Enterprises, LLC. 2020-03 ZBA Map 214 Lot 011, 012, 013 (Corner of Elm Ave and Smith Rd.) Requesting a special exception for excavation of, and removal of naturally deposited esker (gravel & sand) to allow reasonable access and development of the applicant’s land.
Mr. Cronin introduced himself to the Board. He said the 3 lots equal 15.5 acres, and are located on the corner of Elm Ave and Smith Rd. Mr. Cronin also referenced the Board had previously voted to accept the application as complete, and that under the Zoning Ordinance in the Rural District, “building materials” is a special exception. Mr. Cronin asked to submit to the Board that under Article VII, Section B.h. that building materials encompasses sand and gravel.
Mr. Cronin gave a brief history of sand and gravel, and what is located at the proposed site. He then proceeded to go through all of the requirements for criteria. Mr. Cronin referenced Zeke & Mack’s Realty, the Town of Antrim gravel pit, and the Chauncey pit that was already reclaimed.
He said there are roughly 150,000 yards of material, and that the applicant proposes a 3 phase project with each phase no greater than 5 acres, and that they also have to obtain an Alteration of Terrain permit with NHDES as well as an excavation permit from the Antrim Planning Board.
Mr. Cronin said the owner intends keep a small operation with doing the work 95% himself, but that it is predictable that there will be some commercial aspect as the selling of gravel will offset the costs. The lots will be turned into high end residential development after. (Unregulated no permit)
Mr. Cronin said that the site cannot be expanded or enlarged without Town and State approval. He referenced the Chauncey pit in regards to size, and said that the size of the Chauncey pit is the same as any 3 phases. He added that Scott Burnside reclaimed that pit in 5 years, the same timeline as this proposed site. The applicant expects sporadic activity, and that he cannot work when the roads are posted or the ground is frozen. Projected volume is 75,000 yards from any of the 3 phases with 15,000 yards a year, 288 yards a week, and under 18 truckloads in a week if the applicant worked every week. Mr. Cronin said obviously this is subject to increase, decrease, or have periods of time where there are no trucks. Overall operation timeline is 15 years with a small scope and scale.
Mr. Cronin wanted to remind everyone that the Zoning Ordinance allows excavation by “special exception” if all criteria is met and that it is not listed as “not prohibited”. He added that unlike a variance, if it is allowed and the criteria are met it shall be granted, and that if the criteria are not met it cannot be granted.
There are no plans for a garage or storing of equipment. Mr. Cronin said the applicant only will have equipment on site when working. Mr. Cronin added that, in regards to an adverse effect on the neighborhood, the size of the operation is small so it minimizes those components.
The Board asked if there was a recommendation from the Planning Board. The applicant said none were made, they advised the Planning Board of their intent and were told to go before the ZBA.
Mr. Cronin referenced the Town of Antrim Excavation regulations, and said that the 2nd section is worth reading, and that everyone needs these materials. He mentioned the abutters will have concerns regarding components, but that it needs to be done in context with what is actually being proposed. He referred back to the Chair.
Chair Giffin clarified the 3 phases being proposed briefly with Mr. Cronin.
Mr. Holmes mentioned Section 155-E saying that it mentions “nonresidential” and asked Mr. Cronin for his interpretation of what that means. Mr. Cronin said that 155 E4 III is the applicable statute and that is says that a regulator shall not grant a permit when excavation is “not” permitted by the Zoning Ordinance, and that excavation is a use allowed by special exception. He added that 155-E4 III only applies if it’s “not permitted” or if the zoning is “silent, ” and that legislature recognizes this resource has value and should be developed.
Mr. Holmes asked if the “nonresident” part has no bearing because it is allowed by special exception. Mr. Cronin responded that the Town’s regulations are almost equal to the State’s Statutes, and that the district is not necessarily a residential district if the Board looks at the Zoning Ordinance. Mr. Cronin then read the definition of the Rural District from the Town’s own Zoning Ordinance. “The Rural District is intended to be a district of rural residential dwellings complemented by other traditional rural/agricultural uses. The district also permits certain nonresidential uses that are compatible with the rural character of the district. Such uses are permitted by Special Exception.” Mr. Cronin then added that “building materials” is listed as a potential compatible use.
The Chair asked if any other Board members had questions.
Ms. Nelkens inquired about the beginning of the operation itself. Mr. Davis said it would be Summer and some Winter and once completed build and sell. May take a small period of time for the septics and driveways. Ms. Nelkens asked what the closest delivery was in regards to Mr. Davis’s other properties that he is excavating materials for. Mr. Davis said some are within 2.5 miles, in total there are 11 properties with 2 in Washington, 2 in Hillsborough, 7 within Antrim, and he added he has a 200ft driveway that is ready for materials now. Ms. Nelkens inquired about how many trucks there will be. Mr. Davis said that he will own only 1, but there is a chance he may need to rent more but it would be sporadic. Mr. Davis added the purpose was to do it all themselves as a family only business. Ms. Nelkens inquired about the machinery time to get a better idea of the noise. Mr. Davis said 20 minutes 10 x at the most to load a truck, and that the equipment is all low emissions and energy efficient. Ms. Kendall inquired about how that could be even regulated. Chair Giffin said that would be a topic for the Planning Board.
Ms. Kendall asked about if the operation or even the vehicles change. Ms. Ogilvie said that it could be a condition that, if the operation changes, the applicant would need to come back. Ms. Kendall asked about blasting. Mr. Davis said there would be no blasting, just digging, and no water going off property. He added the property is well drained, and there would be no crushing either. Mr. Cronin said the initial plans show a much greater vegetative buffer than is required.
Chair Giffin mentioned that back in 2007 the excavation permit was denied. Mr. Cronin said it was not denied, the applicant voluntarily withdrew the application without prejudice so they could go back in the future. Mr. Cronin asked the Board to take judicial notice of 2007-02 ZBA and 2007-08 ZBA, and he read the withdrawal notices without conditions (attached to minutes). Chair Giffin thanked him.
Mr. Ledgerwood asked where the driveway would be. Mr. Davis said it would be on the south side. Ms. Nelkens had questions about the 3 different routes to the proposed site, Mr. Davis went over the possible routes but stated it would ultimately be up to the Planning Boards decision during site review.
Mr. Ledgerwood said that by looking at the map put together by the Assistant with the names of the property owners, it looks like that area is a community, and if they would have to wait 15 years to see the community expanded. Mr. Davis once again said that the homes wouldn’t be started for 15 years after all 3 phases were completed.
The Chair had to remind those participating via Zoom that public comment was for later.
The Chair asked the Assistant to pull the ZBA minutes from 2007. The Assistant pulled 3 sets of minutes, and there was a discussion between the Board and Mr. Cronin regarding what happened. Mr. Cronin said that the original application was denied, and then that decision was appealed, and during the appeal process, the application was withdrawn. The Board would like more time to review those minutes to clarify what happened. The Assistant is to make copies for the Board members to review. Mr. Ledgerwood expressed concerns about Elm Ave and traffic.
The Chair asked if there were any abutters in favor.
Mr. Davis said that Chris and Lisa Stewart are both in favor but he encouraged them not to attend in person due to COVID-19. The Chair asked if there were any written letters he had. Mr. Davis said no, and the Assistant confirmed she had not received anything from them either. Mr. Davis stated he just wanted to let the Board know there are people in favor. The Chair reminded Mr. Davis without them attending the meeting or writing a letter that it doesn’t technically count. Ms. Kendall reminded Mr. Davis that the Stewarts could have also participated via Zoom.
The Chair asked if there any abutters against the application.
Ms. Dickinson was participating via Zoom, and expressed concerns on the extra wear and tear on the road, especially with Town finances being impacted by COVID-19, she said the roads need to be protected and maintained as much as possible. She also expressed concerns over environmental impact, and would like more information on that. Mr. Holmes asked Ms. Dickinson if she was an abutter and if so her location, she informed him she was not and that she lived on West St.. The Chair said at the moment he would like to take abutters input only.
Mr. Beblowski expressed his concerns for Mr. Cronin using the term “building materials” to include excavation sites, as he stated he was on the committee that had written the Zoning Ordinance, and that was not the intent of the word. He went into further detail on how Antrim had wanted to accommodate Antrim Lumber Co. at the time, and that they were trying to get the grandfathered pits under control. He also mentioned that Landsite is on Route 31 and is in the Highway Business District, and that there has never been a special exception granted in the Rural District for excavation. Zeke and Macks was also grandfathered in, and that Smitty Harrison operated the site without a permit under a State highway project so the Town grandfathered his operation as a thank you for all the work he had done.
Mr. Beblowski spoke at length and reiterated the following points:
- Excavation sites were not intended to be permitted uses in Rural District
- The Definition of the Rural Zone that Mr. Cronin is correct and reflects that the primary definition of the district is residential
- 75% of the lots are residential
Mr. Beblowski also mentioned that top soil and sand were already pulled off the site when it was being harvested for timber. The Chair said they could send the code enforcer to investigate.
Mr. Beblowski also mentioned on how his CO2 detectors on occasion go off when the diesel trucks drive down Smith Rd. He expressed the current conditions with the surrounding pits that already exist, and how sound travels.
Mr. Cronin asked the Chair for permission to respond to Mr. Beblowski, Chair Giffin granted it. Mr. Cronin said that he suggested Mr. Beblowski read Article 4 & 5 with greater care of detail, and that he understands the argument Mr. Beblowski is making. There was a brief conversation on what is meant by “building materials.” The conversation ended with Mr. Beblowski reminding that the operation on Route 31 was given a permit because it is a commercial operation within the Highway Business District, not Rural Residential.
Ms. Pinello who also resides at 318 Smith Rd said she also wanted to speak against the application, and she wanted to first correct Mr. Cronin’s testimony. The Town Pit is located in the Lake District, and it is a unique pit as the Town has a different permitting process and therefore this pit should not be used in comparison. Ms. Pinello said that she is neighbor to the Chauncey pit for 36 years, and that it shouldn’t be used as a “shining example” as Mr. Cronin had stated because, even with Mr. Scott Burnside’s drivers being very courteous, there were many issues her and her family experienced. Ms. Pinello said she understands construction, and how things can change or not go as planned. She also mentioned how most of the things being discussed would fall under Planning Board. Ms. Pinello expressed how her intent is not to hinder business, but that this type of project would have freedom in the Commercial Zone vs the Residential Zone, and that the Davis’s made a choice not to use rules that allow them to work in an area without a permit, and how denying this would not limit their economic opportunities. She expressed how their “retirement plan” would conflict with her and her own families. Ms. Pinello expressed issues she had in the past with the Chauncey pit: unexpected hauls, parties that were ruined, laundry hung outside covered in dirt, and other instances. Ms. Pinello ended her speech by saying that the Davis’s have a right to develop homes, and that is fine, but that she already has dealt with a grandfathered excavation pit and hopes the Davis’s will just develop the 3 proposed homes within the next 2 years and move forward.
Ms. Todd introduced herself as living directly across from the proposed site, and how she is related to Mr. Davis as his cousin. She mentioned she owned a yellow house, and that is gets covered in dirt already from the excavation that surrounds her. That her garden gets covered in diesel fuels, and how she doesn’t want this for another 15 years. Currently, Francestown Sand & Gravel has trucks going back and forth and adding another pit would just be to much. She also expressed concerns of the aquifer, and how it used to fill up every spring, as well as concerns about the culverts. She stated there has been no water since Smitty’s pit, and she is worried about her well as well as her sisters.
Mr. Cronin again asked permission to respond, Chair Giffin granted it. Mr. Cronin spoke about the Aquifer and Wetland Protection District, and said that Section 8 is permitted uses unless it is prohibited by Section 9, and that this application does not apply. He added Section 6 may be applicable if there was an old well on the pit. There was a further discussion on Ms. Todd’s property in regards to her issues with the proposed site.
Mr. Dahlberg inquired about if there were proposed or set operation of hours. Chair Giffin responded that the hours of operation would be a Planning Board item during site approval.
The Assistant then read a letter by Carol Dahlberg that will be attached to the approved minutes. Mr. Cronin said that most of the questions in the letter had already been answered, but in regards to her reference of concern for property values being affected, unless Ms. Dahlberg is a realtor or an appraiser he doesn’t see the impact. Mr. Cronin added that the quality of homes constructed in the area has a significant impact on property value. A 1 million dollar home vs a trailer would increase their property value once the project is completed. In regards to impact of wildlife, Mr. Cronin said that the wildlife in this part of area are creatures of the edge, and they thrive living that way.
The Assistant then read a very lengthy letter from abutter Renee Rabideau that came with an attached letter from the Town Attorney from Upton & Hatfield dated 2007, as well as a map. All documents will be attached to the minutes. The letter was also against the proposed excavation site.
Mr. Cronin said that the map Ms. Rabideau had sent in can’t be considered because it shows 2 houses on 1 lot and that isn’t allowed unless a subdivision occurred which isn’t the plan. Mr. Cronin also wanted it noted for the record that Mr. Davis had offered his cousin, Ms. Todd, and opportunity to purchase the lot, and Mr. Cronin read a letter dated March 7th, 2020 in which Mr. Davis offered Ms. Todd to purchase the property for the exact amount he had. Mr. Cronin also mentioned that there is a 75’ (Ft) untouched buffer, and Mr. Davis offered to purchase Ms. Todd’s lot if she wished to move. Mr. Cronin began to speak on building materials again when Ms. Rabideau who was participating on Zoom interrupted and was muted. Mr. Cronin also expressed that the development scope after the excavation is beyond this meeting, and that abutters are entitled to their own opinions but that doesn’t mean they are qualified.
Mr. Day of 312 Smith Rd spoke in his concern of the intersection already being covered with sand, as he rides a motorcycle and it is already a tough intersection to stop in.
Mr. Redmond of 165 Smith Rd was participating via Zoom, and said that most of his concerns are Planning Board related, but wanted to know how does a Town truly regulate an operation and it’s noise over the course of 15 years. Chair Giffin said that it needs to have guidelines set out by the Planning Board as well as conditions.
The Assistant tried to unmute Ms. Rabideau to give her an opportunity to speak again, but was unable to do so. There were also issues unmuting Mr. Ledgerwood who had been muted due to background noise. Mr. Davis asked if the Board would consider ending the public hearing and moving into deliberation. The Board decided to continue the public hearing to Tuesday, July 28th at 7:00PM as they were not ready to close the public hearing.
Motion: Mr. Holmes made a motion to continue the public hearing to Tuesday, July 28th, Ms. Kendall second it.
Vote: Mr. Holmes “Aye”, Mr. Giffin “Aye”, Ms. Kendall “Aye”, Ms. Nelkens “Aye” The Assistant was unable to get Mr. Ledgerwood unmuted, and tried calling his cell phone to no luck.
II. Approve/Amend Minutes from 6/30/2020 & 7/7/2020:
Motion: Mr. Holmes made a motion to approve the minutes as amended for 7/7/2020, Ms. Kendall second it.
Discussion: Ms. Kendall asked that where it says “By a roll call vote, all were in favor,” be changed to reflect the actual roll call vote. This would be changed in several places throughout the drafted minutes.
Vote: Mr. Holmes “Aye”, Ms. Kendall “Aye”, Mr. Giffin, “Aye”, Ms. Nelkens “Aye” Mr. Ledgerwood still remained muted.
Motion: Ms. Nelkens made a motion to approve the minutes as written, Mr. Holmes second it.
Discussion: There was none
Vote: Mr. Ledgerwood came back. Mr. Holmes “Aye”, Mr. Giffin “Aye”, Mr. Ledgerwood “Aye”, Ms. Kendall “Aye”, and Ms. Nelkens “Aye.”
Motion: Mr. Holmes made a motion to adjourn the meeting, Ms. Nelkens second it.
Discussion: The Board discussed wanting clarification with Town Council for clarification on the definition of “building materials.”
Vote: Bob Holmes, “Aye”, John Giffin “Aye”, Diane Kendall “Aye”, Ray Ledgerwood “Aye”, and Shelley Nelkens “Aye”.
Meeting Adjourned: 9:36 PM
Respectfully Submitted,
Ashley Brudnick-Destromp
Assistant to Land Use Boards