The Town of Northwood, New Hampshire

PRESENT: Chairman Bruce Farr, Vice-Chairman Roy Pender, Tom Lavigne, Nona Holmes, Alternate Jean Lane, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver.

ABSENT: Doug Pollock.

Robert Bailey has recused himself.

VOTING MEMBERS: Chairman Bruce Farr, Vice-Chairman Roy Pender, Tom Lavigne, Nona Holmes, and Alternate Jean Lane.

MINUTES:
Jean Lane makes a motion, second by Nona Homes, to approve the minutes of May 18, 2009, as written. Motion passes unanimously.

Case #09-03: Robert & Joann Bailey, 246 Catamount Rd. Map 205; Lot 36. Applicants are seeking a variance to Section IV, Articles B(1)(b) and (c) to permit the conversion of a barn into two bedroom residence and no road frontage (298.39’ on a private road) where 150’ is required.

Bob Bailey is present. The application is deemed complete and no abutters or affected parties are present.

Mr. Bailey explains the history of the area of Preve Road and Faucher Lane. He states that this 1950’s development created lots about a ½ acre in size. He states that the proposal is to subdivide 5 acres from 30 acres creating a new lot of 5.16 acres on a private road and to convert the existing barn on the lot into a residence. Mr. Farr asks if this is a proposal to create a back lot with no frontage or is he splitting up a back lot. Mr. Bailey replies that there is 300 ft. on Catamount Rd. and the alternative is to eliminate lot lines and split off to get the necessary frontage; however, this would be difficult. He adds that there is also a manmade pond, which would prohibit a driveway in that area.

Mr. Lavigne asks if this is creating a new lot, making a small lot larger, and separating a lot out of 5.16 acres. Ms. Smith states that the boundary line adjustment occurring along the front of the property is separate from the activity being addressed by the ZBA. Mr. Bailey states that there is a septic design. Mr. Farr asks how much frontage there is on Catamount Rd. It is determined that there is 397.92’. Additional discussion is held regarding if there is a plan for road maintenance for Preve Road. Mr. Bailey states that the residents maintain the road; however, there is not any legal agreement or legal association.
Mr. Farr asks if the construction of the house would meet the construction and current building safety codes. Mr. Bailey adds that the septic system for the house meets required standards; and safety codes will be met.

Mr. Lavigne asks if this is creating a new lot on a private road and there is also a request to convert the existing building. Ms. Smith explains that the building inspector has determined that this road is on the 1989 private roads map; therefore, the applicant will need to follow the approval process for a building permit through the selectmen who will address building permit on a class VI road. She adds that they are requesting to create the lot for building development, lacking the standards that are required in the zoning ordinance. Ms. Smith states that relative to RSA: 674-41, the building inspector has reviewed this plan and deemed it to not need to come before the ZBA. Mr. Lavigne agrees. He explains that it is confusing as to how it is worked as permission to create the lot needs to be granted then permission to build on the lot needs to be granted. Ms. Smith replies that there would be a new lot created with the purpose of building development. Mr. Lavigne asks if a variance is needed to create this lot on a private road and Ms. Smith replies yes.

Discussion ensues regarding the need to repost with notifying for the creation of a new lot. Ms. Smith reviews the posted section numbers per the town’s ordinances and states that the notice is correct as it notes both the type of frontage needed and the length of frontage. The board agrees to continue to hear the case.

Mr. Bailey states that the lot will be 5 acres and the town’s lot size requirement is 2 acres. He states that he will meet all of the town’s standards except for frontage.

Area Variance:
1. The proposed use would not diminish surrounding property values.
Mr. Bailey states that by creating a five acre lot with a two bedroom cape style home similar to other homes in the vicinity, the proposed use would increase nearby property values and add to the town tax base.

2. Granting the variance would not be contrary to the public interest.
Mr. Bailey states that the proposed 5 acre parcel in a heavily wooded area limits over-building and preserves green space. The septic, water, and electric systems have been designed to code. As noted above, the property would increase in value and add to the town tax base.

3. Denial of the variance would result in unnecessary hardship to the owner.

Mr. Bailey states that unless the variance is granted, the owners will not be able to modify the storage building existing on the proposed parcel to create a cape style residence.
a. An area variance will be needed to enable the proposed use of the property given the special conditions of the property because: Mr. Bailey states that the proposed parcel is on a private road.

b. The benefit sought by the applicant cannot be achieved by some other method feasible to pursue other than an area variance: Mr. Bailey states that access from the proposed parcel to Catamount Road is blocked by wetlands including a pond.

4. Granting the variance would do substantial justice.

Mr. Bailey states that a variance would enable residential development of the proposed five acre parcel.

5. The use is not contrary to the spirit of the ordinance.

Mr. Bailey states that Preve Road was subdivided in the 1950’s into multiple lots which today would be considered under sized. He adds that several houses already exist on Preve Road.

Mr. Lavigne asks if there are other year round homes in this area. Mr. Bailey replies there are at least 6 full time residences and they are mostly all new. Mr. Lavigne states that the board has approved cases on this road for buildings and additions. Mr. Bailey states that the town is not responsible for the road; it is a nice road and the residents like it this way, as a private road.

Mr. Bailey provides a septic design for review; however, it is not yet approved. He adds that there is no well on the property at this time.

Roy Pender makes a motion, second by Jean Lane, to grant the variance, per plan 349F by Bill Wormell, based on the fact that all 5 conditions have been met. Mr. Pender amends the motion to state that the variance is for Section IV, Articles (B)(1)(b) and (c). Mr. Farr states that there are other options for the applicant such as creating the frontage from Rte. 107. Another option would be to use Preve Road and make an entrance onto Preve and Catamount. Mr. Farr asks what standard the applicant should be held to, a variance to the ordinance would allow for a cleaner solution. He feels that this proposal is cleaner. Mr. Pender adds that if the driveway were to cross to Rte. 107, there would be more impact to the wetlands and an elevation drop. Motion passes; 5/0.

Case #09-04: David Docko, 1090 First NH Tpke. Map 211; Lots 2, 14, 15, 16, 17; Map 217: Lots 34 and 36. Applicant is seeking variances to Section V, Articles (A)(2)(a) and (b) to permit vibration and noise higher than 65 decibels along the property line; Section VI, Article (B)(3) to develop a quarry within the Conservation Overlay District where the use restrictions are limited to single family residential and municipal wells.

Peter Holden and Jason Hill are present from Holden Engineering, along with the applicant David Docko. Mr. Docko authorizes both Mr. Holden and Mr. Hill to speak on his behalf.

Mr. Holden displays a map of the property. He explains that they are present to request 3 variances that Mr. Docko is seeking so that he will be able to operate a quarry at the rear of the property.

Mr. Holden provides an overview of the area and parcel. He states that currently Mr. Docko is operating a work yard and has a retail sales area. He states that Mr. Docko has been blasting the existing ledge then crushes the materials to end up with a flat work yard for the sales of the materials and for an area to store his equipment.

Mr. Holden states that this is a separate parcel with 47 ft. of frontage that expands in width out to the power lines and is about 3,800 ft. long. He states that Mr. Docko would like to operate a quarry in this new area, which consists of seven separate lots. Mr. Holden states that currently Mr. Docko has a variance for lot 16 to operate a quarry and at that time the adjacent lots were not included; therefore, they have refined the previous plan and have determined areas that Mr. Docko could remove rock, as well as places where they do not want to remove any rock. Mr. Holden adds that they have mapped the wetlands, and have shown the 100 ft. buffers around all of the wetlands.

Mr. Holden states that there will be a steep slope on the side; the bottom will have a 2% slope going into the detention areas. He further explains the wetlands and detention areas. Mr. Holden states that all detention ponds will be above the ground and they are building a berm on the down hill side to allow for water to come in and soak into the ground. This will avoid pipes for discharge and the berm will be large enough for 100 year storm, not reclaimed.

Mr. Farr asks about the general look of the quarry. Mr. Holden explains that the quarry will not be vertical, will be somewhat steep, they will have soil on it to get vegetation to grow, and the deepest cut will be 30 ft. The bottom will be 1-1/2 ft. slope, which means for every foot it goes up it will also go back a foot.

Mr. Holden explains that the material will be processed in the back area and hauled to the front and sold. The process is to strip the top soil and overburden, cut trees, blast and crush the material, and create stock piles which are in the front at the sales area or will be removed off site. Mr. Holden states that the total acreage is 125 acres, with the quarry portion at 35 acres. He adds that they plan to turn the area back into the woods. There are no commercial or industrial plans for the area and they plan to reuse the topsoil and overburden as this will be help rebuild the woods. Mr. Holden states that this is not a project that is completed in 5 to 10 years; it takes a very long time and when Mr. Docko is completed, the area should be all woods again. As far as buildings, there is nothing proposed for the back area other than a scale to weigh trucks.

Mr. Holden states that the three variances that they are requesting are for the ability to operate a quarry in the Conservation Overlay District, which is allows for single family houses, and cluster housing. The other two variances apply to the excavation permit regarding noise outside of the boundaries and there will be vibration felt beyond the boundary of the property.

Mr. Farr asks how far the vibration and noise will be projected. Mr. Holden refers to a USGS Map of property and points out the closest roads are Bow Lake Road and Long Pond and would not affect anyone in this area, which is about 3,000 ft. away. Noise may be heard but vibrations would not be felt. They feel that this is a reasonable request and Mr. Holden states that they feel that 3,000 ft. some noise may be heard in the distance but this is a reasonable request. He adds that they already have a variance for lot 16, this is just adding to the overall master plan for the entire property.

Ms. Lane asks for the requirements relative to notifying, the abutters of activity. Mr. Holden refers to the planning board’s notice of decision relative to the notification requirements to notify the town and the abutters prior to blasting. He states that the requirement is that Mr. Docko must notify the town and abutters in writing not less than 48 hours prior to when blasting will be occurring in the retail area. He adds that they would be receptive if this were also a condition applied to the back lot.

Mr. Lavigne asks if this activity will be done year round and Mr. Holden replies he would expect it to be year round; however, in the winter blasting and crushing become difficult. He believes that June and October would be prime time to make materials. Blasting will be a few times a week and then there would be a few months without any activity. Mr. Lavigne asks when vibration is occurring and Mr. Holden replies that it is just during blasting. He adds that crushing is noisy but is not a piercing noise. He states that he would not expect that any machinery would be heard in the back area. He states that there will be no activity when it is dark or on Sundays and blasting would probably not occur on Saturdays of Sunday anyway as it is a planned activity that needs to be scheduled. Trucks for loading may enter the site on Saturdays.

Conservation Commission Chairman Steve Roy states that Mr. Docko and Mr. Holden met with the conservation commission (CC) August 4 to introduce the commission to the project. He states that the CC has conducted a site walk of the area as well as reviewing the wetlands crossing. Mr. Roy explains that the Big Woods Overlay District is a large tract of undeveloped land where the town has assigned an interest in the ordinance to maintain the area as open space/ or single family residential. He adds that the conservation overlay district’s residential development yield that is allowed is half the normal yield. He also notes that a subdivision in this area must be a cluster subdivision.

Mr. Roy states that the CC conducted a straw poll at the site walk of the proposal and feels that a reclamation plan is recommended to be put in place by the planning board to reclaim the area after. The CC supports the idea of the proposal and what would be left in the area would honor the intent of the conservation overlay district, a large unfragmented area that remains undeveloped. He adds that the CC plans to be involved in the processes with the planning board and state.

Charles Moreno, forester and land manager for Barbara Hamm, is present representing Ms. Hamm. Mr. Farr requests some form of authorization from Ms. Hamm and Mr. Moreno replies he has a letter from Ms. Hamm that was sent to the board as abutter’s comments. Mr. Farr states that he is aware that Mr. Moreno does work for Ms. Hamm and has spoke to Ms. Hamm who noted that Mr. Moreno would be attending this evening. The board allows Mr. Moreno to speak on behalf of Ms. Hamm.

Mr. Moreno asks about the building setbacks of property lines. Mr. Farr replies that the town’s setbacks are 20’. Mr. Holden states that the setback for a quarry is 50’ for an abutter that objects and 25’ for an abutter who does not object. He adds that they have set all setbacks to be 50’.

Mr. Moreno asks how long the operation will be ongoing, and if it is an open ended activity. Mr. Holden replies that the area will be monitored for water quality and erosion control issues. He states that they will be notifying all abutters and the town when any blasting will occur. The erosion control permit needs to be updated every 5 years. Mr. Moreno asks how abutter’s notification is done and Mr. Holden states that he believes the condition of the site plan was that notification must be done in writing. Mr. Holden suggested that the letters be sent out certified.

Mr. Moreno asks what the exact acreage of the footprint that will be excavated and Mr. Holden replies that he believes it is about 35 acres. He notes that there are permits needed from the state which costs are based on disturbed area so the exact amount will need to be determined.

Mr. Moreno asks about the noise levels of a rock crusher. Mr. Holden states that noise of a rock crusher depends on distance. He states that they are about 95 decibel and reduces dramatically with distance. The operation is to drill, blast, excavate, and crush. The crusher would be running all day until the operation is completed.

Mr. Moreno states that at this time there is no reclamation plan. Mr. Holden replies, no not at this time; however, there will be a plan put together.

Mr. Moreno asks if they will be planning to put anything other than the overburden back into the quarry. Mr. Holden replies that the purpose of storing the overburden and topsoil is to replace with the same amount that is there today to allow the grass and bushes to grow on. There is no plan to bring in other materials at this time from something else.

Mr. Moreno asks if any studies have been done regarding the effect on groundwater and wildlife. He states that the Big Woods is a large section of open space and includes many natural features of Northwood. Mr. Moreno notes that Ms. Hamm’s property encompasses Little Bow Pond which is close by. Mr. Holden replies that they have not performed any study of wildlife habitat at this time. He explains that this area has been very heavily logged recently and in walking around in the area, they thought that since they will only be disturbing a certain area, they will fill in the migrated disturbed area with vegetation. Many large trees have been removed and as plantings are done and brush grows in, there will be wildlife habitat. Mr. Holden adds that the whole area will not be disturbed. He continues and states that there is no aquifer in this area. The area is ledgy and water migrated on top of the ledge. When the operation is completed, the water will do the exact same thing; it will go in the same direction and will continue to go through the vegetated areas along the buffer, into the recharge area and into the re-vegetated areas as the disturbance continues.

A discussion is held regarding the affect of the blasting agents with ground water. Mr. Holden explains that blasting agents generally consist of nitrogens. Too many nitrogens and nutrients can cause problems. He states that the state is producing a Blasting Management Plan for blasting and as a part of the site plan approval the planning board will add a condition and the NHDES, as a part of the alteration of terrain permit, will monitor the levels. He explains that discussion was held with the conservation commission relative to trapping rain water and to continue testing after blasting, and possibly using spray irrigation in the existing woods. They will do these precautions if required.

Mr. Lavigne asks what the overburden is. Mr. Holden replies that overburden is dirt that lies on top of the ledge but under the topsoil and it can range in depth. Mr. Docko replies that the area now is bare ledge. Mr. Docko adds that stumps can be reused in the steep slope and ledge banks. Mr. Holden states that they can be left on the ground and will rot and be used by the animals in the area. Further erosion of the material will occur and rot.

Mr. Pender asks how the wetlands will be crossed and Mr. Holden replies that they will get there variances now, then put together a wetland permit and re-visit the CC. The next step will be to appear before the ZBA again for a special exception. He explains that there is an existing woods road which has culverts and a single lane road. They will leave as is for now and make improvements in some areas where there is a site distance. Pull offs will be proposed to be added so that it will minimize the disturbance. Mr. Holden adds that a two way traffic lane will be proposed to the planning board. Currently there are pipes and they will propose removing the pipes and adding concrete, bottom culverts.

Ms. Lane asks if there will be any effects to neighboring wells and structures. Mr. Holden replies that the property is so far back, the abutters will not know when the blasting will be going on and there would not be any effects with this distance. Mr Holden states that the neighbors near the front parcel are within 100’ of the blasting and have not had any problems with the blasting that has occurred.

The board agrees to address the noise and vibration variances together first.

Area Variance:
1. The proposed use would not diminish surrounding property values.
Mr. Holden states that because the location is remote and located a large distance from properties no property values will be diminished. He adds that the excavation will be carried out during the daytime hours so that no one would be affected. The blasting and crushing will be done for a very short amount of time and would not be heard by anyone since it is so far back.

2. Granting the variance would not be contrary to the public interest.
Mr. Holden states that the there is an asset here that is valuable to the people, construction business, and all are a user of these services. He states that this business will make it easier for people to get aggregate. He adds that this use extracts this asset and leaves the property in the same condition that it is right now. This will not increase the town’s taxes and does not burden the school system or other local department. Furthermore, he notes that they are making improvements to Rte 4 that will be a benefit because they will be able to turn into the property and they plan to continue a by-pass shoulder.

3. Denial of the variance would result in unnecessary hardship to the owner.

Mr. Holden explains that this property does not have many uses. A development could be built; however, it would not be a practical use. Mr. Docko’s proposal is a very practical use and for him not to be able to utilize this property in this manner would not allow him to do anything on the property because of the physical constrains of the area being 4,000’ from the highway. He states that they believe this issue is a fair proposal of the area.

a. the zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property in its environment such that: Mr. Holden states that the zoning regulations only allow housing which is impractical for being so far away. They believe that this is a reasonable use of the property to remove the material and restore it and return it to the status of a conservation area.

b. that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property because: Mr. Holden states that general purpose of the zoning is usually to protect people’s property, for property to be used and developed in an organized manner so that things are done safely. This proposal does that. We have proposed an organized plan and in the end the area will be returned back into a conservation area, which is what the overlay district is trying to preserve. He states that they feel that they are helping this and the area will be preserved and restored.

c. the variance would not injure the public or private rights of others since:
Mr. Holden states that this area is so far away. They are mitigating the traffic on Rte 4 by making improvement to not infringe on the rights of the public. They will make sure that any flow from the property will not contain nitrates and because of the distance and the buffers, they believe that the impacts to the neighbors or impact will not be much of any impact.

Mr. Farr refers to the abutters comments received. Sandy Priolo reads her commentary into the record regarding the existing quiet neighborhood and notes that she has safety and blasting concerns relative to damages now and later years. She believes that this proposal is a negative impact to the area, there will be water and pollution problems, which will negatively affect property values, and the animals. She states that there has not been proper notifications sent out relative to the blasting. She does not believe that this proposal is a benefit to the town.

Mr. Farr reads a letter sent in by Barbara Hamm which expresses concerns relative to the water table, pollution of the explosives as well as the heavy machinery, and she feels that this will have a detrimental effect to the property.

Mr. Moreno refers to the questions addressed by Mr. Holden. He states that the Hamm property has been open to the public for the tenure of the land, over 200 years. He states that the land is used for walking, hunting, etc. This area is about 1,000’ from Little Bow Pond and is a unique undeveloped pond of 30 acres with a lot of wildlife. He feels that this area is an asset to the town and to have a rock crusher going all day will impact the property.

Mr. Moreno states that the characterization of the areas is a conservation area and this will be an ongoing moving rock quarry and is an impact on the natural order and wildlife. He states that nature does reclaim land over time; however, this disturbance will continue for over 100 years.

Mr. Moreno states that as far as the denial of the variance would result in unnecessary hardship to the owner, the area is zoned for open space, and someone could invest in land to keep it as woodlands, hunting grounds, or open space. He states that it is not a hardship for someone to hold land as open space. He believes that Mrs. Hamm would object to the longevity of the project and the unknown impacts.

4. Granting the variance would do substantial justice.

Mr. Holden states the variance would allow Mr. Docko to use the property to remove the asset that exists (the rock) and be sensitive that it the area is identified as a conservation area and have a plan that will return the area to the conservation use. He believes that the proposal justifies the disturbance and this is a temporary disturbance that will start to revert to conservation land.

5. The use is not contrary to the spirit of the ordinance.

Mr. Holden states that the spirit of the ordinance is to control the use of property so that it is done in a manner which would not affect the people or the town, or the way of life the town has chosen to follow. He adds that this proposal in this remote location being done in small batches at a time is not contrary to the spirit of the ordinance which is to end up with a land that is if not undeveloped, is less intensely developed. Mr. Holden states that this property could be developed with houses on 4 acre lots, which is allowed by the ordinance and they feel that the proposal is more conservative than what would be allowed by the ordinance. Mr. Farr states that it is a density of 4 acre lots.

Mr. Farr refers to correspondence received by Gerald Giles who expressed concerns with the fact that the proposal would diminish property values, an industrial use is contrary to the public interest, noise levels and quarry operations are not outweighed by any gain to the public. He notes that Mr. Giles stated that if the variance were granted it would violate the spirit of the ordinance and intent which established the overlay district to single family residential uses. Mr. Giles noted that unnecessary hardship does not exist because the applicant could build residential housing or could do other non industrial uses.

With no additional comment, Mr. Farr closes the public portion.

Ms. Smith states that Mr. Holden has stated that the regulations would allow for 4 acre lots to be created. She states that this is a density requirement and there is a subdivision regulation that any single access cannot exceed 1,000’ and this area is way beyond this. She states that the regulation would not allow the creation of 4 acre lots beyond 1,000’ and she adds that there is 47’ of frontage to create the lots. She states that this proposal would require numerous relief from the planning board and zoning board for any development to occur.

Mr. Pender asks about the conservation aspect and if the area will be returned to undeveloped land when the quarry is done. Mr. Holden replies that that is their intent. Mr. Lavigne asks if the variance is granted, would there be any safe guards to see that everything is followed through. Mr. Holden states that if an approval is granted form the ZBA, they will need to appear before the ZBA again for a special exception for the wetlands crossings as well as to the conservation commission. A site plan would need to be filed to the planning board and Mr. Holden expects that there would be conditions that they would need to adhere too, which they are not averse to having.

Mr. Farr states that he feels that the existing business on the front parcel is an improvement and is a good use of the land. He states that this application is relevant to 37 acres of land out back being strip mined.

Mr. Farr states that he does not see any evidence that this will not negatively affect surrounding properties. He states that Ms. Hamm’s comment relative to environmental concerns is valid. He believes that there could be residential homes built in that area someday. He adds that he has not heard any evidence that having a quarry next door would not have any negative impacts. He feels that the proposal is contrary to the public interest as noise and vibration at this volume is an impact where in the front parcel on Rte. 4 he felt different. Mr. Farr states that he does not feel that there is an unnecessary hardship to this land as there are other uses for this land; it does not have to be a quarry. Mr. Farr states that this does not interfere with the reasonable use of the property as it is not unique. There are limitations of the land which can be addressed. The amount of traffic will increase and there are residential homes in this area. He adds that it is not reasonable for the expansion and with the spirit of the ordinance there will be an increase in noise and vibration in the area.

Roy Pender makes a motion, second by Bruce Farr, to deny the variances requested for Section V, Articles (A)(2)(a) and (b) to permit vibration and noise higher than 65 decibels along the property line, based on the fact that none of the conditions have been met.

Ms. Holmes states that she has been a resident in this town for over 50 years and things change. She states that if residents move in to a rural area they should adapt to rural living. She states that this includes all kinds of things and she does not feel that anyone should be denied the use of their property because it does not suit certain standards.

Mr. Lavigne states that he has walked the property and this land is typical New England land, maybe even more useless. He states that he cannot picture houses in this area although it may be possible. He states that he can see granite being excavated out this area. He feels that this proposal does affect neighbors around the area; however, the parcel is suitable for the proposal. Mr. Lavigne states that there are good points about the proposal and he asks if it were not to be applied to this type of area, then where could it go. He states that he feels that this is a good, useful proposal for the town; however, there are impacts. Mr. Lavigne notes that this is the first step in a long process with the town and the state with regulations that will need to be met.

Mr. Farr states that he was in favor of lot 16 being blasted and the possibility of a phasing option to see how the impacts have affected the area and public may be an option.

Ms. Lane states that a lot of blasting is disturbing and may affect area buildings, and the general area. She feels that may be a time element which could be a restriction as she feels that there should be some controls.

VOTE:
Jean Lane – opposed
Nona Holmes – opposed
Tom Lavigne – in favor
Bruce Farr – in favor
Roy Pender – opposed
Motion does not prevail: 3/2.

Nona Holmes makes a motion, second by Roy Pender, to grant the variances requested for Section V, Articles (A)(2)(a) and (b) to permit vibration and noise higher than 65 decibels along the property line, based on the fact that all of the conditions have been met.
Ms. Holmes states that this is the country and this is not a unique business for this area.
VOTE:
Jean Lane – in favor
Nona Holmes – in favor
Tom Lavigne – opposed
Bruce Farr – opposed
Roy Pender – in favor
Motion prevails: 3/2.

Mr. Farr calls for a recess at 9:15. Session resumes at 9:25 and discussion is held regarding continuing additional cases. Tom Lavigne makes a motion, second by Roy Pender, to resolve the occurring case, 09-04, proceed until 10:00 p.m. and not here Case 09-05 tonight. Discussion is held with the applicant regarding affects of postponing until another night. Mr. Lopez explains that delaying may jeopardize the purchase of the property as he has a time limit through November. Mr. Berry, project manager, explains that if the board grants the variance tonight he will have only one week to develop a site plan to meet the application deadline for the planning board. He adds that postponing a week would give him less than 12 hours to develop that plan. Motion passes; 5/0.

Docko Continued relative to the variance request for the Conservation Overlay District, Section VI, Article (B)(3) to develop a quarry within the Conservation Overlay District where the use restrictions are limited to single family residential and municipal wells.

Mr. Holden explains that when the application was created they grouped all responses together for all sections as they felt the answers were the same for all three variances and the testimony given is the same. Mr. Farr asks if the applicant would then like to have all of the previous comments entered onto the record and applied to this variance request. Mr. Holden replies yes and would like to add a few explanations.

Mr. Holden explains that they must obtain an alteration of terrain permit from the state. This permit limits them to 5 acres of disturbed area at a time so there will not be a situation of having work being done all over the site. He notes that there will also be inspections done by the state to make sure they stay within this 5 acre minimum.

In addition, Mr. Holden notes that comments have been made that blasting has been occurring at all time. He suggests a condition be added that there be specific times or a time window be addressed with the planning board, during which blasting would occur such as between 10-12. This will make it so that all people affected by the noise or vibration are aware of when blasting would be done. He adds that they will also continue to notify abutters in writing that blasting will occur. Mr. Holden explains that blasting will not be done every day. He states that Mr. Docko will blast only enough to generate enough material for 6 months. This is done by estimating an area to blast for enough material to sell. This is done a few times per year to be accurate and have minimal inventory to satisfy and not have as idle storage. He states that maybe blasting would be a week to two weeks and then crushing would begin.

Nona Holmes makes a motion, second by Roy Pender, to grant the variance to Section VI, Article (B)(3) to develop a quarry within the Conservation Overlay District where the use restrictions are limited to single family residential and municipal wells, based on the fact that all conditions have been met.

Ms. Holmes states that building in this area would be difficult and it would be hard to get a septic system for a housing development. Mr. Pender states that he is aware of other quarries in the state and some feed surface water to a town and there has not been any problem. He is not really concerned with the blasting.
VOTE:
Jean Lane – in favor
Nona Holmes – in favor
Tom Lavigne – opposed
Bruce Farr – opposed
Roy Pender – in favor
Motion prevails: 3/2.

Case #09-05: Berry Surveying and Engineering, applicant for Mark Lopez, retail space, Rochester Rd. Map 234; Lot 7-2. Applicant is seeking a variance to Section IV, Article (B)(4)(b) to permit the construction of a road (driveway) for a commercial building where minimum setback required is 20’. (Property currently owned by Beth Grimes and Gregory Lalish).

Christopher Berry of Berry Surveying is present representing Mark Lopez and Beth Grimes and Gregory Lalish. No abutters are present and no correspondence has been received.

Mr. Berry states that the lot was created in 2001. He states that there is a proposed driveway easement, which is for the benefit of both the property that Mr. Lopez is interested in purchasing as well as the abutting property owned by Kimchris Properties, LLC. He explains that this easement was created in an effort to create safe driveway access onto Rte. 202 and 9, which is now adjacent to the North East Credit Union.

Mr. Berry states that they are proposing to develop a retail space and there is a setback encroachment with the driveway. A discussion is held regarding if they should be applying for a variance or an appeal to an administrative decision, relative to the definitions. Ms. Smith replies that the definition of driveway in the zoning ordinance is for residential use and this is a non residential use; therefore, should be pursued as a variance. Mr. Berry states that they are requesting a use variance.

Mr. Berry explains that they are trying to obtain safe access from their site onto
Rte. 4. He states that when this subdivision occurred in 2001, construction of Rte. 202 and 9 were being platted. He states that this area was preplanned and they are requesting to use an easement that they, by civil liberty, have deeded access to use and utilize. He adds that the entire easement is located on the proposed parcel of land that Mr. Lopez is looking to purchase.

Mr. Berry explains that they have done engineering work on the project to date to know that there will need to be some vertical fill in the driveway area and instead of trying to grade on a 2 -1 or 3-1 slope to the boundary line, they felt it would be better to have a small retaining wall up to 5 ft. or 66” in vertical height. Mr. Lavigne notes that the retaining wall would be addressed by the planning board and he asks if this is the only location on the property where there is a setback issue. Mr. Berry replies yes. Mr. Lavigne asks if the retaining wall will be visible from the dentist office. Mr. Berry explains that there is a parcel of land that is between the dentist office and the retail space so the wall would not be visible. He adds that the intent is to maintain some of the natural woodland along the boundary line and should it need to be removed, they would like to do some type of landscaping. He notes that should they decide to grade the lot, the landscaping ability would be reduced. Mr. Lavigne asks if the proposed wall construction would be similar to that of the Shell station and Mr. Berry replied yes, but not as obtrusive.

Mr. Lavigne asks what the business will be and Mr. Lopez replies a Family Dollar store will be the major part of the building and another area is additional space with no tenant known at this time.

Area Variance:
1. The proposed use would not diminish surrounding property values.

Mr. Berry states that the proposed use was preplanned and designed for during the subdivision process in 2001, and is shown on a plan of record at the registry of deeds. He adds that the parcel this affects is lot 7-3, who shares the same enjoyment of access easement, which is completely located on the land to which we are proposing improvements. He adds that to not grant the variance would deny right of access to the abutting parcel, which would in turn devalue the abutting parcel considerably. He explains that the neighbors would probably have to come before the board with the same request to obtain access as they will need to cross setbacks as well. He adds that should the variance be denied, the board would be denying access to their land and the abutter’s land pursuant to the subdivision and NHDOT driveway standards.

2. Granting the variance would not be contrary to the public interest.

Mr. Berry states that public interest within this area is for safe development which increases the town’s tax base, while keeping the rural spirit of the town. He adds that in this instance the parcel of land is located within an area of town that has a growing commercial base. He states that the planning board, charged with minding the public interest, planned for a shared access to these two parcels in the location shown, as did the NHDOT.

3. Denial of the variance would result in unnecessary hardship to the owner.
a. The following special conditions of the property make a variance necessary in order to allow the development as designed. Mr. Berry states that the special conditions are inherent to the parcel’s means of creation. The access was pre-planned for by both the town’s planning board and NHDOT and would not have been created as a lot of record without this provision. He adds that to deny the variance would deny the means of development to real property for not only the applicant but also the abutting land owner.

b. the same benefit cannot be achieved by some other reasonable feasible method that would not impose an undue financial burden. Mr. Berry states that we have worked with the applicant to provide as much space as possible to the abutting boundary line. At this time we feel this is the best design that meets the needs of the applicant, given the proposed use and the vehicular access requirements.

4. Granting the variance would do substantial justice. Mr. Berry states that this variance would allow for the shared access that this parcel and the abutting parcel were intended to have. The approval would allow for safe access onto Rte. 202 & 9 for both the applicant and the abutting land owner, and would allow for a commercial business to be situated in an area that is growing in the same direction.

5. The use is not contrary to the spirit of the ordinance. Mr. Berry states the ordinance is intended to allow for the development of land with some room for perceived buffering. In this instance, the abutting land owner purchased the land knowing the potential of both parcels, and the benefits and hindrances that are inherent by deeded right. In addition, Mr. Berry states that there has been similar development within the area that has been allowed to encroach within the same sideline setback, leading the applicant to believe the surrounding uses, utilizing a sideline buffer may be more appropriate when abutting a residential use.

Mr. Lavigne asks how close the retaining wall is to the lot line and Mr. Berry replies that they are proposing 7.8 ft away from the lot line. Mr. Lavigne states that the encroachment, even with the easement, is 13 ft. Mr. Berry states that should the abutting land owner wish to develop the lot, they will be required to use the same access point and will be encroaching into our 20’ setback as well as their own 20’ setback.

Tom Lavigne makes a motion, second by Jean Lane, to grant the variance to Section IV, Article (B)(4)(b) to permit the construction of a retaining wall for driveway construction for a commercial building within the setback, based on the fact that all conditions have been met.

Mr. Lavigne states that they are making full use of the property and he appreciates their efforts in getting everything they need on the parcel. He adds that the retaining wall is not the same as a building and there are no issues with air quality and fire. He feels that the retaining wall is better than grading the land. Ms. Lane feels that the proposal is adequate. Motion passes; 5/0.

Correspondence
All correspondence is reviewed. Information is received and distributed regarding upcoming training sessions and conferences.

Adjournment:
Ms. Lane makes a motion, second by Mr. Pender, to adjourn at 10:00 p.m. Motion passes unanimously; 5/0.

Respectfully submitted,
Lisa Fellows-Weaver
Zoning Board Secretary

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