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Minutes posted at this web site have not been checked for consistency with the printed minutes that are available in the Wilton Town Offices. If you need the definitive minutes of a ZBA meeting, please obtain the printed minutes from the town offices.

June 26, 2006

Voting BoardVice Chairperson Joanna Eckstrom; members Jim Tuttle and Bob Spear; alternate member Eric Fowler.
AgendaK.M. Zahn and Sons (applicant) and Harold E. Kennedy (owner) – variances

Eckstrom called the meeting to order at 7:30 p.m.

Case #5/9/06–2 — KENNEDY/ZAHN (Continued from June 19th)

K.M. Zahn and Sons (applicant) and Harold E. Kennedy (owner) have applied for variances to Sections 4.1, 6.1, 9B.2, 9B.6.1 and 9B.6.2 of the Wilton Zoning Ordinance to permit the removal of gravel from Lot F – 3, 536 Isaac Frye Highway. The requested variances are necessary for the proposed use because the lot is not in the district in which gravel excavation is permitted, and the proposed excavation would not satisfy the setback and buffer requirements of the ordinance.

Eckstrom said first the Board will hear rebuttal testimony from the applicant, then rebuttal testimony from opposing parties, then, hopefully, the Board will enter deliberations. She said if the Board should come to a decision tonight, a written statement of findings of fact would be available at the next regular meeting, which is July 11th. She handed out the packet of communications for people to read if they cared to. She said two letters had come in since the last hearing; one from Chris Owen, dated June 23rd and one to Eckstrom from Todd Haywood, Wilton Assessing Agent, dated June 25th. She then introduced the Board members.

Minutes — June 13, 2006

Eckstrom added the following to the second to the last paragraph from the bottom of Page 5: Fulton said that all fluids are biodegradable to some extent; natural bacteria in the ground assist in the degradation process. As to specific oils etc., need to refer to Zahn’s equipment. BMP limit size of vessels and potential.

Page 6, Line 2 Mark Gibbons.

Page 6, Line 4 Eckstrom added: He added, the ordinance itself created the hardship. Had the application to the Planning Board been made 7 months ago they would not need to be here. Referring to the criteria, his case, like Simplex, addresses reasonable use. It is reasonable for Mr. Kennedy to excavate and prepare his lot for subdivision and eventual new houses. Topography of land necessitates removal of material to make land more appropriate for building lots. He states realtor opinion that neighboring property values would not be diminished. Kennedy’s property value would increase as a result of this proposal. He referred to a gravel pit in existence on the other side of the cemetery and stated that neighboring property values have not decreased because of its existence. He said the applicant has taken precautions so that he doesn’t negatively affect neighbors i.e. Girl Scouts; it is not contrary to the public interest because there is a need for this material, there will be a minimum public impact, and the Planning Board will address the upkeep of the road with bonding etc.

Page 8, 5th Line from bottom of page, Motion to Continue should have been to June 19th.

Dennis Orsi objected to the Board approving the minutes before the public had read them. Spear said that the minutes had been on the website since Friday night and in Town office all day and that the Board does not take public comment when approving minutes.

MotionSpear/Tuttle to approve 6/13/06 minutes as amended. All in favor.

Minutes — June 19, 2006 (Kennedy/Zahn Case only)

Page 1, Paragraph 3, line 4 after Karen Demers, Eckstrom added: She explained that one person wanted to take her letter back but Eckstrom said she couldn’t remove it because once submitted, it was part of the public record, however she could write a retraction if she wanted to. Gerry Wroe asked what the 3 p.m. deadline meant, or what the window was for receiving letters. Fowler clarified that there is no deadline for letters. 3 p.m. today was just the last time that new letters were copied and put into the folders and inventoried.

Page 2, Paragraph 2, line 3, change… represents many… to… represents at least 12…

Page 3, Paragraph 5, line 5, delete the first some. Line 10 should be… value of the lake as a natural…

Page 4, last paragraph, second to last line, hardship should be one word.

MotionTuttle/Spear to approve the 6/19/06 partial minutes as amended. All in favor.

Attorney Prunier provided a revised excavation plan that showed a proposed setbacks of 50’ to the north, along the Girl Scout camp property, and 75’ to the south along the cemetery property. He said it is in the Board’s jurisdiction to determine whether any buffer is required or the amount. Eckstrom asked what the slope would be with this change. Raymond Shea, with Sanford Survey, said it would be a 4 to 1 slope on all sides.

Prunier presented a report done by Laurie Rauseo, a traffic engineer in Canterbury, NH. He read the recommendations from the report:

  1. The embankment of the northeast corner of the site driveway intersection with Isaac Frye Highway should be cut back to improve sight distance looking north from the site driveway.
  2. The gravel pit truck traffic should be prohibited from turning right from Isaac Frye Highway onto Route 101 and from turning left from Route 101 onto Isaac Frye Highway; and
  3. The Town of Wilton should consult with NHDOT to determine if any improvements could be made to provide a platform for vehicles on Isaac Frye Highway at Route 101.

In summary, the proposed gravel pit traffic impact will be limited and well within the capacity of the existing roadway system. If the proposed travel restrictions are placed on the gravel pit operations, i.e. truck traffic limited to Route 101 to and from the east, there are no safety hazards created by the proposed gravel pit truck traffic.

Prunier said that the applicant agrees with the report.

Spear asked if there were proposals for temporary safety signs that would warn of trucks turning and exiting etc. in the report. Prunier said he thought those considerations were in the report. He said that if this plan ever gets to the Planning Board, they may want some improvements done to that corner.

Prunier next introduced Dr. Robert Polermo, with Aries Engineering in Concord, NH. Polermo said he was a civil environmental engineer and industrial hygienist. He said he took sound pressure level measurements at the corner of Isaac Frye Highway and Wilson Road, which is 880’ above the site.

First he took a background measurement, which reflected the ambient sound without the introduction of any equipment running on the site, or any cars driving by. He measured 37 decibels, which he said is very quiet. Spear asked what normal conversation levels would be, Polermo answered about 60-70 decibels. Next, Polermo said, the pay loader simulated activities on the site. It moved piles of soil from one location to another and backed up so that the backup alarm could be heard. He said that he stayed at the same location. He didn’t hear anything with the equipment running, nor did he pick up anything with the sound pressure level meter that he was using, it still registered 37 decibels. He said he stopped at that point because he had been asked to determine whether operating equipment would increase sound levels at that distance.

Fowler asked Polermo how much he thought the sounds would increase in volume once the materials, like the trees and topsoil, start to be removed. Polermo said there is no mathematical equation, it would have to be measured. Mr. Zahn said that the sound wouldn’t change because there is no excavation taking place between where the sound was coming from and where he measured.

Spear said that on particularly quiet days he can hear his neighbor, a quarter of a mile away, having a normal conversation. He said he is a little bit higher than the neighbor. He asked Polermo if there was a chance for anyone to hear objectionable noise coming from this proposed operation under extreme quiet conditions, perhaps seasonally when there is no vegetation to absorb the sound. Polermo said if there was less vegetation the sound would be more noticeable. He said more sophisticated studies can be done. Spear said Chris Owen had said that he could hear the operation on Route 31 N. from his Wilton Center home and wanted to know if Polermo heard it. Polermo said he didn’t know what operation Spear was referring to, but said measurements can be taken from other locations, but this measurement was taken from this one location alone. Eckstrom said that the measurement was taken on a hot, humid day. She asked, if it was taken on a cool, dry day would it me different? Polermo said it would be different, but probably not significantly so, but it is better to measure than to speculate.

Zahn said that the operations on Route 31 N. have been compared to his proposal so he wanted to state the difference with relation to noise. He said those operations have two quarries that involve blasting, several rock trucks, several loaders, at least 2 jaw crushers, which carry noise enormously. Because of the setting and the vertical granite walls that act like an amphitheater to point that noise towards Wilton Center. He said to compare his project to the operations on 31 N. is like comparing O’Hare Airport to a grass strip. He said he would be willing to more noise studies, however, if the Board would find them useful.

Greg Joas said he didn’t believe that a loader on that site would make no noise. He also asked if Polermo measured the sound of gravel trucks coming up the driveway on the Kennedy property and out onto IFH? Polermo said no, he didn’t do that.

Attorney Callen asked Polermo:

Zahn said that the reason he used the loader for the sound test was that it is the noisiest piece of equipment that will be used on the site. He said there wouldn’t be any gravel being loaded into trucks he would be loading sand into the trucks. He wanted to state that he has hired expert testimony, at great expense, and takes the results, whether they work in their favor or not. And he resented the implication that he has somehow implicated the findings of the people he has hired.

Don Channing, Wilton Center, said the decibel scale is a logarithmic scale. He asked Polermo to put that in perspective for the audience. Polermo said that the log scale is non- linear so a small increase in decibels is actually quite a bit.

Mike Holmes, Wilton, asked what instrument he used and what scale. Polermo said he used a Quest 2900, an A weighted scale, but he did not have the information with him about the calibration. He said he could provide it the next day. Mr. Holmes also requested that measurements be taken both 50’ and 75’ from where the loader was.

Wil Sullivan suggested the board set conditions for a maximum decibel level, so if the study was not accurate residents would have some recourse. Eckstrom answered that an aggrieved person would have to prove the sound was coming from the excavation site, probably with the same equipment that this gentleman used. Sullivan said the bias on this board is palpable. In 31 years of practicing law, he said he had never heard the bias that he has heard on this board. He said at the end of the last meeting Eckstrom basically told the applicant what to bring to this meeting. She said she was responding to what neighbors wanted.

Spear said that he sees a lot of bias on the opposition’s side.

Gail Hoar, Isaac Frye Highway, invited Polermo to take a measurement from her kitchen where she heard the “beep, beep, beep” of the backup alarm. She also said that the board is supposed to be unbiased. Those of us who are opposing the application are, of course, biased against the application.

Dennis Orsi asked if sirens and back up alarms are of a different frequency than other noises. Eckstrom said this was getting into the area of minutia.

Sandy Zielie, Wilton Center Road, in relation to the traffic studies that have been done, she wanted to point out that if they were done after June 18th, the traffic patterns are much lighter than they would be during the school year. In addition to the school busses to public schools, many faculty and students from Lyndeborough and Wilton Center use Isaac Frye Highway to get to Pine Hill and High Mowing Schools. Eckstrom said the newest traffic study was done on June 23rd.

Zahn said Dr. Polermo holds two PhDs in his line of work and did the best he could do in a week.

Prunier thanked the board for giving everyone the opportunity to speak, ask questions and explain themselves in probably the longest hearing he has ever been involved, in his 35 years of doing land use law. He said he thinks everyone should appreciate the board’s work.

Eckstrom said she contacted the town’s assessor, Todd Haywood, to try and find out if an operation such as this would have an affect on property values. He sent a letter to Eckstrom in which he wrote that he wasn’t able to review the specific facts of this proposed gravel pit as of yet, but it would be reasonable to presume the increase in truck volume accessing the site coupled with noise from the excavation equipment and the hours of operation may diminish the value of abutting properties. See file.

Eckstrom stated that an application to excavate on grandfathered Lot F – 122 was recently renewed. She said that she looked up assessments for houses near there: Lot F – 117, across the street is assessed at $703,442; Lot F – 121-2 is assessed at $309,000; Lot F – 121-4 is assessed at $527,300. These two lots overlook Lot F – 122. She said that she would like to see further sound studies done and Mr. Haywood’s more formal, detailed analysis. She asked if anyone else on the board felt that way. Board members wanted to move on with rebuttals from opponents. She asked the applicants if they had anything more they wanted to add. Zahn said that Mr. Kennedy has no interest in doing a large subdivision, one back lot is what he has mentioned doing, he said.

Jed Callen, now representing 91 neighbors, 34 of whom reside on IFH, with quite a few right in the immediate neighborhood, said that the applicant presented letters from two realtors at the beginning of the case which said no impact on surrounding property values. He said the board should note that both of those realtors have subsequently sent letters recanting their earlier testimony and clarifying it. He said there are not, at this point, any realtors who’ve said the operation will not impact surrounding property values.

He said boards needn’t rely on experts on a matter that doesn’t require expertise, for instance, is a gravel pit a noisy operation? He said the sound specialist was very careful, because he is a professional, to say that he was asked to take a couple of measurements and he did it. He said he didn’t measure the sound of the pay loader loading trucks, he didn’t measure the sounds of gravel or sand trucks climbing out of the pit onto IFH, not the sounds of the trucks going down IFH. He said you don’t need an expert to know that gravel trucks are noisy. And the noise from this site is composed not only from the noise on site but the noise of the trucks all the way down IFH. He felt that his clients don’t need more sound studies, they need a vote. He said it should be clear that gravel trucks and a gravel pit make noise and they diminish surrounding property values if the surrounding properties are not also gravel pits or industrial sites, but if they are a cemetery and a Girl Scout Camp and a protected forest and residences, they do diminish it.

He said the traffic expert, Laurie Rauseo, didn’t give this site a clean bill of health with respect to traffic. In addition to not allowing turns to the west from IFH and from the west onto IFH, she said the steep angle where IFH meets 101 is not safe and she recommended the Town of Wilton work with NHDOT to eliminate the steep grade on IFH.

He said further traffic or sound studies may be relevant should this case go before the Planning Board for a permit, because that board deals with those details. He said he didn’t think it should get there and he didn’t think those studies were particularly important to this board because of the law. He mentioned how Attorney Prunier said that if only they had applied for the permit seven months earlier, they wouldn’t need a variance. That’s like saying if a pig had wings it could fly, he said. But they didn’t apply then, and now graveling is not legal in this district, in this town. And the only way it is made legal is to get multiple variances, the tests of which are rigid and stringent:

Callen referred to the arguments in his Memorandum of June 13th, which is part of the record, and asked the board to deliberate and vote tonight. He said that he didn’t think the board needed any more noise or traffic studies, the decision can be made by understanding the ordinance and the criteria for variances. He requested that the board consider the variance criteria separately for the following 3 variances: 4.1, 9B.6.2 and 9B.6.1 and he said he hoped the case could be brought to a conclusion this evening.

Eckstrom asked if there was anyone not represented by Attorney Callen who would like to speak in rebuttal. No one chose to speak.

There was a consensus among board members that no more studies would be requested.

Before closing the hearing to public testimony, Eckstrom explained that after the hearing was closed, no more testimony would be taken from the public either in person or by fax, letter, email, etc. She said that any decision will have been made by a four-member board and the board size cannot be used as a reason for requesting a rehearing by the applicant.

MotionSpear/Fowler to close the public hearing. All in favor. Hearing was closed at 9:32 p.m.

Eckstrom read Section 4.1

Diminution of surrounding property values:

Fowler understood it was up to the applicant to prove to the board that there would not be such a diminution. With all the evidence he had seen from both sides, he still had questions about this, so he didn’t see where the applicant had shown that there would not be such a diminution. They discussed property values other than monetary ones, such as quiet and peacefulness in the cemetery. Eckstrom said that she didn’t believe that the property values were adversely affected on the properties she cited near Lot F – 122, which she said is an ongoing gravel operation in Abbot Hill Acres.

Public Interest

Tuttle said it would allow Mr. Kennedy a reasonable use of his property.

Spear said he would have a hard time getting past this because of the opposition. He couldn’t see that granting it would be in the public interest, he said it wasn’t like there was a balance of people in favor in the neighborhood, there was overwhelming opposition to it.

Fowler said public interest, the safety factor comes in. The traffic study states that IFH is 21’wide, which is technically wide enough for vehicles to get by, but physical dimensions and perceived dimensions are two different things. As you’re driving down that road if you are a driver and you see a vehicle coming toward you who you perceive does not give you enough road, that is going to drastically alter the way you drive on that roadway. Then there is the angle and steepness of the road at the bottom where it meets 101. Should it really be incumbent upon the town to make changes to the road to allow for this use?

Eckstrom asked… does allowing this operation make people who are using IFH either to travel on, or to walk their animals on, or ride their horses on, or have their children play on any more cautious or observant than they are already?

Spear said the biggest danger that he saw, granted there is a safety issue on IFH, but you take a fully loaded truck trying to exit IFH onto 101. The speed limit there is 45 mph but people are flying down that road, and irregardless of the fact that they can only turn left, heavy truck, slow to get moving, bad line of sight, there’s a serious potential there for an accident. And, unfortunately, nothing’s going to happen to the truck, but somebody’s going to get killed if they hit it. Eckstrom said that these conditions exist today. Spear agreed but said it would not be in the public interest to add an additional safety hazard to that intersection. You can’t make a bad situation worse.

Spirit of the Ordinance

Spear said clearly the public has spoken. They adopted this ordinance to restrict where these operations can occur. He said he would be in favor of granting the variance if there wasn’t so much opposition to this particular location.

Fowler referred to the Master Plan, on which the Ordinance is based. Under Residential Land Use Objectives, Item 4) To offer a sanctuary from the activities and intrusions of business and industry.

He said that shows what the intent of our ordinance dealing with this district is. And if we allow this to take place, we are violating the objectives of the Master Plan. Spear said, in fairness to the applicant and the process, seeking a variance is allowed and can be considered, but in this case he couldn’t see that it would do substantial justice and felt that it would be contrary to the spirit of the ordinance.

Eckstrom asked… isn’t building a house on your property within the spirit of the ordinance? What if you have to bring a hill down on your property in order to do the site work? Are you allowed to do this? Fowler said it doesn’t say that you can’t. Spear said as far as he knew excavation was the for-profit removal of materials, You could bring the hill down as part of the site work but you couldn’t sell the material. Eckstrom asked what happens if you have excess materials. Spear said he had no idea. Fowler said the application that is before the board is for a commercial excavation operation.

Eckstrom asked… if they wished solely to develop their property and not remove any gravel off site, would that be allowed? Spear said as he reads the N.H. RSAs, as long as it is secondary to construction, it would appear to be legal. Eckstrom said that the applicant should be before whatever board he needs to be before because what he really wants to do, even though it’s excavation, his ultimate purpose is to build on the lot. Fowler and Spear both said that that was not this board’s decision, and the application before the board was for a use variance for a gravel operation.

Substantial Justice

Eckstrom said that substantial justice would be done if the applicant were allowed to develop the property, however the method that is being chosen to develop the property is not allowed.

Spear said that the applicant stated this evening that there wasn’t an intention at this time to subdivide the property.

Fowler said in the Handbook for Local Officials Substantial Justice is explained as being based upon the ability of the application to meet all other aspects of the qualifications. So it should really be the last one considered. Other board members agreed.

Hardship

Spear said that he doesn’t see a hardship because the applicant has residential use of his land in a residential neighborhood. If he were surrounded by gravel pits he would see a hardship.

Fowler said he thought it was important to note, because it’s stated in the application for a hardship, that proximity to a district is not a hardship. That is something that might come up in other cases so he wanted to note that just because you are near a district doesn’t mean you should be allowed to be part of that district.

Tuttle said he still thinks if you have a piece of land you should have some use of the land to do something with it, and just because we drew a line on a map doesn’t mean that you should be excluded from that.

MotionSpear/Fowler to deny the variance to Section 4.1 because:
  • granting the variance would be contrary to the public interest, because of the overwhelming opposition to the proposal in the neighborhood, and the traffic and
  • safety concerns exiting Isaac Frye Highway onto NH Route 101.
  • The use contemplated by the applicant as a result of obtaining this variance would be contrary to the spirit of the Ordinance because the new gravel excavation district has the overwhelming support of the public to stand as adopted to restrict where these operations occur.
VoteSpear & Fowler – Yes Eckstrom & Tuttle – No

Eckstrom said she wanted to change her vote.

MotionSpear made his motion again for reconsideration. Fowler seconded the motion and 3 were in favor with Tuttle voting No.

Eckstrom stated that she changed her vote, not because she was swayed by the overwhelming opposition from the neighbors, but the other arguments that were introduced that clearly set forth reasons why denial of this variance is in order.

MotionSpear/Fowler to reopen the public hearing.

Eckstrom stated that the variance request for 4.1 has been denied, She stated that since the remaining variance requests were predicated on this one being approved, that decision rendered those remaining moot. She said that the Decision Notice will be finalized at the July 11th meeting.

MotionTuttle/Spear to adjourn. All in favor. Meeting adjourned at 10:37 p.m. Minutes submitted by Diane Nilsson

Posted July 6, 2006