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Zoning Board of Adjustment Warner, NH Meeting Minutes of Members Present: Martha
Thoits, Chair, Mike Holt, Janice Loz, and Alternates Rick Davies and Ted
Young. (Jean Lightfoot
recording) Excused:
Vice Chair Dennis Barnard, Member Eric Rodgers Not present: Alternate
Gordon Nolen Ms. Thoits opened the meeting at 1.
CASE #05-08 SPECIAL EXCEPTION a.
Applicant: Warner
Aggregates, LLC, David Herrick, Owner b.
Property Location: Route
103 East, Warner, NH, Map 3, c.
Proposed Use: Construction Equipment and Supplies Sales
d.
Special Exception to Zoning Article VIII, Section B.
Request Special Exception in order to sell construction equipment
and supplies by auction 6 to 8 times a year lasting one day each. Ms. Thoits asked if the Board wished to
discuss whether it should be a variance or a special exception before
beginning with the application. Mr.
Davies said that the procedure is to accept the application, and if
there is a question on whether the application should be for a variance
or a special exception, then the Board should discuss it beforehand.
Ms. Thoits agreed, saying that if it really should be a variance,
then the application for a special exception cannot be accepted.
She said that the question is whether it should really have been
a variance request and she wanted the Board’s opinion on this issue.
She said if you look at Table 1 under Retail and Services/Uses,
Number 6 says, “Establishment selling new or new and used automobiles
and trucks, new automobile tires and other accessories, aircraft, boats,
motorcycles and household trailers;” and it needs a variance for that
district. She said Number 16
is what she thinks some people thought would be for a special exception
because it says, “Motor vehicle, machinery or other junkyard.”
She said that to her, the phrase, “or other junkyard”
indicates that it is talking about motor vehicle and machinery
junkyards. She asked the
board how they interpret the phrase, “or other junkyard.” Mr. Young said it seems that Mr. Herrick
could give his presentation so the Board could understand exactly what
he is proposing. He said
that by adding the other uses like sales of construction supplies, bark
mulch, firewood, pipe, etc. sounds like he may want to have a full-time
operation there with those items. Mr.
Holt said if he’s in OC-1, and you look at Number 16, then he would
need a special exception; he said if you interpret it as Number 6, then
he would need a variance. Ms.
Thoits said yes, and the determination is whether we see it as Number 6
or Number 16. Mr. Davies
said that Number 16 seems to be saying that it’s three types of
junkyards. Ms. Thoits said
that Mr. Herrick is not calling it a junkyard.
Mr. Young agreed, but said that he wants to auction heavy
equipment one day six to eight times a year.
He said that the auctions would probably not be in the winter, so
there would probably be an auction a month.
He said that they are going to be hauling equipment in and out of
there each month. He said
that a junkyard would be a permanent location of this material if it
were in fact junk or other used machinery.
He said that given that, we don’t know until we hear his plan.
Ms. Thoits asked if he were interpreting it that if he stored the
machinery there, then it would be a junkyard.
Mr. Young said yes, if there’s going to be machinery stored
there, then he thinks it will be inevitable.
Ms. Thoits said that the point with Number 16 is that it
doesn’t mention the sale of anything from this junkyard.
She said it just says, “Motor vehicle, machinery or other
junkyard”; it doesn’t mention that things can be sold from the
junkyard. She said that
Number 6 specifically says selling.
She said that is her interpretation.
She asked if the Board wanted to hear the case before it’s
decided. Mr. Young said yes,
because it could make a difference in how it’s presented. Mr. Young MOVED to hear the case and see if
it can be determined from that where it should come.
Mr. Holt seconded. There
was no further discussion. The
motion was PASSED unanimously. Ms. Thoits recognized David Herrick, the
owner of Warner Aggregates, LLC. He
explained that the proposal is to permit auctions 6 to 8 times a year,
depending on the economy. He
said there would not be more than one day of sales, but there would be
equipment being brought in about a week prior to the auction and then
about a week after the auction to allow the outfits that buy the
equipment to move it out. He
said from that point, it will be a vacant site again.
Right now, he said, it’s his sand and gravel operation.
He said that he does not think it will be a continual equipment
storage area because it’s a pit where they do their digging and
screening operations. He
said it would be a hindrance to have the equipment there for very long.
He said that from other auction sites he’s seen, the equipment
isn’t on site for much more than a week.
He said the construction materials, bark mulch, and pipe
coincides more with the pit operation and he added it to this
application because there was a question last year about whether or not
he was permitted to sell bark mulch from the pit.
He said that they stopped selling bark mulch because of that and
he said he wants to be permitted to sell it.
He said that the pipe goes along with the operations of the pit;
contractors come in and if they need a culvert or a piece of sewer or
drain pipe, if it’s on site, it’s more of a convenience for them.
He said it is not intended to have a massive pipe stockpile –
it’s just 4 or 5 pieces of different sizes of pipe.
He said that firewood is seasonal and is something that would be
available from springtime until fall.
He said most of the activity would be probably April to October
or November. The auction
sales would stop in October or November, too.
He said that the equipment will be used, but it’s all operable.
He said it’s not supposed to be anything that’s not movable
by itself. He said that as
far as a junkyard is concerned, he wants nothing to do with that.
Michael Tierney, who was representing Warner
Aggregates, said that a junkyard generally has three different purposes.
One is the junking of vehicles, taking apart and dismantling the
vehicles that are no longer operable or no longer should be operable.
Second is the restoring of vehicles.
He said that generally a junkyard is also going to be in the
repair business, repairing those vehicles that they purchase that are
reparable so they can be put back on the road.
Third is the selling of parts that can be salvaged from its
junking operation. He said
that any junking operation is going to be pulling the heavy metals,
junking some of the unusable materials and then selling those parts that
can be sold as used parts. He
said that the proposal is to have an auction of used heavy machinery and
heavy machinery parts and accessories.
He said if you look at Number 6 which talks about the
“establishment, selling new or new and used automobiles and trucks”
and new automobile tires and other accessories, it is only talking about
the sale of new parts. He
said it talks about the sale of used automobiles, but only the sale of
new parts. He said that
Number 16, including the machinery and motor vehicle junkyard have to
include the sale of used parts, whether it is for automobiles or for
heavy machinery. He said he
thinks this is more in line with what is being proposed than the
traditional used car sales or a dealership where you can buy your new
car and new parts for the car. He
said he thinks it’s much closer to the auction of trying to sell the
used parts but is not going to be the junking part of a junkyard.
He said it’s just going to be the sale of the used machinery
and the sale of any accessory parts.
Mr. Holt asked about the dismantling of heavy
equipment. Mr. Tierney said
there would not be any dismantling as part of this operation.
Mr. Holt asked if they were planning on dismantling, breaking
down, draining out the oil, etc. of the equipment.
Mr. Herrick said no. Ms.
Thoits asked if they only planned to have the heavy equipment on the
site for a week or less. Mr.
Herrick replied for a week prior to the sale and a week after the sale. Mr. Young asked if the machinery was going to
only come in on consignment or is it going to be machinery that Mr.
Herrick has picked up. Mr.
Herrick said it could be some of his equipment, but it would belong to
other people, primarily. Mr.
Young said that someone may call and take a piece of equipment into the
auction and then it would be taken away after the auction either by the
new owner or the original owner. Mr.
Herrick said yes. Mr. Davies asked what day the auction would
typically be on. Mr. Herrick
said typically it would be either a Thursday or Friday, and sometimes on
Tuesday. He added that it
all depends. He said it
would not be on a weekend, although perhaps on a Saturday, but not
typically on a weekend. Mr.
Davies asked when the equipment would be brought in.
Mr. Herrick replied during the weekdays.
Mr. Holt asked what volume of activity is
envisioned. He asked if they
are thinking of a half a dozen pieces or 100 pieces . . . Mr. Herrick
said it could be 100 pieces. Mr.
Holt asked if they would be of the size of D-7 or D-8 dozers.
Mr. Herrick said it could be some, but not a hundred.
It would be rubber-tired vehicles like loaders and excavators.
Mr. Holt noted that they have that kind of room on the lot.
Mr. Davies asked if the sales of the
construction supplies, bark mulch, firewood and pipe would be
year-round. Mr. Herrick said
bark mulch is seasonal from April to November.
And, it would be the same with the firewood.
He said the pipe is seasonal because of the frozen ground
conditions. He said that
nearly everything in the pit is from spring until fall.
Mr. Young asked if it would be down in the
pit on the high side. Mr.
Herrick said yes. Mr. Young
asked if the property line extends over the stone wall.
Mr. Herrick said his property extends from the Mr. Holt asked if Mr. Herrick abuts I-89.
Mr. Herrick said yes. Mr.
Herrick showed a tax map of the area to the Board members and pointed
out the different features in the area.
Mr. Holt asked how large the lot is.
Mr. Herrick said about 60 acres.
He added that 100 pieces would not start to fill up the area.
Ms. Loz asked if it is junk machinery.
Mr. Herrick said no. Ms.
Loz asked if it’s intended for the use for which it was made.
Mr. Herrick said yes. Mr. Davies said on the questions Mr. Herrick
said Ms. Loz asked if there has been a decision as
to whether this should be a variance or a special exception.
Ms. Thoits said no. Ms.
Loz said that that needs to be determined before deciding to approve or
deny the application. Mr.
Davies asked if there could be public input before deciding what it will
be. He said that he sees it
as hemming on Question A on the Special Exception application.
He said that a motion to deny it based on Question A could flush
out whether or not it should be a special exception or a variance.
Ms. Thoits said that the public opinion can be heard, but we
still have to come to the conclusion about whether it should be a
special exception or a variance. She
said that before the application can be voted on, the decision needs to
be made. Mr. Davies asked if
it would be two votes – one on whether it’s a special exception and
then if it is, then a vote on whether to approve it.
It was agreed by the Board that the public
opinion should be heard first. Ms.
Thoits closed the meeting and opened the public hearing.
She asked if there were abutters wishing to speak.
She recognized Nancy Jewell.
Ms. Jewell said that she has several concerns about heavy
equipment bringing in gasoline, oil, hydraulic fluid, diesel fluid, etc.
leaks. She asked if an
environmental impact study will be required.
She commented that once something is contaminated, it is
contaminated. She added that
heavy equipment is heavy, so it might have an impact on the roadbed.
She asked if Mr. Herrick is facilitating the auction himself or
if he is bringing somebody in and someone else will actually facilitate
the auction and just use Mr. Herrick’s land.
Mr. Herrick replied that there would be an auctioneer, who would
orchestrate the auction. He
said they would have a mobile sales office that would come in during the
auction sale and then would be removed when it was over.
He said that he’s made it clear to the individual that he and
his people and pieces that come in would have to be leak-free.
Ms. Jewell commented that there is no way to guarantee that.
She continued to say that it is her understanding, then, that it
is Mr. Herrick’s land and his facility, but someone else is coming in
to do the auction and do the business part of the auction.
Mr. Herrick said yes, in essence, they’re renting the property
for 6 to 8 times a year. Ms.
Jewell said that the sale of bark mulch, firewood, etc. sounds like it
could be a year-round business. She
asked if that will require a building.
Mr. Herrick said no, and it would not be a year-round business
because it would begin in the spring.
Ms. Jewell said that the traffic, then, would be primarily in the
spring, summer and fall, when the traffic is normally accelerated,
anyway, so he would be adding more traffic to that area.
Mr. Herrick said not a great deal.
Ms. Jewell said that she thinks that one thing that needs to be
considered is the intersection of Routes 127 and 103 and how sharp that
corner is for big equipment in the traffic on 103.
She commented that one of the buses couldn’t make the corner
and had to stop and back up to make that left-hand turn, leaving a blind
area for the traffic going east and west on 103.
Mr. Tierney commented that the traffic for this operation, by and
large, would be coming off of I-89 and would not be heading east on 103
beyond the access to the property. He
said that the traffic for the auction operation would be a lot of the
same type of traffic that is already there as part of the gravel
operation. Ms. Thoits recognized Harold French, an
abutter. He said that he is
an auctioneer and he has conducted this type of sale.
He said that he came to say that this is really a very low impact
on the community to conduct these types of sales.
He said that his experience is that it does not add a great
burden to the area to have them, so he said he would be in favor of Mr.
Herrick having these auctions. Ms. Thoits recognized Dick Mueller, an
abutter. He said that most
of his concerns have to do with various forms of pollution.
In particular, he asked about light pollution and how many
24-hour lights or street lights would be on the property.
He also asked about the various fluids leaking out of vehicles.
Finally, he asked about noise of the auction, although, he said
he was assuming that the auction is through a loud speaker that is
doable. He said he also was
concerned that it is abutting the Ms. Thoits asked if he is quite a way from
the river. Mr. Herrick said
yes, it’s several hundred feet away from the river.
Ms. Thoits recognized Walter Moyer, an
abutter. He said he is
concerned about the parking and the river pollution.
Mr. Herrick said that he will have quite a bit of control over
the firm that will be doing the auctions and he is concerned about the
pollution, too. He said the
auctioneer acquires the equipment and he said that he has a heavy handle
on what is allowed to be brought in.
He said that he’s made it very clear that he doesn’t want any
oil leakers or any junk brought in.
He said it’s got to be runnable equipment.
Ms. Thoits asked if it would be brought in on a truck.
Mr. Herrick said yes, but some could be driven in.
He said that they are also making it clear that the equipment is
to go back towards the interstate and not back towards Contoocook or up
127. He said there could be
the occasional person who comes from Franklin, Webster, or Ms. Thoits recognized Ms. Jewell.
She said that it needs to be understood that this is a two-part
thing – number one, we’re talking potential auctions and then
we’re talking about a retail facility.
She said that the noise of the diesel trucks to move the
equipment will be present and she added that people will be starting up
some of the heavy equipment to be sure it runs.
She said that is noisy. She
said she was sure that the bus company said they would use 89, but the
buses go by her house everyday both ways because they get gas in
Contoocook, so they don’t use that 89 exit.
Mr. Herrick said that the buses fuel up at H. R. Clough in
Contoocook. He said there
will not be re-fueling situations with his plans.
He said they come in, they get bought and they leave and go back
onto 89. Ms. Thoits recognized Mr. French.
He said that these types of auctions are most normally held in
gravel pits or sand pits because they lend themselves to the type of
facility needed to sell this type of equipment.
He said that he’s been to a lot of them and he has conducted a
few of them. He said he’s
never seen or heard from any other auctioneers that there was any
significant ground contamination from an ongoing process.
Ms. Thoits asked if anyone else wished to
speak. There was no one.
She then closed the public hearing and re-opened the meeting.
Mr. Davies asked if there was going to be the
discussion of a special exception versus a variance right now, because
it determines which direction we take.
Ms. Thoits agreed and said that if it is determined that it
should be a variance, then we will need to deny this application and Mr.
Herrick will need to come back for a variance.
Mr. Davies MOVED to declare this application
a special exception that is not on the schedule and does not fit the one
that is a junkyard, so a variance will be needed for the items.
There was no second. Ms. Loz said that there is a definition of
junkyard in the state RSAs. She
said RSA 236:112 on page 228. She
read, “’Junk yard’ means a place used for storing and keeping, or
storing and selling, trading, or otherwise transferring old or scrap . .
.” She said it goes on to
discuss the different types of scrap or wrecked vehicles.
She said that in essence, it’s non-operable material.
She said that the equipment being discussed is clearly operable
material. She said that she
thinks that this does not fall within the definition of junkyard.
She said that she thinks that Number 16 does not apply.
Mr. Davies said that was his motion to not
accept it as a special exception since there is no item on the use table
that is consistent with the request.
Ms. Loz said that she thinks that Number 6 fits it.
Ms. Thoits said that it says new and used and this is clearly
used and Number 6 is the one that applies and that means that he needs a
variance. Ms. Loz asked if
Mr. Davies wanted to either approve or disapprove this special exception
based on Number 16. Mr.
Davies said no. He said he
wanted to not accept it as a special exception situation because it is
not on the use table. He
said that the board went out of their way to get input as to they were
thinking the right way, but he said his motion is to not accept it as a
special exception since it is not listed anywhere as a special
exception. Ms. Thoits and
Ms. Loz said they agreed. Mr.
Young said that the problem with Number 16 is that it states motor
vehicle, machinery or other junkyard.
He said if you take junkyard out of it, then motor vehicle and
machinery, it means that it’s allowed to be on that site.
But, he said, it does not talk about sales. Ms.
Thoits said she agreed and that is why she thinks that Number 6 applies.
Mr. Young said that at least under Number 6 you have the word
selling and then stipulations could be laid out with that as just
selling one day at a time or a one-day auction.
Ms. Thoits said that the trouble is that when the Zoning was
passed, they talked about aircraft, boats, motorcycles, but they don’t
talk about heavy equipment. She
said that sometimes we need to be careful because we need to make it so
it covers everything. She
said that it doesn’t specifically say heavy equipment, but neither
does Number 16. Mr. Davies
said that the RSA does refer to a “machinery junk yard,” so there
are different types of junkyards. He
said that his opinion is that the whole of Number 16 is that it’s a
junkyard as defined in the RSA and as defined elsewhere in the
Ordinance. Mr. Young agreed
that it referred to junkyards. Ms.
Thoits agreed and said that she does not think that this is a junkyard.
Ms. Thoits asked if there were a second for
Mr. Davies’ motion. Ms.
Loz asked to hear the motion again.
Ms. Lightfoot read the motion:
Mr. Davies MOVES to not accept the application as the request is
not anywhere on the table as a Special Exception.
There was discussion about the wording of the motion.
Mr. Young said that it may not be doing the applicant any favor
by accepting it under Number 16 because we would be giving him
permission to have a junkyard and he definitely states that he is not
planning a junkyard. Ms.
Thoits said that she thinks he needs to be here under Number 6, which
would be a variance. She
said if it had come in as a variance, then a decision could have been
made on it tonight. She said
that she thought it was suggested to Mr. Herrick that it be requested as
a variance. Mr. Herrick said
that Ms. Lightfoot had called his wife.
He said that when he first came in and was going over it, Number
6 didn’t seem to apply because it didn’t mention heavy equipment or
machinery. He said that’s
why they focused on Number 16 because it talked about machinery, even
though it says junkyard. The
intent was never to be a junkyard. Ms.
Thoits said that possibly Number 16 is poorly worded, as well, but she
said she interprets it to mean junkyard and that does not give
permission to sell the machinery. Mr.
Tierney said that the state may define a junkyard in the RSA for the
purpose of the state regulations in RSA 236; the town may define a
junkyard more broadly than is found in 236 of the state regulations.
He said that a junkyard could be defined to more than just the
junked vehicles, to be that sale of parts and sale of inoperable
vehicles that came in and now are operable when they’re going out.
He said that whether the Town of Mr. Davies asked to rescind his motion and
move that a variance is required for this situation and not a special
exception. Ms. Thoits said
that she thinks that because the application was accepted and all the
information was taken, then it needs to be denied and in the denial say
because we feel he needs a variance.
She said that by going through the public hearing, the
application was accepted. Mr.
Davies asked to withdraw his original motion.
Ms. Thoits said there was never a second, so there is no need to
withdraw it. Ms. Loz asked what the last motion was.
Mr. Davies said that his motion would be that a variance is
required for the requested operation.
Ms. Loz said that first we have to decide on the special
exception. Ms. Thoits said
she thinks the application has to be denied, but with the statement that
it is felt that he needs a variance.
Then, she said, Mr. Herrick will have this denied and he will
come back with a variance application.
Mr. Young said that he thinks it is correct to state that Number
16 does not cover what he needs because of the ability to sell.
He added that if Mr. Herrick comes back for a variance, it is
important for the board to visit the site to understand the area.
He said that the site is a gravel pit and has one side where the
high water might be and Mr. Herrick is not going to use that area.
He said it would also show where he should or should not store
other retail items such as bark mulch.
Ms. Thoits asked if Mr. Young was suggesting that a site visit by
the board should be done if and when Mr. Herrick comes back for a
variance. Mr. Young said
yes. Mr. Young mentioned that Mr. Herrick is in
the process of building a new road to access the site and that he thinks
that will be used for the auctions.
Mr. Herrick said it is in process, so it could take as much as
six months. Mr. Young said
that the new road takes it up very close to the exit off of 89.
Ms. Thoits agreed that a site visit will be
conducted if and when a request for a variance comes in.
Mr. Davies MOVED to deny the special
exception since item A on the special exception form requests
identification in the ordinance which does not pertain to the request on
the application and that the board feels that a variance is appropriate.
Ms. Lightfoot read the motion:
“Motion to deny the special exception since item A on the
special exception form requests identification of the ordinance which
does not apply and is not identified in the ordinance and the board
feels that a variance is appropriate.” Mr.
Holt seconded. Ms. Thoits asked if there were any
discussion. Mr. Young asked
if we are listing the item under which we found it unacceptable.
Mr. Davies said that we didn’t find it on the table, without
being specific on which place. Ms. Thoits summarized the motion by saying
that a yes vote will deny the special exception, stating that there is
nothing in the ordinance that applies to what he is asking for and that
the board feels that he needs a variance.
The vote was taken. The
motion was PASSED unanimously. Ms. Thoits told Mr. Herrick that the deadline
for getting on the September agenda is a week from Monday. Mr.
Davies suggested that Mr. Herrick bring in a sketch of what is proposed
with the access. Ms. Loz
agreed and said it would be helpful to have a sketch showing where it is
relative to the Ms. Jewell asked what the criteria were for
notifying abutters. Ms.
Lightfoot said that anyone within 200 feet from the property line,
whether they actually touch the line or not, is notified.
2.
MINUTES Ms. Thoits asked for consideration of the 3.
COMMUNICATIONS AND MISCELLANEOUS Ms. Thoits said there is a reminder for the
fall training on Saturday, October 25.
She said if any members want to go they should see Ms. Lightfoot.
Ms. Loz asked who is sponsoring it.
Ms. Thoits said it is OEP. Ms.
Loz noted that there are two in October.
Ms. Thoits said that the OEP has two training sessions – one in
the spring and one in the fall. She
said this is the fall one. There
was discussion about the value of these sessions.
Mr. Davies said that the front page on the
application forms that we changed a few months ago seems to be a little
rough for the applicants filling things out.
He suggested changing a couple of things – for instance, the
lot number line may be too short. Also,
he suggested giving more room for the address, by making it two lines.
Ms. Thoits said that she would appreciate having the case number
put at the top of the form. Ms.
Lightfoot said she will add these corrections.
Mr. Davies asked about actually walking on a
site. He said that on a
previous case, he didn’t think it was necessary to take the whole
board out, and he did not have permission to walk it – he asked if it
were possible to put a box on the form to check to allow members to walk
on the site. He wondered if
that is getting a little too dicey.
Mr. Young said there is a problem with that.
Mr. Holt said that he went on Mr. Herrick’s site today.
Ms. Loz said she drives by the places.
There was discussion about the issue.
Ms. Thoits said that if the board members feel it is important to
look at a site, she thinks it is best if a site walk is done and keep
minutes because of the right-to-know.
She said if a member believes when a variance request comes in
that a site walk is needed, then a motion needs to be made and we will
do a site walk. Ms. Thoits
said that if someone were to go to a site on their own and ask
permission to see it, they do need to let the applicant know that they
are a member of the Zoning Board because they would have the right to
refuse if they knew you were on the Zoning Board.
She added that she does not think it’s acceptable for a member
to go visit a site on their own. Mr.
Young said that it has created problems in the past when members of the
Planning Board went on their own to see a site, so he said he thinks
it’s not a good idea. Mr. Young said that he raised the issue for
the application for tonight because Mr. Herrick is going to build a new
road to the site and it might make a difference.
Ms. Thoits said that Dennis Barnard has to recuse himself from
the case because he is an auctioneer and Mr. Herrick is his friend.
Mr. Davies said this was brought up in the workshops in Mr. Davies asked if the board wanted to
change the form any right now. Ms.
Thoits said we would think about it.
Mr. Davies MOVED to adjourn.
Mr. Young seconded. The
motion was PASSED unanimously. The
meeting was adjourned at
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