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DUNBARTON ZONING BOARD OF ADJUSTMENT
MONDAY, MARCH 10, 2008
DUNBARTON ELEMENTARY SCHOOL 7:00 P.M.
The regular monthly meeting of the Dunbarton Zoning Board was held at the above time, date and place with Chairman John Trottier presiding. The following members were present:
John Trottier, Chairman
John Herlihy, Vice Chairman
Alison Vallieres, Secretary
David Nault
Ron Slocum
Wayne Bracy, Alternate
Dan DalPra, Alternate
Meeting Posting:
The Chairman verified with the Secretary that the meeting notice had been posted in three public places throughout the Town and published in the Concord Monitor for one day. In addition, the notice was posted on the Dunbarton Web Page.
Approval of Previous Meeting Minutes: Monday, February 11, 2008
MOTION:
John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment approve the minutes of the previous meeting of Monday, February 11, 2008 as written. David Nault seconded the motion. The motion passed unanimously.
7:00 P.M. - David Barkie (Barkie Holdings, LLC, Owner) (I3-4-2) Requests a Special Exception to allow him to construct motor vehicle fueling facilities at an existing retail store with eating and drinking facilities known as Page’s Country Store and Deli at his property located on Route 77 and Old Fort Lane in the Low Density District in Dunbarton, NH
John Trottier, Chairman, Zoning Board of Adjustment, stated that this meeting would give the opposition the opportunity to rebut what was presented by the applicants at the last meeting. In addition, Attorney Richard Uchida would address the five necessary criteria for the granting of a Special Exception this evening.
John Trottier, Chairman, stated he took exception to Attorney Amy Manzelli’s letter dated February 25, 2008 (attached) which stated that the Board had not indicated whether or how it will permit members of the public and abutters to the proposed use who are not her clients but who oppose the application to provide comment to the Board. John Trottier stated that every member of the public has been given an opportunity to speak in favor or against and this practice will continue during public comment.
Attorney Amy Manzelli respectfully requested that such individuals be allowed to so testify, especially because they have not had any meaningful opportunity to review and respond to the new materials submitted during the February 11, 2008 hearing.
John Trottier stated that every member of the public has an opportunity to speak. The Board has never turned anyone off.
Attorney Amy Manzelli stated that she had submitted materials to the Town of Dunbarton on February 25, 2008 which was the deadline for submittal of additional materials. It was noted that all members of the Zoning Board had received these materials prior to this meeting. Stated she had several procedural comments as follows:
1. Stated she had reviewed the minutes from the December 10, 2007 and February 11, 2008 meetings, and they appeared somewhat incomplete. She stated she understands the Board only accepts amendments from Board members. She stated she was submitting objections to those minutes in writing. She stated she didn’t expect the Board to grant these amendments. Stated they did submit everything in writing. She stated this is as much as she was going to say regarding the minutes. (attached)
2. Stated they respectfully request the Board to deny the application and they are going to elaborate upon the material submitted and the applicant’s addressing of the five criteria necessary for the granting of a Special Exception.
3. She stated the only thing that matters is the standards for the Board’s decision. The only thing that matters is whether the applicant has satisfied the five requirements as noted in the Zoning Ordinance. Stated it is our position that these have not been satisfied. (attached)
4. She stated these standards are not convenience or utility. There are comments such as “ It would be really useful to have a gas station in Dunbarton, etc.”. The decision should be just limited to the Special Exception criteria. Letters have been submitted by Dunbarton residents, several in support of the project and several against the project. They don’t deal with the matter at hand.
5. Applicant has eight on-going violations for the Special Exception that already exists (attached). Some of those violations seem minor. The Zoning Board and the Planning Board, that was in place at that time, felt these conditions were important. These conditions apply to the site and several are being violated. Unfortunately, these violations are germane to this application because they seriously affect the way that the applicant has testified that they will be able to keep the system running. The applicant has submitted information as to how they will carry this out. This previously granted Special Exception was sought by a prior owner. This undermines the ability of the applicant to respond to maintenance issues and allow the facility to be operated the way it is supposed to be.
This fact relates to two of the Special Exception criteria i.e. (b) No hazard will be caused to the public or adjacent property on account of potential fire, explosion or release of toxic materials and
(e) The proposed use will not result in the degradation of existing surface and groundwater water quality standards, nor will it have adverse effects on the natural functions of wetlands on the site which would result in the loss of significant habitat or flood control protection.
The applicant maintains they will keep the system operating the way it is designed. If those conditions are violated, the Town does not have the resources to enforce these conditions.
Attorney Manzelli stated she would also like to talk about some other information. With regard to the shallow water table, the applicant says the water table is lower than the opposition says it is. Some chemicals have the ability to carry through ground water faster than others or in a situation where a tanker truck is involved in an accident. There are all sorts of things that are likely to happen on this site. An aquifer is located less than ½ mile from the site. Along with all the other factors, these two criteria have not been satisfied.
We know how much time you have put into this application. However, those eight ongoing violations indicate to us that the Town does not have the resources to keep track of all the violations on the site. That shows that the criteria that this causes no excessive demand on town resources cannot be met. There are conditions about maintenance and repair. At this point, we have heard that the Town nor the State does not have the resources to keep up with gas violations, and they will fall to the Town in the first instance. No hazard is used twice, i.e. (b) No hazard or release of toxic materials and (c) No creation of a traffic safety hazard.
Attorney Manzelli stated that Attorney Uchida has said that something has to happen. The Board should note the definition of the word hazard, which is used in both Sections D.3.b (regarding traffic) and D.3.c (regarding releases) of Article 9. The dictionary that the New Hampshire Supreme Court regularly uses (Webster’s Third New International Dictionary, Unabridged, 2002) defines the word hazard to mean “an advance chance….a thing or condition that might operate against success or safety…a possible source of loss…a condition that tends to create or increase the possibility of loss….the effect of unpredictable, unplanned, and unanalyzable forces in determining events….chance….an event occurring without design, forethought, or direction….accident..”
Attorney Manzelli stated that Attorney Uchida has stated to the Board that the word hazard means that something has to happen. However, according to the dictionary definition, hazard means the danger, risk, chance, or possibility of something happening, not something actually happening. Thus, Section D.3.b requires the Applicant to prove that the proposed use will not result in any danger, risk, chance, or possibility of a potential fire, explosion, or release of toxic materials. Likewise, Section D.3.c requires the Applicant to prove that the proposed use will not result in any danger or risk to traffic safety.
6. Attorney Manzelli stated her next question was with regard to the Questions and Answers the applicant submitted. Questioned credibility of the document, since it’s author was not noted, and how the questions were rephrased by the applicant, etc.
7. Before we get the Requested Findings of Fact Document, (attached) would request that the Board deny this application. Stated it is required to write reasons for denial.
8. Attorney Manzelli submitted letter February 25, 2008 with Requested Conditions of Approval if the application is granted. (attached letter)
Mark Correnti, Amoskeag Appraisal Company, LLC, NH Certified Residential Appraiser, Presented / summarized the February 25, 2008 letter (attached) regarding dimunition in property values for properties located in Amherst and Manchester near gas stations. Also submitted arguments regarding Barkie Holding, LLC question and answer material that was previously submitted.
At this point, Attorney Manzelli stated there were two appraisals of the 10 Old Fort Lane property and the 2 Jewett Road property that they were uncomfortable about submitting because of personal information, etc. but were able to submit the cover letter of the appraisals. John Trottier, Chairman, advised her to submit them to the Board. (attached)
John Gilbert, GeoInsight, Manchester, NH – Presented / summarized the February 25, 2008 letter (attached) which included information on issues relating to potential contamination of the site. Also did an Assessment of the Questions and Answers previously submitted by the applicant.
Abutters:
Herb Allen – Presented / summarized the February 6, 2008 letter (attached). Stated he was Laraine Allen’s husband. She is actually the owner of the Molly Stark House. Rebutted the previous testimony of “questions and answers” property value section of Mr. Barkie’s most recent submission. Noted that he and his neighbor, Mr. Dearborn, share a hand dug well which is 18 feet deep.
Jacqueline Brough, 9 Old Fort Lane – Stated she continues to be opposed to having a gas station at Pages Corner. (attached letter)
Karen Cusano, 10 Old Fort Lane - Letter submitted regarding her opposition. (attached)
Tom Cusano, 10 Old Fort Lane – Letter submitted regarding circumstances precipitating the production of the opinion letter from Robert Wiita, etc. (attached) Also presented / summarized the February 21, 2008 letter (attached) which included testimony regarding water runoff, property values, line of sight, and lighting issues. Showed plan with existing lighting schedule, etc. and lighting effect onto surrounding property.
Patricia L. Shearin, 334 Stark Highway North – Presented / summarized the February 20, 2008 letter (attached). Stated her objections to the project. Also made reference to a letter submitted by Stepehn DeStefano, Circa 72 Inc, Real Estate Broker (attached) She also made reference to the “bullet proofness” of the proposed tanks.
Pam Werner, 16 Old Fort Lane – Presented / summarized not dated letter (attached). Stated her objections to the project. She stated there are only about ten gas stations that have above ground tanks in the State. She stated that small gas stations similar to this store have a higher turnover rate of ownership.
David Nault asked her when she speaks of herself, is she acting on her own behalf or what.
Pam Werner stated that she is an employee of the New Hampshire Department of Environmental Services (NHDES) and does inspections of gas stations, etc.
Dan Werner, 16 Old Fort Lane – Stated his objections. (attached) He stated any leaks of gasoline will be going right down Route 77 and into the aquifer and into any hand dug wells. Also, the tank will be clearly visible from Tom Cusano’s and my house.
Attorney Manzelli stated that when Pam Werner’s remarks refer to LUST, this is the abbreviation for Leaking Underground Storage Tanks. She stated they have presented evidence to support their data from qualified appraisers. We have submitted over ten expert opinions from Realtors. They have calculated a $61,000 decrease in property values of the two properties they appraised if a gas station were next door, etc.
Attorney Manzelli stated there are three shallow dug wells in the immediate vicinity and ground water wells are the only source of drinking water in the area..
Attorney Manzelli stated that NHDES will be changing the rules for Above Ground Storage Tanks (AST) in May. Once these rules are changed, this proposed use would not be allowed. AST approval does not pre-empt local regulations. It only approves the construction of the site. It does not approve the operation of it. You can’t regulate someone being careless or negligent.
Other Members of the Public:
Heather Radl, 315 Stark Highway North – Spoke in opposition, stated her property is far enough away so it is not going to be affected by the gas tanks. I still want to implore the Board that we are very concerned about carcegeons leaking into nearby wells and Town aquifers. Clean water is rapidly becoming more and more precious. Hope the Board will act to protect our natural resources. Very concerned that this is coming before this Board again. This is not the way we do things in Town. They only were allowed to construct this store with no gas and hope that this will prove that this underhanded way of coming back is not conducive to their request.