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Board of Adjustment Minutes 07/02/2008
JULY 2, 2008
Case #220A-William & Diane Stevens request for Obnoxious Use under Article III, Section H. against Chucksters, Map 2 Lot 81 which abuts their property.  Property is located on the corner of Route 4 & Bailey Road.
Members Present:  Edward Meehan, Chairman; Ben Brown; Mark McIntosh; David Dobson; Tom Wainwright; Richard Millette, Alternate.
Applicants:  William & Diane Stevens
Others:  Chuck Breton, Mark Blasko, Richard Uchida, Michael Cwikla, Jeffrey Jordan, Jamie Pike, Steve MacCleery, Ewen MacKinnon.
Bill Stevens stated he would like to protect what little privacy he has left on his property.  The town has an obnoxious use clause in the zoning and if Chucksters cuts down all the trees between the two properties there will no longer be any buffer.  The lighting is still an issue with the existing business, mini golf, without the proposed expansion of a go-cart track.  If the trees are removed the lighting problem will be worse.  Also, the batting cages are now creating constant noise all day long.  He is not trying to shut them down but more buffering is needed for the noise.
The parking lot has also been a concern.  He doesn’t want them to encroach on his property any more than they do now by expanding their parking area.  He would like some peace and quiet and for them to leave the buffer alone.  At the last Planning Board meeting it was mentioned about putting in the pavilions that were not put in during the golf course stage.
He asked the PB to come to his property and see what the place would look like if the trees are cut down and a 6’ wall put up in their place.  The board didn’t see a need to do so.
Diane Stevens said they had not complained in the past, they have put up with the parking and the lights.  Now with all the trees being taken down, all three bedroom windows face that side.  They will hear all the noise magnified including noise from Route 4.  They are concerned with their privacy, house value and peace of mind, all of which will be affected.  Chucksters is run from 10AM-11PM and with the trees removed it will impact them greatly.  The business is in a commercial zone abutting residential property.  She doesn’t feel they have a right to make more of a profit at their expense.  She doesn’t feel the PB did their job by saying a 6’ wall was a sufficient buffer.
Attn. Richard Uchida referenced the letter from town council.  (On file)  The Stevens’ have the burden of proof.  Does the noise, light etc. violate excepted standards?  Are they so intolerable that a reasonable person can’t tolerate it?
Mr. Uchida submitted the conditional approval plans from the PB meeting.  At the request of the PB a lighting study was done.  The proposed project would be in compliance with the lighting ordinance.  If incorrect lighting is being used once the track is built then it would be in violation and cause for concern.
Ben Brown asked if the test was done with existing lighting and did it account for the trees being removed?  Mr. Uchida stated that it was supposed to account for the removal of the trees as well as what is there presently.
As for the parking, it was pulled away from the Stevens’ property.  There will be a 3’ berm with a 6’ fence on top of the berm.  6’ trees will be planted as well.  The lights themselves will be below the height of the fence.  Foliage will also help muffle noise/sound.  The track is away from the NE part of their property.  Electric cars will be used instead of the first proposed gas cars.  The decibel level will be lower than a normal conversation at the property line.
The batting cages were moved to the front of the property and the lights have been turned off that were shining on the Stevens’ property and toward Route 4.  The parking issues have been addressed with No Parking signs on Bailey Road.  This property is a Comm/Ind lot with a 1000’ swath.  With that comes noise, lights etc. but they feel there are no zoning violations according to the town ordinances.
Abutter Michael Cwikla said he had an issue with the lighting.  He brought a video of the lights shining in his yard.  He was referring to the lights that point upwards which he claims is light trespass.
Ben Brown asked if there had been any discussions with the Selectmen about lighting and the current zoning.
Selectman Jeff Jordan stated that he had been in the Steven’s house and it was like having a flashlight on in it.
Chuck Breton, Chucksters, said that all lighting issues that had been brought to their attention had been taken care of and that if there were any additional problems, this evening was the first he was hearing of them.
Ben Brown asked if light studies had been done by the applicant.  Selectman Steve MacCleery said he believes the studies were looked at by our town engineer.  A letter was sent to Chucksters to address the lumen.  The town doesn’t have a lumen meter as of yet.
Mark Blasko, Chucksters, said that if they are out of compliance they will address it.
Ed Meehan asked the distance between the parking lot and stone wall.  Bill Stevens stated 15’ on the high said and 30’ on the other end.  He also added that when they built their home 30 years ago they were zoned residential.  Subsequently, the commercial zone got moved back 1000’ from Route 4.
Mr. Blasko added during the golf course stage there was a small isolated wetland where the batting cages are now.  According to DES something has to be built where the cages were going to go.  Have held off on the pavilions until the plans for this expansion.  When the golf course went in their best guess for expansion would not happen for several years but nothing was in writing or agreed upon.
Diane Stevens said, pertaining to the batting cages, Mr. Breton told them that something had to be put on paper to satisfy DES.  When asked about expansion they were told it would probably never happen.  It was a verbal agreement that the trees would not be disturbed and no further expansion would be done for at least 5 years.
Mr. Uchida stated that the issue is the use-existing or not.  Obnoxious use has to be proved that it exists or will exist in the future.  There is nothing in the ordinance that states it is.  His clients are willing to address any existing lighting issues.  The Stevens’ appeal refers to future uses, the issues brought up this evening are existing issues.  The plans before the BOA are the same ones the PB saw and made their decision on.  It was also noted that no decibel levels have been taken on the present business.
Tom Wainwright- Stevens’ property was originally residential.  The town changed the zone to commercial but the property hasn’t changed owners.  Can their property be grandfathered?  Do we have that authority?  Also, is a race track a structure?  He would say yes.  On pg. 6 of the zoning ord. #vi. it states “No Commercial or Multi-family building or structure may be erected closer than 40’ to an adjacent zoning district.”
Pertaining to noise, Pembroke came up with their own noise ordinance because there isn’t a state one.
Richard Millette- The town doesn’t have a light or decibel meter.  Are the No Parking signs effective?
Proper assessment needs to be done, several times at different times of the day and days of the week.
Any commercial use could have obnoxious uses.  How much of it can spill into another zone?
Ed Meehan- When he visited the property the lot was not full and no one was parked on the road.  He felt that the board was trying to make a prediction without the aid of meters.
If light is trespassing from an existing business that would need to be corrected.
Also, when he was in the parking lot the lights were not shining upward.  The noise didn’t seem excessive at the time but that doesn’t mean it won’t be.
What would you expect to put up with living in a commercial zone?  Some consideration should be given to the abutters.
Ed looked at the PB file for Chucksters and only found reference to go-cart decibels versus jackhammers.  No crowd noises were mentioned.
Ben Brown-Complaints have been made to the Selectmen on what is currently on the property.  It is disappointing that no meter testing has been done.  He feels there is no objective information that this use is too loud or bright.  Light density should be measured.  It looks like Chucksters has addressed the problems that have been brought to their attention.
A house above the lot should have less light because the lights should be facing downward.  If they are shining off their walls, the lights are misdirected.
All the objective information before us says it is accepted by the ordinance.  Until the track is built there is nothing objective.
There is nothing here that I can point to that pertains to the BOA.  If they are not in compliance with lighting issues, that becomes a zoning violation and addressed by the Selectmen.  Don’t have enough info to label this an obnoxious use.
We can make a recommendation to the Selectmen & PB that a noise ordinance needs to be enacted similar to the lighting ord.
David Dobson-If we have light trespass, measurements need to be taken and addressed by the proper board.
Speculation is not proof that they are in compliance.
Mark McIntosh-Fence should be higher but what do you want the abutters to look at?
Ben Brown moved to deny the request of obnoxious use against Map 2 Lot 81 because there is not enough objective, measurable information to provide guidelines for corrective actions.  Also, the BOA encourages the Selectmen to measure, in order to enforce, any current potential violations of light and noise regulations.  Finally, the BOA encourages the Planning Board to identify or define noise limits similar to the Outdoor Lighting Ordinance.
Tom Wainwright seconded the motion.
David Dobson – Yes
Ed Meehan – No
Mark McIntosh – No
Ben Brown – Yes
Tom Wainwright – Yes
Motion carries 3-2.
Respectfully submitted,

Holly MacCleery, Secretary

Edward Meehan, Chairman

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