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Board of Adjustment Minutes 04/14/2010
APRIL 14, 2010

Case # 229-Murray’s Auto Recycling, Inc. seeking a Variance to Article II, Section D.6.Commercial Village, g. Permitted Uses to allow a junkyard.  Property is currently owned by Merrimack Timber Services, Inc. located on Rte. 4, Map 4 Lot 154.
Members Present:  Mark McIntosh, Chairman; David Dobson; Richard Millette; Ben Brown; Jeff Jordan, ex-offico; Steve MacCleery, non-voting alternate.
Others:  Attn. Peter McGrath, Ed Dudek, Joseph Wichert, Dana Crowell, Michael Valotto, Todd Hammond, Rick Belanger, Diane Richardson, Ernest Brochu, Edith Bailot, Paula Garrettson, Linda Rauter, Brandon Giuda, John Poirier, David Colbert, William Harris.
Attn. Peter McGrath presented the case on behalf of Murray’s Auto.  The property is 19 acres and Murray’s Auto would like to have a recycling facility using the current facilities with 10-12 trained employees.  The operation will be set back from the road and autos will be stored within a fence and the tree lined area.  The cars will be dismantled before being stored and parts taken from them will be recycled.  Drainage protection will be bonded.  Merrimack Timber Service, MTS, currently owns the property which was used to recycle contaminated soil.  Their operation was louder and had more truck traffic than this proposed use will.  This property is unique, it was once a lumber mill and has always been in the commercial zone; it is not appropriate for residential use.
Joseph Wichert, Land Surveyor, stated Mr. Dudek has his current facility in Londonderry.  They met with the Planning Board on 12/3/09 for an overview of their plans.  They are not seeking to have the former proposed wood pellet operation, just the auto recycling.  The property is already cleared and graded with existing buildings, scales etc.  There are not a lot of alterations to make on the site.  The facility will be regulated by DES to make sure there is no contamination of ground water or other violations.  There are plans to close in some sides of the existing barn.  No more trees will be cleared.  Cars for resale would be displayed.  They can store at least 1000 recycled vehicles.
Ed Dudek, Murray’s Recycling, added that the cars are put on a cement pad to determine if there are any leaks when the vehicles are brought in.  All fluids are drained and disposed of properly.  This is a very clean operation and he has been running this type of business since the 1950’s.  At his current facility all wells are testing clean and his neighbor’s wells are tested at least once a year.  There are test wells on the current site.  Employees are trained to take care of spills or leaks immediately.  Dismantling is done indoors, batteries are removed, anti-freeze is sold, and waste oil is used for heating the building.  Everything is recycled.  The public will not be allowed to come in and dismantle parts themselves.  Resale of parts would probably be in the office building.  About 10-20 vehicles a day would come in with a 3-6 month turnaround time for the vehicles on the property.  A crusher would come to the facility about every 2 months which would make less noise than the sawmill next door.  He would not be doing any other type of scrap metal recycling.  DES regulates the amount of oil that can be stored on the property.  Another company will come in and pump out approx. 1300 gallons of stored oil on a regular basis, anti-freeze would be removed about every 2 weeks.  Spills of any kind would be inside a building and easy to clean up.  The largest vehicle to be recycled would be a 1 ton van.  Any cars for resale would be covered with his junk license and they would be seen from Route 4, approx. 10-15 vehicles.
Dana Crowell, abutter stated that MTS owned the current property when they purchased theirs and the well was contaminated and wetlands were disturbed.  She doesn’t feel that this is a re-existing non-conforming use.  They have to now meet the guidelines of the Village District ordinance.  Just because it is a perfect lot for their business doesn’t mean the variance should be granted.  This is a junkyard, no matter how pretty.  She is also concerned with property value impact.  She submitted a copy of DES’s NH Hazardous Waste Declassification Form for the current owner, MTS, dated 12/29/08 which is the effective date hazardous waste activities were discontinued.
Ernest Brochu, abutter added that the current owner, MTS, approached him and told him when they were done recycling soil the project would be finished and they would leave the property.  He thought that would be the end of it.  Before they shut down the facility the soil had to be removed and a silt fence put up.  He is concerned with the buffer of trees between himself and this lot as he is the one who owns them.  He feels this type of business is too close to residential properties.  His well is tested every year and so far there have been no detrimental effects.  MTS has been a great neighbor but he wants to continue to protect his property and its value.
William Harris is concerned about his property value as well as the amount of traffic coming & going on Route 4.  He already has a problem with his well and is concerned about the storage of batteries and other fluids.
Mr. Wichert pointed out the unique character of this property, it was a recycling facility for soil and now Mr. Dudek wants to use if for recycling cars.  The vehicles will be far away from any homes.
John Poirier asked if scales and facility were on another lot would that make it unique.  A hardship is to the land.  This property can be used for something else.  Traffic and safety on Route 4 is an issue.  There isn’t a lot of tree line on the front of the property and the facility won’t be blocked from view of what is going on.  Zoning changed this area into the Commercial Village District.  Has a concern with the waste oil heater, is it an incinerator?  What does this do to the air?  We are trying to entice business but if property values are reduced, what is the net income?  Feels that the letter of the law for proving a hardship needs to be followed.  If we didn’t have the CV district this property would be zoned differently and the facility could only go back 1000’.  A pond already leaked on the property once and having a bond isn’t going to protect the water supply.
Todd Hammond said that from a DES Green Yard Report that for 2005-2006, that out of 180 facilities less than 15% were in compliance.  He also has concerns about air pollution with their furnace burning waste oil.  The town is required to follow up on regulations as well as state agencies.  If there are any accidents at the facility people within a 2-3 mile radius should be concerned.
Brandon Giuda commented that the wetlands weren’t delineated on their plan.  Stated that there would be increased traffic with retail sales.  Feels this is a more intrusive use.  Is this a discontinued non-conforming use?
Michael Valotto had a concern with the storage of tires at the facility and the possibility of a fire.
Attn. Peter McGrath said that most of the concerns mentioned are mostly Planning Board and environmental issues.  Under RSA 236:118 the state wants a junkyard on a state highway not at the end of a dirt road or other town road.  The property values are more affected by the soil recycling than a junkyard.  Every pre-existing property has certain value.  This lot is already set up as a recycling facility in the CV zone.  You can’t create a non-existing facility on a different lot in the zone.  In 2009 MTS was still shipping soil from the facility.  The Simplex theory warrants a variance.
Mr. Wichert added that not everything has been put on the submitted plan yet because they all pertain to the PB and they are waiting to see if the variance is granted before they proceed to the next step.
Attn. Peter McGrath addressed the criteria for granting the variance.  The unique quality of the property is that it is already set up for this type of business.  It has been a recycling facility for many years.  It would be contrary to the public interest to require something else on the facility given its historic, unique use.  The spirit of the ordinance would be observed because the recycling facility satisfies the criteria of the statute, if is away from the visible part of the road, it is large enough to allow a recycling facility, and it would be appropriate given the industrial character of the property.  Substantial justice would be done because the property was previously a recycling facility.  The Simplex case talks about justice to the property owner.  It would be unfair to the property owner to deny the variance; he would suffer an economic hardship.  The Simplex case states that a variance should be granted when the unique character and identifiable factors about the property are appropriate for the variance.  It would be an injustice to deny the variance given the use of this property and the DES regulations already in place.  The Commercial Village zoning was imposed on this property in March 2009.  The question is not whether the CV zoning is in the spirit of the ordinance, it’s whether creating a variance, given the historical nature of the property that pre-existed, would be inappropriate.  Not much else could be done with this property.  The property owner’s rights need to be protected.
There is much concern with property values being affected.  We could come back at a later date with an appraiser to address the issue.
Brandon Giuda stated that this is a legal decision and the BOA needs to determine if this is contrary to the public interest.  The town voted to change this zone into the Commercial Village District; it raised the level from requiring a special exception to a variance.  The intent of the zoning is to move away from Commercial/Industrial and into retail.  This lot could be less intrusive i.e. a garage, medical office building, professional offices, etc.  The area is changing and that is why the zone was changed.  If Simplex doesn’t apply than the zoning applies.  MTS is no longer there, when they stopped processing dirt the business stopped.  Look at the value of the property right now, property values should or would increase without this facility.  He feels they don’t meet all the criteria needed for a variance.  It would be a waste of everyone’s time to continue the meeting because of an appraiser, they could have brought one tonight.
  Granting the variance would be contrary to public interest-this goes against the current objective of the zoning ord.  The objective is to move away from commercial use & to continue this use would violate that objective.
  Spirit of the ord. would not be observed-the intent of the CVD promotes change in development patterns & creates an attractive center for service.  This doesn’t reflect the traditional NE character.  On 12/29/08 the soil recycling facility ended.
  Substantial justice would not be done because there are other potential uses for the property; it is suited for other reasonable uses.  Loss to the landowner, if he can’t use it for this particular purpose, would outweigh the gain to the public.  This is not the only thing this property can be used for.  It is a prime piece of property on a major highway.
  Values of surrounding properties would be diminished-this facility wouldn’t necessarily lower property values but another reasonable use that complies with the CV zone could potentially raise property values; therefore, the effective property value is diminished.
  The general purpose of the ordinance is moving away from industrial use and toward retail in the CV zone.  This is an industrial use of the property and the zoning prohibits it.  There is a substantial relationship between the general purpose and the specific application.
  The proposed use is a reasonable one-the location is currently configured with the right facilities.
  The applicant stated that a reasonable use of the property is the one being requested.  The lot can be used reasonably and used in strict conformance with the ordinance.

It was moved by Ben Brown to deny the requested variance for the following reasons:
1.  Granting the variance would be contrary to the public interest because it goes against the current objective of the zoning ordinance.  The objective is to move away from commercial use and to continue the use of recycling violates that objective.
2.  The spirit of the ordinance would not be observed because the intent of the village zone promotes change in development patterns and creates an attractive center for service.  Do not see this use as reflecting the traditional New England character.
3.  Granting the variance would not do substantial justice because there are other potential uses for the property.  It is suited for other reasonable uses.
4.  The values of the surrounding properties would be diminished – this facility wouldn’t necessarily lower property values but another reasonable use that complies with the CV zone could potentially raise property values therefore, the effective property value is diminished.
5.  Owing to special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship because:
  a.  There is a fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of that provision to the property because the general purpose of the ordinance is moving away from industrial use and toward retail in the CV zone.  This is an industrial use of the property and the zoning prohibits it.  There is a substantial relationship between the general purpose and the specific application.
  b.  The proposed use is a reasonable one because the location is currently configured with the right facilities.
The lot can be used reasonably and used in strict conformance with the ordinance.
Motion was seconded by Jeff Jordan.
Richard Millette – Yes
David Dobson – Yes
Mark McIntosh – Yes
Ben Brown – Yes
Jeff Jordan – Yes
Motion carries 5-0.  Variance is denied.
Respectfully submitted,

Holly MacCleery, Secretary

Mark McIntosh, Chairman
Chichester Board of Adjustment

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