ZONING BOARD OF ADJUSTMENT
Minutes---15 November 2006
Present: M. Mansouri, J. Galloway-LeClerc, L. Britton, L. Carignan (alt), B. Webb(alt), L. LaClair (alt), L. Weber
NOTE: THE Following MINUTES WILL BE REVIEWED ON 20 December 2006.
The meeting was called to order at 7:40pm
Public Hearing: Ch. Mansouri said the Horn’s have written a letter to the Board of Selectmen saying they have decided not to install a shed on their property, the Public Hearing has been cancelled. She read the letter (on file).
New Business: Ch. Mansouri said some folks were coming in about a home business however no one was present in the audience. Ms. Weber said someone had left a message on her home answering machine regarding a home business that was a decorating business with no customers, instead you go to the client’s home. Ms. Weber told them to appear before the Board, she was not able to give an answer over the phone or without the entire Board’s input. She did not get the person’s name and left that message on their answering machine. She did not regard their proposal as a problem but was concerned it was in the Rural Agricultural Zone which does not have the same language for home businesses as in the Residential Zone. She suggested the Board ask the Planning Board to revise the Zoning Ordinance to include the same language for 2007. She suggested the language be identical to the wording in the Residential Zone. The ZBA has granted a couple of variances this year in the Rural Ag. District for home businesses. Mr. LaClair asked if the Board would need a motion to make the suggestion to the Planning Board and remembered the issue being raised before by former member Mr. Vose. Ch. Mansouri asked if members would like to continue the discussion or use the same exact language as in the Residential district. Ms. Weber read the language from Article V Residential District A and B, B. (3). It is not an issue in the Commercial District or Industrial or Timberland. She sees no reason to prevent a property owner in the Rural Ag. District from having a home business as described in the Residential District. Mr. Webb said the wording in the Residential District is inclusive and should be used in the Rural Ag. Ms. Weber said it would be best to have the same wording. Ch. Mansouri asked if the Board would like to make a motion. Mr. LaClair asked if the minutes could be referred to, to see if a vote was taken before. Ms. Weber referred to past minutes of 26 July 2006 special meeting. It stated the same language should be used but discussion should be taken up at another time with a full board. Ms. Weber moved to write a letter to the PB recommending that the current home business language in the Residential District, which has been extended to the Commercial District should be specifically extended to the Rural Agricultural District as well. Seconded by Mr. LaClair, motion carried unanimously.
Mr. Britton expressed concern that as the Rural Ag. District slides into more of a residential use, the farming activities are lost and clashes between the two would increase. Ms. Weber reminded that the preamble of the Rural Agricultural District protects the District. Ms. Weber noted the Commercial District shows only a reference to the use permitted in Residential B. She wondered if it would simplify the change.
Ch. Mansouri asked if the Board would like to change the vote to use the language in the Commercial District. Ms. Weber referred to other uses in Res. B not compatible in the Res. District, the original motion and vote remained in place.
Other New Business:
Ch. Mansouri received cell tower
regulations from SWRPC, they are holding a
teleconference on the issue December 5th at 2:45 pm in the meeting room at the
K-Fox studio in
Old Business: Gravel
Pits.
Ch. Mansouri said she and Larry Britton went to the Cold
River Materials on
They also went to the Wood pit on Alstead Center Rd. They designate the pit closest to Drewsville Pit A, which seems to have been abandoned. Reclamation has begun by way of pine trees growing and cow manure piled. Mr. LaClair asked if they had followed a reclamation design? Ms. Mansouri and Mr. Britton said no, but the pit shows no gravel has been taken and the vegetation is fast growing. Ch. Mansouri suggests they write a letter to Mrs. Wood telling her what they found. Pit B is closer to the Langdon town line on the same side, a couple of hundred yards up where Mr. Putnam grows corn. There has been activity. She and Larry have not filled out the form yet. Mr. Britton said they had a hard time locating Pit B. They had never been there and finally had to have Ernie help them. Ms. Mansouri was there this am. Mr. Carignan asked if Ernie had filled out 2 reports for these pits. The answer was no, only one report was filled out for the pit in the past. It was thought they were the same pit. Lucy remembered there being only one. Ch. Mansouri said there seems to be a delineation between the pits, but it may have been one continuous pit in the past. She said they prefer to treat them separately especially since Pit A appears to be abandoned. Mr. LaClair asked if there were any problems with Pit B, answer was no.
Ms. Mansouri interjected she has received a handbook for earth excavations from the SWRPC and offered to share the information with the other members.
Mr. LaClair asked if a motion was needed for the letters. Mr. Britton was concerned that there is only one pit. Mr. Carignan agreed saying there was a slight burm between them, but they are the same pit. Ch. Mansouri said the burm is substantial now and definitely divides the two. Mr. Britton asked if it is a grandfathered pit, how specific does the inspection get in the excavation? Ch. Mansouri said it was a good question but she is not sure what the answer is. Ms. LeClerc was not in favor of creating a second pit because part of it was abandoned. Mr. LaClair read from the regulations where it shows areas of 5 acres or more that aren’t being used must be reclaimed. Mr. Britton said it is not more than 2 acres. Mr. Carignan asked if Pit B is larger? Ch. Mansouri said it was approximately 4-5 acres. Mr. LaClair said the total area is 6-7 acres with only part of it being excavated. He read from the Regs Section 155 E 5 (a) Incremental Reclamation stating areas of greater than 5 acres that have not been used for 2 years must undergo reclamation measures within 12 months. Ch. Mansouri said the area is less than 5 acres.
Walpole Zoning Board 11/15/06 Minutes page 3
Mr. LaClair asked if a motion was in order to clarify the ZBA believes it is one pit, not two, therefore the area that has been unused is small enough that it does not require reclamation, so no letter is to be sent. So moved by Mr. LaClair, seconded by Mr. Britton, motion carried unanimously.
Old Business Continued:
The Board has written a letter to Mr. Russell Hodgkins. Ms. Weber asked if it had been mailed. Ch. Mansouri said she did mail it, however Mr. Hodgkins was not present at the meeting. She read the letter aloud, on file. The letter stated the site visit and the issues needed addressing and to appear before the Board at tonight’s meeting. The letter was dated 10/19 and clearly stated for Mr. Hodgkins to appear before the Board. Mr. Britton suggested a copy of the letter to go to the Board of Selectmen. Members agreed, they have given Mr. Hodgkins enough notice and information. Mr. Carignan suggested another letter go to Mr. Hodgkins stating if they do not hear from him it will be turned over to the Selectmen. A suggestion was made to send the letter certified, return receipt requested. It was noted this issue was discussed extensively at the last meeting.
Mr. LaClair moved to have the Board Secretary write a letter to the Hodgkins Company with copies of the prior letters and correspondence attached, to be sent by certified mail notifying Mr. Hodgkins the Board would like him to appear at the December 20th meeting. If he cannot appear at the meeting the matter will be turned over to the Selectmen. Motion was seconded. The motion carried unanimously. Ms. Weber will write the letter.
Old Business continued:
Mr. LaClair asked if Ch. Mansouri had checked with SWRPC regarding lawyers on retainer? Ch. Mansouri said she had spoken with them but they were not able to make any suggestions. She did speak with Selectmen Miller who said the Town does have it’s own Attorney. Mr. Webb said he didn’t think he was on retainer, the Selectmen haven’t done this in the past. He said there wouldn’t be enough use. Mr. LaClair said the discussion was about whether the Board could call on someone that was specialized in Zoning and Planning matters specifically. Mr. Carignan said the ZBA has no power of enforcement, why is it an issue. Mr. LaClair said it would be an issue if someone files suit against the ZBA. Ms. Weber said the seminar some members attended suggested Boards have on retainer their own lawyer to prevent someone from consulting with all attorney’s in the area, thereby eliminating them from representing the ZBA, which does happen. Unless the Board has their own legal budget, they are subject to using the Selectmen’s choice. Pamela. Aslinger, recording secretary and Planning Board alternate stated the Planning Board had lived through an instance recently that limited their choices because the person who was bringing suit had consulted with several of the Board’s choices ahead of time. She said the Planning Board was requesting a legal amount of $1000.00 for the 2007 budget in order to have the authority of choosing their own representation if the need were to arise. She said however, the Town’s attorney did a satisfactory job for the Board. She said since the two Boards were separating their budgets it would be a good time to add the legal lines. She suggested when the ZBA reviews their budget, they should bring their fees in line to a break even point, that it is a
good selling point to the BOS. Mr. Webb was concerned with the $1000.00 if it were not
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used. The amount could be encumbered or go back to the general fund. Mr. LaClair asked if the PB was going to put a lawyer on retainer? Ms. Aslinger said the PB would like to get the line in first, approaching legal representation would be the next step, whether to have them on call or on retainer would have to be determined. Mr. LaClair suggested the ZBA and PB piggyback their efforts. Mr. Britton said if the PB had good service from the Town’s Attorney, why change? Ch. Mansouri asked about the PB fee increase to cover legal fees. Ms. Aslinger gave the Board an overview of the PB fees collected and the budget request for 2007. The Zoning Board discussed some line items in relation to their fees. Ms. Aslinger suggested they take the number of applications they processed and divide it into the budget items that are application related to see if the fees are covering the costs. Ms. Mansouri asked if a deadline had been set for submitting the budget. Ms. Aslinger said Teresa had not given her a deadline but thought the sooner the budgets could be prepared and submitted the better. Mr. LaClair suggested the Board take an action to review the budget and have further discussion about adding the legal line into the budget. He suggested they contact the Planning Board about sharing the legal expenses. Mr. Britton is against a retainer. Ms. Aslinger related her time spent on the Warner Planning Board where they had a Town Lawyer on retainer. She said all Boards were able to call on him at anytime about any Town, zoning or planning issue. She said at one point all the land use boards held a special meeting with him, asking the common questions that continuously come up, such as how to determine a conflict of interest. She said she still refers to the question and answers from that meeting, she feels it is a very important tool. Mr. Carignan questioned whether the same lawyer could represent both boards without a conflict of interest? Members thought it could be a problem. Mr. LaClair felt whether the lawyer was on retainer or not, is not that important. Ms. Weber offered to make a few calls to determine a more accurate dollar amount before requesting it in the budget. She would like to get something for the amount that was useful to the Board. Mr. LaClair felt the main importance of having the line is to have the ability to choose ZBA representation. Ms. LeClerc wondered whether the Board would suffer under the Selectmen’s choice. Ms. Weber thought it was more likely that a particularly litigious person might consult with every lawyer in the area to prevent the Board from choosing anyone of their first choice, this would be the reason to retain. Mr. LaClair moved that the ZBA ask a subcommittee be appointed by the Chair to review the fees and come back with a recommendation and at that point develop the budget that will include a line item for legal expenses for the Zoning Board with the understanding that they reserve the right to talk to the Planning Board about possibly making an arrangement with the lawyer they might be selecting. Ms. Weber said she wasn’t sure she was ready to do the line item. Ms. Mansouri asked if it would be better to review the budget first and fees. Then discuss the line item later. Ms. Weber said the line item could be added next month, without making a motion. Mr. LaClair was concerned if they didn’t pass the motion the issue would get dropped like a few have been in the past. He prefers to act on it now. Mr. Carignan doesn’t worry about it being dropped. Ms. LeClerc prefers to have Lucy call a couple of Attorney’s and see if the Town’s Attorney is available before they vote on a line item. Larry Britton agreed with Jan. Mr. Webb said each person on the Board seems uneasy but nothing is eminent so more information would be his recommendation. Mr. LaClair
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felt the Board should act to address the issue prior to the Board needing an Attorney, to select a specialist in the area and to create the line for this year’s budget even if it isn’t used. Ms. Mansouri asked if Mr. LaClair would like to amend his motion. He said he would amend it to ask Lucy to do her review work, gather information about retainer fees and attorneys in this area. Mr. Webb seconded the motion. Vote was called, the motion carried unanimously. Mr. Britton was concerned that a lawyer would be hired on retainer only, asking if the motion contained that provision. It did not. Ms. LeClerc asked if the line item was part of the motion. Answer was yes, but Mr. LaClair suggested it could be amended later. Ms. Weber agreed that the line item should be delayed until the other information is gathered and reviewed. She didn’t realize she voted it in on the last motion. Mr. Britton said he didn’t think it was unusual to have things move slowly on the Boards, he didn’t agree that things fall through the cracks. Ms. Weber said the budget process has spurned this discussion and will move it forward. Ms. Mansouri asked if Mr. LaClair would like to amend his motion. Mr. LaClair said no, it could be reassessed at the next meeting. Ch. Mansouri asked if any others wanted to make another motion. Mr. Webb asked if Mr. LeClairs’ motion was causing any harm. Answer was no. He said the issue could be reviewed again at the December meeting.
Minutes of prior
month’s meeting: Mr. LaClair
asked to have Mr. Hodgkin’s first name added to the minutes, Russell. Mr. LaClair referred to later in the minutes
the Board discussed filling member vacancies.
Mr. LaClair noted the Board is
required to fill a membership vacancy if it comes up. The information came from the Seminar they
attended. He stated the lawyer said if
there is a member vacancy they could not just fill it meeting by meeting with
an alternate. Mr. Carignan stated, if it
is required, the Board needs to act on it.
Mr. Britton said when the meeting is started someone was to be appointed
there was not an appointed alternate at this meeting. Ms. Weber said she was late getting to tonight’s
meeting and assumed an alternate had been appointed. If the Board agrees, this is a very good
reason to fill the vacancy. Mr. Britton moved to appoint Leo Carignan
to fill Ernie Vose’s vacancy. Ms.
LeClerc seconded, vote was called, the motion passed unanimously. Mr. Britton suggested another alternate
be appointed to keep the Board seats filled.
Ch. Mansouri called for a motion to approve the minutes as
corrected. Ms. LeClerc made a motion to approve the minutes as corrected. Motion was seconded, vote was called. The motion carried unanimously.
Being no further business the Meeting adjourned at 9:10pm. The next meeting will be held on Wednesday, December 20, 2006 at 7:30pm
Respectfully submitted,
Pamela Aslinger, Recording Secretary
Cc: All ZBA members, PB members, BOS, Town Offices
Posted: Town Hall,
Lobby, Burdick’s Market, www.walpolenh.us, www.thewalpolean.com