ZONING
BOARD OF ADJUSTMENT
Minutes-----5 December 2007
Special Meeting
Motion for Rehearing
In re: Grant of Special
Exception of Chamberlain Machine, Inc.
PRESENT: M.
Mansouri,
ABSENT: D. Calhoun (alt.)
Note: These minutes are unapproved and will be
reviewed on 19 December 2007 for errors, omissions and corrections.
The meeting was called to order at 7:30 pm. Ms. Mansouri
stated this is a Public Meeting, it is not a rehearing. There will be discussion among the Board
members but there will be no comment from the audience. The public can be heard if the Board votes to
hold a rehearing. The Board received a
Request for Rehearing from Attorney Todd, representing a group of
residents. The Board also has the
minutes of the October meeting at which the special exception was granted. The Board has also received the memo of
Attorney Kinyon, representing Chamberlain Machine,
Inc., opposing the grant of a rehearing.
Ms. Mansouri stated
that one of the papers attached to Atty. Todd’s submission was a copy of the
Water Source Protection Delineation. Ms.
Mansouri said that the submission was not an accurate
copy of what was actually adopted. Ms. Mansouri passed around a copy of the delineation of the
Protection Delineation as passed by the Town on March 9, 2004. While the Board members were examining the
copy brought by Ms. Mansouri, Ms. Weber apologized
for any confusion generated by the notice for the meeting. Because of time constraints in getting out
the notice, and based on a phone conversation with Ms. Mansouri
relaying Attorney Hockensmith’s opinion that notice
should be given just as if this were a new proceeding, notice of the meeting
stated it was to be a public hearing, rather than a public meeting.
At Mr. Britton’s suggestion, Ms. Mansouri read the letter from Atty. Todd dated November 15,
2007 submitted with the rehearing request, and the letter from Atty. Kinyon dated December 4, 2007 submitted with Chamberlain
Machine’s response. Ms. Mansouri then asked the Board members if they wanted to go
down through the points in the request for rehearing.
Ms. Weber said that she understood from the
Handbook for Zoning Officials that the Board has the option to discuss the
points in the submission or to vote to grant or deny the request without
discussion. She said she personally
favors discussion. She then addressed
each numbered paragraph in the request for rehearing, reading or summarizing
portions of each for the benefit of audience members.
Paragraph 1 is a factual statement about
Chamberlain Machine’s operation and proposed use. Paragraph 2 sets out the
plaintiffs, and their interests in this matter.
Paragraph 3 quoted from the Walpole Zoning Ordinance about the purpose
of the Rural/Agricultural District. Paragraph 4 sets out the provisions in the
Zoning Ordinance with regard to the requirements for a special exception. Ms. Weber noted these paragraphs are the foundation
of how we got here.
Paragraph 5 states that Chamberlain did not
meet its burdenof proof with respect to the special
exception, and refers specifically to the requirement of consistency with the
Master Plan. Ms. Weber stated her
understanding that the Board had relied on the recommendation of the Planning
Board as presented to the ZBA on the issue of consistency with the Master
Plan. She said that this issue was
particularly within the expertise of the Planning Board. With respect to the assertion that
Chamberlain did not prove that its use would not impact the rural and agricultural
uses of the area, it was her understanding that the Board had considered that
the parcel in question is already occupied by several industrial-type buildings,
formerly used for research on chickens, that render it unsuitable for
agriculture.
Paragraph 6 states the ZBA failed to consider
adequately the Well Source Protection Ordinance. Ms. Weber said the Well Source Protection
Ordinance provides for a separate hearing before the Planning Board
specifically on the issues of well source protection. It is her opinion that that hearing is the
proper forum in which to raise these issues.
Paragraph 7 quotes the Source Protection Ordinance on the creation of
the River Well Source Protection District.
Paragraph 8 quoted the source Protection Ordinance language on the
prohibition of toxic substances.
Paragraph 9 argues that the Source Protection Ordinance prohibits all
activities involving hazardous or toxic materials. Again, the Source Protection
Ordinance is a matter for review by the Planning Board.
Paragraph 11 argues that the presence of
hazardous or toxic materials increases the long-term susceptibility of the
aquifer to potential pollutants. It
further expresses the concern regarding unknown future owners of the
property. Ms. Weber noted that a special
exception is granted for a particular use, and any change to the use requires a
new review of the proposed changes. Paragraph 12 sets out the history of the USGS and NH DES report on
aquifers and concludes the Town of
Paragraph 13 noted the failure in 2007 of a
Town Warrant Article which would have rezoned a 43 acre parcel in the area as
Industrial. Paragraph 14 states that the
grant of the special exception by the ZBA was contrary to the will of the
voters as expressed at Town meeting. With
respect to both these paragraphs, Ms. Weber stated that the Board has to follow
the standards set out in the Zoning Ordinance for a special exception. Those standards are still part of the
Ordinance, and the Board has to follow them.
Mr. Britton said that he had voted against the 43 acre rezoning because
he was not in favor of having 43 acres open to all kinds of industry, heavy or
light. He is for this proposal, and
thinks it is okay to review each case on a case-by case basis, as required by
the special exception procedure. Ms. Mansouri said she had opposed the 43 acre rezoning as she
considered it spot zoning, which she opposes.
She is for using the special exception process.
Paragraph 15 sets out the testimony the
plaintiffs would provide at a rehearing.
Ms. Weber said it was her understanding that to grant a rehearing, there
had to be new facts not ascertainable at the original hearing or mistakes of
law made at the original hearing. The proposed evidence is about matters which
could have been raised at the original hearing, and she is concerned that the
Board would be vulnerable to a challenge by Chamberlain were it to allow the
petitioners to have a second opportunity to raise matters which could have been
raised at the original hearing. Ms. Weber said she was opposed to granting a
rehearing. Mr. Britton said he agreed
with Ms. Weber. Ms. Lester said that the
attorney for Chamberlain had brought in testimony, it had been challenged and
discussed and a reasonable judgment had been made.
Mr. Webb said he couldn’t add anything to
what had been said. Mr. Carignan and Ms. Galloway-Leclerc
agreed. Ms. Mansouri
said she believed the Board considered what was needed for a special
exception. Mr. Britton moved not to
grant the rehearing. Mr. Carignan seconded the motion. All five regular Board members voted in favor
of denying a rehearing.
Ms. Mansouri
adjourned the hearing at 7:50 pm.
Respectfully
submitted,
Lucy Weber,
Secretary.
Cc: ZBA, PB, BOS, Town Clerk.
Posted: Town Hall, Lobby, Burdick’s Market; copy on
file at Walpole Town Library.