ZONING BOARD OF ADJUSTMENT

Walpole, NH  03608

Minutes-----9 October 2007

Special Meeting

Continued Hearing--Frank W. Whitcomb Gravel Pit

PRESENT:     M. Mansouri, Ch., L. Weber, J. Galloway-Leclerc, B. Webb, 

D. Calhoun

ABSENT:       L. Carignan, L. Britton, M. T. Lester

Note:  These minutes are unapproved and will be reviewed on 17 October 2007 for errors, omissions and corrections.

  The meeting was called to order at 1:30 pm.   The members present are those who were appointed by the Chair to hear the Frank W. Whitcomb matter. The Chair announced that as a result of the September meeting, the Board had faxed several questions to the Town Attorney, G. Jeffrey Hockensmith, Esq., who was present at the hearing.  Atty. Hockensmith has provided his opinion on the questions.  Atty. Hockensmith was asked if it was permissible for the Board to go into executive session to discuss his legal opinion.  He said it was okay to meet privately with counsel for the purpose of legal advice.  The Board then recessed to meet with counsel.  At 2:00, the Board finished its meeting with counsel, and provided the applicant with copies of Atty. Hockensmith’s opinion.  Time was given to the applicant to review the opinion.

  The Public Hearing reconvened at 2:20 pm.  No action was taken in the meeting with the attorney.  The discussion there was solely to allow the Board members to make sure they understood the opinion and to verify the bases for the opinion.  Chairman Mansouri read aloud the Board’s questions to Attorney Hockensmith.  She then called on Ms. Weber to summarize Attorney Hockensmith’s response for the benefit of the public.  Ms. Weber read or summarized portions of the opinion, as follows: 

  Currently, the subject property is covered by an existing special exception, dated 16 April, 1998, and a site plan dated 15 April, 1988.  Atty. Hockensmith noted that the special exception allows storage of equipment, supplies and materials on the site, but the site plan only allows the storage of equipment.  Therefore, the applicant is not presently in compliance with its existing site plan, and should be advised to apply to the Planning Board to amend the site plan to conform to current use.

  The Board had asked if the change in use of the existing road required the existing Special Exception to be amended.  Atty. Hockensmith’s opinion was that because the zoning ordinance was silent on the subject of roads, that the road was an accessory use to the primary use on the property, and if the primary use was approved, the road would be approved as well.  However, Atty. Hockensmith was of the opinion that the new project itself requires not only a gravel pit permit, but also a new special exception, as it is a commercial use in the rural/agricultural district.  He also said that the change in use of the road triggers site plan review by the Planning Board, as does the potential increase in traffic.

  The Board next asked if the area of the existing road, and possibly the undisturbed area between the existing road and the excavation site should be counted in the project area for the purposes of determining if a state site specific permit is required.  Atty. Hockensmith wrote that DES has no explicit rules on this question, only an informal policy.  The policy is that if a road is under ten years old or will be modified in any way, DES has been including the road for purposes of determining the project area.

  With respect to the Board’s question regarding the need for a state wetlands permit,  Attorney Hockensmith wrote that he had spoken at length to a state wetlands worker and that her “off the cuff” opinion was that no permit was necessary.  She noted that the better practice would be for the applicant to meet with her staff for a review, and that the applicant undertakes the work at his peril if the project does adversely impact the wetland.

  Ms. Galloway-Leclerc reminded Ms. Weber that she had not included the issue of the aquifer in her summary.  Atty. Hockensmith also recommended that because of potential damage to an aquifer, and because the project will take place below the water table, a hydrologist’s opinion should be obtained as to the potential effects of the project.  The Board addressed these concerns one at a time.

  The first issue was that of the special exception and site plan approval.  The site plan approval issues have to be addressed by the Planning Board.  Ms. Weber said she thought based on the opinion of counsel, the Board ought to require the applicant to obtain a special exception for the gravel operation in addition to the gravel extraction permit.  It was noted that the existing road would have been built in 1998, less than ten years ago, and that the road would have crushed stone deposited on it for the gravel operation.  Mr. Fraser, speaking for FWW, referred to a letter he received from Pam Aslinger, Secretary of the Planning Board, dated 3 May 2007, stating that she was mistaken when she advised Mr. Fraser that he needed a special exception for the project, and that after discussion with David Edkins, the appropriate action was to apply for a gravel pit permit.  Mr. Fraser suggested that Ms. Aslinger was acting for Ms. Weber as ZBA secretary in Ms. Weber’s absence.  Ms. Weber reviewed the letter, which she had not seen before, and noted that it was written on Planning Board stationery and was written before the May ZBA meeting.  Ms. Galloway-Leclerc said that she had acted as secretary at the May ZBA meeting.  It was noted that Ms. Aslinger did not have authority from the ZBA to issue an opinion in this matter, and also that her letter said the ZBA would direct the applicant how to proceed.

  Mr. Fraser stated he would like to obtain an opinion of his own attorney as to whether a special exception was needed.  Ms. Weber said she was sorry that the applicant had not been notified of the need for both permits earlier, that it had not occurred to the ZBA members that a special exception would be needed in addition to the earth excavation permit, but that now with an attorney’s opinion that a special exception is needed, together with what was said at the gravel pit lecture that took place earlier in the Town Hall, that gravel pit permits did not generally relieve an applicant from the obligation to obtain other relevant permits, she was not comfortable proceeding without a special exception. Mr. Webb asked Mr. Hockensmith why he thinks a special exception is needed.  Mr. Hockensmith said that he reads the ordinance as requiring it.  Ms. Galloway-Leclerc said that there is already a special exception on part of the property which will be used.  That special exception does not accurately cover the proposed new use.  Ms. Mansouri said she feels another special exception is needed.  Mr. Webb said he would argue that what we need is simply a change of use of the original special exception. Attorney Hockensmith said the change in use here is so fundamental a change that just amending an existing permit would not be proper.  Mr. Fraser asked if they abandon the use of the existing road and cut a new road what would Atty. Hockensmith’s opinion be?  Atty. Hockensmith said that might avoid the need for a site-specific permit, but the project would still need a special exception.  Mr. Webb asked where does that leave us?  Ms. Weber moved that a special exception be required based on the Town ordinance and the opinion of counsel.  Ms. Galloway-Leclerc seconded the motion, and it was approved unanimously.  Ms. Weber offered Mr. Fraser an application for a special exception in case the applicant chose to take that route, and Mr. Fraser said they would not.

  The Board then took up the issue of a state site-specific permit.  It was suggested that the applicant meet with DES for a determination of whether a site-specific permit is needed.  If DES determines a permit is not needed, they could provide the Board with a letter confirming their decision.  Mr. Fraser offered to meet with DES and offered to have a Board member attend the meeting in Concord with him.  Ms. Weber moved that the applicant be requested to meet with DES to determine if a site-specific permit is needed, and if not to provide the Board with a letter to that effect.  Mr. Webb seconded the motion, and it was approved unanimously.

  With respect to the issue of a wetlands permit, it was the sense of the Board that because of Attorney Hockensmith’s opinion that a wetlands permit is not triggered, and because it is clear that the applicant proceeds in this matter at his own risk if there is any damage to the wetlands, that no further action should be taken here.

  The last question was that of aquifer protection.  Ms. Weber said that the map showing Walpole’s aquifers indicates that the aquifer is under this property.  Mr. Sisson, wetlands specialist for FWW, said if you are not fracturing the bedrock, you are having no effect on the aquifer.  Like the pond across the road, it is only affecting the groundwater.  Ms. Galloway-Leclerc said that may be true, but the Board needs a hydrologist to say that is so.  Mr. Fraser said there is a state hydrologist.  Ms. Mansouri noted that when the first pond was dug these issues were not considered.  Ms. Galloway-Leclerc noted the huge concern about contamination of people’s wells.  Mr. Webb asked if Mr. Fraser would get the opinion of a hydrologist, that Mr. Sisson stated at an earlier hearing that he is not a hydrologist, and that we need the opinion of someone who is.  Mr. Fraser agreed. Mr. Calhoun said there were any number of questions raised earlier about water quality that might need the opinion of the state hydrologist.  Mr. Fraser said he would check with the state geologist regarding the preparation of the aquifer map. He asked if the board would be satisfied with a hydrologist’s opinion that there is no aquifer underlying the property.  Ms. Weber said the issue of concern was that there should be no contamination of either an aquifer or of existing shallow wells.  Mr. Fraser said this was a small project of 1.4 acres, and that it would be an extreme case that would impact an aquifer.  The wells are thousands of feet distant.  Most excavations occur in and above aquifers.  Best Management Practices take care of it.  You can excavate effectively if you use Best Management Practices.  Mr. Calhoun said we are looking for a guarantee it will not be a problem.  Mr. Fraser said the Board would also be checking on the project annually.  The owner and the Board both have responsibility in this area.  Ms. Mansouri expressed her concern about both aquifer and shallow well issues.  Could we have a hydrologist’s opinion on both?  Mr. Sisson asked for a clarification of what the Board was looking for.  Ms. Weber moved that the applicant consult with a hydrologist concerning any possible impact on any know aquifer or existing well.  Mr. Fraser inquired about distances to wells, and what should be included .  It was the sense of the Board that the applicant had the duty to research what was in existence and get an opinion as to whether this operation would have an effect.  If the existing wells are too far away for this project to affect them, the hydrologist could state that there would be no effect outside of a certain distance.  What the Board is looking for is for someone who has a professional qualification to render an opinion that the project is safe for the aquifer and the existing wells to make that determination.  At the request of the applicant, Ms. Weber amended her motion to request the applicant to obtain the opinion of a certified geologist or hydrologist concerning any possible project impacts on any known aquifer or existing wells.  Mr. Webb seconded the motion, and it was approved unanimously.

  Mr. Sisson provided a followup on questions raised at an earlier hearing regarding endangered species on the wetlands site.  He searched the NH Natural Heritage Board database, and submitted results showing that no known endangered species inhabit the property.  The results come with the disclaimer that many areas have not yet been surveyed.  Ms. Weber noted that the wetlands issue seems to have been resolved.

  Mr. Fraser praised the Board for its patience and concern in listening to all the concerns of members of the public, some more remote than others.  He applauded their listening to all the concerns, and hoped that once these bridges had been crossed, the matter would come to a vote.  Mr. Calhoun said our intent is to protect both the public and the applicant. 

  A discussion followed as to the scheduling of the next hearing.  The Board has its regular meeting next Wednesday, October 17th.  Mr. Fraser said it was unlikely that he would be ready to proceed by then.  The November regular meeting was considered, and it was noted that it will be held November 21st, the day before the Thanksgiving holiday.  Mr. Fraser and others will not be able to attend that meeting.  Atty. Hockensmith confirmed for the Board that the hearing must be continued to a date certain.  The Board continued the hearing to the regular meeting of October 17th, with the understanding that if the applicant is not ready to proceed, the Board will continue the hearing on to the regular December meeting, or some other date convenient for both the Board and the applicant.

  There being no other business to come before the Board, the meeting was adjourned.

 

 

The next ZBA meeting will be held on Wednesday, 17 October, 2007 at 7:30 PM.  A site visit will be held at 6:00 pm at the Chamberlain Machine facility on Route 5 north of Bellows Fall at 6:00 pm.  The facility is located behind the Everyday Inn, formerly the Rockingham Motor Inn.  All are invited to the site visit.

 

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.