ZONING
BOARD OF ADJUSTMENT
Minutes-----15 August 2007
PRESENT: M. Mansouri,
David Calhoun
ABSENT: L. Carignan, L. Britton, M. T. Lester
Note: These minutes are unapproved and will be
reviewed on 19 September 2007 for errors, omissions and corrections.
The meeting was called to order at 7:30pm. The Chair appointed Bill Webb and David
Calhoun as voting members.
PUBLIC HEARING #1: Frank W. Whitcomb Construction Corp., by
Richard A. Fraser, One Source Properties & Permitting, LLC.,
Gravel Pit Permit Application.
Mr. Fraser presented an overview of the
project, following the plans and booklet submitted. The booklet also contains best management
practices to be used in the project. The
tract of land involved is 229 acres on the other side of
The first plan sheet shows the existing site
using 2 foot contour intervals because the site is very flat. The notes show how the plan was drawn. The total area is just under
two acres. Test pit #2 shows the water
table is at 6 feet below the surface.
The construction sequence shown is the best for the environment to
lessen impact on surface waters. The
State of
The second plan shows the final grading of
the site. The existing berm is parallel to the road, and turns just before the
place the project begins. They will
continue the berm along the road and wrap it around
at the end of the project to meet the existing tree line. All runoff will be contained within the
project area. This is a natural
treatment. There will be no migrating
sediment. The gravelly soil will allow stormwater to perc easily, so
there will be no runoff. Further
reference was made to the Stormwater Management
book. The final grade goes down from the
surface at a 3 to 1 ratio. Mr. Fraser
said this will work out close to an 18 degree slope. The excavation will hit the water table at
six feet or so, and will continue to excavate down to recover further
material. The slope will be such that a
person or animal falling into the water would be able to get out…The resultant
pond will be about 1.4 acres, and will have an average depth of 11.5 feet. The volume of the material to be excavated is
just over 25,000 cubic yards. The
material will be used for the Alstead project to fix damages from the
flood. The project is not long lived and
will not exceed three years.
The third sheet focuses on best management
practices and reclamation. The right
hand side has seed mixes for this type of site, taken from the state Reclaiming
Sites in NH Manual. Three seed mixes
have been proven effective for conditions in gravel sites. The site is simple and flat—best management
practices include installation of a silt fence, hay bales, maintenance details,
and how to design the swale. Also
included is how to manage the construction.
The entrances will be 50 feet of one and one-half inch stone to remove
debris from truck tires. The last
section addresses what areas are required by RSA 155:E(3)
to be covered throughout the excavatihn process: fuel
and chemical handling and site safety.
Major points include reclamation, which is easy—build and seed a berm. A fuel storage
facility exists across the street with a secondary containment tank. No fuel will be stored on site. Dust control is accomplished by the short
distance to the road. The site will
average 8000 cubic yards a year. The
construction season is 270 days per year, for an average of two trucks per day,
but there could be up to 10-20 trucks on any given day.
The site is 42 feet from other lands of FWW; 372 feet from
the closest property to the northeast; 225 feet to the closest property to the
east; 990 feet from the closest property to the south, and 1215 feet from the
closest property to the southwest. Best
management practices will be used for stump and brush management, which will be
kept on site. The booklet addresses how
to manage spills if a line breaks or petroleum spills.
Ms. Weber asked if chemicals would be stored
on site. The only chemicals which would
be needed would be calcium to hold down the dust and grease guns which are
stored in the trucks. Ms. Weber asked if
the Alstead project was expected to last three years. Mr. Fraser did not know if that job would
extend past this year. Mr. Webb asked
what the volume of water in the pond would be.
Mr. Fraser said it could be calculated.
Mr. Webb wanted to know if it was worth considering a dry hydrant. There is a dry hydrant in the ponds across
the street. Water is taken from there to
Lane Construction to suppress dust. Ms.
Weber asked if there will be any blasting at this site. There will be none.
Ms. Mansouri asked about the amount of a
reclamation bond. A figure has not been
discussed, but figures for bonds are all over the map. A large project in Swanzey
had a recommended bond of $2300 per acre.
Ms. Susan Warren asked if it was such a small
project, why was it a three year project.
Also, is there gravel available elsewhere? All material will be used for FWW
projects. There will be no sales to
third parties. The soil delineations on
the property are shown on the plans. Chocura soils are wetlands, and will not be excavated. Ninegret soils are
too fine to be used as construction materials. The only decent material is in
the project area. Ms. Warren asked what
if they hit solid ledge, will you come back and ask to use explosives. Mr. Fraser said it was not wise economically
to blast in that area. Ms. Mansouri
noted they would have to come back to the Board to ask for changes to the
permit. Ms. Warren asked why three years? Ms Mansouri said they would have to reapply
after three years. In the meantime the
ZBA will inspect the pit once a year.
The ZBA will listen to problems.
Mr. Fraser suggested that before going to the ZBA they contact Mr. Frank
Whitcomb directly about any problems.
Several audience members said they had tried that in the past and that
he was unavailable.
Ms. Marcia Frankiewicz raised the problem of current Lane Corporation
blasting. She was told it was up to the
state to control, then the state referred her to the Selectmen and nothing
happened. Where is the power to get
help? Ms. Mansouri said they can come
and complain to the ZBA, which will refer the matter to the Selectmen for
enforcement. The statement was made that
Whitcomb’s is an eyesore now, and who is enforcing that? Mr. Thomas Fitzgerald said complaints
have been made about FWW property on both sides of the road. He said junk has been buried in the present
site. There is standing water in the treeline. There were
three small ponds on the other side of the road. Now there is just one big pond. Whitcomb’s track record of running gravel
pits in the state of
Mr. Fraser said that Jonathan Sisson is a
certified wetlands specialist and soil specialist. He said that FWW cannot extend beyond what is
permitted by the Board. Ms. Frankiewicz asked how do we know
they won’t go on ten years down the road.
There is junk everywhere now. How
can we tell they won’t do that on this site?
Mr. Fraser said he doesn’t know what plans are for the future.
Ms. Warren said she has been in residence
four years now. Blasts in the Lane
quarry have knocked her silver tea service off the shelf, and caused vertical
cracks in their walls. She talked to the
quarry and then to the selectmen, but did not get an answer back. The quarry won’t pay for the cracked
wall. The Selectmen still would not
help. She hears that the operation is
regulated, but there is no help when the regulation is violated. Ms. Shirley Smith said that she lives right
in back of the site and heard a blast at 1:30 today. Others noted the blast occurred at 1:18. Ms. Frankiewicz
said her foundation was cracked from blasting on July 21st. She also
expressed concerns about existing shallow wells on that side of the road. When the last pond was dug, her
mother-in-law’s well dried up.
Mr. William Lundgren said there has been a
track record of non-compliance, and the Selectmen do not have a good track
record of enforcement. Why would they
not re-open prior pits, unless their track record would not allow it? He doesn’t want the houses damaged by
whatever FWW hides behind the berm. Ms. Warren asked
if you can specify that the property must be maintained and reports of
maintenance filed?
Ms. Mansouri answered that the ZBA inspects the site once a year. The owners have to come before the Board if
they are not maintaining the property according to the terms of the permit.
Ms. Rita Whitcomb noted that the existing berm is ugly, and wouldn’t it be more cost effective to dig
the gravel elsewhere? Mr. Fraser said he
thinks all the other FWW assets have been sold, so there is nowhere else for
them to go. Ms. Whitcomb said they could
buy from other people rather than starting a new pit. She does not want her property value
diminished. In the past, properties
maintained by FWW were allowed to generate dust. Mr. Jim Whitcomb was concerned that opening
up this property will make it look like Lane Construction soon. This part of town has not been helped by the
Zoning Board.
Ms. Fritzi Till said this is about credibility. She has lived for 22 years in Drewsville, and blasting occurs there that would not occur
in the
Ms. Till asked if this excavation is solely
for Alstead. Mr. Fraser said that in
2007 the material will go to Alstead.
The 2008 contracts have not yet been awarded. The permit will last three years. He asked that they look at the positive. If all the material is used in one year, the
project will be done. He has no idea
what the 2008 projects will be. Ms. Till
asked what about a one year permit? Ms.
Mansouri said permits are for three years and are withdrawn if no substantial
work is done on the site for one year.
There is a procedure to ask for an extension, which requires the owner
to come back to the Board. The Board may
include reasonable conditions in the permit.
Ms. Weber noted that there are two limits. The first is the three year time limit in the
permit. Then the owner must come back to
the Board for and extension. Then there
is the area specified in the permit. If
the owner wants to operate outside the specified area, he must come back to the
Board to modify the permit.
Ms. Till asked if there would be no blasting,
would there be monitoring of particulate matter. Mr. Fraser said most of the excavation would
be below water, and there would be no fugitive dust. They would use an excavator to dig the
pond. Ms. Till asked about the noise
level. Mr. Fraser said it is pretty
quiet when you dig in water. Lane is a
quarry site. That is where you have this
issue. This site is not a quarry and
will have no huge haul trucks. He does
not know the prior history of permits at Whitcomb’s.
Ms. Barbara Bragg asked if you don’t need a
permit to build a pond. Mr. Fraser said
you need a permit if you are impacting a wetland, but not if you dig on land
that is not wet. If the pond sits,
eventually, vegetation will come up and it will become a wetland when the area
around the pond meets the Army Corps of Engineers definition of a wetland. It doesn’t happen overnight. Where does the water come from? Ground water finds its own level. Here it is at six feet below ground
level. The closest wetland is 87 feet
from the edge of the project line. Pink
and black flags have been set out there and numbered. Ms. Bragg asked if the property across the
street is a certified wetland and therefore cleaning up that property is a
no-brainer. Mr. Fraser noted the state
allows excavation within 25 feet of a wetland.
Ms. Bragg suggested they should all get together and get people from their
area elected to the ZBA and Selectboard.
Ms. Jackie Bujnevicie
asked if the applicant needs to prove that property values of surrounding land
will not be affected. Ms. Warren said
that RSA 155:A(3)(b) says it must not cause diminution
of property values or change the character of the neighborhood. Has a study been done? Ms. Mansouri said the town already allows
excavations in the area, so she does not think this will be significantly
different from what is already there.
Ms. Warren said they were already getting thousands of dollars in damage
to their homes. Mr. Webb said there has
been no indication of how the project will affect surrounding properties in
this presentation. It hasn’t been
addressed. Mr. Fraser said that are of
town has been unchanged for decades. The
construction industry is indigenous to the area. No one will notice it.
Ms.
Warren mentioned RSA 155:E(4) and her concerns
regarding the effect on highways, and concerns about dust, safety and
nuisance,. Mr. Fraser said the dust will
be contained. The Board could require
trucks to be covered. He suggested the
abutters lean on the Board to be proactive.
Ms. Warren asked isn’t it on Mr. Whitcomb to prove no impact? Mr. Fraser said the problems in the
neighborhood go back years. Ms. Warren
reiterated that a blast at 1:18 today and dust cloud at 1:18 affected her, and
this project will add onto those effects.
Mr. Webb reminded her that what Lane Construction does is not relevant
to this application. Ms. Warren
reiterated that no studies have been done to show how this will impact the
neighborhood.
Mr. Britton said the quarry was there when
Ms. Warren bought her home. Ms. Warren
said she inquired of the town and did not get told about it. The issue here is a lack of a good track
record. Ms. Mansouri said ttat this is the first this Board has heard of the
problems. She suggested that Ms. Warren
take pictures of the damage, bring them before the
ZBA, and we can write to the Selectboard. Mr. Britton reminded that we should not
confuse the Lane issue with this permit application. Ms. Warren said there was no way to remove
aggregate without dust, big machinery and diesel emissions.
Mr. Jim Whitcomb
said issuing this permit is going to open up 229 acres down their road. The whole mountain will be gone like the
other side of Route 123. Whitcomb
started that and will continue on this side of Route 123. He asked the Board to turn the permit down.
A comment was made that the Board should not
think adding gravel pits is not a big deal.
It is a big deal. Why not add
more old trailers to other parts of town?
Ms. Warren said she had checked the cost of midsize aggregate and FWW
will have $55,000 to $100,000 savings if they buy aggregate rather than open
this pit. So why not buy the aggregate
unless they are looking to future projects?
Mr. Paul Mascot said he had lived in Drewsville
longer than anyone here. On the other
side of
Mr. Britton asked Mr. Fraser if FWW had any
long term plan for the rest of the 229 acres.
Mr. Fraser said he had asked Mr. Whitcomb why he did not expand and go
further into the property? Mr. Whitcomb said he did not want to. Mr. Webb asked if he just wants a foot in the
door. Mr. Fraser said the issue is
regarding only this proposed operation. Mr. Britton asked what kind of soils are on the rest of the
property? Mr. Fraser said that had not
been looked at. An audience member said
there is gravel eight feet deep all over the property all the way down to the
four corners. The cornfield is
gravel. They will drain the wetlands
into the pond. Houses in the area have
sump pumps in their cellars. After the
gravel is taken, there is still plenty of rock.
Mr. Michael Barnett asked if they were
digging below the water line, how are they going to
keep diesel contamination out of people’s wells. Mr. Fraser said best management practices for
fueling address the problem. Storage of
fuels is with secondary containment systems and covered containers. There is a secure gate at the entrance. There will be training for employees about
containment of spills and contaminated soils, and reporting of spillage when
required. Ms. Warren asked who watches
to see this is done?
Mr. Fraser said under state statute it is up to Board regulators. Ms. Weber asked if FWW would have a problem
if the Board were to issue a permit conditioned on no storage of chemicals or
fuel on the site. Mr. Fraser said that
would not be a problem.
Ms. Galloway-Leclerc suggested that issues
with the property across the street might be addressed by a Planning Board Site
Plan, and they could address it with the Planning Board. An audience member stated they had been to
the Planning Board, and had the same problem getting the Selectmen to enforce. Mr. Sawyer said that the only request he know
of was an issue of non-compliance with the berm, and
the Selectboard required the berm
to be put in. We have no code enforcer
other than the Selectmen. Ms. Mansouri
noted the Selectmen meet on Thursdays at 7:30.
An audience member asked doesn’t the Planning Board drive around to see the
problems? Mr. Webb said that the problem
must be brought to a Board meeting. Ms.
Weber said that the town has no code enforcer.
All the work is done by three Selectmen and the volunteer Planning and
Zoning Boards. There is a limited amount
of time and person hours available to deal with these issues, and a limited
number of people willing to do these jobs.
Zoning Board members have brought issues back to the Board when they are
aware of them, but otherwise, our policy is to have someone either bring the matter up at a Board meeting or put in a written
complaint.
Ms. Mansouri asked if anyone had anything to
add at this time. Ms. Weber asked if a
site view might be helpful. Mr. Webb asked to what avail. Ms. Weber said that she would like to get a
clearer idea of the location of the wetlands.
Ms. Warren asked about the timing to make a decision. Ms. Weber said that the statute requires a
decision within 20 days. Mr. Fraser
indicated he did not think his client would agree to an extension. Ms. Bragg said that the wetlands issue is
huge, and really needs to be addressed so as not to expand the problem. Mr. Calhoun said he wouldn’t mind looking at
the site. Ms. Galloway-Leclerc suggested
we invite the Conservation Commission.. Mr. Sawyer said the Conservation Commission
has mapped the wetlands in town, so it would be a good idea to include
them. Ms. Weber asked if the soils expert
could come as well. Mr. Fraser said yes.
The site visit was scheduled for Monday,
August 27th at 10:00 AM at the site on
****Please note that after this meeting, the
site visit and continued hearing were rescheduled at the request of the
applicant. The site visit will be held
on Wednesday, September 19th, 2007, before the regularly scheduled
meeting of the Board, and the continued hearing will resume on Wednesday,
September 19th, at 7:30 PM at the regularly scheduled September Board meeting.****
Mr. Britton arrived during the Public
Hearing. At this time, Ms. Mansouri
recognized his presence, and asked Mr. Calhoun to step down as a voting
member. Mr. Webb continued as a voting
member to replace Mr. Carignan. Ms.
Lester also arrived during the hearing.
NEW BUSINESS: Robin Casey of KC Signs for Walgreens sign
replacement. Ms. Casey presented drawings of the current
Rite-aid signs and the signage Walgreens would like to install. The initial proposal was for two signs in
addition to the signage already in place.
One sign was proposed to have flashing bulbs to advertise specials. Ms. Casey was informed that that type of sign
would not be permitted under the ordinance.
Ms. Mansouri explained that Walgreen’s may replace the existing signage
with Walgreen’s signs if they do not change the size of the signage. Mr. Webb said that if new signs are wanted,
Walgreen’s must apply for a variance, as any new signs would be too close to
the existing signage. Ms. Casey said
that they will simply reface the existing signs for now, and will return for a
variance if more signage is needed.
Virginia Carter, 114 Barnett Hill Road,
questions about permitted uses of her property.
Ms. Carter’s home is
located in the Rural/Agricultural District.
She planted 950 grape vines on the property in 2003, and is doing
business as Barnett Hill Vineyard and West Mountain View Winery. These are farming activities under Article VIII
of the Walpole Zoning Ordinance.
Currently, 100% of products sold are produced on the property. The State of
Barbara Bragg, 26 Old Drewsville
Road, Sign question. Ms. Bragg makes pottery in her home, which is
in the Rural/Agricultural District.
About three times a year, the Walpole Artisan’s Tour is held, and she
would like to install a wooden post and a small sign that could be easily seen
from the road. Under the ordinance, a
permanent sign must be 20 feet from the road or a variance is needed. Ms. Weber
suggested a temporary sandwich board type sign which could be set out when and
where it is needed. Because Ms. Bragg
does not want people coming to her house at other times, she proposed a post
and a small moveable sign that could be hung on the post. The Board agreed that if the sign was brought
in at night, it was a temporary sign that did not require a permit.
Local Government Center Q & A on the Role
of Alternates: Ms. Lester was given a copy of the article. Ms. Mansouri gave an overview of the
article. The article suggests that
alternates should sit in the audience and take no part in hearings unless they
are appointed to replace an absent member.
Our practice has been to have alternates participate in the debate, but
not in the vote. Mr. Webb said it was
contrary to what this Board has been doing for years. He disagrees with it but will go along if the
majority of the Board agrees. Mr.
Calhoun said the article was discouraging to alternates. Mr. Webb said that he believes that we should
have alternates sit with the Board and not as members of the audience. They are in fact appointed members of the
Board. Mr. Calhoun asked how the
alternates could even participate in the present discussion. Ms. Mansouri said she was very discouraged at
reading the article. Alternates have
always sat on the Board, and participated in discussion. Mr. Sawyer asked why you would have a ten
person Board? Mr.
Webb said the state specifies we have a five member Board. The problem here is this is one attorney
offering an opinion this is what to do.
The present format has worked well for us, and he is hesitant to abandon
it. He suggested we go back to the table
formation of a 3 sided square. The three
alternates would sit on one side. We
could label them as alternates with the regular members on the other sides, and
the alternates could change their seats when they are appointed to vote. The audience would be more aware they are
alternates. Ms. Mansouri said she was
thinking of a similar solution. Ms.
Weber said she thought it would only be a problem if there were a contested
hearing and an aggrieved party wanted to argue that the Board was not properly
constituted. Mr. Webb said that whether
the alternates sat in the audience or with the Board is not to their
detriment. This is an opinion put forth
by a state agency, and he is willing to gamble on sitting alternates where they
are separated. Ms. Mansouri suggested we
give the alternates a special spot to sit at, and that they could participate
in the discussions and give their opinions to the same extent as any other
residents, but would not participate in deliberations once the public portion
of the hearing ended. They certainly have
the right to as much participation as other residents. Ms. Galloway-Leclerc likes the suggestions
from Mr. Webb and Ms. Mansouri, with specific chairs for the alternates. Mr. Britton said the members can change seats
to clarify their role. Mr. Webb said we
all contribute to the discussion, and ten different attorneys would interpret this ten different ways.
Mr. Calhoun says they recognized that the alternates are no different
than members of the public. Mr. Webb
said that he thinks the alternates are different from the audience. We cannot just pull people from the audience
to decide cases. Mr. Calhoun said they
are already designated as alternates. He
was frustrated reading the article. They
have to be appointed and sworn in. Ms.
Lester commented on the article’s analogy to a ball team, noting that all
ballplayers sit together. Alternates
would miss out on the maps and plans if they had to sit in the back. Ms. Weber read from RSA 673:3 and 673:11,
which is all the guidance the statutes give as to Zoning Boards and
alternates. She said that private
citizens are allowed to present their knowledge and opinions at hearings. Mr. Webb said that having the alternates
there does not add any extra pressure, it is a good thing. Ms. Mansouri said we will go back to the U
shape for the tables with five seats for the voting members to make it clear
who is deliberating. Mr. Sawyer said
perhaps we need legislation to clear it up.
Ms. Mansouri thanked the Board members for
their indulgence for the time the meeting took, but said it was important for
all to have had their say.
Home Businesses in the Rural/Agricultural Dictrict. Ms. Weber raised the issue of
asking the Planning Board to recommend including the home business language now
allowed in the Residential and Commercial Districts to be included in the
Rural/Agricultural District as well.
More and more people are working from their homes, and we do not want to
burden them unnecessarily. Mr. Britton
moved, and Ms. Galloway-Leclerc seconded that we send a letter to the Planning
Board asking them to present this change for the next town meeting. All were in favor.
Ms. Mansouri reminded Board members of the
OEP Conference on October 13th at
Minutes of July Meeting. It was noted that Dr. Pena
lives on
The meeting was
adjourned at 10:33 PM. The next meeting
will be held on Wednesday, 19 September, 2007 at 7:30 PM.
****Please note that the site visit and
continued hearing on the proposed FWW gravel pit on
Site visit: 6:30 PM on Wednesday, 19 September, 2007, at
the proposed site on
Continued hearing: 7:30 PM on Wednesday, 19 September, 2007, the
Board’s regular meeting time.****
Respectfully
submitted,
Lucy Weber,
Secretary.
Cc: ZBA, PB, BOS, Town Clerk
Posted: Town Hall, Lobby, Burdick’s Market