Minutes of the Meeting and Public Hearing
Monday, June 7, 2004 7:00 PM
Warner Town Hall, Lower Meeting Room
Members Present: Barbara Annis, Derek Pershouse, Andrew Serell, Phil Reeder, Russ St.Pierre, John Brayshaw
Members Absent: Mark Lennon
Alternates Present: Ron Orbacz, Lynn Perkins
Alternates Absent: None
Presiding: Barbara Annis
Recording: Sissy Brown
Ms. Annis asked Ron Orbacz to vote for Drew Serell, and Lynn to vote for Mark Lennon. It was stated that Mr. Serell had said that he was coming, and Ms. Annis said her request would stand until he arrives.
A motion was made to approve the minutes of the May 3rd Planning Board meeting as corrected. The motion was seconded and passed by a unanimous vote.
Property Owner: Doug & Michele Smith, 153 North Village Rd., Warner, NH 03278
Property Location: Map 10, Lot 10-1 (brook parcel only, previously went with Lot 12) R-2 zoning, above address
Purpose: Previously annexed to wrong parcel (Lot 10-1) and recorded. Request to annex to Lot 11 (house site)
Ms. Annis stated that the Smiths had been before the Board on a previous occasion and had been approved to have a Lot Line Adjustment done. The Smiths discovered after they had recorded the Lot Line Adjustment that the request and approval was given for the wrong lot. Because the adjustment involved an entire "tract" of land, the Board had not required that a survey be done of the parcel nor was a Mylar required for recordation. They came before the Board in May and requested a change in the Lot Line Adjustment, and the Board had told the Smiths that they needed to have a Mylar as well as follow the same procedures as before. In the first instance, the Lot Line Adjustment was recorded at the registry of deeds using the Notice of Decision and no Mylar. They are before the Board for clarification.
Mr. Pershouse: Do we have any statutory requirement for a Mylar for a Lot Line Adjustment?
Ms. Annis: I don’t think so, where an entire tract of land is involved.
Mr. Pershouse made a motion that because this is a technicality and not an error (that the lot was annexed to the wrong parcel of land), the applicant should not be required to have a survey of the property and should be allowed to follow the same procedure as done the first time. The motion was seconded and passed by a unanimous vote.
Applicant/Owner: Richard & Barbara Stanley, 383 Pumpkin Hill Road, Warner, NH 03278
Property Location: same as above, Map 15, Lot 15, R-3 zoning
Purpose: Create 1 new 3-acre lot; 13.9 acres remaining in Lot 15
Mr. Pershouse recused himself because he is an abutter.
Jennifer McCourt of McCourt Engineering represented the applicants.
Ms. McCourt said that the New Hampshire Natural Heritage Bureau documents had been provided. The property is at the intersection of Pumpkin Hill Road and Old Pumpkin Hill Road. One change in the plan provided is that the driveway will now be proposed off of the old Pumpkin Hill Road because it would be a safer and quieter. It was last subdivided in 1983. There is a section of the old Pumpkin Hill Road that is believed to have been discontinued, but the records don’t show any specifics about this. The area in question wasn’t included in the calculation of the amount of land for the area of buildable land for this subdivision.
Mr. Serell: You show wetlands of .04 acres – it isn’t supposed to count towards the minimum lot size.
Ms. McCourt: We can push the lot line out some to accommodate the wetlands. Also, we haven’t counted the discontinued road in the calculation.
Mr. St.Pierre: Do we know the status of the abandoned road?
Mr. Stanley: I was told upstairs [in the Tax Assessing Clerk’s office] that it was abandoned and that it was considered part of my property, but there is nothing in writing that it has been deeded over – just that it is abandoned. He stated that he believes that he has been paying tax on the land.
The question was asked: When the new owner of the subdivided lot takes possession, what will that abandoned road be to them?
Ms. McCourt: I assume it will be as it is in the current deed, that the status is not determined.
Ms. Annis: Have you checked with the Public Works Director?
Ms. McCourt: I spoke with the surveyor who had done the original subdivision, and he is very knowledgeable about the property. His records show that that right-of-way or road had never gone through the Public Hearing process at a Town Meeting to be turned over to the property owners. Seeing what Mr. Stanley was going to do really didn’t matter, and that he didn’t see the need to go through the expense of that process.
Ms. Annis: Does anyone have any further questions?
Mr. St.Pierre: If the road was never abandoned by the town, I wonder how you managed to acquire property on the south side of the road.
Ms. McCourt: Because the original owner owned the whole thing when it was resubdivided in 1983.
Mr. Brayshaw: Check the deed – it might have been an easement.
Mr. Stanley: It was the original Old Pumpkin Hill Road, probably before all of our times.
Mr. Brayshaw: They might have cut an easement through there to the upper part of that large parcel of land.
Mr. Serell made a motion to accept the application as complete. The motion was seconded and the motion passed by a unanimous vote.
Ms. Annis closed the Board Meeting and opened the Public Hearing.
Richard White (abutter): I think that the question of the abandoned road should be put to bed somewhat – it isn’t clean or neat, and is rather sloppy.
Steve Hall (abutter): I agree with the road matter being clarified. We live across the road and I have a problem with the road being passed on with not paperwork. I also would like clarification on the road being included, or not being included, in the amount of land for the subdivided lot. Doesn’t the line go down through the road? I believe the Board member was trying to make the point that the acreage shown is 3.03 – the wetlands are .04, and if you take that away you’ll be left with less than 3 acres.
Ms. McCourt: The area of the right-of-way is not part of the 3.03 acres because that is how it has been passed down through the deeds. There is a note on the plan that states that says, "Old unused right-of-way: Surveyor has not researched as to status of ownership". So it was not included in the calculation.
Mr. Hall: Do you have a calculation of the area of the old roadway?
Ms. McCourt: On the plan itself? No.
Mr. Hall: If I go from Point A to Point B on the plan, it entails that area.
Ms. McCourt: Except for the note that states that the ownership of that right of way is unknown.
Mr. Hall: Exactly.
Ms. McCourt: If the Board would like me to amend that note to say more, I would be more than happy to amend it. I have stated that we’ll move the lot line slightly to the north to take care of the .01 difference in the wetlands so that it will be technically shown as correct.
Mr. Hall: I agree with the driveway coming in off of Old Pumpkin Hill Road instead of across from my driveway, but in the past we’ve had problems with water damage caused by runoff from that road. Mr. Brayshaw has been up there and met with us. I’m not saying that one culvert either way will make any difference, but will it be looked at in the future?
Mr. Brayshaw: We have that road targeted to look at in the near future.
Mr. Pershouse: My perception of the drainage issues up are more severe than what I’ve heard so far. We’ve had a real issue up there this spring over reconfiguration of the drainage. Two additional culverts were put onto my land without any notification to me. I made my self extremely unpopular by stopping the work. I strongly suggest to the Planning Board and to the Board of Selectmen that rather than just the assertion that the issue will be revisited in the near future that we get a written commitment from the Selectmen that a comprehensive plan of whatever is necessary to put the drainage issue to rest once and for all. There are three or four neighbors that it affects dramatically. I’ve very leery of a statement of intent because this subject has been bounced back and forth and what it comes down to is that the person that screams the loudest has the water diverted from his property and his neighbor gets more of it. I think that the proper way to deal with it is to have an engineering report done – not by our Road Agent, but by a third party engineer – and get a solution put into effect regardless of this subdivision.
Mr. White stated that he seconded Mr. Pershouse’s ideas.
Hearing no further questions or comments, Ms. Annis closed the Public Hearing and reopened the Board meeting.
Mr. Serell made a motion that the application for a Minor Subdivision be approved with the following conditions:
1. Move the back lot line to make 3+ acres without the wetlands
2. Recalculate the area of the lot taken up by the right-of-way/abandoned roadway
3. Show the location of the proposed driveway on the plan
The motion was seconded.
Mr. St.Pierre: Is it the general consensus that we don’t know the status of that old road?
Ms. Annis: Correct.
Mr. St.Pierre: So for all intents and purposes, it is still Town property?
Ms. Annis: Correct.
Mr. St.Pierre: So then aren’t we creating two lots here?
Mr. Serell: It would already be two lots.
Mr. St.Pierre: If you add the two pieces of land together, they are 3 acres. But the part on the south side of the roadway isn’t 3 acres.
Mr. Serell: I understand your point – if that is a road that is owned by the town, and technically there are two lots there now, approving this subdivision would create a 3rd lot and the new lot that is being created would be less than 3 acres.
Ms. McCourt: I would like to add to the mix that this right-of-way wouldn’t have been a fee simple right-of-way because it is so old. The landowner would have owned the property underneath it. It is just part of your regulations that says that you can’t include a right-of-way in your lot calculations. So if we’re going down that road, then let’s go all the way down it and say that this would have been a prescribed right-or-way in which this would have been an easement over the land. It just hasn’t been discontinued and given back to the property owners and that is why this area of the right-of-way wasn’t included in the lot calculations. You’re not creating 2 lots because the owner actually owns the property underneath the easement, so these two pieces of land are still together – just as they were back in 1983 when this original lot was created by subdivision.
Mr. St.Pierre: Do you have documentation on when the road was laid out? In what form was this land taken?
Ms. McCourt: No.
Mr. Hall: The old right-of-way, we’ll call it – within that stone wall – was contiguous to our property at one point in time. About 50 or 60 years ago, when our house was built there, Wendy’s uncle granted that new right-of-way for the town to come around through there, as far as we can search back. So as far as this other portion of property, we have not idea where it ended up other than the fact that it is still there. I don’t know where you go to find that.
Mr. Brayshaw: We could probably have an answer on the road by the next meeting.
Ms. Annis: Except that is it a motion for a conditional approval. If we approve it, we would not have a next meeting.
Mr. Serell: I think we should try to get an answer to the question – if the town owns that road in fee, then technically we’re creating a substandard lot.
Mr. Stanley: I spoke with Allen Brown [Director of Public Works/Road Agent] and he said that there are no records or where this thing went. He asked me if I were going to use this piece in the subdivision and we said no, because there is no record anywhere to be found. He wanted copies of my survey so that the town could figure out where this road is. I don’t think anyone is going to find out where the deed to this piece of land is.
Mr. Reeder: If we require the portion of the lot north of the right-of-way to be at least 3 acres, then it will be a conforming lot, correct? Even if the portion including the right-of-way and the portion south of that is, say, .5 acre. So the entire lot would be 3.5 acres and the only question would be, "Who owns the road?" And, really, who cares.
Mr. Serell: Especially if you were willing to expand that lot so that the portion of the lot north of the right-of-way exceeded 3 acres, I don’t think that would be the issue.
Mr. Stanley: We’ve already agreed to do that.
Mr. Serell: But this is a little different. I was originally talking about expanding it .01 acre to account for the wetlands, and this would be to make the entire area north of the right-of-way conform.
Mr. Stanley: Whatever it is, there is plenty of land to do that.
Mr. Pershouse: Technical question: Is there any chance that the landowner would want to use the abandoned road as part of a driveway?
Mr. Stanley: Originally when I looked at it, I thought about it. But it is very close to the corner and I wouldn’t want to do that because it would make for a very long driveway.
Mr. Serell withdrew his motion and made a new motion.
Mr. Serell made a motion that the application for a Minor Subdivision be approved with the following conditions:
1. The portion of the lot lying north of the former roadway exceeds 3 acres
2. The calculation of the total lot, including the roadway, be shown on the plan
3. The calculation of the portion of the lot that is north of the former roadway be shown on the plan
4. The location of the proposed driveway needs to be shown on the plan
The motion was seconded and passed by a unanimous vote.
Ms. Annis said that they need to bring in a revised plan to the Board for approval.
Applicant: Allan P. Jones dba Knoxland Equipment Inc., 132 Cross Rd., Weare, NH 03281
Owner: Dimond Flag Station, LLC
Property Location: I-89, Exit 7 North, South side off Route 103, East of I-89 – 6 acres
Map 3, Lots 31, 32, 34, 35, 42 C-1 zoning
Purpose: Display and sales of Terex Construction Equipment
Mr. Jones distributed photos of signs and the land to Board members, as well as plans of the property. He noted that the following changes have been shown on the plan:
Mr. Pershouse: Do you have anything showing the nominal contours?
Mr. Jones: The land is really very flat, with the exception of an area where it appears someone at one time took some sand out. The corner is raised up 10 to 15 feet up from the roadway.
Mr. Reeder: Lynn Perkins and I walked the land, and it is very, very flat.
Mr. Pershouse asked Mr. Reeder to give the Board an overview of the Site Visit to the property.
Mr. Reeder: We saw a dilapidated fence and scrub trees. If it is as nice as what Allan has at his Weare property, it will be very nice. I’m comfortable with the plan as shown.
Mr. Brayshaw: His Weare property show area and business are very well kept and it is one of the nicest looking display areas I’ve seen in the state. His motives are just.
Mr. Serell: I would like for the plan to show the location of the fence.
Ms. Annis asked about signage.
Mr. Jones described the proposed signs:
Ms. Annis questioned the signs and sizes and looked at the sign ordinance. There was discussion on the interpretation of the ordinance and how it applied to Mr. Jones’ application.
Mr. Serell: The question is whether the two-sided sign is counted as two signs.
Mr. Jones: It is, and the calculations include it as two signs.
Mr. Serell: Then I think it might be inconsistent with the zoning, because the zoning regulations say that you can only have a total of two signs on the premises plus one additional…
Mr. Jones: I counted it as one sign, but calculated the face square footage as part of the total. It is going to be hanging.
Mr. Brayshaw: From my seat, I look at it as one sign.
Mr. Serell: I think that it is one sign, but you need to add the two sides together to see if they conform and they do.
Ms. Annis: I would like to know how the sign will be illuminated.
Mr. Jones: We’ll have a light shining on it – it won’t be bright.
Mr. Pershouse: I’m concerned about the lighting hours and the light intensity. I don’t think that the construction of the bus depot across the street was constructed to our specifications. Are you planning on having overnight lighting?
Mr. Jones: I would assume that you would want the lights on for security purposes.
Mr. Pershouse: Are there some residential properties in the area?
Mr. Jones: There are two that could possibly see the lights, but they seem to be very happy that I’m doing something on the property.
Mr. Pershouse: If lighting becomes a problem, would you work with the community and the Board?
Mr. Jones: Yes.
Mr. Reeder: Mr. Jones supplied additional information to the Board showing the light candles, etc. This system is very non-glare and non-dispersion type of lamps. This is one of the more friendly light systems available. I would like to see this throughout town. He has cut the number of lights suggested by the engineers in half. It is downcast lighting, so no residual. It is a bright white light.
Mr. Reeder made a motion to accept the application with the following conditions:
1. The fence location should be shown on the plan and indicated as such
2. The type of the fence material should be shown on the plan
Ms. Annis closed the Board Meeting and opened the Public Hearing.
Gerry Courser: I think that this is a good commercial business coming into town.
Ed Mical: Mr. Jones has a well-known business over in Weare, and I think that this will be a welcomed asset to the Exit 7 area.
Alan Lord: Are the display areas for people on the property, or from the highway?
Mr. Jones: Both. There will be visibility from Route 103. After I sign the paperwork to purchase the property tomorrow, the State will lease me the right-of-way here (showed area on the map). I’ll have to do some clearing of brush and selective tree cutting there. That will open that up. The white fence and white equipment will be visible – the drive-by traffic is what makes this location valuable to me. If it weren’t for that, I’d probably stay on the dead-end road in Weare.
Richard Brown, Fire Chief: I think that this is a good project, and that it won’t impact the Fire Department at all.
Ms. Annis closed the Public Hearing and reopened the Board Meeting.
Mr. Pershouse asked for clarification of the ownership, and Mr. Jones said that he had started Dimond Flag Station, LLC to lease the property to his company, Knoxland Equipment. He plans to restore the Dimond Flag Station located on the property and will use the name as a "name recognition" tool.
Mr. Serell made a motion to approve the application for Site Plan with the following conditions:
1. The fence location should be shown on the plan and indicated as such
2. The type of the fence material should be shown on the plan
The motion was seconded and passed by a unanimous vote.
The plan needs to be recorded after the changes are made. He stated that he would have the changes made and would bring the plan back on Wednesday.
Property Owners: Peter & Esther Wolfe
Property Location: 696 Pumpkin Hill Road, Map 19, Lot 22, R-3 zoning
Purpose: Subdivide one 3.1 acre lot off of a larger 20 acre lot
Mr. Wolfe wanted to be sure that the zoning districts and requirements are based on the zoning district of the portion of the property that has the road frontage. He said that his property is one of the last properties on Pumpkin Hill, before you go into Salisbury – at the top of the hill before you go down the hill into Salisbury. The OC-1 district is 500 feet from the road.
Mr. Pershouse: Is the driveway across from you…
Mr. Wolfe: That was used when the Micals logged up there.
Mr. Pershouse: Is your intention to have the survey go beyond what is shown here?
Mr. Wolfe: Yes, and I’m trying to avoid having to have the back of the property surveyed. The reason is that when this property was subdivided in 1932, there were no beaver dams in the brook. Sometime in the 60’s, a beaver dammed up the brook back from the pond – there is about a 10-foot dam there which dammed everything back up to where we are. My deed and my abutter’s deed say that our properties go to a pin in the brook. The problem is that there are three brooks now. We’ve looked at the aerial overflys and they were taken when the trees have leaves and you can’t even see the brooks. We’ve tried to find the pins with metal detectors, but can’t find them. The deed says 20 acres +/-, so hopefully there is enough land to carve out a 3 acre lot.
Ms. Annis asked if the Board felt that a survey wouldn’t be required for the entire 20 acres. The Board nodded in agreement that a survey would only be required for the newly created 3 acre lot.
Mr. Serell read his proposal for determination of a zoning district for properties in two Zoning Districts:
Planning Board Policy – Property in Two Zoning Districts
Where a single lot is located in two zoning districts, the Planning Board shall apply the following rules:
1. If all of the frontage is in one zoning district, the Board shall apply the criteria of that zoning district to the entire lot.
2. If the zoning district boundary intersects the lot frontage such that the lot has frontage in two zoning districts, the Board shall apply the criteria of that zoning district where the majority of the frontage is located to the entire lot.
Mr. Wolfe: So if I have the surveyor finish what he is doing now for the 3 acre lot, show the test pit and the proposed driveway, I’m ok?
Ms. Annis: Yes.
Property Owners: Peter & Katherine Savlen
Property Location: 103 West Main St., Warner, NH
Purpose: A new lot next door was purchased this year (Lot 34-6). The deed for the house shows 2 tracts of land (Lot 34-5)
Mr. Savlen explained to the Board that he and his wife own land on West Main Street that has his house and garage, and is described in the deed as Tract I and Tract II. The house is located on Tract I, and the garage is located on Tract II. Recently, he and his wife purchased the lot that abuts Tract II, which has 40 feet of road frontage on Main Street and which is Lot 34-6. This lot is on the Town’s tax books as a building lot. The lot line adjustment will move the line between Tract II on the first lot and the newly purchased 40-foot lot. The house will remain on the enlarged Tract I, and the current garage will be located on the newly created lot, a combination of what would remain of Tract II and Lot 34-6. The plan would be to eventually build a smaller house on the lot with the garage and sell the original house. Each lot will have 148 feet of frontage on West Main St., and the zoning requirements are for 100 feet of road frontage.
Mr. Serell: How large will Tract I be?
Mr. Savlen: I don’t think it would be an acre – it would probably be about 3/4ths of an acre.
Mr. Serell: Both lots would be more than 20,000 square feet?
Mr. Savlen: Yes. I would be expanding the 40 foot lot to a more buildable lot.
The Board discussed the proposed application, had not problems with it, and said that he should come back for his Lot Line Adjustment after the survey of the land is completed, etc.
Ms. Annis said that the CIP is on the September Budget Committee Meeting schedule, which means that the Planning Board has to approve the CIP in August. She asked for help and said that this needs to be done immediately. She asked for volunteers, and no Board members came forward. Ms. Annis said that it involves only 2 meetings: the first to discuss if the same criteria will be used as in prior years and who will contact whom. There are three departments that require a face to face meeting because of the degree of involvement of their requests: Transfer Station, Highway Department and the Police Department. If there are three people working on the CIP, each one would only have to schedule a meeting with one department head. The other departments might need only a phone call to remind them to return the information. After all of the forms are in, they are compiled and reviewed – usually with a member of the Budget Committee sitting in. A spreadsheet is then prepared. The completed plan is given to the Selectmen for their approval.
Mr. Pershouse suggested that the Chairman review the situation and decide who she would like to help.
Mr. Pershouse said that many people had been very help. Mailings have gone out. He said that everything has been nailed down and he could use some help on Friday morning to prepare for the Charrette. He encouraged all Planning Board members to attend as much as possible and to be, at least, at the listening session. He reiterated that good representation is vital and necessary. He encouraged bringing people who would be interested and concerned with the results.
Mr. Reeder reported that he and Ms. Annis are scheduled to meet with DOT at 11:00 a.m. on Friday. They are going with a representative from the Central New Hampshire Regional Planning Commission to pitch the corridor study at the Exit 9 area.
Mr. Pershouse said that he would like to fuse the two elements because the corridor study is going to be extremely significant to Plan New Hampshire. He said that he hoped that they had a good structured approach.
Ms. Annis asked if there would be a sign-up sheet for attendance at the Charrette, and it was stated that there would be.
Mr. Pershouse said that Howard Kirchner is the owner of the property on Parade Ground Cemetery Road where an approved tower was to be built by IWO/Sprint. Only a couple of details remained to be worked out before the tower was to be built, but to date nothing has happened. IWO/Sprint has been going through some financial difficulties, and Mr. Kirchner is anxious to move forward with the tower. He contacted the Planning Board to see what he should do. Mr. Pershouse and Ms. Annis had a meeting with Mr. Kirchner and Jonathan McNeal of Cingular Wireless, who would like to purchase the site or rights or whatever is necessary to proceed. AT&T and Cingular have merged and had originally planned to locate on the tower. It was stated that approval of a tower site by a Special Exception goes with the property and not the applicant. Mr. Kirchner was told to make some decisions on what to do with the lease he has with IWO/Sprint. What he decides will most likely be reflected by Ms. Pletcher’s tower site off of North Road which was to be built by the same applicant. Mr. Kirchner has contacted IWO/Sprint telling them to give him a definitive answer as to whether the tower will be built.
Ms. Annis stated that a check from RSK Management for legal fees owed had been received. Mr. St.Pierre asked if the Site Plan would now be recorded, and the Secretary said that a Mylar had never been brought in to the office to be recorded. She also stated that the check came in the mail to the Planning Board with no cover letter or other information as to the intent of RSK to move forward with the plans for a Subdivision/4-unit condominium, which was approved pending the receipt of the legal fees owed.
Ms. Annis said that the Superior Court had upheld the Planning Board’s decision, but that RAW has filed an appeal of that decision with the New Hampshire Supreme Court. Mr. Serell said that within the last year, the policies of the Supreme Court had changed and that they now accept all appeals. They still have the discretion of deciding whether they will hear oral argument or not.
Ms. Annis said that two letters had been received requesting review of the Planning Board’s decisions on two separate matters. One was from Lois Shea and Steve Varnum asking the Board to reconsider their decision on allowing Cingular Wireless to attach 2 10-whip antennas onto the TDS tower located on Kearsarge Mt. Road. A second letter was received from Paul Proulx regarding a decision that the Board made concerning the parking situation at R.C. Brayshaw.
Because they were not on the agenda, through an oversight, Ms. Annis contacted all Board members via email (except for Mr. Orbacz, whose email address she did not have). She received a response on this day from Selectman Brayshaw via email (the Secretary also received a copy of the email).
Ms. Annis wrote in her email of June 4, 2004:
Thru an oversight consideration of 2 letters that the board has received was not added to the agenda. The first letter was from Steve Varnum requesting we reconsider the vote in regards to the tower on Kearsarge Mtn Rd. The second letter was from Paul Proulx requesting we reconsider the vote in regards to the site plan of R.C. Brayshaw Inc. We will be discussing both of these under communications.
Mr. Brayshaw’s email response of June 7, 2004:
That is fine, as a reminder though, and also decided on at the board of selectmen’s meeting of May 11th, Complaints and allegations need to come through the selectmen’s office (Signed and in written form) and then be referred to the Planning Board or Zoning office for further action to be taken. The Board of selectmen are the code enforcement officers and this process has been in effect for sometime. The planning board (in this case) is not the board of appeal. Please also explain how this oversight happened (with the letters) and how both letters were submitted (hand delivered or in the mail and, to what address were they made to).
John C. Brayshaw
Ms. Annis: As a follow-up of that, I contacted Mary [Selectmen’s secretary] and asked her to give me the exact wording of those minutes. The exact wording of the minutes that John refers to is: At the May 18, 2004 meeting, it was agreed by the Board of Selectmen that all boards and committees in the Town of Warner shall not recognize anonymous complaints. All complaints or concerns shall be received in written form and signed for consideration.
Secretary: They [letters] were both received in the mail. I have the envelopes, and they were both written and both signed.
Mr. Brayshaw: OK. I guess that the purpose of that, and there is an RSA on it as well, is that any complaints – and it started off with unregistered vehicles; people were just complaining on their neighbors. Different things that, being the Code Enforcement Officers, that any complaints need to come to the Board of Selectmen, being the Code of Enforcement officers. And then those written complaints would be directed to the Boards that they affected. That goes under the Right to Know laws as well.
Mr. Pershouse: When you say complaint, are you including the Varnum/Shea letter as a complaint?
Mr. Brayshaw: Yeah, well the one that signaled me was the TDS tower – the new one – because it had been talked about after the prior meeting when Mr…. well, I won’t mention any names. Two anonymous complaints were placed.
Mr. Pershouse: Let me get this clear. The letter…
Mr. Brayshaw: There weren’t any letters, just people had talked.
Mr. Pershouse: Yes, but in the case of the letter that they most recently wrote – did they write it to the [Planning] Board?
Secretary: Yes, and I think I sent a copy to the Board members.
Mr. Pershouse: Yes, I have it here and I scrutinized it. They’re asking the Board to reconsider a decision. Here’s my question to you: Are you categorizing that as a complaint?
Mr. Brayshaw: No, the original letter. The one that I have a problem with now is the TDS letter that came in that the Board of Selectmen was not aware of, from Steve Varnum.
Mr. Pershouse: That’s the one that I’m referring to. Are you saying that that is a complaint? I mean, they’re asking for reconsideration…
Mr. Brayshaw: Not knowing what the contents of the letter are, I couldn’t tell you.
Secretary: I sent everyone a copy of the letter in their packet before the meeting.
Mr. Brayshaw: I have that, but I’m just saying…
Mr. Pershouse: I’m trying to get the procedure…
Mr. Brayshaw: As far as to the Board – to the Secretary of the Board of Selectmen. It would go to her, it would come up at the Selectmen’s Tuesday night meeting, and then it would be referred to the Board if it were in fact a complaint or allegation.
Mr. Pershouse: You’re saying that the Selectmen need to make that determination as to whether it is a complaint?
Mr. Brayshaw: Yes.
Secretary: So when this came to me at the Planning Board, then I give it to the Selectmen before the Planning Board sees it? I want to know what I’m supposed to do with these letters.
Mr. Brayshaw: If it is a reconsideration of something, whether it is a neighbor complaining or saying, "Hey, you know, I think you made a mistake here" – just the formality of the paperwork, it would come to the Selectmen. It would come to the Planning Board, but it would come through the Selectmen’s office.
Secretary: But that’s what I’m saying – when they send it to the Planning Board, then I take it and give it to the Selectmen?
Mr. Brayshaw: Yes. Give it to Mary and have her get a copy of it. And it would, you know, come back down to you.
Mr. Pershouse: It sort of flip-flops in my mind between being a complaint or a reconsideration of the procedure, and I don’t know – it’s rhetorical – I’m just saying… Their complaint is that the Board, in very general terms, that the Board didn’t respond initially to their requests for certain tests and so on and so forth. Technical details in procedure. I don’t read this letter as being faulting the inherent procedure of the Planning Board – a non-quorum or not noticed or Right–to-Know issues.
Mr. Brayshaw: I mean, I think that the major crux of the problem is, whether it is this letter or not – I didn’t get a chance to read the entire contents of the letter – but the fact is that a lot of people like to complain about things and don’t like to put their names on the bottom of the letter or something. So that was the initial thing that started this, whether it is unregistered vehicles or complaints about something happening. So get the person’s letter and their name on it and then having complaints and such coming before the Selectmen. Certainly, if it’s not a letter of complaint, then it doesn’t need to go before the Selectmen.
Ms. Annis: So what you’re saying is that you’re going to receive it and you will forward it to us.
Mr. Brayshaw: Yes.
Ms. Annis: You will not make a decision on it.
Mr. Brayshaw: Yes, no decision is going to be made. It just needs to come through the Board of Selectmen’s office.
Ms. Annis: So if we get it, we should give it to you and then it will come back to us for our agenda.
Mr. Brayshaw: Yes.
Mr. Pershouse: In other words, we shouldn’t be doing anything with it until you folks have processed it.
Mr. Brayshaw: Yes, and had a chance to look at it and…
Ms. Annis: I question that, also, because I’m thinking timing. Right now, you’re on our summer schedule. Consequently, you only meet every 2 weeks. If it happened to be the week before we meet [the receipt of a letter], and you don’t meet, then all of a sudden we’re holding it up for another whole month.
Mr. Brayshaw: Not necessarily. I mean, a decision doesn’t have to be made immediately. I mean, two Selectmen in the office upstairs can make a decision. At any given time on any given day, there are two to three Selectmen in the office every day.
Mr. Pershouse: Does this mean that we all, in other words the Board and the Board of Selectmen, should be leaning in the direction of funneling correspondence through you, or let the correspondence come to the Planning Board but just immediately have Sissy…
Mr. Brayshaw: Yes, I mean have Sissy thumb through it. But if it is a complaint of some sort of appeal, it would need to come to the Selectmen. The Zoning Board of Adjustment in the Town of Warner is the Board of Appeals. If there is an appeal, the Planning Board doesn’t hear appeals. The Zoning Board of Adjustment…
Mr. Serell: Some appeals have to go directly to the Superior Court.
Mr. Brayshaw: Yes, but I’m just saying that the Planning Board is not the Board of Appeals.
Mr. Pershouse: So basically, we can’t respond to this letter to the people who wrote it, right? We can’t rehear it.
Mr. St.Pierre: No, but you could give them guidance or if they are really requesting a rehearing, we could point them in the right direction.
Mr. Brayshaw: I was saying with Steve Varnum’s letter, you know, he should probably be pointed to the Zoning Board of Adjustment.
Mr. Serell: I don’t think that’s right. I mean, I’m trying to remember on what basis we grant the approval. It depends – if he’s challenging a decision that we made that interprets a zoning ordinance, then he appeals to the ZBA. If he’s challenging a decision that we made that doesn’t involve an interpretation of a zoning ordinance, then the appeal would be directed to the Superior Court, which is why Wentzell went directly to the Superior Court. It depends on what he is challenging.
Mr. St.Pierre: If they’re sending it to us, they’re sending it the wrong place to start with.
Ms. Annis: So, with that in mind, how do we want to answer Steve Varnum’s letter?
Mr. St.Pierre: There’s also a 30-day time limit on an appeal.
Mr. Brayshaw: There is a strict time limit.
Mr. Serell: It’s nice for us to give advice, but I think that it is his job to figure out what he needs to do.
Mr. Pershouse: Another answer, which would be equally effective, would be to answer the letter and say that it has been referred to the Selectmen, who have jurisdiction over the matter.
Ms. Annis: The Selectmen aren’t going to make a decision – so we could say that it needs to be directed to the court.
Mr. Serell: Or to the ZBA. I don’t know if we respond or the Selectmen respond, but the correct response should be, "If you wish to appeal this, your appeal is either to the Zoning Board of Adjustment or to the Superior Court, depending on the issues that you have." Period.
Mr. Brayshaw: I just think that it is wasting our time to go over it. It really needs to go to the ZBA – they have more time on their hands than we do.
Ms. Annis: So which one is this going to go to? Either one?
Mr. Serell: It is not our job to tell them.
Mr. St.Pierre: But like, say, tonight – if someone didn’t like one of our decisions tonight so they sent a letter requesting a rehearing, they sent it to us in good faith that we’re the people that should get that. But we’re not. So rather than sitting on it and letting their time limit lapse, it is probably – I don’t want to say our duty – but in good faith for us to tell them that they’ve sent the letter to the wrong place.
Mr. Serell: Just to be clear, there is a concept of rehearing with the Zoning Board. As a matter fact, before you can even appeal, I’m not certain if it is all Zoning Board decisions or certain Zoning Board decisions, you have to actually move for a rehearing of the Zoning Board. So they may think that they have to move for rehearing with us, but they’re wrong. I don’t know if maybe the response needs to come from the Selectmen’s office or from us, but the simple response to anyone asking us to reconsider anything is that, "Your appeal is to the Zoning Board of Adjustment or to the Superior Court."
Mr. Pershouse: If there are elements, as there are in this letter, essentially saying that the Planning Board didn’t do what they should have done or whatever components of the overall process, does the ZBA then…
Mr. Serell: It depends on what the issue is. For example, if they’re saying that in approving this, you said it was the R-3 zone when really it was the R-2 zone that applied. Then they’d be challenging our interpretation of the zoning ordinance and that appeal would go to the ZBA. But if they were challenging the denial of a Site Plan, like when we denied Wentzell’s Site Plan, we denied it on the basis of our Site Plan regulations, but we did not deny it on the basis of an interpretation of the zoning ordinance, so that appeal would go directly to the Superior Court rather than the ZBA.
Mr. Pershouse: So we’re out of the loop anyway.
Mr. Serell: Right.
Ms. Annis: And both of these are in regards to Site Plan, so both would have to go to the Superior Court.
Mr. Serell: But theoretically, we could be interpreting a zoning ordinance issue in making a decision on a Site Plan. It depends on what issue they’re raising. It is not our job to tell them what issue they’re raising or where they need to go.
Ms. Annis: OK.
Secretary: [referring to the Varnum letter] This letter was copied to the Selectmen’s office. I just wanted to point that out, that you should have received a copy of it the same time we did because they sent one there, and one went to you also. So I’ll send them there in the future.
Mr. Serell: We don’t want to tell them that, "Your appeal is to the ZBA" or "Your appeal is to the Superior Court" because then we’re giving them legal advice as to where they should be going and it’s not our job to do that. All we can tell them is that it is one or the other.
Secretary: But you don’t think it is ok to tell them anything, though, because on the second page they specifically ask that something be responded to…
Ms. Annis: In writing.
Secretary: You wouldn’t have to everything that they put in here, but could we say something just so they know that the letter was dealt with?
Mr. Serell: I would just say that, "Your letter was reviewed and it was our judgment that your appeal is to the ZBA or to the Superior Court, and therefore we can take no action on it."
Ms. Annis said that the handicapped parking space has been removed from in front of Aubuchon Hardware, making it much more convenient for us. She said that maybe a thank you should go to Market Basket for taking care of that matter and making it much safer up there.
Mr. Pershouse said that he thought that there should be a brief letter. Ms. Annis said that people complain a lot, and that they should be given something to be happy about.
Mr. St.Pierre: How did that parking spot get there in the first place?
Mr. Pershouse: My knowledge of it is that it was part of the original Site Plan, and then the building was rotated at one point – I don’t remember the details, but that got left dangling out there.
A letter was received regarding WMTW using Kearsarge Mt. for their television signal on Channel 8. Mr. Reeder said that they are transferring their signals from one mountaintop to another. WMTW is Channel 8 in Maine, but they’re not going to be broadcasting from up there. It is a relay.
Mr. Pershouse wondered if they should be engaged in some type of correspondence with DRED just because we have a telecommunication ordinance that is, for the most part, dealing with cell towers. The state was supposed to notify us of any changes on that tower from the beginning, and I don’t know if that is happening. My concern is that we should acknowledge their letter in good faith that they have at least notified us. I think it might buy us some good will in the future. I don’t know why they’re notifying us.
Mr. St.Pierre: Are they adding something to the tower?
Mr. Reeder: Not according to this. They’re using existing antennas. They might be changing electronics in a house up there.
Mr. Pershouse: If you would like, I’ll fax them a letter thanking them for notifying us.
Mr. St.Pierre asked if anything more had been heard from Hampton Inn. Ms. Annis said no. Were they notified about the Charrette, by any chance? Ms. Annis said no, that only the property owners were notified. Mr. Pershouse said that they own the land, or at least some component of the company does. Mr. Pershouse said that it was his understanding that either the Hampton Inn or the company that was dealing with the Planning Board – that one of the principals of that company has some sort of a binding Purchase and Sales Agreement to own it if they need it in the future. It is in the records that one of the people in the corporation is named as the owner of record, and that there is some sort of involvement.
The meeting was adjourned at 9:12 p.m.
MINUTES APPROVED: JULY 5, 2004