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09-03-09 Minutes PLBD

December 31st, 2009

Town of Carroll Planning Board
September 3, 2009

“These minutes of the Town of Carroll Planning Board have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions,
deletions and corrections by the Planning Board at its next meeting when the Board votes its final approval of the minutes. They are being made available at this time to conform to the requirements of New Hampshire RSAS 91-A:2.”

Members of the Board present: Chairman John Birknes, Bonnie Moroney, Charlie Cohn, Evan Karpf and Donna Foster

Member of the Public present: Joan Karpf, Lee Hallquist, Laura Spector, Leslie Bergum, Gardner Kellogg and Bill Dowling

Minutes taken by Rena Vecchio, Secretary

Pledge of Allegiance

Meeting called to order at 7:00 PM

Chairman John Birknes declared there was a quorum and asked the board to review the minutes of July 2, 2009. Bonnie Moroney made a motion to: accept the minutes as written. Charlie Cohn seconded and the motion passed with John Birknes, Charlie Cohn and Bonnie Moroney voting yes. Evan Karpf and Donna Foster abstained as they were not present at that meeting.

Next on the agenda was correspondence:
• The MWR asked for the release of the remainder of the bond for the driveway at the Hotel. Chairman Birknes said that as long as James Murn, from Provan and Lorber, and Stan Borkowski would sign off on the roadway, he would request the release of the bond. They all did and a letter to release the bond was sent.
• The North Country Council, Inc. sent a letter on “Ten Year Transportation Improvement Plan- Public Hearings”. NHDOT and GACIT (Governor’s Council on Intermodal Transportation) will hold Public Hearings in September and October to discuss 2011-2020 Ten Year Plan. The meeting in Twin Mountain is Sept. 21, 2009 at 7:00 PM, in the gym.
• LGC’s 68th Annual Conference, November 18-20, 2009 at the Radisson Hotel Manchester.
• “Movement of the Ammonoosuc River” a Presentation by John Field, PhD of Field Geology Services, 7:00 PM , Tuesday, 9-22-09, Littleton Lane Center. “The study, sponsored by the Connecticut River Joint Commissions, searched for riverbanks threatened by erosion, causes of channel instability, and places where floodplain conservation or riverbank restoration could lead to an even healthier river.” The study results will be used by NCC to assist the Ammonoosuc River Local Advisory. (Also, at the November 5th PLBD meeting, an hour has been reserved for Dr. Field to come and give a presentation to assist communities in using the study results and maps to guide future development along the River. Not in the minutes, put in for information only.)

At this point Bill Dowling had arrived. The secretary brought to the attention of the Chair and the Board that there was now a quorum for the ZBA with Leslie Bergum, Joan Karpf and Bill Dowling being present. There had been no notice of the ZBA gathering. The Chair felt it was not important as they had no voting rights.

Next on the agenda was Olga Jordan for a Lot Line Adjustment, Map 206, Lot 70/ Map 206, Lot 72, with Gardner Kellogg representing the Jordan’s. This was a consultation only. For a Lot Line Adjustment, abutters need to be notified but there is no need for a Public Hearing. These two lots are owned by sister/sister-in-law and they would like the brook to be the boundary. The Board pointed out errors on the map that needed to be corrected. The Town would need three copies of the map and a mylar.

Lee Hallquist was looking for a Lot Line Adjustment, Map 206, Lot 79/Map 206, Lot 81. A few years ago he had adjusted the boundary to build a garage on Lot 79. He never did build the garage and wanted to give the land back to Lot 81.This was a consultation only. Once again, for a Lot Line Adjustment, abutter’s need to be notified but there is no need for Public Hearing. Mr. Hallquist was advised that he too would need three maps for the Town and a mylar.

Bill Ferreria, also being represented by Gardner Kellogg, was looking into what he could do with his lots, Map 207, Lots 024, 003 and 004. This was a consultation to see how he could access his property, by road, driveway or if he could subdivide. What he is looking for is to build a house down the property by the pond and a garage hundreds of feet from the home by the entrance to the property. The Chair suggested he talk to the code enforcer, Stan Borkowski. Mr. Kellogg said that the garage would serve as a place to live while the home was being built. Also Lauren Road cannot become a Town road without first meeting Town spec’s and then going before the Town for a vote.

The secretary told the Board that January 19, 2010 is the last day for Public Hearings for any Warrant Articles or Amendments. On August 13, 2009 there was a workshop with the PLBD and ZBA. Minutes were written up by Joan Karpf. At this point the Flood Plan Management Amendment will be a Warrant Article. Chairman John Birknes said he had another item for a Warrant Article that he will explain later on in the meeting. A discussion took place to try to set up another workshop to go over ordinances/amendments. Chairman Birknes said he would go over the ordinances and regulations that Stan Borkowski had marked for review and get back to the secretary on a time for a future workshop.

Next was the Rines Excavation Pit for review. Chairman Birknes started by stating that several weeks ago Joan Karpf, Chair of the ZBA, called him saying that suddenly the ZBA was no longer the Regulators for excavations in Town. It was John Birknes’ and Joan’s understanding that the ZBA were the Regulator’s. Town Counsel, Laura Spector, had told the Select Board that the Regulators were the PLBD, per RSA 155-E, Section 1, page 1. Laura stated that the ordinances never specifically stated that the ZBA were the Regulators. Chairman Birknes stated he abides by what Town Counsel says even though he disagrees with it. Therefore he proposes this amendment for 2010 Town Meeting.

That the Town of Carroll zoning ordinance Article VI entitled “Excavation
of Earth Resources” be amended by adding a new first paragraph to
Section 602 entitled “Applicability” to read as follows:

“These regulations are adopted pursuant to RSA Section 155-E:11
and the Board of Adjustment shall be the regulator pursuant to
RSA Section 155-E:1. In the event of any conflict in these regulations
with the provisions of RSA 155-E, the provisions of RSA 155-E shall
govern; but any conflict in these regulations with RSA 155-E shall not
operate to void or eliminate those provisions of these regulations that
are not in conflict with RSA 155-E.”

Laura Spector, Town Counsel, said this was completely valid and would delegate the role of Regulator to the Board of Adjustment. Chairman Birknes asked if anyone wanted to present this amendment, he would entertain a motion. Evan Karpf made the motion to: that Article 6, Excavation of Earth Resources, be amended with language as stated. Charlie Cohn seconded.

Donna Foster asked the Chair how other towns do the Regulating. The Chairman said that if Towns have a PLBD, they would be the Regulators. If not, then the Select Board would be. Laura Specter spoke up saying that most towns the PLBD’s are the regulator’s because the applicants have to take the Site Plan to the PLBD. So the applicant has to see the two boards anyway. Joan Karpf, ZBA Chair said she felt our ordinance stated that the ZBA would handle Site Plans. Town Counsel said that the ZBA has no authority to approve Site Plans, it has to go before the PLBD.

Charlie Cohn asked if there were any time limits on permits. Joan stated she believed there were but was not sure what they were. Laura said she believed that the time limit was six years. Joan stated she thought it was two years.

Bonnie Moroney, select board representative for the PLBD, said she agrees with the PLBD being the regulators. She feels it gives the applicant a chance to go before another board to be heard.

Chairman Birknes called to vote on the motion on the floor by saying: all those in favor
of this motion going before a town vote say Aye. John and Evan said Aye. All those opposed , Charlie, Bonnie and Donna all said opposed. Chairman Birknes asked if Charlie was opposed and he said yes. Chairman Birknes then said “so you want the PLBD to be the regulators and Charlie said he was now undecided.” Joan said that if the board does not send this forth for a town vote and the PLBD remains the regulators, she would like the whole ordinance to be changed so that the ZBA did not have to go thru all that information and responsibility for it. John Birknes asked if Charlie was ready and he said he would like to have the ZBA retain it and John said to have this go to a vote and the answer was yes. The secretary asked if another vote was taken and the Chair said no that Charlie was undecided and cast his vote to have the article go for a town vote. So the decision was: three ayes to go before the town for a vote to change the regulators from the PLBD to the ZBA (John, Evan and Charlie) and two nays (Donna and Bonnie).

The certified letter that was sent to Bill Rines from the Select Board, seems to pose the them as the regulators instead of the PLBD. John Birknes proceeded to read the letter (please find attached). He said he did not understand how the selectman could tell someone they were in violation and tell them that they had three more months to do so until they would set fines. Evan then said he had asked from Rena, the secretary, things that were required by state. The Pit Agreement that was given to him is a contract between Bill Rines and Champagne Solutions, a company that wants to buy materials, not a pit agreement. He also requested a copy of the surety bond. The select board said he had one and so did Bill Rines. The office that gave the bond said that the bond had been cancelled and was no longer in effect. The plan that was given to him is a DES plan and not a reclamation plan.
Evan also felt that the abutters should have had the courtesy of knowing what the select board had decided to do, that is extending the time limit to November 30, 2009

Joan Karpf said she had a timeline and documentation to bring the PLBD and would be willing to read it to bring the board up to speed. Charlie asked, if he was in violation, what would the PLBD’s next step be. Chairman Birknes said if the court agreed with the violation they would send a cease and desist order. If that happened and the excavation continued, the PLBD could go to Superior Court. They have about $4000.00 and could probably go to court if the select board would sign the warrant. The Chair said he did not want to sit and castigate the select board or hurt Billy Rines. He hates that he is in this position. He then asks Town Counsel what she thinks. Laura Spector said there are two different sets of enforcement issues. There is the zoning issue and those are the ones in which the selectman stepped in. Then there are the excavation/regulator issues which the board of selectman did not step in on. Bonnie Moroney said that Mr. Rines has hired a lawyer and thru his lawyer has a pit agreement from (2001) JA McDonald, previous owner of the pit. The Town could not find any of the minutes from the meetings with McDonald and when the town talked to Mr. Rines’ lawyer he said he had copies of the minutes and would be happy to send January and February 2001. The minutes were vague, the motion was never printed, intents were there but that was all. The select board knew that the boards were looking for answers and abutters and neighbors were waiting also. The select board made the decision to send the letter, setting time frames and fines, thinking they could appease most. John Birknes said he understood as that is what the letter said. At this point, Joan asked again if she could read the timeline she had prepared. The Chair said to do so briefly. Please find the timeline attached.

Evan stated he would like to see Bill Rines just come into compliance, no fines, just compliance. John Birknes said he is not looking to hurt anyone, just to carry out the limited function they have as a board. That is why he says they are the reluctant regulators. Joan asked for clarification as to what the letter the selectman sent meant. Attorney Spector said it means he has until November 30th to come into compliance or be fined. Joan asked why the select board has the authority to have Bill Rines continue the excavation. Attorney Spector said they have the authority to do what they did because they are the enforcers and they decided to not enforce until November 30th and they are not violating state law.

Laura Spector said she thought a good first step would be to have Bill Rines in front of the board to ask questions. It was decided to ask for a Special Meeting for Bill and his lawyer. Evan said this would be an informational meeting, not a public hearing.

Donna Foster made a motion to: invite Bill Rines and Counsel to come before the board to address violations. Charlie Cohn seconded and the motion passed with one abstaintion.

Charle Cohn made a motion to adjourn. Evan Karpf seconded and the meeting ended at 9:00 PM.