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09/10/09 PLBD Minutes

October 1st, 2009

Town of Carroll Planning Board
Minutes
September 10, 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, Donna Foster, Evan Karpf

Member of the Public present: Darren McGinnis, Robert Warren, Todd Bailey, Ben Jellison, Ken Mills, Nancy Mitiguy, Joan Karpf, Bill Rines, Bruce Marshall (of D’Amante, Couser, Steiner, Pellerin P.A. of Concord), Edith Tucker, Jeff Duncan, Roberta McGee, Bill Dowling, Leslie Bergum

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 September 3, 2009. Corrections that are to be made are:
• third page, first paragraph, first line/take out the word “the” after the word pose
• third page, first paragraph, eighth line/take out word “not” and add” believed not to be”
• third page, third paragraph, second line/take out “he” and add “William Rines”
• last page, third paragraph, last word/take out “abstaintion” and add “abstention”
Evan Karpf made a motion to: accept the minutes of September 3, 2009 as corrected. Charlie Cohn seconded and the motion passed unanimously.
Chairman Birknes started by saying, this is a Special Meeting because this Board has been determined as the regulator’s under RSA 155-E, which was a statue enacted in 1989 or the same year we enacted our ordinance. The State decided to take over, to a great extent, the requirements for excavations, gravel pits, earth removal and that sort of thing. The extent that the State regulates RSA 155-E, it pre-empts anything the municipality does. So our ordinance is subject to 155-E, but those provisions that are not in conflict with 155-E, are still in effect. The State statue says that in a municipality where there is a PLBD, the PLBD will be the regulator, unless the town holds a town meeting and votes to have the ZBA or Conservation Committee to be the regulators. Chairman Birknes says he interpreted, along with others, that our ordinance said the ZBA were the regulators and that is where some confusion had started.
The case before us now, William (Bill) Rines Excavation, went before the ZBA under the ordinance to excavate 18,000 cubic yards on land that he owned. He got a variance, posted a bond and got ultimate approval and did the excavation. He then goes on the land and continued further excavation for another 20,000 cubic yards for highway purposes. The Chair said that one of the reasons that 155-E was passed was to make land or earth material available for governmental highway purposes. And then they give the owner of the land “a pass” as they do not have to get a permit. But certain other things are required:
• a variance - if the land does not allow for excavation
• a pit agreement – a pit agreement signed by the governmental unit receiving the material
• a surety bond or other surety that is sufficient to reclaim the land in accordance with the amount the regulator determines
The Chairman continues, stating that the Board has read a letter form the Select Board sent in the nature of a Cease and Desist in the future for failure of getting a variance. The letter, as he anticipated, is acting under Article VI of the town ordinance, which requires a variance, and has nothing to do with carrying out the requirements of 155-E. As the regulators, this board does no have:
• a pit agreement signed by the governmental unit
• a variance
• a bond for reclamation required by statue
So the Chair says, we are here today to inquire why there is no variance in place, why there is no pit agreement on file with us and why we do not have a sufficient plan that shows the area being excavated with the reclamation that is to being done and a bond for that reclamation.
The Chair then asks if there are any questions. Attorney Bruce Marshall of D’Amante, Couser, Steiner, Pellerin P.A. of Concord, introduces himself as the Counsel for Bill Rines. For the record he said a while ago he had requested that Evan Karpf be recused from any proceedings and he notes that he did not do so. It was reported to him thru state officials and members of the public, that he and his wife have been speaking out against Mr. Rines since this process began. Mr. Marshall says he has heard directly from State personnel that they were contacted by the Karpf’s. So he believes that they cannot be objective over the Rines Pit and he wanted that noted in the minutes.
Evan Karpf said he never heard of a letter or email that he was asked to recuse himself. He also said to look at last week’s minutes and how he said “he would like to see Bill Rines come into compliance, no fines, just compliance.” Evan said what he was doing was not looking into what Bill Rines was doing, but was looking into the authority of the select board. He said he would be objective and honest if Mr. Rines meets the criteria. Otherwise, he feels he would have a duty to follow his oath of office that follows both town and state regulations.
Attorney Marshall said he would like to address the three different concerns that were brought up:
• reclamation bond issue – there was a reclamation bond put out when Piper was the pit operator- bond was expired/released before pit was completely reclaimed unbeknown to Mr. Rines-as soon as he found that out they started work to put a bond back in place with The Rowley Agency- the town should have received a notice from them that paperwork has been submitted and a few questions still have to be answered but in the process (the secretary confirmed that the fax had arrived that afternoon)
• reclamation plan- one was brought in that afternoon (secretary confirmed)
• pit agreement- Mr. Marshall wanted to be shown where the Chair said a pit agreement was needed (Chairman said 155-E: 2 IV Highway Excavation)-Attorney Marshall said he does not believe they need such a permit- have permit for gravel pit-maintain they have variance from Town-sent his opinion to select board- the select board says they disagree and their records are not clear therefore giving the Rines excavation till Nov. 30, ’09- (at this point Chairman Birknes said the select board was talking under Article VI but the regulators can also impose the local ordinance- PLBD does not believe you have a variance the chair said)
At this time Attorney Marshall said, respectfully speaking, he will agree to disagree. But he does agree with Town Attorney Spector, that based on the action of the select board, they do have the equivalence of a variance until November 30, 2009. And whether or not the PLBD can take action contrary to that, he will respectfully disagree. Chairman Birknes asked him to what extent did he believe the select board had authority. Attorney Marshall said, not to debate the issue, but the select board has the authority to the full extent permitted by law and that is why they believe they have a variance until November 30, 2009. Chairman Birknes said it is his position as a retired attorney, and probably not admitted to the Bar in NH, that the only board that has the authority and legal right to issue a variance, is the ZBA and that is without question. He thinks statue 155-E is clear that this Board as regulator’s can also enforce local ordinances.
Evan Karpf said in the minutes of the June select board meeting, the select board had asked Bill Rines to bring in the variance that he had to continue the excavation for Lot 10. Evan said it has not arrived yet as he has not seen a copy, even thought he has asked for it twice. In those minutes mentioned, the select board told Bill Rines to cease excavation if there was no variance.
Attorney Marshall said he did respond to the select board’s letter stating that he believed Bill Rines had a variance. The select board responded to them with their letter of interpretation and giving them until November 30, 2009.
In respect to the bond, Attorney Marshall said he does not know how the Town could release a bond not knowing if the land was reclaimed or not. The bond should not have been released without the PLBD agreeing and also to notify the landowner of the land to be released. He does not understand the PLBD blaming Bill Rines for the Town releasing the bond, it is just not logical.
Chairman Birknes asked Attorney Marshall if he felt that the letter from the select board giving the excavation until November 30, 2009, meant he did not have to apply for a variance until November 30, 2009.
Attorney Marshall said his interpretation of the letter says, that by November 30, 2009, Bill Rines has to cease all excavation and sales or has had to apply for all the approvals. Because of the lack of records in the town hall, Attorney Marshall said the town did not know if the variance was valid or not. He actually sent the town the minutes, as they did not have them. At this point, Chairman Birknes interrupted saying that at this time our records show that we do not have a pit agreement, a variance or a reclamation bond. Attorney Marshall said to the Chair if he did not allow him to finish his sentence, he would not be able to answer his questions. Chairman Birknes said he did not believe he could answer that question anyway. Attorney Marshall said that they believe they do have a variance and we believe the Superior Court will agree with us. The Chair said you realize that if we go to court and are successful, that the burden of cost will be on your client. He asked, “Are you ready to go to court on this?”
Attorney Marshall said he will not discuss with this board in a public forum my client’s options. Chairman Birknes said are you going to advise you client to get a pit agreement, a variance and a bond after we have someone look at the land. Once we are done with the board, I will meet with my client and advise as appropriate. That is a confidential communication.
Charlie Cohn asked how long that would take, as he feels the board needs to take action. He feels that they cannot wait for Bruce Marshall to consult with Bill Rines to compare costs of a pit agreement, reclamation bond and a variance. Charlie wants to know if they are just being stubborn and or what. He says he is thinking financially what could happen.
Mr. Marshall said they have a reclamation plan, they are in the process of having the bond in place and they do believe they have a variance until November 30th. He understands their concern and respectfully declines talking about it. They were invited to the meeting tonight, not told what they were going to talk about and they are trying to work with the PLBD. He said he appreciates the frustration of the Chairman with the whole process. After working with many other towns on excavations, he feels the ordinances we have on this need to be cleared and cleaned up. He said that Bill Rines has a permit with DES and they still believe they have a variance. Evan said that the DES has nothing to do with permits. And he feels that the minutes of 2001 are very clear and states the variance as temporary.
Evan Karpf asked the board chair if he would recognize Joan Karpf as she had her hand in the air. Attorney Marshall said they were invited to a non-public forum. The chair said he can recognize anyone as he recognized him. Bruce Marshall said they were invited. Bonnie Moroney, the select board rep to the PLBD, said that Bill Rines and Attorney Marshall were invited to come before the PLBD to answer questions, not Public Hearing. Bonnie read from the accepted September 3, 2009 minutes,”Laura Spector said she thought a good first step would be to have Bill Rines in front of the PLBD 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.” The secretary was asked by Evan Karpf what she had said to Bill Rines and how she had advertised the meeting. She said it was an informational meeting, not a public hearing and that only the PLBD would be asking questions, because that was her understanding also.
Chairman Birknes read from the boards procedures on meetings and hearings. At this point, he called on Joan Karpf. Joan handed in a letter from DES dated July 2, 2009.
The letter talked about obligations to obtain other permits. This letter was sent to Bill Rines and the Conservation Commission which Joan Karpf is a member of also. The Chair said we believe that you need a variance and you believe you do not, so what do we do. Charlie Cohn said we, the board, have to go forward. Donna Foster asked if Bill Rines had gone before the ZBA requesting what to do next for the second variance. The Chair told Joan Karpf to respond. Joan said that Bill did come before the board in January asking what to do. In February he came back and was told that when LGC was asked about the direction Bill should take, they said he would have to apply again for a variance. In March and April the ZBA awaited the application.
Attorney Marshall said he wanted on the record that he was objecting to the testimony
that Joan Karpf gave, as she too had been asked to recuse herself.
The Chair asked for a motion for a Cease and Desist order. Evan Karpf made a motion: that since there is a violation of RSA 155-E and these necessary requirements stated IV A, B, C have not been fulfilled or provided to this board prior to any excavation, that the board issue as regulators a Cease and Desist Order to Mr. William Rines regarding his excavation in the Town of Carroll. Charlie Cohn seconded. Now the Chair asked if there was any discussion. Donna Foster said she does not want to see this drag on and on with all this legal mumbo jumbo. She said she does not understand why Bill Rines did not put in for another variance. Somehow his bond was dropped without any board relinquishing it. The select board has given him until November 30th to work towards becoming in compliance. If he has not started the process of applying by November 30th, then he has to cease and desist or be fined daily. The Chair feels that if they issue the cease and desist now, people have to act. Donna Foster asked Bill Rines if the ZBA suggested he get a lawyer. Bill said no but the word violation kept popping up at the ZBA meeting and he felt he was not in violation then or now. Attorney Marshall said there has been a great deal of confusion over this. There was confusion for Bill Rines, the ZBA, the Select Board and now the PLBD. We felt and still maintain that we have the needed variance. The plan for the reclamation has been in the office, it did not have the proper wording reclamation on it and that has been changed. We just found out that the bond had been cancelled and we have applied for and are in the process of getting another one in place. We just heard from the select board that they disagree with our interpretation and handed down their decision and time limits that they felt were fair to all. Bill Rines is going to great time and expense to work this out, because it is a difference of interpretation. Attorney Marshall said that he objects again, for the record, to any public involvement as that is not what they were told was going to happen.
Robert Warren was recognized next. He asked why the PLBD would at this time take action after the SB had done something. Chairman Birknes said that was not informative and he had already answered that. Next recognized was Ken Mills a select board member. Ken said that this whole ordeal was a learning process for everyone and that he hopes everyone is treated the same.
Chairman Birknes called for a vote for the motion on the floor. John Birknes, Charlie Cohn and Evan Karpf voted for the motion to issue the Cease and Desist. Donna Foster voted against the motion and Bonnie Moroney abstained. The motion passed.
The Chair asked for authorization from the board to sign the order. Evan Karpf made a motion: to authorize the Chair to sign the Cease and Desist order for the PLBD. Charlie Cohn seconded. John Birknes, Charlie Cohn and Evan Karpf voted yes. Donna Foster and Bonnie Moroney abstained. The motion passed.
Charlie Cohn made a motion: to adjourn the meeting. Evan Karpf seconded and the motion passed unanimously.

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