Walpole Zoning Board of Adjustment
November 16, 2016
Present: Board Members: Chair Myra Mansouri, Vice-Chair Jan Galloway-Leclerc, Mary Therese Lester, Judy Trow, Tom Murray. Alternate: Ernie Vose came in a few minutes late.
Recording: Marilou Blaine. These minutes are unapproved and will be reviewed at the December 2016 meeting for corrections, additions and/or omissions.
Roll Call: Ms. Mansouri called the meeting to order at 7:35 pm. There was a full board so an alternate was not needed to fill in.
Minutes: Ms. Lester made a few corrections – adding a word in two instances, deleting a word, correcting one misspelling. Ms. Leclerc asked that the name of George Graves be struck as an owner of the Graves pit as he was now deceased. Ms. Trow made a motion to accept the October minutes as corrected. Ms. Lester seconded the motion and it was passed by the Board.
Public Hearing 1
Lewis Jeffrey property. Variance setback from the road. Old Keene Road and Hooper Road. Map 8, Lot 8 and 8-1. Residential A Zoning District.
Mr. Joe DiBernardo was representing Mr. Jeffrey. Ms. Mansouri recused herself because she is the real estate agent for the sale of the Jeffrey property.
Mr. DiBernardo said that the property was two parcels and there were two houses on the property. The parcel nearest Old Keene Road has an incorrect deed because a house that is supposed to be on that lot is not in the deed. So the lot was extended to include the house and make it as conforming as possible.
Neither house meets the setback from the road, Mr. DiBernardo said. They are only 55 feet from the center of the road.
Ms. Leclerc said she thought the variance was for a setback for the house that was too close to the property line on the side. Mr. DiBernardo said he thought the setback was 25 feet from the side boundary. But when he found out it was 20, the houses conformed to the ordinance. The house is 22 feet from the side boundary.
In that case, Ms. Leclerc said, there is no need for a variance because the setback from the road is grandfathered since it’s been that way prior to zoning regulations. After some discussion Ms. Leclerc made a motion to send a letter to the Planning Board stating that a variance for a setback from the road was not needed because the houses were grandfathered. Ms. Lester seconded the motion and it passed unanimously.
Mr. Jesse Carr was speaking for Mr. Stephen Pena who is a chiropractor at 40 Main Street. Mr. Pena wishes to place a sign over the south window at 40 Main Street building. He had a letter of permission signed by the owner of the building, Dr. Dennis Pellegrino.
The sign would be similar in style to the one already on the building at the south Main Street window. It would be the same width but be shorter length because there are fewer letters. All letters would be capitalized and it would read CHIROPRACTOR. The raised letters would be on a gray-blue board, similar in color to the house next door.
A board member asked Mr. Carr how far it was from his sign. He said 30 to 40 feet. The 100-foot rule was noted. Mr. Carr said he didn’t realize an exception was need if the signs were on a building.
Practically all the signs in the village have needed special exceptions to comply with the ordinance, Ms. Leclerc said.
The sign ordinance stipulates that:
“Signs of six (6) square feet may be placed between ten (10) and sixty (60) feet of traveled roadway and between twenty (20) and one-hundred (100) feet of another sign by Special Exception from the Board of Adjustment when the Board is satisfied that the provisions of Article IV will be met and that the sign as placed will not have any adverse effect on abutting properties.”
A motion was made, seconded and passed to hold a Public Hearing next month (December) at the regular meeting for the Special Exception.
Matrix. The Board looked at the final draft of the Matrix and Ms. Trow said that a few arrows were missing. The secretary said that since the document was a PDF, she could not make changes to the document and the arrow wasn’t there when the document was sent to her.
Ms. Trow said she will make the final changes, send the document to the secretary and she will make copies for the next meeting.
New Procedure: Ms. Mansouri said a new procedure is in place for anyone who requests information from the secretary. The person must first contact the chair, give a couple of dates when to meet and then the chair will arrange a date that’s convenient for both parties.
Ms. Patricia Rodrigues of Westmoreland said that the law requires a hard copy
Ms. Mansouri said, “A hard copy is our minutes.”
Ms. Rodrigues said that she said a lot of things that aren’t weren’t mentioned in the minutes.
Graves Gravel Pit:
Ms. Patricia Rodrigues of Westmoreland was at the meeting and wanted to make a statement about the Graves Pit in Walpole and convince the Zoning Board that they had jurisdiction over the gravel pits in town and that Tim Graves had several violations. She also said that the town has been in possession of all these documents pertaining to the violations and that Mr. Tim Graves, because of the pit had grown from the original 8 acres to 18 acres, the expansion was considered an “Expansion of a non-conforming use,” which means he has to go to the Zoning Board for a special exception.
She read from a prepared statement and referred to zoning ordinances, letters from the Department of Environmental Services, excavation reports, etc. In these minutes her letter is in regular type and the information from letters, ordinances etc. is in italics.
While Ms. Rodrigues was talking, Mr. John Corduff filmed the board without telling the board that he was doing so. It was only after someone asked him if he was filming that he said yes he was.
Here is her letter:
“To All Boards Addressed: 3.
This letter is to inform your Town boards that, per Article IV, Section E- Removal of Sand and Gravel, of your town’s Zoning Ordinance, also per Section IV – Projects Requiring A Permit and specifically Part C of your town’s “Regulation Governing Earth Excavations,” the George Graves Revocable Trust Gravel Pit is currently out of compliance, and has been for some time, and must now obtain a Town Excavation Permit.
As the Gravel Pit lands are in the Rural/Agricultural District, and due to the fact that the pit has expanded from its now null-and-void pre-2013 grandfathered status/size of 8 acres, to 18+/- acres, the expansion is considered an “Expansion of a non-conforming use, as described in Article X of the Zoning Ordinance, and must apply for a Special Exception, as in article VIII, Section C – Special Exceptions, and further, follow through with the usual Application for Excavation, as described in Section XIV of the “Regulations Governing Earth Excavations.”
The Town of Walpole has been in possession of all the necessary documents, which support these facts, including (all now attached) the:
Walpole ZBA Excavation report for sites established before August 24, 1979 – which state the Permissible Limits for the excavation site was the Westmoreland line.”
The report says, “Permissible limits. Westmoreland town line on south is a B&M railroad bed on West side – North & East side – our own property. Signed by George and Freda Graves on July 15, 1991.
‘NHDES 2013 Letter of Deficiency LRM 2013 -023, dated Nov, 2014 – which states that 10.4 acres had been excavated in Walpole, NH, and 2.5 acres had been excavated in Westmoreland, NH.”
The Nov. 4, 2014 letter from DES concludes:
1)The original gravel pit, located on the town of Walpole Tax Map 1, Lot 16, had been cleared in an amount of approximately 454,117 square feet (10.4 acres) without an Alteration of Terrain Permit from DES.
2) The newer excavation, located on the town of Westmoreland Tax Map 17, Lot 29, has been cleared in an amount of approximately 110,000 square feet (2.5 acres) without an Alteration of Terrain Permit from DES.
Walpole Tax Card for the George Graves Rev Trust gravel pit property, at Map 1, Lot 16 – which states that at least 9.94 acres is listed as ACTIVE GP, and that a LUCT action was called for as early as July 2014.
Tax Map Into – 7/14 per infor of DES/DRA & review of aerial pics total disturbed area is 10.86 acres and as such a LUCT (Land Use Change Tax) is required.
NHDRA 2016-2017 Notice of Intent To Excavate – which erroneously states in section 9 that the ‘Total Permitted Area’ is 8 acres.
Ms. Rodrigues said that every year the selectmen sign the Notice of Intent To Excavate and every years it’s 8 acres, but actually they must know it’s more than that.
The Department of Revenue Administration document says the total permitted area is 8 acres.
Alteration of Terrain Permit Application, dated 12/16/13 – which show state AoT permits is for 18.7 +/- George Graves Excavation Permit AoT – 1154, dated August 31, 2016 – which states in item No. 6 that permit DOES NOT RELIEVE THE APPLICANT FROM THE OBLIGATION TO OBTAIN OTHER LOCAL, STATE OR FEDERAL PERMITS THAT MAY BE REQUIRED.
Ms. Rodrigues said the Selectmen received this permit for 18.7 acres, which is more than the grandfathered 8 acres.
- The AoT permit states that “This permit does not relieve the applicant from the obligation to obtain other local, state or federal permits that may be require (e.g., from US EPA, US Army Corps of Engineers, ets.). project disturbing over 1 acre may require a federal stormwater permit from EPA Information regarding this permitting process can be obtained at: http://des.nh.gov/organization/divisions/water/stormwater/construction.htm.
Ms. Rodrigues said that it’s been 32 months since that statement was issued and so far no permit has been obtained by Mr. Graves.
- The proposed stormwater containment/infiltration basin, as identified on sheet D of the project plans shall be constructed to the horizontal limits and elevations shown on the drawing entitled “Revised Drainage Pond Hydrologic Analysis, George Graves Excavation Site, Outcrop Edge/Bedrock Edge”, dated August 15, 2016. This was in bold in the letter.
Article X11 Section B Administration and Enforcement. “It shall be the duty of the Board of Selectmen, and the Board is hereby given power and authority, to enforce this Ordinance. “
B-2 The Ordinance also says “Upon any well-founded information that this ordinance is being violated, the Board of Selectmen shall take immediate steps to enforce the provisions of this Ordinance by seeking an injunction in the Superior Court or by any other appropriate action.”
“Last month we came here and you said go to the Selectmen and I went there and nothing.”The Board of Selectmen has allowed the Graves pit to illegally expand. “I’m not going to take the run around, and I’m not going to take it any more. It has taken a very great toll on our lives.”
The letter continues, “Also, as abutters of the Graves’ various properties, we are filing a complaint concerning several instances of blasting, which have shaken our home, which have been performed in the Gravel pit in the last few weeks without our notification nor obtainment of the required Town permit. Also, others, who are mandated by law to be notified have not been notified either, as we learned when we called the Walpole Police Chief on November 7th with our complaints. It appears this blasting is associated with item #8 listed on the Gravel Pit’s AoT-11154 permit (construction of a proposed stormwater containment/infiltration basin) WHICH SHOULD NOT HAVE BEEN INITIATED WITHOUT OBTAINMENT OF THE REQUIRED TOWN EXCAVATION PERMIT.
“We expect that this well-founded information being provided demonstrates that Walpole Zoning Ordinances are being violated and that the Board of Selectmen shall take immediate steps to enforce the provisions of said Ordinances via appropriate action (per Article XII, Section B), and blasting, and all work in the now illegally expanded gravel pit shall Cease & Desist until all proper town, state, and federal permitting has been obtained.
“Patricia Rodrigues and John Corduff, 52 Old Route 12 North, Westmoreland, NH 93467”
Ms. Pam Clark of Westmoreland said she didn’t know why something hasn’t been about this problem. “I don’t know why things are going on like this. I don’t know what you people are doing. You are dragging your feet on this, ignoring that things are not being done properly. The board is quibbling about about a sign and this is about blasting without a permit. I would think you would more concerned about it.” And we’re talking about a gravel pit and blasting that’s going on with out a permit.
“I would think you would be more concerned about the blasting and the abuse of the land in your town. I think it’s disgraceful. I have no idea why you’re doing this, what you’re getting out of it. ..It baffles me that three years, this woman had had to fight this situation. And has gotten nowhere. What do you have to say for yourselves? Please explain to us. Is somebody on the take? Is this because he’s an upstanding person of the community. You’re on their side and covering things for them. …Speak. Would someone speak to what’s going on? Why is this being allowed? I think we’re all entitled to hear. Anybody?”
Ms. Trow said you only came to us last month with this problem.
Ms Rodrigues said three years ago she was battling with the selectmen in Westmorelland. And she said she went to the selectmen.
Ms. Clark said that areas was designated “rare habit area. And that’s gone.”
The rail trail has been broken through – there’s a big gap in it. “Have any of you walked back there and seen what it looks like? She asked.
“It’s interesting that every year you fill out your gravel inspection reports and there was never ever mentioned that they went 21/2 acres over the town line into Westmoreland, “Ms. Rodrigues said.
This pit has a regional impact, she continued. It’s rural agricultural. It used to be beautiful. “We loved hiking in the area. For 17 it was nice forest and now it’s total destruction. “
Ms. Clark said she spoke to a couple of people about this and one said, “I used to walk my dog on that area and don’t anymore. It’s a mess.”
Ms. Leclerc said that as far as this Board has been aware, the pit is grandfathered.
For 8 acres, Ms. Rodriques said. For at least three years.
Mr. Chuck Weed who has been in the NH Legislature for Keene for several years and is now a County Commissioner commented that he has been aware of this issue for three years. I became aware of it when I was a Legislator in Concord.
“And it’s ongoing.” he said “The biggest surprise to me was the inability of a citizen to get accountability from the Walpole selectmen, from DES, from the Department of Transportation – all of whom have some relationship with the permitting process.
“So I am kind of appalled as an elected official. I thought I had an idea about what the town and local leadership was about but how can a person get accountability for a well-document situation.”
This is hugely complex. “I’ve seen all the documentation. It’s overwhelming. But this explanation and those documents seem easily understandable. How can you not listen after this well-documented presentation? It’s a complex case. It’s very straight-forward. I sympathize with this person.”
Ms. Leclerc said that a lot of information had been presented and she wanted to look at the documents before commenting. It was decided that the secretary would make copies of the documents for the Board and the matter would be discussed at the next meeting.
Mr. Murray asked if her house was in Westmoreland. He said apparently there are a lot of rules already in place that need to be followed. He was referring to the rules the Westmoreland Planning Board imposed on Mr. Graves.
Ms. Mansouri said that at this point there was nothing we can say until we see the documents.
Ms. Clark said it seems each passes it off on another board. “Who’s in charge?”
Ms. Mansouri said each board has its own function and the Selectmen are the enforcers.
Mr. Tim Graves said he called the secretary at the Town Hall and she is supposed to notify the police and fire department before the blast.
By law you have to notify an abutter with 250 feet. “She (Ms. Rodrigues) is a lot further than 250. He said he refused to notify Ms. Rodrigues as she lived in another town.
At this point everyone was talking at once. A motion was made to adjourn, it was seconded and passed by the board.