Town of Pelham, NH

Pelham Conservation Commission

6 Main Street

Pelham, NH 03076-3723


Meeting: 9/3/03                                              Approved 10/15/03


Members Present:                                                       Members Absent:

Robert Yarmo, Chairman                                            Frank Culbert

Sanja Kakkad

Marc Duquette

Deborah Scott

Paul Gagnon

William McDevitt, Selectman Rep.



Chairman Robert Yarmo brought the meeting to order at 7:36 p.m. at the Pelham town hall.


HEARINGS:  Map 2, Lot 5-75, Keyes Hill Road Realty Trust – proposed 7 Lot Sub-

Division (Parkside Drive Subdivision) – Dredge and Fill Application


Mr. Yarmo:  A site walk had been done in August by Conservation member Marc Duquette and himself with the Planning Board.  Before us is the dredge and fill permit for the crossing.  At the time of the site walk there was a concern that the roadway should be moved to the right to where there is a minimum impact crossing point (the narrowest point of the wetlands). The current plan before us is not the right plan.  The plan that is being reviewed tonight does not show the revised issues.


Mr. Duquette concurs with Mr. Yarmo, that it is not the revised plan.


Mr. Yarmo:  I don’t know if there is anything we can do tonight except to formalize our comments, in writing, to the Planning Board.  We cannot do anything with the dredge and fill permit.  This is not the plan that was submitted to the Planning Board.  This plan does not reflect the changes that were requested.


Mr. Yarmo:  We had two (2) problems we expressed to the Planning Board during the site walk:  #1 – Move the road to the narrowest point of the wetlands and,   #2 – move the driveway on lot 5-75-3 away from the stream.


Mr. Gagnon:  Can you show me where the road was to be moved to on these plans?


Mr. Yarmo:  The driveway doesn’t show up on the plan, Paul, and indicates the narrowest point of the wetlands.  Mr. Yarmo explains to Mr. Kakkad that the driveway is right in

Conservation Commission – Meeting of 9/3/03                                  Page 2


The middle of the streambed.  The plans that we saw a couple of weeks ago at the Planning Board were revised and the road had been moved.  We should formalize our opinions, in writing, so that they have a record on it.  Basically there were three things that we talked about during the site walk:  Moving the road, relocating the driveway away from the streambed, and the most significant land is the wetlands on lot 5-75 where there was a huge tree there that shaded the wetlands.  It was discussed at the site walk to save that tree to allow it to shade the wetlands.  We also talked about mitigation, but I don’t think we are going anywhere with that.  In order to save the tree for shading of the wetlands, that it be protected with construction fence until construction is complete, referring to lot 5-75-3, a 2.2-acre lot.  The lot has the biggest wetland on it.


Mr. Kakkad:  Does lot 5-75-3 wrap around to lot 5-75-8?


Mr. Yarmo:  No, I think they are going to deed that to the town; there’s something about that being in the right-of-way to an old railroad bed.




Mr. Yarmo:  Requests a motion to send the following comments to the Planning Board: Moving the road, and relocating the driveway.


MOTION:  (Sanjay Kakkad/Marc Duquette) That the Planning Board be advised, in writing, that the plan submitted with the dredge and fill permit did not show the changes, and the Conservation Commission cannot act on this application this evening.


VOTE:  5-0 in favor of not acting on this application tonight.


Paul Gagnon:  This is a dredge and fills application to the state of New Hampshire and has the old plan attached, is that correct?  Therefore, our comments conflict with what’s been submitted to the state of New Hampshire.


Mr. Yarmo:  The Wetlands Bureau is going to wait for our comments.  I will tell Jim Gove (Gove Environmental Services) that it did not have the revised plans with it.  He will re-submit it.  I don’t think DES would approve this plan anyway because it doesn’t cross the wetlands at its narrowest point, it doesn’t minimize the impact.


Map 12, Lot 203-14, Ronald and Elizabeth Carrick, 44 Mulberry Lane, Special Permit to install an in ground swimming pool in the Wetland Conservation District.


Mr. Yarmo:  The Carrick’s are applying for a ‘special exception’ to locate an in ground pool for a house that is two (2) years old. This was brought to the Planning Board.  It is a request to install an in-ground pool in the vicinity of the WCD.  I showed a photograph of the back yard two weeks ago that showed grass and a garden area in the back yard.  The

Conservation Commission – Meeting of 9/3/03                                  Page 3


problem is, the history I got from Clay Mitchell was that the house is 2-years old and

when the homeowners moved in the builder had cleared trees in the WCD.  Also, the wellhead is actually located in the WCD.  It was explained that the fence for the pool is around the wellhead. The pool would actually be in the WCD.  The WCD doesn’t really exist as its been cleared.  It now has a garden and grass area.  They have taken the proper steps to come through the Planning Board.  I believe the Planning Board approved it based on our recommendation and was consistent with Clay’s remarks.


PUBLIC INPUT:  Alicia Hennessey, 71 Dutton Road, recommended that the Conservation Commission send a letter to the Carrick’s stating that there is to be no fertilizer used in the buffer zone.




MOTION:  (Sanjay Kakkad/Deborah Scott) to send a note to Carricks’advising them of no use of chemical fertilizers in the WCD.   VOTE:  5-0 to send letter.


Map 34, Lot 6-206, David Mendes (54 Jericho Road), Proposed 5-lot Subdivision


Mr. Yarmo:  Frank Culbert, Paul Gagnon and Deborah Scott did a site walk.  The application has been submitted but there is a need for an environmental report before any decisions are made.  The builder wants to add five (5) five more lots at the end of Irene Drive.


Paul Gagnon:  You come up Irene Drive a ways and Robin Road is on the left.  One of the questions that I am going to refer back to is the distance from Robin Road to the end of Irene Drive.  To get to the end of Irene Drive, and the proposal is to put a road in, to continue Irene Drive and to put five (5) lots off of that continuation.  I believe what the Planning Board has, and what I learned from the site walk was is that they want to gain connectivity and they would like Irene Drive connected to Thomas Avenue.  If you were to extend Irene Drive 900-ft you could connect to Thomas Avenue.  Problem is you go through 100-ft of standing water.


Mr. Kakkad:  Is this a field (looking at the plan)?  This field is soaked.  I know this field; I’ve lost sneakers in this field and have gone down 2-ft into the mud when I walked in this area a few years ago.


Mr. Gagnon:  There are wetlands all around this area.  As you walk down this road there is a wetland to the left and Beaver Brook to the right, and straight ahead of you is a wetlands that connects to Beaver Brook.  It’s a major wetland.  There is probably 100-ft of standing water.  Gove (Gove Environmental) said it was a 200-ft wetlands crossing, meaning you were in the WCD, 50-ft on either side and 100-ft of standing water.  I view this one as a lose, lose, lose.  Here’s why – it’s a lose for the builder.  He’s got to put in 900-ft of road built through the wetlands, God knows how deep he’s got to dig to get to

Conservation Commission – Meeting of 9/3/03                                  Page 4


anything that is solid in order to put a road on it.  He’s got to put a long road in that he doesn’t need to by putting five (5) homes in.  The profits from two of the homes is gone because of the road.  I don’t see how the builder wins on this.  From our prospective, we lose due to violating the wetlands.  The town highway department would have 900-ft of road to maintain.  The only advantage, other than connectivity, is why isn’t there some compromise.  Why can’t there be three (3) homes instead of five (5).  By having a 200-ft extension, there would be frontage on the left side of the road, frontage on the right side of the road and one at the end of the road.  They could go before the Zoning Board of Adjustment (ZBA) for approval.  I’ve got to believe the builder would make just as much money building three (3) homes versus building five (5) homes with a 900-ft road.  You wouldn’t be violating the wetlands, and yes you wouldn’t have the connectivity, but is three (3) more homes off Irene Drive going to push us over the edge where you have to have connectivity.  There are a lot of homes on Irene Drive already.


Deborah Scott:  Question, what is the current length of Irene Drive, the cul-de-sac and what is the required length?


Mr. Yarmo:  Per the sub-division regulations it is 2400-feet. 


Mr. Gagnon:  I don’t know if I would be over-stepping my bounds, but I think Peter Zohdi is the engineer.


Mr. Yarmo:  I bumped into David Mendes at the selectmen’s office last week.  He said he would gladly discuss the issue, but felt he is between a rock and a hard place if DES doesn’t approve the dredge and fill permit and with the Planning Board if they insist on road connectivity.  He’s open to discuss deeding the balance of the land to the town; there are 21 acres to this parcel.  He didn’t completely “nix” the idea.  My question is if you (Mr. Gagnon) would want to talk to Peter Zohdi about perhaps pursuing that option with the authorization of the Conservation Commission?


Do we want to authorize Paul to meet with Peter Zohdi about the possibility of reducing the number of lots?  We will know more when the environmental report comes in.  There is some history on this as well.  When the previous sub-division was approved, Jim Gove came up and did a presentation.  I wasn’t on the Conservation Commission at the time but the meeting minutes indicate that Gove said it wasn’t likely that DES would approve the crossing.  Does anyone have an issue with Paul speaking with Herbert Associates?  Members in agreement to have Paul meet with Mr. Zohdi are:  Sanjay Kakkad, Deborah Scott and Marc Duquette. 


Mr. Gagnon:  The ZBA asked if that was the only house that they planned to put at the end of Irene Drive, and the answer was no.  The ZBA denied it. 


Mr. Yarmo:  We will schedule this again for our next meeting.

Conservation Commission – Meeting of 9/3/03                                  Page 5





Alicia Hennessey, 71 Dutton Road:  She was on the Conservation Commission when Irene Drive was proposed.  There were many wetlands in question.  Mr. Gove said he would have a problem with chopping up the wildlife corridor and questioned if the state would allow it.  Ms. Hennessey was reading information from the Planning Board minutes.  The Natural Heritage Inventory did find species that were protected she says. The report suggested, “As much as can be should be protected along Beaver Brook.”


Map 31, Lot 11-263,  Bruce MacDougall property owner/Collier Masonry to repair an existing shoreline retaining wall – seeking Minimum Impact Expedited Dredge and Fill Application.


Mr. Yarmo: This came before us a while ago.  What happened was they filled out a minimum impact expedited dredge and fill application. What they are doing is repairing an existing retaining wall on the shore of Little Island Pond.  The application didn’t have enough information on it.  We requested Collier Masonry to write a letter explaining the scope of work.  According to the letter, they seem to have enough concern in protecting the water in the pond.  A photo was submitted that shows the house and the retaining wall.  We had asked Collier Masonry to identify the repair a little more in how they are going to do the repair and not disturb any roots.  They have even decided to put in a turbidity fence that would prevent siltation and dirt from going into the water


Marc Duquette:  The issue is, for those of you that weren’t here, is there wasn’t enough information on the application relative to the Shoreline Protection Act.  When someone is going to conduct certain activities within the 250-ft of the shore, they need to do certain things.  It wasn’t clear what the scope of work was.  It’s a simple repair on Little Island Pond.


PUBLIC COMMENT:  No public comment.


Mr. Yarmo:  If that’s okay then I need someone to make a motion to sign the minimum impact, expedited dredge and fill application.


MOTION:  (Marc Duquette/Sanjay Kakkad)  To approve and sign the minimum impact, expedited dredge and fill application.


VOTE:  (5-0).




Map/Lot Number:  ML7-41, (ZBA Case #2243), David Bibeau, d/b/z: Oscar’s Removal, 36 Atwood Road – parcel is located between route 38 and Atwood Rd.

Conservation Commission – Meeting of 9/3/03                                  Page 6



Mr. Yarmo:  Informed members that this case had gone before the ZBA who had granted a waiver to construct a building within 7-ft. of a buffer to the Primary Wet Lands.  A quarter of the building, as I understand, was going to be 7-ft away from the prime wetland designated soils.  I appeared in front of the ZBA and wrote them a letter telling them how important the prime wetlands were to Pelham to allow that use.  What the ZBA did was approved the use based on a positive recommendation from Department of Environmental Services (DES) Wetlands Bureau.  Being prime wetlands, it makes it an adjacency issue.  For those of you that are new, prime wetlands has special categories – has a special status with the state.  Anything that affects it is called adjacency.  I thought the adjacency issue applied.  The ZBA deferred it to the DES.  I wrote a letter to the DES explaining the situation back in February.  About a month or so ago, Dr. Richardson called me, it was on a Thursday, to see if we could meet Friday.  On that Friday I met with Dr. Richardson and Jeff Orchards, the wetlands scientist for the applicant.  At that time Dr. Richardson thought there was an adjacency issue and stated there needs to be a public hearing.  At that time I really didn’t know how to handle it.  I didn’t particularly want to spend the Conservation’s money in our budget on defending the ordinances.  I kicked it around with Clay Mitchell and I emailed Bill McDevitt and had a couple of emails back and forth and met with Clay.  I chatted with Sanjay and Marc about it at a forestry meeting.  They didn’t seem to have an issue with what Clay had recommended.  What Clay had recommended was that I go to the Selectmen to ask for funds to support expert testimony at the public hearing, which was today by the way.  In the meantime a ZBA member was somewhat upset by my actions.  At the initial meeting with the selectmen, there were only 3 selectmen there; we approved the amount of $500.00 to support an expert to go testify at the hearing.  It was re-visited at another meeting which I explained the whole process and how I got to ask the selectmen for the $500.00.  One selectman, Victor Danevich, suggested that I didn’t have Conservation’s authority to do that because I didn’t bring it up at that meeting, that the selectmen had approved the $500.00.  I promised the selectmen that I would bring it up before the Conservation Commission this evening for a formal vote, that I indeed did have the authority to do what I did.


Mr. Gagnon:  In other words, had you brought it before the Conservation Commission before you had gone to the selectmen, and would the Conservation Commission have approved that action?


Mr. Yarmo:  Yes, that’s the question.


Mr. Kakkad:  Well we did have a formal vote; he had come to us before.


Mr. Yarmo:  I discussed it with Marc and Sanjay just briefly, I didn’t want to spend our money to do this, and I really didn’t know how to handle this.  In the discussion I had with Clay I didn’t know if this guy was going to get a building permit or not.  He may


Conservation Commission – Meeting of 9/3/03                                  Page 7


have gotten ZBA approval and DES approval, but what other hoops does he have to go through to get a building permit.  Clay suggested “we fight it at the first front, at DES”.


Mr. Gagnon:  My gut feeling is we should be resisting building in the wetlands to begin with and secondly it doesn’t seem like something we should be closing our eyes to.  You walked it with someone from the State, and Frank Richardson is a bright and knowledgeable guy.  He said we need a public hearing then that all sounds legitimate and we should have an expert witness testify, we’re familiar with Mark West.  Again, in retrospect, but from my prospective I would have supported anything we could have done to protect the wetland.  To spend $500.00 to have Mark West testify sounds like the reasonable thing to have done.


Mr. Yarmo:  I hope it works.  Does anyone else have any comments for or against that action I took?


Deborah Scott:  Concurs with Mr. Gagnon’s statement.


Mr. Yarmo:  So Deb you’re okay with it and Sanjay you’re okay with it and Marc you’re okay with it?  All answered in the affirmative.




William McDevitt, Selectmen Representative:  Can I offer a process comment, if I can?  Speaking for myself, not the Board, one of the critical things is you have an obligation to take a public vote first of all, and second of all you could wind up in court.  It’s important to have a recorded vote.  In the event that you are in an emergency, you can take a phone poll and vote on it at the next available meeting.   There may be some quibble over the definition of what is an emergency because, in fact, it’s supposed to be an emergency.  It was tomorrow and you just had to do something and you couldn’t get everyone together.  Absent a recorded vote, someone could argue that the Commission had no authority.  I think that is where some of the concern was.


Mr. Yarmo:  Thank you, I really appreciate that.


Mr. Duquette:  In such a circumstance, say the hearing is 2 days out and Bob sends out an email and we all respond to him, can that be formalyzed into a formal vote per se’?


Mr. McDevitt:  No.  The Legislature is looking into the impact of email on ‘the right to know law’.  Right now it is not a legal vote.  I don’t feel qualified to give you a legal opinion on it.  If you look at the state law right now, it completely excludes email as a way to communicate with anyone.


Mr. Duquette:  How would you conduct an informal vote over the phone?


Conservation Commission – Meeting of 9/3/03                                  Page 8


Mr. McDevitt:  There is no record of email.  In one court case in the state that has raised some concerns, the individual responded to emails that were relative to town business and when the matter was brought into court his computer was confiscated, including all his

personal stuff that was on the computer.  It’s a slippery slope and completely undefined in the law.  I suppose you could take a poll by email, but it’s critical that you re-confirm it at the next available meeting.  It shouldn’t be casual, it should be done when you are in desperate straights - you couldn’t reasonably call a meeting, you can’t reasonably get a quorum together in 24 hours notice, etc.


Mr. Yarmo: I need a motion to give me the authority to solicit $500.00 to supply expert testimony at the Wetlands Bureau hearing of Oscar’s Removal.



MOTION:  (Sanjay Kakkad/Marc Duquette) for Mr. Yarmo to have authority to solicit $500.00 for expert testimony to be heard before the DES on Oscar’s Removal business item.


VOTE:  (4-0) in favor of Mr.Yarmo requesting these funds. 

Mr. Gagnon recluses himself and said that he probably should not vote, that he is not an abutter, but lives within 400-ft of this parcel.  It may be viewed that I have a conflict of interest says Mr. Gagnon.


Mr. Yarmo:  So noted.


Map 30, Lot 11-93, Dutton Road Elderly Housing, Smith Rd. (Cormier & Saurman)


Mr. Kakkad:  Feels it would be a good idea to have Dr. Richardson come down to look at adjacent land off Dutton Road owned by Saurman for the proposed elderly housing.  It is next to the Picard property.  There are special environmental issues and has a lot of the same traits and characteristics that are in question now.  I feel that it would be worthwhile to have him come down says Mr. Kakkad.


Mr. Yarmo:  Do you agree Deb and Marc.  Answer; yes it would be a good idea.  Mr. Yarmo will invite Dr. Richardson to view this property, but it’s unknown if he will come down.  Mr. McDevitt was asked if this was okay to do.


Mr. McDevitt:  Information doesn’t hurt anybody.  Some people may say that you shouldn’t, but all you are looking for, if I’m correct, is looking for information.  The applicant shouldn’t worry about that.  From your prospective it’s good, things are right up front.  You are dealing more with facts.


Mr. Yarmo:  I think it is going to come up at a Conservation meeting here, so I just want to get a jump on it.  The applicant would probably appreciate the timing of it if nothing else.


Conservation Commission – Meeting of 9/3/03                                  Page 9



Mr. Gagnon:  Shouldn’t there be an environmental impact statement?  The Planning Board has asked Mark West to do a site walk and wetlands delineation.  That was done.  Isn’t an environmental impact statement required?


Mr. Yarmo:  The Planning Board did ask for an environmental impact statement, but I haven’t seen it yet.  We should expect one shortly.


OTHER:   Old Home Day


Mr. Gagnon asked what Deb had planned for the booth at Old Home Day.  Deb explained that there would be posters, LCHIP information, and up-dated maps of conservation lands, handouts relative to open space and what people can do on a daily basis.  There will also be a raffle of a fall plant.  Also there will be a pledge sheet for people to sign to endorse a bond at the up-coming town election to buy open space.


Mr. Yarmo introduced and welcomed new members Deborah Scott, Paul Gagnon, and Shirley Wakefield as an alternate.  Bob, thanked them for their participation.




5/14/03 – Correction needed on last paragraph


2/12/03 -  Add map and lot number to page 1 (Oscar’s Removal)


MOTION TO ADJOURN  (Sanja Kakkad/Paul Gagnon)


Vote:  5-0 to adjourn


Meeting Adjourned at 8:42 p.m.


                                                                        Respectfully submitted,



                                                                        Glennie M. Edwards

                                                                        Recording Secretary