BOA20070910.mht

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 10, 2007

The Chairman, Mr. David H= ennessey called the meeting to order at approximately 7:00 pm.

The Secretary, Robert Mol= loy called roll:

PRESENT:

ABSENT:

David Hennessey, Peter McNamara, Svetlana Paliy, Robert Molloy, Alternate Lance= Ouellette, Alternate Bill Kearney, Alternate Ken Dunne, Planning Director/Zoning Administrator Jeff Gowan

Kevin O’Sullivan<= /p>

CONTINUED

Case #2381 TEE PEE Realty Trust - 30 Hillcrest L= ane – Map 42 Lot 10-131 – Seeking an ‘Area’ Variance to Article III, Section 12&14 to permit a lot with frontage on an unimprov= ed paper street and access to dwelling of frontage less than 200 feet of contiguous frontage on a public right of way.

Mr. Hennessey appointed M= r. Ouellette to vote. He said no additional public input would be taken unless there were specific questions regarding the site walk that was conducted.

Mr. Molloy read the minut= es from the site walk aloud.

PUBLIC INPUT

Mr. David Cronin, 6 Westv= iew Terrance, asked if any members of the Board looked at the pond on the property. Mr. Hennessey said = he walked quite a distance in the back, but didn’t make it to the pond.<= span style=3D'mso-spacerun:yes'> Mr. McNamara said the Board was wa= rned off because of the poison ivy. Mr. Cronin said the pond was accessible from the other end of Hillcrest. He said his reason for the questio= n was because of the concern about the runoff into the pond, not only from the Boulder Hill development, but also the effects of additional development. <= /p>

Mr. David Aubin, 15 Melody Lane submitted aerial photographs to the Board showing the pond.

Mr. Peter Zohdi of Herbert Associates, representing the applicant, said he didn’t have additional comments. He said a drainage = study (and other required studies) had been done. They believed that the drainage on= the site for both pre- and post-development was equal. Mr. Zohdi provided the Board with information regarding the drainage study.&= nbsp;

Mr. McNamara asked if the= plan would be reviewed by the Planning Board. Mr. Gowan said that it would not. Mr. McNamara discussed the process= the Planning Board took when receiving studies, which was to have them reviewed= by a consulting firm. He asked i= f the studies just submitted by Mr. Zohdi would be sent out for review. Mr. Gowan said they would not, unl= ess the Board made it a stipulation. <= /span>

Mr. Hennessey said becaus= e the request for an ‘area’ variance, Boccia would be in effect.

Mr. McNamara said since t= here would be no further review at the Planning Board level, if anyone had conce= rns now would be the time to address such by attaching a motion to the variance.

Mr. Ouellette suggested/a= sked that the contractor/developer would add a buffer between the proposed development and Mr. Cronin’s lot.&nb= sp; Mr. Zohdi said they had no objection and would work with the Planning staff to add a row of evergreens on the southerly side of the property.

MOTION:

(McNamara/Molloy) Stipu= lation that there be screening between the properties as described, subject to approval by Mr. Gowan.

VOTE:

(5-0-= 0) The motion carried.

Mr. Hennessey said the ab= utters were also concerned with the displacement of water. He said testimony was given that t= here would be no increase of runoff. He said the applicant also stated that the foundation of the structure would b= e on the grade. Mr. Zohdi said tha= t was correct. He noted that the de= sign approved by the state and Town’s Health Agent showed the grade. Mr. Hennessey felt it was appropri= ate to also make that a stipulation.

MOTION:

(Molloy/McNamara) Stipu= lation that the structure will be built on grade as described by Chairman Hennes= sey and Mr. Zohdi.

VOTE:

(5-0-= 0) The motion carried.

Mr. Cronin also had conce= rn that the septic system for the development was within the 75-foot radius of his well. Mr. Hennessey said sept= ic design/location was outside the purview of the Board; those issues should be brought to the Planning and Health Department. Mr. Gowan said the Health Agent wo= uld do the bed bottom inspection. He= said he would contact him and Mr. Cronin to measure off the well.

Mr. McNamara said the Boa= rd was no unsympathetic to the concerns of abutters because similar concerns were being heard by the Board of Adjustment and the Planning Board. He said in this particular case the house location was probably the least intrusive area on the lot. He felt the applicant had satisfie= d the criteria and qualified for the variance.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria; conditions as contained in the motion.

VOTE:

Mr. Molloy – Yes = to all criteria

Mr. Ouellette – Y= es to all criteria; based on stipulations of tree buffer and grade.

(5= -0-0) The motion carried.

‘AREA’ VARIANCE APPROVED

Case #2382 THE LOR= ETTA L. WOEKEL Revocable Trust of 2002 – 40 Woekel Circle – Map 31, = Lot 11-277 – Seeking an ‘Area’ Variance to Article III, Secti= on 307-12 to permit reconstruction of a seasonal dwelling on a lot having 7390= SF where 43,560SF is required and a front set back to stairs of 25ft. where 30= ft. is required. <= /b>

Mr. Ouellette was appoint= ed earlier to vote.

Mr. Molloy read the site = walk minutes aloud. Mr. Hennessey = said he wasn’t present for the site walk, but had reviewed the site and was familiar with the situation. =

Mr. McNamara asked to see= the revised plans. He felt the Bo= ard satisfied itself that the proposed building (which was relatively small) wo= uld not obstruct neighborhood views. He said one abutter did have a valid concern regarding the relative size of the proposed building.

Attorney Bernard Campbell= of Beaumont Campbell Professional Association and Mr. David Woekel a member of the fami= ly met with the Board to discuss the variance request. He provided the Board with revised copies of the proposed structure. He then reviewed the plan for the Board which consisted of a single-story structure, two-bedrooms, a large great room, sunroom and a sin= gle bath. He said the building conformed with all the setbacks with the exception of the front steps, which was the requested relief. He = said the footprint would be 24ftx36ft. The profile would be less than 18ft. Attorney Campbell said in the future, when the = family had passed, he was unsure of the procedure if someone wanted to increase th= e size of the dwelling because it met all the setbacks.

Mr. Hennessey confirmed t= hat the structure would be less than 18-feet in height from grade. Attorney Campbell said the profile showed the structure as being 17.9ft from elevation.&= nbsp;

Mr. McNamara confirmed th= at the structure was 864SF. Mr. Woek= el answered yes. Mr. Hennessey s= aid that was approximately half of the original structure. Mr. McNamara felt it was a great improvement.

Mr. Dunne asked if the ap= plicant had contacted the state in terms of any restrictions for building next to t= he pond (with regard to Shore Land Protection Act). Attorney Campbell said he had not contacted the state. He said there had only= been one large tree and a small cluster of trees was identified. Given his understanding of the Sho= re Line Protection Act, there wasn’t any basal area to be concerned abou= t. He said they wouldn’t be rem= oving even half of the total tree area that exists on site.

Mr. McNamara asked if the applicant was proposing the same septic as previously. Attorney Campbell said the site would remain sea= sonal, they would use a holding tank septic. Mr. McNamara said in the future if someone decided to build, he considered the lot to be non-conforming so any substantial alteration would require the Board’s review. Attorney Campbell said he didn’t want to provide the Board with advice, it would be up = to Town Counsel to advise the Board.

Mr. Ouellette said becaus= e there was no foundation plan, the assumption was that the structure would be on a slab. Mr. Woekel said the bui= lding would be on a four inch slab. Mr. Ouellette confirmed that the building would remain seasonal. Mr. Woekel said it would remain seasonal.

There was no public input= .

Mr. McNamara commended Mr= . Woekel and Attorney Campbell for bringing in a plan that fit perfectly with the site. He felt it would be a g= ood addition and was small enough to have a minimum impact.

Mr. Dunne reviewed the mi= nutes from the previous meeting and commented that Mr. Hennessey had asked that t= he state indicate that they waived any jurisdiction on the Shore Land Protection Act. Mr. Hennessey believed Attorney Campbell addressed the issue.&nbs= p; He said his problem was without viewing the lot the basal vegetation. He said after he reviewed, he understood the testimony that had been given. The 50-foot no-cut zone was not applicable because the building was being pulled away from the water. Mr. Hennessey said he saw no point making a stipulation because he felt the applicant took care of the issue.<= span style=3D'mso-spacerun:yes'>

The Board took a ballot v= ote with the understanding that the plan was as presented.

BALLOT VOTE:

Mr. Hennessey – Y= es to all criteria

Ms. Paliy – Yes t= o all criteria

Mr. McNamara – Ye= s to all criteria

VOTE:

Mr. Molloy – Yes = to all criteria

Mr. Ouellette – Y= es to all criteria

(5= -0-0) The motion carried.

‘AREA’ VARIANCE APPROVED

Case #2384 PORTNER, Marie (Stadtmiller) – Tallant Road&n= bsp; - Map 4 Lot 9-138 – Seeking a Variance to Article III, Section 307-12 of the Zoning Ordinance to permit the creation of 9 lots with less than 200 feet of frontage on a public right-of-way

Mr. Kearney was appointed= to vote regarding the case because he was in attendance at the joint meeting (betwe= en land use boards) held September 6, 2007. Mr. Henn= essey provided the Board with a summary of the joint land-use board meeting. He asked the Board members that we= re not present if they felt comfortable proceeding. The Board members that were not pr= esent at the meeting had reviewed information such as the meeting minutes and/or = the taped copy of the meeting and felt comfortable proceeding. The Board was comfortable proceeding.

Mr. McNamara prefaced his= remarks that the conservation plan submitted was preferable to the traditional subdivision plan. He said he = would like to vote for the conservation plan if he could; however, the problem was typically the Board handled variances on a lot by lot basis, but the reques= t in front of the Board was to basically change zoning for 75% of the lot and in essence would be rezoning the entire subdivision. He said the other specific area wa= s in the hardship criteria. It see= med to Mr. McNamara that the special conditions cited were not of the property, but rather of the proposed alternative subdivision. He said if the Board was to grant = the request it would set a dangerous precedent because someone could come in wi= th a plan that had multiple zoning violations and cite that it would better for = the community but presently, zoning didn’t allow that. He was hopeful that the sub-commit= tee working on proposed language for subdivision change (for the March ballot) = that everyone could agree upon. Mr. McNamara said he wished conservation subdivisions could be done, but the fa= ct was zoning didn’t allow it. He didn’t feel that the Board should place their judgment inst= ead of the Town voter’s judgment. He said the applicant also failed to adequately address the second hardship criteria because there had already been two feasible conventional subdivision plans submitted. = He noted there were ways to reduce the costs such as by reducing the size of t= he lots and reducing the length of road. He didn’t feel the variance was consistent with the spirit of ordinance because the subdivision would be treated differently than all oth= er subdivisions around.

Ms. Paliy agreed with Mr. McNamara. She felt if the app= licant wanted a conservation subdivision they should have reduced the lots and left more space. She felt the plan= was better for the applicant and actually less of a conservation plan. She failed to see how assigning ce= rtain parcels in between the lots was 'conservation'. She didn’t feel the plan was= in the spirit of the ordinance. = Ms. Paliy said it would be fine with her if the applicant wanted to reduce the = lots and have more conservation. S= he didn’t feel the plan was a ‘win’ for the Town.

Mr. Dunne also agreed wit= h Mr. McNamara as well as Planning Board member Paddy Culbert who stated the horse might be put in front of the cart. He said the sub-committee was doing due diligence to create language= for conservation planning and if the Board went ahead with the variance it might have the appearance of being the type of plan that others would view as a conservation development. He = would rather wait until the voters vote. <= /span>He asked who was on the committee.

Mr. Hennessey said he was= a member of the sub-committee. = Mr. Gowan named the other members which included the applicant and Joe Maynard = of Benchmark Engineering. He enc= ouraged the Board to recognize the applicant’s expense and energy that they h= ad brought to the process. He sa= id at the committee when reviewing both styles, it was legitimately an afterthoug= ht to come in for a variance based on conversation one night at a meeting. He felt no matter which way the vo= te went, it had been a valuable discussion.&n= bsp;

Mr. Dunne said he was pre= sent when the state made their presentation about conservation projects, but remained leery of doing so on this project.

Mr. McNamara thanked ever= yone for their efforts. He felt it was= a great example of what could be done. He felt it was a selling point to try and pass zoning which would al= low the Town to be more creative and proactive to save money and land for the Town.

Mr. Hennessey said he was= on the committee. The committee was = given a sketch of the proposal and everyone had nodded and felt it was a superior plan. Mr. Hennessey said he suggested having the plan brought before zoning in a joint meeting. He felt the plan was superior to t= he conventional plan and wished the Board could vote in favor of it. He believed Mr. McNamara’s p= oints were well taken which were technical and the reason he would vote no. He said he couldn’t vote in = favor of the variance based on the application of the current zoning and the hard= ship criteria.

BALLOT VOTE:

Mr. Hennessey – 1= ) No; 2) No; 3) No; 4) Yes; 5) Yes

Ms. Paliy – 1) No= ; 2) No; 3) No; 4) No; 5) Yes

Mr. McNamara – 1)= Yes; 2) No; 3) No; 4) No; 5) Yes

VOTE:

Mr. Molloy – No t= o all criteria

Mr. Ouellette – N= o to all criteria

(0= -5-0) The motion failed.

‘AREA’ VARIANCE DENIED

HEARINGS

Case 2383 SUN BRIDGE PROFESSIONAL CENTER, LLC. – 5 Old Bridge Street South&nbs= p; - Map 35, Lot 6-113-1 – Seeking an Appeal from an Administrative Decision, Article XIII, Section 307-85 Denial of buil= ding permit by the Building Inspector, Roland Soucy, on or about July 17, 2007

Ms. Paliy recused herself= .

Mr. Dunne and Mr. Kearney= were appointed to vote.

Mr. Molloy read the list = of abutters aloud. There were no persons present who did not have their name r= ead, or who had a problem with notification.

Attorney John Gallant of = Gallant & Ervin, representing Sun Bridge Professional Center, LLC (present was Donald Ronning) provided the Board with and information packet that stated their position and had attached the test results from tests conducted on si= te for evidence of contaminants as well as a Supreme Court of New Hampshire decision (Marino v. Goss) dated August 21, 1980.

Mr. Hennessey asked Build= ing Inspector Roland Soucy (who was seated with the public) if the information provided would allow him to now issue a building permit. Mr. Soucy said he couldn’t a= nswer until he had the opportunity to review the documents. He said if a site assessment had b= een done, it was the first he received it.&nbs= p; He said if everything was in order he probably could issue a building permit. Mr. Hennessey questio= ned the applicant if they wanted to proceed or put the case in abeyance until M= r. Soucy had an opportunity to review the information. Attorney Gallant said they didn= 217;t want any further delays and asked the Board to consider the case. He said their position was that the Building Inspector had absolutely no authority to request an environmental assessment of the site. He sa= id they had done an assessment and it showed no contamination. He didn’t feel it was releva= nt to the issue before the Board. H= e said it was the state that dealt with contamination of sites and in their purvie= w to request an examination of a site for environmental issues, not Mr. Soucy. Attorney Gallant understood that t= he environmental site assessment had been done to specifically address the ten= ant’s use on the property. He said = it would probably satisfy Mr. Soucy because it showed no contamination in term= s of the use on the property.

Attorney Gallant said he = provided the Board with a case that went before the Supreme Court of New Hampshire; Marino v. Goss that was almost identical factually to what happened in the = case before the Board at this time. The State Supreme Court ruled (in the Marino v. Goss) that it wasn’t in t= he Building Inspector’s authority to request such an examination of a site. He said they had reques= ted the permit to be issued in June and they still didn’t have a building permit issued.

Mr. Hennessey discussed t= he case and that the sole question for the Board to determine was if the Building Inspector acted within his jurisdiction to deny the permit.

Attorney Gallant said he = reviewed some documents that were submitted by Mr. Soucy where he tried to indicate = some authority to request the environmental test; however, there was nothing in = the state building code that gives that authority. He said the documents that he subm= itted specifically state that he doesn’t have the authority. He said Mr. Soucy’s jurisdic= tion and authority within the Town was based upon the Town Charter and By-Laws w= hich specifically grant him with the authority that the Planning Board gives him when a building permit is issued which is basically to make sure a building= is constructed in accordance with the code and the building and site is constr= ucted in accordance with the zoning enforcement laws.

Planning Director Jeff Go= wan and Building Inspector Roland Soucy came before the Board to discuss the case.<= span style=3D'mso-spacerun:yes'> Mr. Soucy disagreed with Attorney Gallant’s opinion of whether he had the authority to hold up the buil= ding permit as far as environmental issues go.&= nbsp; He said it was his responsibility to make sure when a building was built, and people would occupy it, that they’re not put in harms way. He said that was the big= gest part of his job, not just that a building was built correctly. He said on July 17, 2007 he had asked for a copy of= any existing environmental report, but he was just getting it tonight. He said he wouldn’t be the o= nly one reviewing the report, Stantec (Planning Board engineering review firm) would also review it. He said= he wouldn’t be able to read and digest the report at the meeting. He said the issue was whether he h= ad the right to hold back on the building permit.= Mr. Hennessey said the applicant decided to move forward and the fact that the Board had the report was not germane to the issue. Mr. Soucy said he felt he did have= the authority to hold back on the building permit.

Mr. Gowan said he complet= ely supported Mr. Soucy’s decision in this case. He said as Town Officials they had= the responsibility anytime there was any kind of indication that there might be contamination = to explore that and be sure that it did not exist; this time and every time. Mr. Gowan said in his and Mr. Souc= y’s view, there was ample concern raised by several incidents that took place including a chance meeting with the former tenant. He said he was present at the init= ial meeting with Mr. Ronning and Mr. Soucy which was a calm, cordial and friend= ly meeting at which Mr. Soucy explained that he had a problem issuing the perm= it until he saw a level 2 environmental assessment. He said that was not an onerous th= ing to ask and it appeared to be acceptable to the applicant. He said then the attorney’s letters started flying, which didn’t do much to make them feel that t= he site was suitable for construction.

Mr. Hennessey said the Bo= ard would take a brief break to familiarize them with the case cited by the applicant. Mr. Gowan advised the Board that Attorney Ratigan (Town Counsel)= had the documents provided to the Board. He asked that the Board not make a decision based on their interpretation of the Supreme Court case without the benefit of his comment= . Mr. Hennessey said the information= was submitted as to why the feeling was the Administrative Decision should be overturned.

Mr. McNamara said he wasn= ’t familiar with the cited case from 1980 (Marino v. Goss) and said there may = be others that have been decided since then, which would be for Town Counsel t= o review and comment on. He said the c= ase cited stemmed from a variance granted by a zoning board and the ability of a building inspector to vary the terms of that variance. He said that was not the case befo= re the Board at this time. He said t= he question of whether there was contamination was never brought up at the Planning Board. It was approv= ed as a site plan a number of months ago. Mr. McNamara said had the issue been brought up before the Planning = Board, they would have pursued it and had Stantec review. He felt the factual situations bet= ween this appeal and the Marino case were a bit different. He said from a practical viewpoint= , the information (dated August 30, 2007) was given to the Board at the meeting. He said the test didn’t indi= cate when the soils testing was done and collected. He said perhaps if it was given to either the Planning Director or the Building Inspector earlier, the issue m= ay have resolved itself. He said= he wouldn’t be able to do anything tonight absent hearing from Town Coun= sel and having Mr. Soucy review it. He said he wasn’t convinced that the applicant may be right and felt Mr. Soucy would have been derelict in his duty had he issued the building permit knowing that there was a question of contamination of the soil.

Mr. Hennessey said it wasn’t the responsibility of the Board to analyze the environmental r= eport, which was the Building Inspector’s job. He said the applicant correctly st= ated the position; did the Building Inspector overstep his job by denying a buil= ding permit. He understood what Mr. Gowan said about waiting for Town Counsel to review, but felt (based on sta= te opinions and classes) the Board was allowed to use common sense when lookin= g at the decisions and applying them. He didn’t find the court case persuasive. He said the court case correctly s= tated that the building inspector in Rye had two jobs, just like Pelham’s Building Inspector; one was an enfor= cer of zoning and the other an enforcer of building code. He said if the Board granted a var= iance and the Building Inspector would not issue a building permit on the grounds that the Board had settled in a hearing he would be ready/willing to overri= de the Building Inspector. He sa= id the case presently before the Board was about whether the Building Inspector, u= nder the general police power of the state, which referred to health and welfare matters, acted within his duties. He didn’t feel the cited court case was germane to the case be= fore the Board and saw no need to ask Town Counsel for their opinion. He felt it was clear and was comfo= rtable with proceeding.

Mr. Molloy agreed that th= e court case was different than the case being heard. He was also prepared to vote. Mr. Kearney was also ready to vote= .

PUBLIC INPUT

Mr. Don Nichols, 3 Old Bridge Street South, didn’t feel that the Building Inspector overstepped his bounds. He said he had court records indic= ating that Mr. Robinson (a tenant) was given and extra three months providing he didn’t speak about the property.&nbs= p; Then after he (the tenant Mr. Robinson) supposedly talked about the property, they (the applicant) filed a suit against him.   Because of this it was left i= n Mr. Nichols mind that something was going on. He said he didn’t have a problem with the building that went forward or it being built. He wanted to make sure that it was a safe site. He hoped when the testing was bein= g done that the Town was provided with a detailed plan of where the testing was do= ne.

Ms. Barbara Ginty, 3 Chagnon Lane, indicated she was left off the list of abutters. She said her neighbors informed he= r of the meeting. Mr. Hennessey as= ked if she was aware of anyone else being left off the notification list. Ms. Ginty didn’t know. She said she had been an abutter i= n the past, but didn’t know why she didn’t receive notice of the pres= ent hearing. Mr. McNamara asked i= f she received notice of the Planning Board meetings. Ms. Ginty said she did not. She said as far as the Building In= spector she hoped that he would be overseeing the resident’s safety. She said they all had concerns abo= ut contamination and gone through expensive water testing. She said she cited at previous mee= tings, the health issues they had at their house.= She hoped that those items were part of the Building Inspector’= ;s job, to not just make sure a building was sound, but that it was also safe.

Attorney Gallant said the= re were many meetings at the Planning Board stage where testimony was given about w= ater quality, water testing, water analysis, close proximity to the wetlands and Wetland Conservation District (‘WCD’). He said testing was presented to t= he Planning Board that there was no contamination of the water in the vicinity= of the site. He said the particu= lar request of the Building Inspector was based upon a letter from an abutter w= ho complained that there was some contaminant or court case regarding a tenant that existed on the property. He said the tenant that existed on the property was fully federally permitted = and inspected by the Town in April. He said the contaminants and products the tenant used weren’t being stor= ed on the site, they were being stored on the property Mr. Nichols owns and we= re still there today. He said the Pelham Fire Department had inspected the applicant’s site and the abutting property. The state = had inspected the site. Absolutel= y no evidence had been found by anybody that contaminants had been released on t= he site. As part of the eviction= of the tenant they ensured that the tenant left the property, and left all the contaminants off site, and indemnified the owner. He said they indicated at prior he= arings and in the letters to the Building Inspector that they had conducted testin= g of the site and there were no contaminants found. The chemical Ammonium Perchlorate = was used by the tenant on site and the tests for such were done in twenty locat= ion on site with no findings.

Attorney Gallant said the= re was nothing before the Board that the Building Inspector had any authority to request or to impose any environmental assessments of the site before a building permit is issued. He= felt the cited case was applicable to the hearing and discussed such with the Board. He reiterated that the= re was nothing to indicate that the Building Inspector had the ability to request = an environmental assessment. He = said in the information provided to the Board he cited the RSA that dealt with contamination which was exclusively reserved for the Department of Environmental Services (‘DES’). He said they had done the test to appease the Building Inspector and the Board to assure them that the site w= as clean. He felt the evidence a= nd the issues before the Board were clear.

Mr. McNamara said there w= ere discussions at the Planning Board regarding water runoff and water drainage. He said there was no discussion about any possible Ammonium Perchlorate. He said if there had been a discus= sion about possible contamination, the Planning Board would have taken a much cl= oser look and would have had the s= ame information reviewed by Stant= ec which the Building Inspector was attempting to do now.

Mr. Dunne asked why there= was a hesitance in doing the level 2 soils testing. Attorney Gallant said they had req= uested the permit in June, 2007 and the actions/non-actions that had been taken si= nce that time. He was upset that = an abutter had made complaints to the Town and yet that abutter and across the street = had storage containers containing contaminants on those property and further th= at the Building Inspector had not reviewed the abutting site. Mr. Dunne asked if the applicant h= ad not done the tests based on principle. <= /span>Attorney Gallant said they didn’t do it because they wanted to make sure that = type of activity by Mr. Soucy didn’t continue. Mr. Dunne questioned the type of t= ests that were done. Attorney Gall= ant said they conducted all the environmental tests pertaining to the tenant= 217;s use of the property. Mr. Henn= essey redirected the conversation because he didn’t feel it was appropriate= to go further with a discussion about the quality of the tests performed. He said the Board had to focus on t= he question of if the Building Inspector had jurisdiction on requesting the inspection. He didn’t f= eel that the report was germane to the issue.&= nbsp;

Mr. Ouellette asked if the Attorney was familiar with the Code of Administration that’s required= for the Building Inspector to acknowledge and have on his person. Attorney Gallant answered yes; he = was familiar with the state building code.&nbs= p; Mr. Ouellette asked if the attorney had read Section 101.3. Attorney Gallant said he had read = the entire code and no where in such does it suggest that the Building Inspector can impose conditions upon permits of the Board or that he has the ability = to request environmental assessments of sites. Mr. Ouellette read a portion of Section 101.3 aloud.

Mr. Gowan informed that h= e was the Zoning Administrator and Mr. Soucy was the Building Inspector; anytime a building permit came in he reviewed/signs off on it and gives it to Mr. Sou= cy to do the building permit. He= said the zoning board (as the attorney referenced) doesn’t issue any permits. Mr. Hennessey believ= ed the attorney was referencing the Planning Board. Attorney Gallant said he was. Mr. Gowan clarified that the Plann= ing Board only issued special permits for wetlands crossings. When they make a decision there= 217;s no permit associated with it, which was something that was reviewed by the Planning Office.

Mr. Hennessey said unlike= Rye, the Town had two people doing the tasks that the Building inspector in Rye was combining.

Mr. Soucy said there were= several comments that he would like to respond to, but he would stick to the issue which was if he was out of line in holding up the building permit. Mr. Hennessey asked if it was Mr. Soucy’s understanding that calling for an environmental assessment was part of his responsibilities as a building inspector. Mr. Soucy said the documents spoke= for themselves and he had no other choice but to bring some finality to it and = make sure that the site was not contaminated in any way.

Mr. Nichols said he didn&= #8217;t have ongoing complaints with the Town Hall, this was the only complaint they had. He said the language in a document that Attorney Gallant created made it seem like the applicant was hiding something. He wanted t= he building built and their documents made the case come before the Board, not= his complaints.

Mr. Hennessey asked the B= oard to vote.

MOTION:

(Molloy/McNamara) To up= hold the Building Inspector’s Decision.&nbs= p;

VOTE:

(5-0-= 0) The motion carried.

MINUTES

August 1= 3, 2007

MOTION:

(Molloy/McNamara) To ap= prove the meeting minutes of August 13, 2007 as written.

VOTE:

(5-0-= 0) The motion carried.

August 1= 8, 2007

MOTION:

To approve the site walk minutes of Aug= ust 18, 2007 as written.

VOTE:

(5-0-= 0) The motion carried.

ADJOURNMENT

MOTION:

(Molloy/McNamara) To ad= journ the meeting. <= /b>

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 8:50 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary