BOS Minutes 08-02-2005

APPROVED

TOWN OF PELHAM

BOARD OF SE= LECTMEN MEETING

MINUTES

August 2, 2005

APPROVED – August 16, 2005

CALL TO ORDER

PLEDGE OF ALLEGIANCE

PRESENT:

Mr. Victor Danevich, Mr. Harold Lynde, Mr. Jean-Guy Bergeron, Mr. Edmund Gleason, Mr. Tom Domenico, Mr. Tom Gaydos, Town Administrator

Also present:

ABSENT:

Members of the press and general public.

None

Mr. Danevich informed that it was announced that two intersections in Town along Windham Road/Route 111a (Town center project) w= ould be funded with $2,000,000 from the Highway Bill Re-Authorization Conference Report (Federal funding). The Selectmen thanked Mr. Bergeron for his efforts in obtaining the funding. Mr. Bergeron thanked Senator Sunun= u, Senator Gregg, and Congressman Bass for representing the Town in acquiring = the funding for the Town center. = He said he would share additional information during his Selectmen report.

MINUTES RE= VIEW

July 19, 2005<= /p>

MOTION:<= o:p>

(Gleason/Bergeron) To approve the July 19, 2005 meeting minut= es with the suggested amendments.

=

VOTE:

(5-0-0) The motion carri= ed.

The amendments to the minutes were as follows: page 2, paragraph 1- the word ‘staffer’ was added ‘Town Clerk Staffer’; under the motion to transfer the old Town Hall Deed – Domenico seconded the motion; page 3, last paragraph typo – the word were was replaced with ‘where’ in ‘calls where people’; page 4, paragraph 2 – the word ‘and’ replaced the word ‘of’ – ‘…growth and the complexity…’; page 4, last paragraph – the word ‘penalty’ was inserted ‘…a fee/cost penalty for being…’; p= age 5, paragraph 2 – the words ‘bring up’ were replaced with ‘repair’ in ‘…expend funds to repair the..’; last paragraph the words ‘have to be definitized’ were added to the end of the forth sentence; page 6, 8th paragraph – the sentence reading ‘One request was to put a truck for viewing…’ was amended to read ‘One request was to have the disabled truck available = for viewing…’; page 6, 5^th paragraph – the words ‘hold those funds’ was inserted to ‘…trying to hold those funds as reserve…’; page 7, 1^st paragraph – the word ‘so’ was added to the end of the 4^th sentence.

MANIFEST R= EVIEW

July 28, 2005:

Payroll - $82,593.49

Payables - $740,557.04

This week’s Payroll – $86,246

Payables - $415,274

OPEN FORUM=

None.

APPOINTMEN= TS

Sherburne = Hall Committee, Utilization of Village Green for Fund Raisers=

Sherburne Hall Committee Chairperson Charlene Takesian= and Committee Member Glennie Edwards met with the Selectmen to discuss the utilization of the Village Green. Ms. Takesian said they would like to use the Village Green for a band concert on Sunda= y, August 28, 2005 (6pm-8p= m). There would be no cost to the Town= , the band would be sponsored. The Committee hoped the concert would raise awareness of the uses of the Village Green and the renovation of Sherburne Hall for cultural uses. Raffle tickets would be sold= for three prizes. Information can be obtained through www.sherburnehall.org. Ms. Takesian requested that the sprinkler system be turned off during the hours of the concert. She noted that parking would be available at the library and at the Municipal Building. After the concert people would be designated to remove any trash.

Mr. Gleason asked if there were any insurance provisions/conditions that would have to be cleared prior to permission bei= ng granted. Mr. Gaydos said beca= use the Sherburne Hall Committee was set up by the Selectmen, they would fall u= nder the Town and insurance would be fine. Mr. Gleason asked if the Town would have to provide any water or electricity. Ms. Takesian sai= d they would only request electricity so the band could run their sound board and speakers. Mr. Danevich asked = what was proposed for electricity. Ms. Takesian said they would use the electricity currently outside. Mr. Gaydos said there was power to= the box at the library, but the all-weather outlets would need to be installed;= the cost would be approximately $300. Ms. Edwards believed that they had someone (certified electrician) w= ho would be willing to do the actual installation and cover the materials. There was a brief discussion regar= ding who the Town typically used for help with such items versus volunteers. Mr. Gaydos said there were typical= ly three companies the Town had worked with.&= nbsp; Ms. Takesian said if Mr. Gaydos wanted to use who the Town typically used, the Committee would see what they could do to help financially.

Mr. Danevich asked if any special detail (i.e. traffic) would be needed. Ms. Takesian= said she spoke with both the Police and Fire Chiefs. She said the Fire Chief felt since= the Fire Station was next door (and covered 24/7) there wasn’t a need to = have staff or an ambulance at the Village Green. Mr. Gaydos asked if the Police Sta= tion would have the restroom facilities. Ms. Takesian said the concert would only be two hours and assumed th= at the Police Station would be open. She said the Town Hall would not be opened.

MOTION

(Gleason/Domenico) To grant the Sherburne Hall Commi= ttee the authority to run a concert on the Village Green on August 28, 2005.

VOTE:

(5-0-0) The motion carri= ed.

Highway Ag= ent Don Foss Re: Budget Impact if proposed truck fails (special meeting)=

Highway Road Agent Don Foss met with the Selectmen to discuss the impacts if the proposed truck failed the Special Town Meeting.<= span style=3D'mso-spacerun:yes'> He said the first thing would be to re-configure the plowing routes, and not plow the private roads and unaccep= ted subdivisions. He noted that s= alt prices had increased approximately $3.99 per ton. He said the repair budget had alre= ady been overspent and there were was no ‘room’ to hire more trucks. There were approximat= ely ten private roads and approximately 30 unaccepted roads that would not be plowed.

Mr. Bergeron questioned if the contracts with the priv= ate roads (for plowing) required notice that the Town would not plow. Mr. Gaydos said the agreements were signed on a yearly basis; there was no requirement to extend the service, it was done as a courtesy. Some revenue captured by plowing private roads would be lost. Mr. Gleason asked if it was safe to assume if plowing was turned over to the individual homeowners/builders that they would compete with the Town for the same labor market/services. Mr. Foss answered yes. Mr. Gleason questioned if subcontr= actors were used, if the equipment would be much lighter and not the quality work = as done by the Town. Mr. Foss an= swered yes; subcontracted trucks would be three-quarter and one ton. Mr. Gleason questioned if plowing = would be done in a two-tier approach (primary roads first, defer secondary) in the event the truck failed. Mr. F= oss answered yes.

Mr. Lynde noted that there was no money in the Highway Budget to contract out. He questioned how the trucks would be used to clear snow. Mr. Foss said the bigger trucks wo= uld have to go on the secondary roads during a large storm. Mr. Lynde discussed the history and agreements for plowing regarding private roads. Mr. Domenico questioned in the eve= nt of an emergency on a private road, if a plow would be pulled from a main route= to go along with an ambulance. M= r. Foss answered yes. Mr. Lynde questioned when proposals for plowing were sent to private road owners. Mr. Foss said proposals were gener= ally sent at the end of September.

Mr. Gleason asked if the proposed truck also served in= the capacity as a salt truck. Mr.= Foss said it was used in the winter for salt and sand and used in the summer for construction. Mr. Gleason wan= ted to know in the event the truck failed if there was an adequate device to put o= n a smaller truck. Mr. Foss said a smaller truck would be used, but the work would take longer. He reviewed the names of the appro= ximate thirty roads that would have to be serviced by smaller trucks in the event = the proposed truck failed.

Mr. Danevich said the Town was in a dilemma; if the vo= ters chose not to support the truck there would be numerous ramifications/impacts. The li= st of roads would be made available to the public.

BOARD OF H= EALTH –Health Officer Paul Zarnowski, Chairman

The Selectmen convened as the Board of Health and hear= d the following requests:

Waiver of = Article K, Map 36, Lot 10-78 ̵= 1; 17 Hillcrest Lane

The waivers requested were: 1) to go to a less than 3-1 slope (on side slope of proposed leach field); and 2) go less than the requ= ired 4-feet above the seasonal high water table. Mr. Zarnowski said he had reviewed= the system design and per his recommendation, the designer had changed a couple items to get it closer into compliance with Article K.

The designer Mr. Blazel discussed the location and exp= lained the owner was trying to sell his home, but the septic had failed. He said the system met the state requirements, but not the Town’s, for the seasonal high water table.<= span style=3D'mso-spacerun:yes'> He said they are trying to keep th= e fill out of the road; if the bed was raised anymore, fill would get into the road therefore there was one small area that would be a 2-1 slope. Mr. Zarnowski said the applicant w= ould be using an Enviro Waste Water Treatment System. He said the state was allowing thr= ee feet to seasonal high water table, but the Town’s regulations call for four feet.

Mr. Domenico questioned how to ensure that the leach f= ield would remain outside of the protected well radius. Mr. Zarnowski said the system was = right at the 75-foot radius. He dis= cussed the types of inspections that would occur.=

Mr. Bergeron asked if the proposed tank (1250 gallon) = was adequate for the three-bedroom house. Mr. Zarnowski answered yes. <= /span>

There was further discussion regarding the waiver request. Mr. Lynde asked if t= he request would normally be presented to the Highway Road Agent. Mr. Zarnowski answered no; the sys= tem would be kept on the lot. Mr.= Lynde asked if a waiver was needed for the radius. Mr. Zarnowski answered no; a drill= ed well required 75 feet, a dug well required 100 feet.

Mr. Danevich reviewed the application and wanted the language to be clear that if the waiver was not granted, the fill would go = into the road. Mr. Blazel amended = the language on the application to read ‘fill will go into road unless wa= iver is granted’; he then submitted such to the Board.

MOTION:<= o:p>

(Lynde/Danevich) To approve the waiver to Article K sections 295-12 (slope requirements) and 295-14 (height above the seasonal high water table; the reason being fill would go into road if waiver not granted.

VOTE:

(6-0-0) The motion carri= ed.

Waiver of = Article K, Map 24, Lot 12-83 – 12 Little <= st1:place w:st=3D"on">Island Park

The waiver requested was a conversion of seasonal systems. Mr. Zarnowski said t= he items that changed since the last time the applicant came before the Board = was they were not proposing a new building at this time but rather to convert t= he existing building as it was situated.

Mr. Joe Maynard met with the Board on behalf of his cl= ient Mr. Ross Sargent. He said he = had suggested to his client if the work was being done, they should try to bring the buil= ding as much in compliance as possible and therefore proposed to raze the existi= ng home and put an entirely new structure.&nb= sp; At the last meeting, the Board suggested meeting with the Board of Adjustment; however his client was happy with his current home. Mr. Maynard said he then spoke wit= h Mr. D’Andrea to find out what would be required if the building was kept = as is and only a new septic system was installed per state requirements. He said Mr. D’Andrea wrote a letter that indicated if the existing dwelling was razed, altered etc. the applicant would need to go to the Board of Adjustment; however, if the buil= ding was kept ‘as-is’ and they met the criteria for septic system ap= proval, there was no need to apply to the Board of Adjustment. Mr. Maynard said they met the loca= tion and type of field for state and Town and were requesting a waiver to Articl= e K (295-17) conversion of seasonal property to year-round.

Mr. Bergeron asked if the property would remain a seas= onal dwelling. Mr. Maynard said it= would be converted to year-round. H= e said it currently met the state requirements for year-round, but the status of seasonal prevented his client from residing there year-round. He said his client was willing to b= ring the lot into compliance by installing a Clean-Solutions System in order to = be able to use the property year-round. Mr. Zarnowski said there were specifics in the New Hampshire Code Administrative Rules which specifically covered conversion to full-time occupancy; the applicant’s submission would meet all the requirements.

Mr. Gleason questioned the difference with the previous application. Mr. Zarnowski sa= id this applicant was keeping the existing building; in the prior application,= the existing building was going to be demolished and put a new building in. Mr. Gleason asked what the capacit= y of the new system would be. Mr. = Maynard said the lot was only capable of two bedrooms, which was the request; howev= er, the Town’s ordinance states that the system must be design for three-bedrooms, which it was. Mr. Gleason asked if there was any intent by the applicant to increase the footprint of the house in the future. Mr. Maynard answered no; the client would utilize what was currently there. Mr. Gleason wanted to = ensure that the client understood any extension of the footprint would require Boa= rd of Adjustment approval. Mr. M= aynard said his client understood 100%. Mr. Gleason confirmed that if the waiver was granted it would be conditioned upon the applicant obtaining a state approval for the septic system. Mr. Zarnowski and Mr. Maynard answered yes. Mr. Zar= nowski said one of the stipulations (in the state regulations 101-4: 16c) for converting was if there were any waivers required to the regulations than it shall not be converted to full-time occupancy.

MOTION:<= o:p>

(Gleason/Danevich) To grant a waiver to Article K, S= ection 295-17, which covers the conversion of a seasonal system for the purpose = of converting to year-round.

VOTE:

(6-0-0) The motion carri= ed.

The Board of Health adjourned; the Selectmen reconvened.

Continuati= on of Public Hearing – Gendron Junkyard License Denial

Mr. Danevich informed that the Selectmen had completed= the public hearing portion of seeking information for consideration regarding granting a license; the Board had reached a consensus to move forward with a formal public hearing in accordance with local and state law regarding a specifically posted public hearing for denial of the license.

Mr. Bergeron recused himself.

Mr. Danevich said the first public hearing was posted = four weeks ago, at which time Mr. Gendron approached the Selectmen requesting an extension for consideration to seek legal counsel. He said the Selectmen granted the extension to Augu= st 2, 2005 and understood Mr. Gendron had come back before the Selectmen.

Attorney George Basbanes, appeared for Mr. Fred Gendron (applicant). He said in revie= wing the agenda and minutes he didn’t feel the proceeding was a hearing for the issuance of a license, but rather a hearing for denial. He said it sounded like it was a ‘done deal’ before coming to the meeting. He said it was Mr. Gendron’s position that he was operating legally by state mandate (under consent decr= ee). He said the decree indicated that = that Mr. Gendron must operate under local regulations; he felt however Chapter 2= 36 granted Mr. Gendron the license and mandated that the Town grant a license because he was grandfathered. He said if the Board decided that they didn’t want to grant the license, they would have to grant some conditions, or say that Mr. Gendron had viola= ted something and provide an opportunity to remedy such; if Mr. Gendron does not remedy such the Town would have to go into Superior Court. He said in the past, applications = were submitted in a timely manner and they had copies of cancelled (application) checks from the years 2003 and 2004. Attorney Basbanes noted that the Fire, Health and Building Inspectors had reviewed and didn’t see problems. He didn’t feel the Town coul= d say Mr. Gendron couldn’t operate unless a reason was given. He didn’t feel that complain= ts from neighbors would be sufficient for Superior Court. He felt the Board must consider the alternatives; Chapter 236 grandfathered Mr. Gendron. He said the yard had operated continuously since the mid 1950’s.&n= bsp; He said there were certain problems in the past that had been remedi= ed. He said if there were problems wit= h any way the business operated, the Board had to let Mr. Gendron know what they = were and provide 30-days to remedy; if not remedied, the Town would have to go to Superior Court to kill the license. He said by court order, Mr. Gendron was allowed to operate his busin= ess by the terms of the decree, which the Town was invited, but refused to be a pa= rty. Attorney Basbanes reiterated that by the way the agenda read, it appeared t= hat the denial was a done deal.

Mr. Danevich said the Selectmen had gone through sever= al different meetings and a public hearing process listening to both Mr. Gendr= on and the public and had come to a decision point to conduct a public hearing= for possible/consideration denial. Attorney Basbanes said the Town was mandated in 1965 to grant a lice= nse, the Town couldn’t simply say a license wouldn’t be granted, wit= hout providing reasons for such. M= r. Danevich wanted to be clear that the Town had gone through the standard pro= cess with Mr. Gendron and the other two applicants that came before them. He said the Board listened to all = the input and took a different action with respect Mr. Gendron to schedule a pu= blic hearing in accordance with state and local law. He didn’t feel there was any predetermination by the Board, other than to conduct a public hearing. Attorney Basbanes believed the wor= ding of the agenda gave a hint of where somebody wanted to go. He said he was not present to hear= what the neighbors and objectors said, but saw something in the minutes. He pointed out that according to t= he consent decree, Mr. Gendron was asked to close down in a year and a half.

Mr. Lynde noted that a prior Board of Selectmen (approximately four to five years ago) went through a process of denying Mr. Gendron’s license, they declared it a public nuisance, it was taken to court, the Selectmen were upheld and the license was denied. He said since that time, the Selec= tmen had found no reason to grant Mr. Gendron a license based upon that original denial. Attorney Basbanes sai= d the consent decree allowed Mr. Gendron to operate five years from the date the = judgment was recorded. Mr. Lynde under= stood that up until this year (when the law subsequently was changed) the state c= ould provide Mr. Gendron the ability to operate (under the consent decree) witho= ut the need for the Town licensing him; but it had now reverted back, so a Town license was now needed to operate under the consent decree. Attorney Basbanes didn’t kno= w if that judgment had been set aside by the Superior Court or operation of law;= the Town may have to wait for a judicial determination. He said state granted Mr. Gendron = the right to operate while it had appropriate jurisdiction. He didn’t feel the Town had = much choice but to grant a license.

Mr. Gaydos said the local ordinance states that there = would be a public hearing for anyone who makes application. He said the Board went through the public hearing and there was a vote of the Board to not give the license. He said they wanted to have a sepa= rate public hearing for the denial of the license to make sure that everyone had their chance. He said it appe= ared to work well for the applicant, because the applicant told the Board he wan= ted the opportunity to seek counsel and represent him. Mr. Gaydos reviewed Section 236-12= 1 and believed that it was noted that the operation was found to be a public nuisance. He questioned if At= torney Basbanes was asking the Board to define public nuisance. Attorney Basbanes said he was aski= ng the Board to make specific findings and the opportunity to fix it up. He believed what Mr. Gaydos read w= as for new licenses, not grandfathered licenses as he believed Mr. Gendron had. He said in the minutes he saw complaints, but no findings. =

Mr. Domenico questioned if licensing wasn’t requ= ired by the Board, why the consent decree contained a provision that specifically stated Mr. Gendron could operate under the parameters of the consent decree provided he had received a license from the local governing authority. Attorney Basbanes believed Mr. Gen= dron would be required to operate his business consistent with the by-laws of the town or the regulations of the town that applied to the business, which Mr. Gendron was willing to do. He didn’t feel it was reasonable, or would work in Superior Court to sim= ply say Mr. Gendron was a public nuisance because the neighbors complained. Mr. Domenico questioned if the ass= ertion was made, on the grounds that according to the provisions of the decree, Mr. Gendron was supposed to vacate the remedial area completely by February 21, 2002, and as recently as five days ago, the Department of Environmental Services (‘DES’) had indicated it had not been completed. Attorney Basbanes said the consent decree was between Mr. Gendron and the state. He said the Board had to act accor= ding to the by-laws or rules and regulations.&n= bsp; He said the Town could not claim rights from a court order between t= he state and Mr. & Mrs. Gendron. He said Mr. Gendron informed him that the state was invited to participate, but had refused. Mr. Domenico asked if Mr. Gendron was contesting the dates contained within the consent decree. Attorney Basb= anes said Mr. Gendron was not contesting them; Mr. Gendron had an attorney, read= it, signed it and the court approved it. He said whether Mr. Gendron liked, or didn’t like it, he signed it, and had to live with it. =

Mr. Gleason appreciated the attorney’s efforts, = but felt the time for the whole dialog was back in April when the application f= irst came in. He said it was rathe= r late to come in and start pleading a case. He said the Selectmen had done everything ‘by the numbers̵= 7;. He said he was very explicit in te= rms of why he was not in favor of granting a license renewal. He reiterated his reasons as follo= ws: 1) previous court rulings (two courts) had concluded that the historic and continuing local, state and federal problem resulting from the operation of= the junkyard and the violations of the conditions from the original variance ma= ke the plaintiff’s business an unsuitable applicant for re-licensing; 2) Town had not issued licenses in the past, the state did; however this year,= the state had opted to get out of the licensing business – Mr. Gleason was reluctant to get into the licensing business in place of the state; 3) the applicant had demonstrated an unwillingness to comply with all provisions of Town regulations and the consent decree - a) acceptance of white goods up u= ntil May, 2004, b) conditions of original variance granted have never been met (trees were not planted, fencing is in disrepair and not in keeping with the aesthetic requirements of the Town ordinances); 4) April, 2003 the applicant advised the Code Enforcement Officer that trailers would be moved to accommodate the request of abutters, however the trailers were not moved, b= ut instead registered them, which was legal, but did not demonstrate a willing= ness to cooperate; 5) the applicant circumvented regulations by licensing traile= rs even though there was no discernable plan to ever use those trailers as roadworthy vehicles. Mr. Glea= son said there were significant abutter concerns and the recurring theme was th= at Mr. Gendron was not willing to cooperate with anybody, nor the Town. He said a certified plot plan was = also not provided. He felt the Tow= n had a good basis. Attorney Basban= es said Mr. Gendron appeared to have provided the Town with a plot plan becaus= e he had a copy of one that was stamped as received March 20, 2003; the plan was certified b= y Thomas J. Raymond Licensed Land Surveyor. Mr. Gleason recalled that was not the certified plot plan requested. Mr. Gaydos said on= e of the abutters said it was not agreed to as a certified plot plan; however it= was a certified plot plan.

Mr. Gleason questioned how the issues of non-willingne= ss to cooperate with abutters and with the Town and with the repeated requests for compliance. Attorney Basbanes= said he couldn’t say how to satisfy the abutters, but the Selectmen had to follow the law. Mr. Gleason s= aid the courts concurred that the junkyard was a nuisance, and he felt it conti= nued to be a nuisance based upon the issues he raised earlier. Attorney Basbanes believed there w= ere no specific findings and reiterated that Mr. Gendron was grandfathered, and pa= id the fees. Mr. Gleason questio= ned if Mr. Gendron could explain why he failed to meet the conditions of the varia= nce that was granted. Attorney Ba= sbanes said he didn’t know what variance Mr. Gleason was talking about.

Mr. Lynde said it was a fact that the Selectmen denied= a license request based on finding that the junkyard was a nuisance. He said the decision was upheld by Superior Court and since that time, the Selectmen have not issued a license= and assumed the denial was still in affect and felt superceded, based on the contents/requirements of the consent decree (the state was controlling the = site and Mr. Gendron was acting only within the contents of the decree). He understood that things may be different today because of the change in law. He said Mr. Gendron had the right,= every year, to apply for a license and the Town had a right to not give one to him. He said the license was = not granted because Mr. Gendron was denied, the denial was legal and upheld by law and = no further action was needed. He= said if its not the case, a public hearing would need to be held to find if there was reason to not grant the request, which would probably begin with the question if the operation was still a nuisance. He was unsure if that question cou= ld be answered today. Mr. Lynde said there were certain conditions placed on the property in order to allow it operate which were known to not be satisfied. He said the question for the Board= was if the license could be denied based on the fact that the nuisance that was previously there had not been abated and if not, direction would have to be provided to Mr. Gendron of what he had to meet to come into compliance to h= ave a license.

Attorney Basbanes said in reviewing his file he found = a New Hampshire Supreme Court decision dated May, 2001 however, the consent decree where the state granted Mr. Gendron the right to operate his business with strict conditions for a period of five years was after that (August, 2001). He said there was only= a year and a half remaining. In reading the statute, Attorney Basbanes believed Mr. Gendron had to apply and the Town had to give him a license, unless he was in violation of a local by-law. He said if Mr. Gendro= n is in violation of a local by-law, then a formal notice should be sent, and a period of time should be given for correction.

Mr. Danevich said he wanted the public to have the opportunity to speak, but requested that the conversation be restricted to = new information, or a quick recap of testimony already given.

PUBLIC INPUT

Robert and Joan Talbot, Hobbs Road noted that there were th= ree prior meeting with several items discussed and submitted in writing. Ms. Talbot reviewed her list of co= ncerns regarding the applicant’s request for a license: 1) conditions from variance (1974)– no attempts made to plant trees as required - berm w= as to be placed on junkyard property, however it was placed on three abutting = properties [which is also against the conditions of the consent decree] – buildi= ngs and fences visible to the public not maintained or kept in attractive manne= r; 2) plot plan – done by West Associates was made specifically for the = EPA cleanup - the plot plan submitted to the Town (by Mr. Gendron) to designate= the property was sheet 2 of 2; however sheet 1 of 2 (of this certified plan) indicates that the plan was preliminary, pending more information from Mr. Gendron and his attorney – the plot plan and description of land give= n to the Town in 1974 & 1976 was very incorrect which resulted in a junkyard variance and license to operate – two family’s properties were = left off the plan and written description which created serious hardships for th= ose families; 3) application in violation with the consent decree because locat= ion cannot be an automobile recycling facility – no variance to operate a used car dealership in the residential zone at the property – if application granted it would result in further problems – the junkyard was disapproved for its location in February, 1997 to become a bonded deale= r by the Department of Transportation (‘DOT’); 4) letter from Keith Dubois from the Department of Environmental Services (‘DES’) in= dicated that the condition that items shall not be stored in the remedial area was still in effect and further (per consent decree) the deadline to vacate the remedial area was as of February 21, 2002 – Mr. Gendron submitted a letter to the state contesting this; 5) per consent decree, Mr. Gendron has= not submitted the required written plan consisting of a description of the activities to be undertaken to clean the operation area – per Keith Dubois, Mr. Gendron had not submitted the required plan, and was rather formally contesting the department’s interpretation of the consent de= cree deadline and requested an extension of the period of occupancy for his recycling operation – consent decree does not allow an extension (sta= te has not yet determined the clean up options and will hold a town meeting to discuss such); 6) per Keith Dubois there are no provisions/conditions in the consent decree that require the Town to issue a permit; 7) is it correct to assume that the trailers are not required to be moved because they are now registered and part of the operation – Mr. Gaydos said he understood = that the trailers were allowed to be within the setback area because they were registered – Ms. Talbot referred to the consent decree which states no vehicles of any kind may be brought into the operational area except for temporary entrance and exit of delivery vehicles – Mr. Gaydos noted t= here was a separation between the Town’s ordinance and the consent decree.

In summary Ms. Talbot informed that the consent decree= was still in effect and per her conversation with Mr. Dubois, the Town didnR= 17;t have to issue a license. Ther= e were violations to the variance. T= he license itself was in error; the requirements call for a legal plot plan wi= th a legal description. Ms. Talbot= was afraid if a license was issued, based upon documented history of procrastination and continual requests for more time would definitely cause= a delay in the clean up. She be= lieved the five-year timeframe was a fair offer by the state for a business to be = able to make money while cleaning up.

Mr. Lynde asked if it was Ms. Talbot’s understan= ding that in the state’s eyes Mr. Gendron could continue to operate under = the consent decree, whether or not he had a Town license. Ms. Talbot didn’t believe so= , but the state wanted the leeway so clean up could continue; however, she felt i= f a license was issued, the clean up process would move backwards.

Mr. Domenico questioned where the berms were located.<= span style=3D'mso-spacerun:yes'> Ms. Talbot said the berm was locat= ed on three abutting properties. On= e of Mr. Domenico’s concerns was the plot plan; he was not inclined to sup= port a license if there was a question as to whether the Town had a valid plot p= lan on file. Attorney Basbanes sa= id a plan signed by a certified surveyor was received by the Town on March 20, 2003.= Mr. Domenico asked if it was page o= ne of the plan. Attorney Basbanes h= eld the plan up and noted that the plan was dated July 29, 1999. Ms. Talbot said the plan was certi= fied and states the plan is preliminary, to be used by the EPA. Attorney Basbanes didn’t see= that language on his plan. Mr. Dan= evich believed that the Selectmen came to a conclusion that they accepted the plot plan submitted.

Attorney Basbanes read Section 22 from the consent dec= ree, which he felt was extremely relevant (regarding notification of violations). He went on to re= ad the letters submitted to the Selectmen from the Town inspectors and noted that = the people tasked with monitoring the site found it to be alright. Mr. Lynde questioned what would ha= ppen if the Town took action to deny the license, which essentially denied Mr. Gendron to operate in accordance with the consent decree. In Attorney Basbanes’ opinio= n if Mr. Gendron operated without a license the Town had the right to get a court order trying to get him to stop; this action would be defended. He said the Town could also go to = the state and inform them that Mr. Gendron was not operating under local by-laws. He said the other th= ing that could happen was an attorney could file a petition in Superior Court requiring the Town to issue a license.&nbs= p; He noted that he had copies of applications and checks (that were cashed) had been submitted to the Town.&nb= sp; Mr. Lynde was not sure if, when an application fee was submitted that the Town was obligated to return it if action was not taken. There was further discussion regar= ding the application and the stipulations in the consent decree.

Mr. Talbot noted that in early spring 2005 he witnessed white goods going into the site. He believed that Mr. Gendron and his attorney were throwing up a road block. He said the only thing the town wa= nted to do was to clean up the hazardous waste in the facility and the state was going to it. Attorney Basbanes wanted it known that he was not counsel of record to the decree.

Roland and Marjorie Raza, Hobbs Road understood that the Sele= ctmen had heard enough about the submitted plot plan. Mr. Raza said he objected for the = past few years about the plot plan being used.&= nbsp; He reiterated that the plot plan was not supposed to be used and said the Town only had to ask Mr. Gendron if he had certified/surveyed his land = and had a plot plan done since 1999. He said for twenty years the neighbors had lived with a nuisance. He said it was a nuisance in itsel= f that the applicant wrote his own rules. Mr. Raza pointed out when an applicant applied for something from the Town, they paid a fee; even if denied, the check is cashed. He said a fee had nothing to do wi= th continually granting a license. Mr. Raza noted that trees were never planted and further noted that nothing was supposed to be within the 15-foot setback.= He said a berm was built on his property by Mr. Gendron in 1960. He said berm in question was put i= n by the Federal Government in 1999. He wanted it known that Mr. Gendron had produced hazardous waste knowingly. He said when the waste was dug up = on his property a pipe was found going from the brook/marsh to under the machine t= hat the oil drained in. He ended = by reiterating his objection to the plot plan. Attorney Basbanes said if the Boar= d felt that the plot plan on file was insufficient, a notice should be sent, and t= hey would comply. Mr. Danevich sa= id it would be documented and make the request.&= nbsp;

Ms. Raza noted that the Supreme Court stated that the business was unsuitable for licensing; Mr. Gendron sued a second time, the judge signed it and it was stated again that the operation was unsuitable f= or licensing. She questioned how= many chances/times a person had (30-days, 60-days, 90-days etc.) to come back. She wanted to know if a person wou= ld have five, or ten years and wanted to know when a decision would finally be made. It was her feeling that= it was time for the Town to finally make a decision.

James and Helen Kennedy, 15 Hobbs Road, said in April, 1958 = they purchased their property. He = said it was evident that Mr. Gendron had filled the brook in. He failed to see why the trucks we= re allowed to be parked where they were, whether or not they are registered. He said the tires on the trailers = were flat. He questioned if Mr. Ge= ndron had paid his taxes as required by the consent decree. Mr. Kennedy said Mr. Gendron’= ;s site was not a junkyard, but instead a hazardous waste.

Mr. Lynde felt the Board should resolve certain questi= ons and if they chose to proceed, Mr. Gendron should be provided those conditio= ns that he must meet in order to get a license; which included a plot plan. He recommended that the hearing be continued and the Board put together conditions under which compliance was required, or define the conditions for denial. He said whatever was done, it woul= d have to be done in compliance with the statutes.

Mr. Domenico said it appeared every public hearing bro= ught up more and more issues. He w= as becoming very concerned with what he viewed/perceived as a clear pattern of deception on behalf of the operator of the facility. He reviewed some of the items that= had been discussed. He said he was concerned with entertaining the idea of yet another extension/continuation because it had been more than sixty days since the hearings began. He said the only way he would supp= ort an extension/continuation of the hearing is if the Board could clearly agree to specifics and a specific timeline to get to closure. He was also concerned that Mr. Gen= dron had not been provided with a detailed list notifying him of the specific th= ings he had to do to come into compliance with the local ordinances. He said he would be willing to ent= ertain a short extension and questioned if it could be fifteen days, rather than thirty. Mr. Domenico wanted to formally request the state to enforce the consent decree. He wanted to know what the state w= as going to do regarding the clear violations of the operation when the Board discussed the specific list of requirements. He said there were several issues = on the table and he would like to get firm facts on all of them, compose a letter = to Mr. Gendron, schedule a public hearing in 15-days and provide 30-days to comply. He reiterated his bel= ief that there was a pattern of deception, which was the Selectmen’s responsibility to either stop the deception, or stop the operation.

Mr. Gleason said the court found that the Board had ad= equate information to make the determination that the operation was a public nuisance. He cited one of the conditions specified which indicated that the historical and continuing loc= al, state and federal problems resulting from the operation of the junkyard and= the violations of the conditions of the original variance make the plaintiff’s business an unsuitable applicant. Mr. Gleason pointed out that the conditions of the original variance had not been as of today. He said he couldn’t change h= is position.

Mr. Danevich said he hadn’t learned anything dif= ferent and believed that the Town was on fairly strong ground at this point. He said he understood the consent = decree and the applicant’s attorney’s arguments. He said he was optimistic that the= Board would learn some new information, but didn’t feel anything new had co= me forward.

Attorney Basbanes suggested before the Board took any action, they should be sure of what they were doing.

Mr. Lynde wanted advice for the following: 1) as to wh= ether the Board’s rationale/decision (several years ago) to deny the license based on a nuisance could still be upheld; 2) if there was a need to go back and provide an opportunity for rectification to Mr. Gendron; and 3) if considered a new application the requirements had to be defined for what was needed to get the license. Mr. Gaydos questioned what would be lost if a list of non compliance items was given to Mr. Gendron. He said= if Mr. Gendron didn’t comply, it would be the evidence to close him down.

Mr. Gleason made a motion that the application for ren= ewal of the junkyard license for Mr. Gendron be denied on the basis of evidence = from public hearings, from letters and statements read by local and state offici= als and public statement by abutters at various meetings of the Board of Select= men and the findings of Superior Court; and Superior Courts of the State of New Hampshire indicate that without qualification the junkyard in question is a public nuisance and does not meet the requirements of the criteria of RSA 231:121 concerning the granting or denial of applications. The original conditions of the var= iance have never been satisfied. Mr. Lynde seconded the motion for discussion.&= nbsp; He asked that before the Board took the path to deny, that they obta= in legal advice regarding such; he further suggested that the Town go to Attor= ney Diane Gorrow since she was the attorney who dealt with the issues in the past. He believed seeking leg= al advice would provide direction on the questions he previously raised.

Mr. Gleason pointed out that in the past the Board had= not granted a license; he didn’t know the ramifications of granting one at this point. He discussed the history between the Town and the applicant and the applicant’s lack of cooperation. He said he was prepared to put forth his motion, un-amended. Mr. Lynde said the Board had to mo= ve forward on factual information; four years ago they had that condition and didn’t know if the case could be made today. Mr. Gleason said any applicant tha= t came before the Board had the obligation to try and satisfy the requirements of = the Town. He pointed out that an operation was in effect, a variance had been granted (in 1974) and agreed to the terms; however, to this day, the terms had not been met. He ended by saying he felt the Boa= rd had adequate grounds and given the applicant ample opportunity to be responsive= and to attempt to comply, but the applicant hadn’t done so.

Mr. Domenico agreed in principal with Mr. Gleason̵= 7;s statements, but felt it was in the Town’s and the abutter’s best interest to proceed on a slightly different tract. His proposal would be to continue = the hearing until August 16, 2005 at which point Mr. Gendron would be provided = with a specific list of items that would require compliance prior to September 1= 3, 2005 in order to come into compliance with the original variance criteria a= nd any and all other Town by-laws and ordinances that may be found in violation of. He then requested that Mr. Gaydos contact the DES tomorrow morning and request immediate enforcement of the acknowledged violations of their consent decree with Mr. Gendron or get= a response indicating why they are not enforcing their consent decree. He ended by suggesting that the Selectmen convene a special meeting September 14, 2005 where the matter would be dispose= d of one way, or another.

Mr. Gaydos discussed the suggestions and said if the B= oard felt they had enough evidence to go to court a vote should be taken.

Mr. Lynde didn’t believe Mr. Gendron had been pr= ovided with the requirements he must meet to get the license during the licensing process this year. He said no matter what had happened in the past, because an application was submitted,= the Board had an obligation to give direction as what had to be done to comply. If Mr. Gendron didn&#= 8217;t comply, the Town would be on solid footing to deny.

MOTION:<= o:p>

(Gleason/Lynde) To deny the application for renewal = of the junkyard license for Mr. Gendron on the basis of evidence from public hearings, from letters and statements read by local and state officials a= nd public statement by abutters at various meetings of the Board of Selectmen and the findings of Superior Court; and Superior Courts of the State of N= ew Hampshire indicate that without qualification the junkyard in question is= a public nuisance and does not meet the requirements of the criteria of RSA 231:121 concerning the granting or denial of applications. The original conditions of the variance have never been satisfied.

ROLL CALL V= OTE:

(1-3-0) Mr. Danevich-No; Mr. Lynde-No; = Mr. Domenico-No; Mr. Gleason-Yes<= o:p>

Mr. Domenico made a motion to continue the public hear= ing until August 16,= 2005, at which time the Board would provide Mr. Gendron with a detailed list of issues that require attention at his facility in order to come into complia= nce with the previous variance criteria, by-laws or ordinances that may exist in the Town. Mr. Gaydos will req= uest, tomorrow morning (August 3, 2005), through official channels that enforceme= nt action be requested of the state in regard to violations that may exist wit= hin the consent decree; the hope would be to have a response from the state pri= or to the August 16, 2005 meeting. Once Mr. Gendron had the criteria that he had to comply with, a publ= ic hearing would then be scheduled on September 14, 2005, at which time the matter would be disposed of one way, or another. Mr. Gleason wanted to consider issuing a cease and desist order immediately until such time that the situation is rectified. The basis for the cease and desist= would be the continued violation of an effective variance that was issued in 1974= . Mr. Danevich would not support the= cease and desist, or including dates in the motion. He was okay with continuing the he= aring to August 16, 20= 05, but believed the Board needed to understand the list before another date was set. Mr. Domenico was concern= ed with not setting a finite time table, which he believed was one reason there had been no closure on the issue.

Mr. Domenico amended his motion to say after Mr. Gendr= on was provided with the list on August 16, 2005; the Selectmen would schedule and convene at the soone= st possible meeting thirty-days from that date. Mr. Lynde seconded the motion and accepted the amendment.

MOTION:<= o:p>

(Domenico/Lynde) To continue the public hearing unti= l August 16, 2005, at which time the Board would provide Mr. Gendron with a detailed list of issues t= hat require attention at his facility in order to come into compliance with t= he previous variance criteria, by-laws or ordinances that may exist in the Town. Mr. Gaydos will reque= st, tomorrow morning (August 3, 2005), through official channels that enforce= ment action be requested of the state in regard to violations that may exist within the consent decree; the hope would be to have a response from the state prior to the August 16, 2005 meeting. Once Mr. Gendron had the criteri= a that he had to comply with, the Selectmen would schedule and convene at the soonest possible meeting thirty-days from that date.

ROLL CALL V= OTE:

(3-1-0) Mr. Danevich-Yes; Mr. Lynde-Yes= ; Mr. Domenico-Yes; Mr. Gleason-No<= o:p>

OTHER BUSI= NESS

Mr. Bergeron returned to the Board.

Code Enfor= cement Discussion

Mr. Danevich said he wanted the Selectmen to consider = what action, or what things should be considered during the code enforcement process. He said one of the m= ain things was communication. Mr. Domenico said he would like to develop some metrics of standards so the Selectmen could make objective decisions regarding the volume of work and determine the personnel needs. He believed the information should be tracked better.

Mr. Gaydos said during the discussion at the previous meeting there was a question by the Code Enforcement Officer regarding the documentation being kept, which seemed to be a bit more than what a part-ti= me person could handle. He asked= if the Selectmen wanted the documentation that had been requested. He also needed to know the Board&#= 8217;s expectations.

Mr. Danevich asked if there were any objections to him drafting a summary of an approach for review. He said his reason for taking the = lead, was because he was the current Selectmen Representative for the Planning Bo= ard. There were no objections.

2006 Budget Process Overview & Schedule

Mr. Gaydos said he met with Mr. Gleason and a new/diff= erent way of looking at the budgets had been done. He said they were currently review= ing the 2006 default budgets to ensure they were accurate and complete. He said they would also review some proposed budgets for 2006 with the idea that a scheduled would be presented= to the Selectmen. He said there = would be a request to hold additional meetings dedicated to the budget.

Mr. Gleason believed he and Mr. Gaydos had a good star= t to the process and what came out of it would help facilitate the review process. He said once the fin= al numbers were received, he and Mr. Gaydos would set up meetings with the ‘high volume’ departments after which specific times would be s= et up with the Selectmen to review. He said it was intended to have members of the Budget Committee sit in on the meetings to get familiar with the new format.

Communicat= ion Flier

Mr. Gleason read the communications flier aloud which outlined the contents of the Special Meeting to be held September 13, 2005 7am-8pm.= He said it was the intent to send the flier to all tax payers so they could be informed.

There was no objection to the wording of the flier. Mr. Gaydos would see to having the= flier sent out.

NON-PUBLIC SESSION: RSA 91-A:3, II(d)

Session wi= th Conservation Commission Re: Consideration of acquisition, sale or lease of property

The Selectmen addressed this when entering into non-pu= blic session after Selectmen reports.

TOWN ADMINISTRATOR’S REPORT/SELECTMEN’S REPORTS

Mr. Gaydos said today was Planning Director Will D’Andrea’s last day. He met with Mr. D’Andrea who provided a complete detail of current activities and left a complete detail for the new planner. Mr. Gaydos suggested that the Board adopt the position of Zoning Administrator during the vacancy of the Planni= ng Director position. There was a brief discussion it was noted that the decision required no action of the Board.

Mr. Domenico, Mr. Lynde and Mr. Gleason had no reports= .

Mr. Bergeron said he met with representatives from the offices of Senator Sununu, Senator Gregg, and Congressman Bass and thanked = them and the senators and the congressman for their help to the Town. He said they were all happy that t= he Town notified them of the Town Center situation. He requested that a more formal th= ank you be sent to each on behalf of the Town.= There was no objection. Mr. Gaydos was asked to prepare a response for the Selectmen to sign. Mr. Bergeron said he met with DOT Commissioner Carol Murray, discussed the two million dollar appropriation a= nd managing the project. He disc= ussed the types of items that would need to be reviewed. He said the one warning was to pre= serve the eligibility of federal aid; funds would be available in 20% increments beginning Octobe= r 1, 2005. He ended by recognizing everyone w= ho supported and helped the effort.

Mr. Danevich thanked Mr. Bergeron for the work he had = done regarding a resolution for the Town Center.

REQUEST FOR NON-PUBLIC SESSION – (b) Planning Di= rector search; (d) session with Conservation Commission.

MOTION:=

(Lynde/Bergeron) Request for a non-public session pe= r RSA 91-A:3,II,b & d (Hiring of any person as an employee; Consideration of acquisition, sale or lease of property)

ROLL CALL:<= /b>

Mr. Danevich-Yes; Mr. Lynde-Yes; Mr. Bergeron-Yes; M= r. Gleason-Yes; Mr. Domenico-Yes

Mr. Danevich noted that when the Board returned, after= the non-public session, the Board would not take any other action publicly, exc= ept to possibly seal the minutes of the non-public session and to adjourn the meeting. The Board entered in= to a non-public session at approximately 10:15 pm. Also present = was Mr. Gaydos.

The Board returned to public session at approximately<= span style=3D'mso-spacerun:yes'> pm.

MOTION:=

(Gleason/Bergeron ) To seal the minutes of the non-p= ublic session.

VOTE:

(5-0-0) The motion carried.

ADJOURNMEN= T

MOTION:<= o:p>

(Bergeron/Domenico) To adjourn the meeting.

VOTE:

(5-0-0) The motion carri= ed.

The meeting was adjourned at approximately pm.

&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; Respe= ctfully submitted,

&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; Chari= ty A. L. Willis

&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; Recor= ding Secretary