SEL20080102

APPROVED

TOWN OF PELHAM

BOARD OF SE= LECTMEN MEETING

MINUTES

January 2, 2008

APPROVED – January 22, 2008=

CALL TO ORDER

PLEDGE OF ALLEGIANCE

PRESENT:

Mr. Victor Danevich, Mr. William McDevitt, Mr. Robert Haverty, Mr. Douglas Viger,

Mr. Tom Gaydos, Town Administrator

Also present:

ABSENT:

Members of the press and general public.

Mr. Harold Lynde

&nbs= p;

The Chairman, Victor Dan= evich, opened the meeting at approximately 6:30 pm.

MINUTES REVIEW

December 18, 2007

MOTION:<= o:p>

(Viger/McDevitt) To approve the December 18, 2007 meeting= minutes as written.

VOTE:

(4-0-0) The motion carri= ed.

OPEN FORUM

None.

NEW BUSINESS

$10,000 Re= quest Encumbrance from Planning Funds for Recreation Impact Fee

Mr. Gaydos said the Selectmen had previously discussed= a proposal that had been received from Frogier to do $10,000 worth of work to plan for the impact fee. He s= aid a bill had been received and suggested that the money be encumbered from this year. The bill would be paid = after the work was completed.

MOTION:<= o:p>

(McDevitt/Viger) To encumber $10,000 out of the Plan= ning Department Budget for the purpose of funding the Recreation Impact Fee development.

VOTE:

(4-0-0) The motion carri= ed.

Warrant Article Numbering Sequence

Mr. Danevich said they had incorporated changes that h= ad been presented. Mr. Gaydos sa= id he had a couple changes that were minor in nature and asked the Board to consi= der them. The first change was to Article D -purchase of Highway plow truck.= The wording incorrectly indicated that the truck was 10-wheeled and should be corrected to read: <= /span>‘The purchase of a six-wheeled highway plow truck with dump body plow frame and sander.’

MOTION:<= o:p>

(Haverty/McDevitt) To reconsider Article D.

VOTE:

(4-0-0) The motion carri= ed.

MOTION:<= o:p>

(Haverty/McDevitt) To change the wording (of Article= D) as proposed by Mr. Gaydos. =

VOTE:

(4-0-0) The motion carri= ed.

Mr. Gaydos informed that correspondence had been recei= ved from the state indicating that the Highway Block Grant was not $245,000. The Highway Block Grant is $254,688. He asked that the Selectmen change the number in Article C – Highway Block Grant to read $254,688.

MOTION:<= o:p>

(McDevitt/Viger) To reconsider Article C.

VOTE:

(4-0-0) The motion carri= ed.

MOTION:<= o:p>

(Haverty/Viger) To approve the changes (to Article C= ) as recommended by Mr. Gaydos to change the number from $245,000 to now read $254, 688 for the Highway Block Grant.&n= bsp;

VOTE:

(4-0-0) The motion carri= ed.

Mr. Gaydos discussed Article G - $35,000 to be placed = in the Capital Reserve Fund for bridges. He questioned if the Board wanted to continue with the article or remove it fr= om the warrant. He said it was n= ot recommended by a strong majority of the Budget Committee. He didn’t feel there would b= e harm in waiting. The bridge was no= t on the state’s 10-year plan and with the other competing items, Mr. Gayd= os felt it could be removed this year.

Mr. McDevitt understood why it would be withdrawn. He said the bridge had been on the state’s list ever since he could remember. He felt by withdrawing the article= and putting it on the Town’s ‘back burner’ it would stay off = of anybody’s list until such time as the bridge became a problem and the= n it would be too late. He was not= in favor of removing the article.

Mr. Haverty appreciated the spirit in removing the art= icle from the ballot and supported doing so.&nb= sp; Mr. Viger agreed to remove the article from the ballot. Mr. Danevich was also in favor of pulling the article from the warrant in consideration of everything else on= the ballot.

MOTION:<= o:p>

(Viger/Haverty) To remove Article G from the warrant= .

VOTE:

(3-1-0) The motion carried. Mr. McDevitt voted no.

Mr. McDevitt questioned Article AB. He said at the last meeting the Selectmen has suggested some changes to the article in terms of replacing wording in the second sentence. He reviewed the portion of the Selectmen meeting minutes of December 18, 2007 at which = the Selectmen amended the wording in Article AB through a 5-0 vote. Mr. Danevich said the change would= be made.

Land Use Petition Warrant Article

Mr. Gaydos said a petition warrant article had been re= ceived on June 4, 2007 that had thirty-five signatures. The article was to rezone Route 38 for a distance of 600-feet back f= rom the center line of 38 to be zoned a Business Zone. He said it was received, distribut= ed and filed for the 2008 Town Meeting (and had stayed in that file). He said when the petitioner questi= oned where the article was and when the hearing would be conducted it was brough= t to the Town’s attention and found in the file. He said at that point, Planning Di= rector Jeff Gowan reviewed the article and found that there was a beginning date f= or the submission of petition warrant articles regarding zoning changes. Mr. Gaydos said the petition warra= nt article had been submitted too early and was brought to the Town’s attention = too late. He said he spoke to Cou= nsel and received the recommendation to go ahead and have the public hearing for= the Planning Department and place the article on the warrant. If it succeeded in passing, it wou= ld be subject to an appeal (as was anything), but at least it would be on the ballot. Mr. Gaydos said there= was nothing that could be done about what happened, it was a regretful error.

Mr. Danevich discussed the submission time. He summarized that the Town receiv= ed the article in June, 2007, but the Town should not have accepted it by state statute until N= ovember 12, 2007. He said with zoning changes, any plans submitted had to be held accountable to the proposed/pending changes. He = said the Town was in error and accepted the article too early per state statute; however now the time for posting had passed. He asked the ramifications if the article was not placed on the ballot. Mr. Gaydos said one legal opinion was that the Town didn’t have the authority to place it on the ballot, but because of the Town’s er= ror, he felt they had a duty to put it in front of the taxpayers. He said if it passed and there was= no objection (appeal), then it would be approved and would stand.

Mr. Danevich asked the ramifications if the article wa= s not placed on the ballot. Mr. Gay= dos said the Town would have an unhappy taxpayer. He saw no harm in putting the arti= cle on the ballot because there were safeguards for an aggrieved taxpayer. Mr. Danevich confirmed that the To= wn was clearly in error of accepting a petition zoning article. He understood other types of petit= ions could come in at other times, but zoning was limited by state statute. Mr. Gaydos said there was a 30-day window for the Town to accept zoning articles.

Mr. Danevich said there were two issues: 1) what is the procedure moving forward; and 2) how the current issue would be resolved.

Mr. Haverty was concerned what happened in the interim= if the article passed. Mr. Gaydo= s said the final vote wouldn’t come until March and there was a short window that people had a right to appeal. <= /span>He believed it would be expedited by the court in not more than one session. Mr. Haverty asked what impacts the article would have to existing zoning on Route 38. Mr. Gaydos said he hadn’t fo= cused on what the warrant said because the wording could not be changed. He deferred the question to Planni= ng Director Jeff Gowan. Mr. Dane= vich said the Selectmen’s objective was not to determine the merits of the article. He said it was stric= tly a mechanical question as to whether the article went on the ballot.

Mr. Viger said at the time the article was accepted th= ey didn’t know there was a law and it was realized too late that there w= as a law. He said he struggled with proceeding against the law, now knowing that the law existed. He said regardless of whether it w= as the Town was fault or not, it was up to the Selectmen to maintain the law now t= hat they knew what it was and not put the article on the ballot.

Mr. Haverty had a number of concerns with the process, ranging from not knowing that there was a law for accepting such articles, = and also to the validity of the article. He saw Mr. Viger’s point and under the premise of two wrongs d= on’t make a right, he agreed with Mr. Viger.

Mr. McDevitt said the RSA wording was clear that a submission shall be submitted to the Board of Selectmen during the period between 120 and 90 days prior to the Annual Town Meeting. He had no doubt that it was a good= faith oversight of the petitioner and a good faith oversight on the Town to accept it. He said the burden was al= ways on the petitioner to follow the law. He was not in favor because they would be in violation of the law. Mr. McDevitt said he would like to= see Counsel’s advice in writing about what they felt the Selectmen should do.

Mr. Gaydos said he pressed the issue with the Town bei= ng at fault to Counsel. He said Cou= nsel offered their advice as a compromise, not saying that it was right or wrong, but offered the advice as a path that could be taken. He said Counsel was not advising t= hat this was the proper way to do it; the question was what the Town’s options were. He said one att= orney said flat out the Town had no business putting the article on because of wh= at the law said; but in speaking to different attorney’s there are diffe= rent opinions. He said the bottom = line was with the Selectmen and what they were comfortable doing.

Mr. Danevich said personally it was troubling to knowi= ngly violate the law. He said the decision was purely mechanical and had nothing to do with the content. He said it was not received within= the state statute timeframe and should have rejected it on June 4, 2007. He didn’t feel that the Sele= ctmen could compound one error with another wrong.

The petitioner, Mr. Pat Gendron, 35 Wood Road came for= ward and explained that he tried to bring the petition forward last year and was told he was one day too late. He said he brought the article in so early this year because of what previously happened. He said no one said anything about coming in too early; he would have held onto the petition and made the submission in November. He proposed that the Town give him until Monday to work with Mr. Gowan and cha= nge the wording to what he was comfortable with and resubmit the article for placement on the ballot. Mr. Danevich said the wording had nothing to do with the situation; they were already outside the submission period.&nbs= p; He said the question was if the zoning change could be accepted.

Mr. Haverty said there was a separation of the article’s content and the mechanics of accepting it. He said if the Selectmen allowed modifications and a re-submission, they were outside the window for accepti= ng a petition warrant. Mr. Danevich reiterated that content had nothing to do with the question. Mr. Haverty questioned whether or = not the wording could be modified without going back for signature. The individuals that signed-off on specific wording. Mr. Danevic= h said it would put the Town in a position of knowingly violating state law by accepting the petition.

Mr. Gendron said his rights were violated that the art= icle was not going to be on the ballot. <= /span>He said he spoke to an attorney who informed him it could be put on the ballot. He felt it should be = up to the voters if someone wanted to challenge it.

There was further discussion regarding the submission = of the article. Planning Director Je= ff Gowan (who was seated in the public) extended an opportunity for Mr. Gendro= n to work with his office and the Planning Board on wording for a petition of this sort for next year’s ballot.

Mr. Gendron believed tha= t this would have been the best year for the article to pass.

Mr. Gaydos asked if there was still an opportunity for= the Planning Board to place a planning/zoning ordinance on the warrant. Mr. Gowan believed the Planning Bo= ard would never rush wording during the timeframe for something to go on the ballot. He noted that the fir= st public hearing date for zoning had already passed; the Planning Board couldn’= ;t make changes to the zoning they had already been discussing.

MOTION:<= o:p>

(Viger/Haverty) To not place the article on the ballot.

ROLL CALL V= OTE:

(4-0-0) The motion carri= ed. Mr. Danevich-Yes; Mr. McDevitt-Y= es; Mr. Haverty-Yes; Mr. Viger-Yes

Mr. Danevich asked what was done to prevent a similar situation in the future. Mr. = Gaydos explained that the current procedure would include an additional step. The distribution list has been def= ined to include the Planning Department and the Town Attorney. A cross-file has also been set up.= Mr. Danevich suggested that an FAQ= be created for warrant articles. Mr. Gowan said he would be happy to do it.&nbs= p;

Mr. McDevitt pointed out that other types of petition = warrant articles could be presented at any time.&n= bsp; He said this was one type of petition that was constrained by state law.

Year-end Financial Review

Mr. Gaydos reviewed the year-end budget, which he felt= had over-all gone well. He provid= ed the Selectmen with a summary of the department’s budgets. He commented that the departments = were putting their three-year plans together for review by the Selectmen.

The Selectmen appreciate= d the work that the Department Heads had done to keep their budgets in line.

Conservation Commission Recording Secretary

Mr. Danevich informed that Glennie Edwards had submitt= ed her resignation for her position of Recording Secretary to the Conservation Commission. Mr. Gaydos said M= s. Edwards would remain active in the other areas for which she provided suppo= rt to the Town. He said the norm= al posting procedure would be followed for the position.

MOTION:<= o:p>

(Haverty/Viger) To accept, with regret, the resignat= ion of Glennie Edwards as the Conservation Commission Recording Secretary.

VOTE:

(4-0-0) The motion carri= ed.

TOWN ADMINISTRATOR’S / SELECTMEN’S REPORTS

Mr. Gaydos reminded residents that there was a state s= tatute that prohibited people from leaving plowed snow in the traveled way. He said the Town had passed an ord= inance in 1978 for the protection of highways; there is a $100 violation fine. Mr. Danevich suggested posting information on the website, PTV and the Police Department website. Mr. Gaydos informed that the Great= er Salem Chamber of Commerce would hold a Washington Update on January 25, 2008 at the SNH= U Campus beginning at 7:30am.; this event is open to the public. =

Mr. Gaydos said purchasing a secure cage (storage cage= ) was part of program for purchasing medical supplies. He said they had been having diffi= culty understanding all the modular pieces that they needed to buy. He said they had planned on spendi= ng $18,000 on the cage; the money was appropriated for this purpose and was in= the budget. He asked the Selectme= n for permission to encumber $18,000 for the purpose of purchasing secure cages. =

MOTION:<= o:p>

(Viger/Haverty) To encumber $18,000 for the purpose = of purchasing secure storage cages for the Emergency Management Supplies.

VOTE:

(4-0-0) The motion carri= ed.

Mr. Gaydos asked permiss= ion to post the Health Officer position. = There was no objection.

Mr. Viger informed that = the Budget Committee had reconsideration on January 10, 2008.

Mr. Haverty said with the holidays over the Fire Stati= on project would get back on track. He said they would enter ‘informational mode’ and working with the committee to get dates.

Mr. McDevitt reminded residents that the Presidential Primary would be held January 8, 2008 at Pe= lham Memorial School from 7am-8pm.

Mr. Danevich reviewed the upcoming meeting schedule.

REQUEST FOR NON-PUBLIC SESSION

MOTION:

(Viger/Haverty) Request for a non-public session per RSA 91-A:3,II,a&b (personnel; hi= ring of any person as an employee)

ROLL CALL:

Mr. Danevich-Y= es; Mr. McDevitt-Yes; Mr. Haverty-Yes; Mr. Viger-Yes

Mr. Danevich not= ed that when the Board returned, after the non-public session, the Board would not = take any other action publicly, except to possibly seal the minutes of the non-public session and to adjourn the meeting. The Board entered into a non-public session at approximately 7:= 24 pm. Also present was Mr. Gaydos.

The Board returned to public session at approximately 8:11pm.

MOTION:

(Viger/Haverty= ) To seal the minutes of the non-public session indefinitely.

VOTE:

(4-0-0) The mo= tion carried.

ADJOURNMENT

MOTION:

(Viger/Haverty= ) To adjourn the meeting.

VOTE:

(4-0-0) The motion carried.

The meeting was adjourned at approximately 8:11pm.

= &nb= sp; = &nb= sp; = &nb= sp; = Respectfully submitted,

= &nb= sp; = &nb= sp; = &nb= sp; = Charity A. L. Willis

= &nb= sp; = &nb= sp; = &nb= sp; = Recording Secretary