RCL Notes of March 20, 2014 Conservation Meeting

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Final Revision B – Provided by the Rye Civic League

Present from the Conservation Commission:  Jim Raynes, Jaci Grote, Mike Garvan, Sally King (arrived late), Jeff Gardner

Also present:  Dyana Ledger, transcriptionist

            Present from public:  Selectman Joe Mills (only initial portion of meeting), State Representative Tom Sherman (left around the time that the meeting started), Peter Crawford, and two individuals representing applicants


  1. Sally King appointed Chairman, Jim Raynes requesting to stay on the Conservation Commission.
  2. Property at 71 Atlantic Ave. draws the ire of Jim Raynes because of a driveway constructed too close to a vernal pool.
  3. Special Town Meeting had been scheduled for April 11 to cure the irregularity on the Conservation Bond vote.  Sally King acknowledges that the up or down vote could be defeated.

    Editor’s note:  See also the notes of the Board of Selectmen meeting earlier in the day, at which three motions were approved relative to the Conservation Bond and the Special Town Meeting.  That meeting also involved persons having left to go upstairs, in that case apparently to confer with an attorney.  See N.H. Rev. Stat. Ann. 91-A:2, I(b) (exempting consultations with legal counsel from being considered public meetings).

    Note:  The video is not on the Town website.  Rather it is available at https://vimeo.com/89809357.  The elapsed times are relative to the start of that video.

    Apparent non-public meeting (6:59 p.m.)

    At approximately 6:59 p.m., the entire contingent of members of the Conservation Commission, including Jim Raynes and Sally King, left with Town Administrator Michael Magnant to go upstairs for an executive session.  Ray Jarvis also went upstairs with the group.  Shortly after that, Selectman Priscilla Jenness arrived.  Then, shortly after that, Sally King appeared in the Courtroom and informed Selectman Jenness that it was fine, and asked her to come upstairs.  At some point during this process, Selectman Mills also appeared and, it appeared, also went upstairs.  At another point, State Representative Tom Sherman arrived.  Dyana Ledger who was sitting in the downstairs lobby, indicated that he should go upstairs.  He did so, but returned downstairs almost immediately and sat in the Courtroom.  At some point Lindsey Josephs also arrived and appeared to go upstairs.  Editor’s note:  Ray Jarvis and Lindsey Josephs are not members of the Conservation Commission, but are members of the Open Space Subcommittee of that Commission.

    Call to order and approval of minutes (0:00 elapsed, approximately 7:28 p.m.)

    As the meeting was called to order, and after the pledge of allegiance, Selectman Mills asked whether the video needed to be turned on.  Mr. Raynes quipped, “we’re not allowed to.  We’re a small, subversive group in the town.”  Selectman Mills suggested that he might want to “keep up with the law.”  Mr. Raynes responded that they had not been required to since the beginning.  “Nobody wants to see us, Joe,” he said.

    There was also discussion about Ray Jarvis and Lindsey Josephs not yet having joined the meeting, and still being upstairs.  They never did join the meeting.

    Jim Raynes notes that an additional item would be added to the agenda.

    The motion to approve the minutes with a change by Mike Garvan to indicate that he had not been present, carried unanimously.  Editor’s note:  Although not stated, the agenda refers to approval of the February 20, 2014 minutes.

    Election of officers (3:09 elapsed)

    Mr. Raynes reported that his request, and that of Mike Garvan, to be continued on the Conservation Commission had been sent to the Selectmen.  His son had not put his request in yet, he said.  Editor’s note:  This is an apparent reference to Charles Raynes, who is listed on the town website as an alternate, with a term expiring in 2014.  Mr. Raynes stated that this was the eighth time that he was seeking an appointment.  He said that this is the only time that he has had second thoughts.

    In response to questions from Jaci Grote, Mr. Raynes explained that, before the election, it was he and Sally King, however “they” do not have a spot for a vice chair, but they had sort of been working with one.  The only officer is the Chairman, and there is a hired secretary.

    (5:05 elasped)

    At this point, Sally King walked into the room.  Mr. Raynes then stated that the floor was open for nominations.  Mike Garvan then nominated Sally King to be Chairman.  Ms. King quipped that she hoped they would switch around more often now.  No other nominations for Chairman were made.  The motion appointing Sally King as Chairman carried unanimously.  Mr. Raynes stated that he would stay around and put the agendas together.

    Mike Garvan suggested that Mr. Raynes be appointed Vice Chairman.  Mr. Raynes stated that he was just going to stick around and assist Ms. King.

    Memorandum regarding procedural irregularity (6:38 elapsed)

    Mr. Raynes then referred to a memo dated February 12 from Peter Crawford.  He handed a piece of paper to Sally King, who read from it.  She stated that Mr. Crawford had correctly identified a procedural defect with regard to the public hearing on the Commission’s bond request.  RSA 33:8-a states that the hearing must occur between 15 days and 60 days prior to the town vote.  The staff took that to mean the March 11 town vote.  However RSA 40:13, II-a establishes a deadline for public hearings in SB2 communities which is the third Tuesday in January.  They were unaware of this additional requirement and missed the deadline.

    Recount (7:54 elapsed)

    Mr. Raynes then referred to a document from the Town Moderator with regard to the recount procedure.  The recount has been scheduled for the following Wednesday, for both Articles 7 and 17.  Editor’s note:  Article 7 is the $3 million conservation bond, which passed 1000-654, or with 60.5 percent of the vote.  Since 60 percent majority is required for passage, a shift of eight votes from yes to no would result in the article being defeated.  Article 17 relates to an additional police officer, and failed 839-803.  A simple majority is required for that article, so 19 votes would be needed to shift for that article to pass.  Ms. Grote stated that the recount was scheduled for Wednesday the 24th at 10:00 a.m.  Editor’s note:  March 24th is a Monday.  The recount was actually scheduled for Wednesday March 26 at 10:00 a.m. at Town Hall.  The recount was conducted on that date, and resulted in two additional “no” votes and one additional “yes” vote.  That narrowed the margin to 1001-656, six votes more than the 60 percent needed.

    Wetlands (8:51 elapsed)

    Mr. Raynes stated that there were five applications and now there are six, as one was received earlier in the day.  These are emergencies.

    Sally King read from several of these applications:

    1.  A document referring to DES Wetlands Bureau file 2013-00659, 11 and 15 “F” Street, Rye tax map 5.3, lot 57.  It is a minimum impact project, storm damage to a seawall.

    2.  An application from Jonathan Brown, 2340 and 2350 Ocean Blvd., Rye tax map 5, lot 56, standard dredge and fill application.  This is after the fact as the application was due June 3, 2013.

    3.  Christos Papoutsy, 2234 Ocean Blvd., Rye tax map 53 lot 67, dredge and fill application.

    4.  An application from Dennis McCarthy.  Mr. Raynes stated that that was the Town.  Editor’s note:  Mr. McCarthy is Public Works Director.

    5.  A wetlands minimum impact forestry notification for Penhallow, 33 Wentworth Rd., Map 26 lot 10.

    6.  60 Wentworth Rd., Peter Weeks.  Ms. Grote asked whether this was the Country Club.  Ms. King nodded affirmatively, whereupon Ms. Grote stated that the site walk had already been done.

    7.  Tax map 9.2, lot 20, Ed Moyle and Diana Kelley, 160 Harbor Rd., notification that the wetland has been approved.

    William Toner LLC (John Chagnon), 1296 Ocean Blvd. (15:20 elapsed)

                Editor’s note:  Visionappraisal.com lists the property at this address as being owned by William Toner LLC.  John Chagnon of Ambit Engineering is apparently the engineer who filed the application.  Mr. Chagnon was not present.

                Mark Batchelder spoke to the application.  He stated that John had asked for him to go over certain changes.  He stated that the property is located almost directly across from Petey’s.  The owner is William Toner LLC.

    There is a single story house there that will be demolished.  Mr. Raynes referred to a restriction there with a limitation to sea grass along the sea wall.  The owner had installed a watering system that he had been required to remove.  Sally King stated that the owner also owns the property next door.  Mark stated that there is encroachment across the property line, but that will be rectified upon rebuilding, with a reduction of the footprint of about 100 sq. ft.  Impervious surfaces will remain the same, except for the reduction of the size of the house.

    A wetland permit has not yet been applied for as a decision on a new septic system is still pending.  Mr. Raynes asked whether a new septic was required.  Jeff Gardner speculated that, if the number of rooms was remaining the same, a new septic system was not required.  Mike confirmed that the number of bedrooms was remaining the same at the current time, however they are still looking into the issue of whether a new septic system would be required as there is a potential rule change.

    Mr. Raynes suggested that the site walk be deferred until after the wetlands application had been submitted.

    It was confirmed that the building elevation of 41.94 feet compared to a limit of 40 feet.  There was discussion about whether the maximum was actually 34 feet and whether this would need to go before the Planning Board or the ZBA.

    Mr. Raynes suggested that the notes be circulated among the members and then sent to Dyana so that she would know to forward them to DES.

    71 Atlantic Ave. (27:24 elapsed)

    Mr. Raynes opened the discussion by noting that it would not be a fun discussion.  Mr. Raynes stated that the after-the-fact application was particularly bothersome.  He said that “Benson” used to do this.  This one is worse, because they had been involved with the neighboring property.

    Ms. Grote asked whether this was the property with the vernal pool.  Mr. Raynes confirmed, stating that she had been standing in the vernal pool.

    Mr. Raynes stated that they had paid to have a soil scientist go down with the Building Inspector at the neighboring property.  Eggs were found in the vernal pool, so there is no question.  Editor’s note:  See the definition of “vernal pool” in the zoning ordinance, which refers to a “breeding habitat for amphibians and invertebrates…”  There was a wetland delineation done which showed the vernal pool and the size of the infringement.

    The applicant’s representative referred to 415 sq. ft. which is fill, which is the subject of a DES enforcement action.  DES also wants them to address any resulting vernal pool impacts.  The Town also issued a notice of violation addressing the vernal pool, the wetland, storm water, and coverage.

    The applicant showed a revised plan with the driveway moved back from the vernal pool area and the creation of a rain garden to catch the storm water.

    Mr. Raynes referred to page C1.  Editor’s note:  This is apparently the plan showing the existing condition.  He stated that it shows two or three feet from the stone wall to the vernal pool.  He said that, when he was there, the rocks from the vernal pool were in the vernal pool.  The applicant’s representative stated that he had done a vernal pool delineation per the State requirements.

    (34:30 elapsed)

                Mr. Raynes referred to what was shown on C1 as “a crock.”  The applicant’s representative argued that the rocks were in the wetland, not the vernal pool.  Mr. Raynes referred to the absence of woody growth for the toads and salamanders to go through.  There are also chemicals on the lawn going into the vernal pool.  It’s a wonder that eggs were found there, he said.

    Ms. Grote stated that it had been pouring rain that day.

    A question arose as to the prior state of the property.  Mr. Raynes stated that a soil scientist had done a delineation prior to the issuance of a building permit from “Sue,” which was questionable.  Editor’s note:  This is possibly a reference to Susan LaBrie, the former building inspector.

                The applicant’s representative stated that 60 feet of the rock wall would be removed and the driveway would be moved.

    Jeff Gardner stated that they should be looking for a proposal to put the property in the condition that it should have been.  Mr. Raynes agreed, stating that he would like to see 50 feet of clearance to the vernal pool.  The rocks should be removed, and there should be a 20-25 foot area of woody growth.  The other side of this is Rand Spring, which is “our land.”  They have a large portion of wetland there, he said.

    The applicant’s representative stated that there was a component of the project that he was not addressing, but that Attorney Tim Phoenix would be addressing with zoning and planning.

    Mr. Raynes stated that he would like to see the driveway, in its current location, completely eliminated.  He said that he did not want to see a circular driveway with one end adjacent to the vernal pool.  He asked how Bob Gray and these owners could have felt that they could “have a plan and then build what the hell ever they wanted.”  He then said “I want the driveway moved.  Period.”  It should be fifty feet from the vernal pool, he said.  Mr. Raynes stated that he thought he could work with Tim Phoenix.  It comes down to the fact that what was designed for Robert Gray to build and what appears here are two different things

    (46:45 elapsed)

    The applicants representative started to write on the map.  Mr. Raynes interrupted him and asked him not to, as that was the map that they were going to use to explain the violation to the ZBA.   He said that they are going to fight this before the ZBA.

    Sally King suggested another site walk.  Jaci Grote agreed that it would be helpful.  Mr. Raynes agreed.  The Town was partially responsible as it issued the building permit, he said.

    The site walk was set for Monday, March 24 at 6:30 p.m.  Mr. Raynes requested that “John” be there.  Editor’s note:  This was an apparent reference to John Chagnon.  

    Shoals Realty LLC, 493 and 495 Central Rd.  Map 8 Lots 1 and 2 (53:20 elapsed)

    Ms. King explained that this was a minor two lot subdivision to relocate the lot line to make lot 2 a conforming lot.  The property is in the Single Residence and General Residence Districts, case 04-2014.  Mr. Raynes stated that this had been forwarded from the Planning Board.  Mr. Raynes stated that it appeared to be adjacent to Priscilla Jenness’ house.

    Ms. Grote read through the material and determined that a 12 foot driveway was to be relocated.  A vernal pool had been referred to, but the wetlands and vernal pools were not delineated.  The question arose as to whether a paper change would affect anything.  Ms. Grote stated that the driveway relocation might affect the wetlands.  A building crossing the property line is to be demolished.

    The conclusion was that more information would be needed before the Conservation Commission could react.

    Goss Farm Update (61:25 elapsed)

    Mr. Raynes asked when “what’s his name” would be finished.  Ms. King responded that the ground was frozen and completion would need to await the thawing of the ground.

    Mr. Raynes stated that Rockingham and Merrimac Counties were having a joint tree and shrub sale.  There was discussion about that and other possible sources for apple trees and the diameter that they should be.

    There was then discussion about getting the electrician in the barn as soon as “Ian” is done.  Ms. King stated that she is getting Jamie Holway together with Peter Rowell to work out a plan.  The conduit has been put in.  The panel is also in.

    Town Rules and Procedures (66:42 elapsed)

    There was then discussion about this.  Mr. Raynes stated that the Conservation Commission would not strictly speaking be subject to this as they are covered by the RSAs.  However, they should try to follow this, he said.  They have done a lot of neatening up on files.  Now, let’s keep them that way, he said.

    Ms. Grote stated that the purpose is for the town to document what everyone’s procedure is.  One of the procedures is how acquisitions are communicated.  They have that, she said.  Mr. Raynes smiled and added, “if required.”

    Right-to-know seminar (70:40 elapsed)

    Reading from a sheet, Sally King announced the seminar and the invitation from the Selectmen to attend.  She also referred to potential conflicts of interest.  She said that Michael Donovan would conduct the training.  It stated that he been a former Mayor of Concord and a City Planner.  The seminar will be Wednesday, March 26 at 3:00 – 5:00 at the Public Safety Building.

    Public hearing memorandum (71:40 elapsed)

    Sally King read from the document which regards reappointments.  It stated that terms expire March 31.  Mr. Raynes stated that he and Mike had sent their letters in.  Charlie has not, but is going to.  Editor’s note:  These are apparent references to Mike Garvan and Charles Raynes.  These members were reappointed at the March 24, 2014 Board of Selectmen meeting.  There was no mention of Charles Raynes having requested reappointment at that meeting.

    Site walk photo storage (72:35 elapsed)

    Mike Garvan proposed external hard drives for approximately $60 to $100 and thumb drives for as little as $8 each, with a secure back up.

    There was then discussion about keeping both electronic and paper copies.  Dyana Ledger stated that each application has a folder.  When pulled, the person would see the photographs as well.  Mr. Raynes suggested four photographs per property.  Ms. King said that it would vary by site.  Mr. Garvan suggested that the writer of the report should select the pictures to be submitted.  Ms. Ledger suggested one sheet of pictures for the file.

    Cell tower revenue (81:00 elapsed)

    Mr. Raynes handed a document to Sally King and noted that it was the check for the cell phone tower, which goes to them, but they cannot cash.  Editor’s note:  The revenue associated with one of the cell towers in town is, in accordance with a warrant article, devoted to a fund for ambulances.  The tower is apparently on conservation land, so the Conservation Commission feels some entitlement to the money.  Ms. King stated that they may have to revisit this, depending on how the vote goes.  Editor’s note:  Earlier in the day, the Board of Selectmen met to schedule a Special Town Meeting to cure the procedural irregularity of the hearing on the conservation bond not having been held in January as required.

    Bills (81:30 elapsed)

    Sally King referred to bills from Chris Keenan for conferences, right-to-know information.  One is for $195, another for $610, one for $1044, and others for $95 and $434.  Ms. Grote made a motion to pay the bills.  All were in favor.  Ms. Grote said that these go back a while.  Editor’s note:  See notes during Aquarion discussion below.  Ms. Grote later determined that the total was $1044

    Correspondence regarding Webster at Rye (83:15 elapsed)

    There was a notice of the Board of Adjustment meeting on Wednesday, April 2.  There was correspondence regarding the Webster.  Mr. Raynes referred to a site walk there.  Due to environmental and wetlands issues they were going to put a curb so there would not be runoff into the wetlands.  Ms. King stated that they were going to improve the road.  Mr. Raynes stated that they had no issues, but Jean and Leo Harrison, 48 Mountain View Terrace and Jane Holway, according to the paper, had issues.

    Sally King stated that they had not been told that the building was going to be two stories and that a number of trees were going to be taken down.  Issues had come up on the site walk.  This is doubling the size of what they now have, she said.

    Ms. Grote stated that the neighbors on Blueberry had been upset the last time.  Mr. Raynes stated that there were 4-5 residents at the last ZBA meeting present.  It was postponed, however.

    Ms. King stated that they had been trying to expand for quite a while.

    Mr. Garvan stated that it did not appear that the residents’ objections were within the purview of the Conservation Commission.  This appeared to be agreed.

    Correspondence regarding Aquarion  (86:00 elapsed)

    Mr. Raynes referred to correspondence from Aquarion and suggested that the Chairman or someone else should work with them.  They provide water in the southern part of town.  The Commission has gone out on wetlands applications with them before, for example, crossing the Abenaqui.

    Ms. Grote then interjected that the total for Mr. Keenan’s bills was $1044.  She then made a new motion for that amount, which Mr. Raynes seconded.  All were in favor.

    Ms. King continued, referring to the letter from Aquarion as providing environmental champion awards.  It is $1000 grant.  It has to do with the Blue Ocean Society.

    Goss Farm Tour April 12 (88:40 elapsed)

    Mr. Raynes held up a sheet that had been received from Tracy Degnan regarding a tour of the Goss Farm, 251 Harbor Rd. on Saturday, April 12.  Mr. Raynes referred to a federal match.

    Southeast Land Trust re White annual survey and Guide Books (90:35 elapsed)

    Mr. Raynes stated that he thought that they should hire Southeast Land Trust to do this survey.  It was confirmed that the survey had to be done annually.

    There was then a discussion of an inspection at Seavey Acres and interest in walking that property.

    Mr. Raynes stated that he had received five copies of the New Hampshire Municipal Conservation Fund Guide Book and passed them out to certain members.  There will also be a copy at Town Hall.

    The discussion then returned to Seavey Acres and whether the inspection would be a site walk opportunity for the public.  It was stated that it would not be, however, Sally King stated that there should be more site walks so that the public knows where the properties are.

    Special Town Meeting (93:25 elapsed)

    Ms. Grote stated that there would be a Special Town Meeting on April 11 at 6:30 regarding the modification of Warrant Article 7.  There is also going to be a public hearing on April 3 at 6:30.  Editor’s note:  The Board of Selectmen postponed both of these meetings at a special meeting on March 27.  See also the notes of the March 24, 2014 Board of Selectmen meeting.  It appears that special action by the State Legislature is now being considered as a substitute for the Special Town Meeting. 

    Ms. King explained that the public hearing was because the prior public hearing had not occurred when it should have, which is how this whole mess started.  This is to remedy that.  Then, there is going to be a Town Meeting which is a ratification.  It can be an up or down vote and “we could lose it,” she said.  She encouraged everyone to be there and plan on bringing people who are favorable to conservation.  The meeting on the 11th will be at one of the two schools.

    Adjournment (95:30 elapsed)

    Whereupon the meeting adjourned at approximately 9:03 p.m.