NOTES OF JULY 13, 2015 RYE BOARD OF SELECTMEN MEETING
Final Revision B – Provided by the Rye Civic League
Present (clockwise around table): Town Administrator Michael Magnant, Selectmen Musselman, Jenness and Mills.
Not present: Town Finance Director Cyndi Gillespie.
Also present and sitting in the audience: Public Works Director Dennis McCarthy, Interim Fire Chief Tom Lambert, Police Chief Kevin Walsh.
Persons present from the public included: Lori Carbajal, Randy Crapo, Peter Crawford, Frank McDermott.
Editor’s
note: For ease in finding particular
sections using the archived video and audio on the Town website, the elapsed
time is indicated. Use the slider and
the elapsed time indicated at the bottom of the video window to fast forward to
the desired section. Videos on the Town website may currently be accessed
at www.town.rye.nh.us by clicking on
“Town Hall Streaming” at the bottom left of the screen. Follow the link for “Town Hall Live
Streaming,” then find the meeting by date under “Previous.”
The video starts
at 6:32:01 p.m. (0:00 elapsed). The
audio is off until 6:36:12 p.m.
Summary
Reconvening of meeting
Selectman Jenness noted
that the meeting was being reconvened following the site walk at 12 and 18
Perkins Rd. Editor’s note: The video of the
site walk is available at https://vimeo.com/133452796. Separate notes are provided for this site
walk.
Appointments (5:25 elapsed)
Randy Crapo and Russ
Bookholtz were unanimously appointed to the CIP Committee. Selectman Jenness stated that these
appointments are for an unlimited term.
Selectman Mills asked Mr. Bookholtz whether he had been writing letters
to the editor. Mr. Bookholtz responded
that it had not been him.
Selectman Jenness
stated that they had a request for an appointment of Alex Herlihy to the
Heritage Commission for a one year term.
This was accompanied by a letter recommending him from Mae Bradshaw. Selectman Musselman moved to approve the
appointment. After a comment by
Selectman Mills, it was confirmed that the appointment was for a partial year,
through April 1, 2016. Selectman Mills
stated that he would not second the motion, so Selectman Jenness did so. Selectman Mills made an assertion that Mr.
Herlihy had been noted for having an illegal apartment for over 10 years and
has not yet made an application to the Zoning Board of Adjustment to get the
apartment legalized. Persons serving on
boards in the State should comply with all of the rules and regulations of the
town. He stated that he would be voting
against Mr. Herlihy as he was “against the Town.” Selectman Jenness stated that she had been
informed that the application was in process.
The vote was 2-1 in favor of appointing Mr. Herlihy.
Consent Agenda (8:19 elapsed)
The Consent Agenda was
unanimously approved after item (a) was removed by Selectman Jenness.
Selectman Jenness asked
whether item (a) hadn’t been approved at the prior meeting. Editor’s
note: Item (a) is the America by Bicycle
Cross Country Challenge, July 21, 2015.
Police Chief Kevin Walsh stated that there are two dates. The second is August 3, which is item
(b). It was confirmed by Chief Walsh that
both items are on the agenda, and August 3 had just been approved so they are
“all set.”
Public Hearing on Heritage Commission
donations for Town Hall (10:02 elapsed)
Town Administrator
Michael Magnant stated that the Town Attorney had advised that the need for a
public hearing had been triggered due to the value of the donations which had
accumulated.
Selectman Musselman
asked about the approval process when the Heritage Commission goes to spend the
funds. The money is dedicated to the
Town Hall, he understands. He asked
whether the Heritage Commission is of a mind that, since they have money, they
can vote to do something at Town Hall.
Mr. Magnant stated that he would have to review the minutes of the
meeting at which the Board of Selectmen had approved the donations as they came
in. Selectman Jenness stated that the
RSA would need to be checked as well, however, if the contributions were
dedicated for use on Town Hall they would have to be expended for that purpose.
Randy Crapo stated that
there had been discussions with the Heritage Commission at the Budget
Committee. Those discussions were always
that any spending went to the Board of Selectmen. Editor’s
note: Mr. Crapo is the representative to
the Budget Committee from the Jenness Beach Village District. Selectman Musselman stated that he
believed that that was the case. There
is a difference between hiring a consultant and “doing something.” The Heritage Commission had discussed “doing
something” to the windows. The Board of
Selectmen needs to approve that, he said.
Mr. Magnant added “in
the end, this is your property.” Editor’s note: The Town Hall belongs to the Town, not the
Board of Selectmen, who have the authority to manage real property owned by the
town. N.H. Rev. Stat. Ann. (“RSA”)
41:11-a, I. There are exceptions
relating to the Town Forest, Recreation and Conservation properties and the
Library. Also, the Town, by vote of a
Town Meeting, may strip the power of the Board of Selectmen to manage town
properties and delegate their management and regulation to other public
officers. Id.
Selectman Musselman stated that they do not
want a backhoe hired by the Heritage Commission to show up one day behind the
building to do whatever it is that they have decided to do, without Mr. Magnant
knowing about it and the Board of Selectmen having approved.
Peter Crawford, 171 Brackett Rd., stated
that he believes that there is an RSA on the issue and that it is too bad that
Mae Bradshaw is not present. Editor’s note: Ms. Bradshaw is Chairman of the Heritage
Commission. There is some authority
for them to expend funds, he said.
Selectman Jenness agreed, stating that they have considerable
authority. Editor’s note: See RSA 674:44-b,
I(h), giving the Heritage Commission the authority to manage and control gifts
of money and property, and RSA 674-d, II, permitting the Town Treasurer to
disburse moneys from the Heritage Fund only upon order of the Heritage
Commission. Selectman Jenness is the
Selectmen’s Representative on the Heritage Commission. Mr. Crawford stated that expenditures are
not necessarily subject to approval by the Board of Selectmen. Selectman Musselman noted the authority of
the Board of Selectmen to manage the building.
Selectman Jenness stated that the issue needs to be clarified in writing
for everyone.
Selectman Musselman moved to accept funds
for the Heritage Commission in the amount of $10,000, subject to expenditure
guidelines to be provided by the Town to the Heritage Commission. Selectman Mills seconded. All were in favor.
Minutes (14:35 elapsed)
The minutes of June 5
were unanimously approved without changes.
The minutes of the non-public session of the same day were unanimously
approved without changes. The minutes of
June 22 were unanimously approved with a change by Selectmen Jenness. The minutes of the two non-public sessions of
the same day were unanimously approved without changes. The minutes of the meeting of June 30 were
unanimously approved without changes.
The minutes of the non-public session of the same day were unanimously
approved without changes.
Grant from Piscataqua Region Estuaries Partnership
(16:28 elapsed)
Planning Administrator
Kim Reed stated that the proposal relates to the Community Rating System. The Board of Selectmen had authorized her and
Mike Magnant to proceed with seeking to return to the Community Rating
System. Editor’s note: Property owners
in communities that are part of this system may be eligible for reductions in
their flood insurance. Ms. Reed
continued, stating that the process had been changed significantly since the
Town was a member in 2005. Ms. Reed
stated that she had asked Julie LaBranche of the Rockingham Planning Commission
whether she would be willing to assist the Town as a consultant to go through
the checklist to see what is needed to get the Town back in the system.
Ms. Reed stated that a
public hearing would be needed to accept the grant funds.
Selectman Musselman
asked about the $2000 in cash matches.
Ms. Reed stated that the money could come out of the Planning Board’s
line item for consulting fees, which is technically used for Attorney Donovan,
but could be used for this. It would
thus not need to come from the Selectmen or the General Fund, she said. Editor’s
note: Nevertheless, the Planning Board’s
budget is part of the General Fund and the money would come from Rye taxpayers.
In response to a question from Selectman
Jenness, Ms. Reed stated that the Community Rating System is separate from the
FEMA mapping, which is as of a particular date and based on the past history at
that location. The Community Rating
System is for towns that want to go beyond the flood plain ordinance. It provides a minimum five percent discount,
and possibly more, for residents.
Selectman Jenness again asked about the maps. Ms. Reed stated that the Community Rating
System is nationwide and has nothing to do with the maps. The Town was in that program from 2005-2009. The Town used to get points for not having
dams, but there are not a lot of dams in New Hampshire, so it has become harder
to accumulate the necessary points, Ms. Reed said.
Selectman Musselman
asked about the status of the appeal. Editor’s note: This is an apparent reference to a resident
who had challenged the categorization of his property on a recently-updated
FEMA flood plain map. Mr. Magnant
stated that it has been very active, but has not yet been decided. FEMA has asked for more data. Mr. Magnant stated that this was the only
appeal from New Hampshire, which has been holding things up for the entire
area.
Selectman Musselman
stated that a lot of progress had been made in recent years on FEMA issues, the
Town having dug itself out of a deep hole.
Editor’s note: A number of properties in Town were not
compliant, and remediation was needed by residents, such as filling basements
with gravel to prevent flood damage.
The consensus was that
the matter would be scheduled for a public hearing.
Hiring of Jessica Doucette as Police Administrative Assistant (6:57:50
elapsed)
Police Chief Kevin
Walsh stated that the Board had previously met the candidate. He wanted to make sure that they were still
on board with hiring her. The motion to
approve her hiring, effective July 22, carried unanimously.
Beach permit for Rye General Store (27:25
elapsed)
Chief Walsh stated that
Mark, the applicant, was present. He
passed out a color-coded chart indicating the permits that had been approved so
far. The permit is for the rental of
eight paddleboards, he said.
Randy Crapo asked Selectman
Mills for a point of order. He stated
that requiring him to get a permit is a stretch as the regulation applies to
activity at the beach. Editor’s note: This is incorrect. 2013 Warrant Article 23, which passed
924-783, requires that a permit be obtained from the Board of Selectmen prior
to the rental by “any entity” of designated “beach equipment.” That equipment is defined as “surfboards,
paddle boards, kayaks and other equipment as designated by the Board of
Selectmen.” Mr. Crapo stated that there
is no group on the beach, which is what the regulation is for.
The applicant confirmed
that there would be no groups on the beach.
Selectman Musselman stated that there is a misunderstanding as two other
permits have been issued for people doing exactly the same thing. The applicant stated that the other
businesses do lessons but the Rye General Store will be doing only
rentals.
Selectman Jenness asked
about the impact on parking at the General Store. Powers Ave. continually has problems with deliveries,
she said. Chief Walsh stated that the
employee would bring the board to the customer’s vehicle in the General Store
parking lot. Chief Walsh stated that
“Peter and Kim” had gone to look at the facility and where the equipment would
be stored. Editor’s note: This is an
apparent reference to Building Inspector Peter Rowell and Planning
Administrator Kim Reed.
Selectman Musselman stated that they would
need to look at the ordinance. The issue
is not that they are teaching people, but that they are gaining access to the
beach as a commercial venture. He does
not recall that distinction in the ordinance.
The other businesses are renting more than providing lessons. If they decide that no permit need be issued,
there will be rental places all over the place.
What the Selectmen set out to do with the ordinance would not be
accomplished.
Chief Walsh stated that
Summer Sessions was currently the largest business, followed by the Surf Shack
and then Wes’s business. Editor’s note: See the notes of the May 11, 2015 meeting at
which a permit was issued to “Wes.” Chief
Walsh added that he does not believe that the Rye General Store group has
knowledge as to the safety issues and proper use of the equipment.
Mark stated that there
would be a handout stating the rules and conduct of paddle board rental,
including the use of leashes, being outside of the surf zone as much as
possible, and being aware of swimmers and others in the water. The paddle boards will be valeted from the
back room to the parking lot, or to the front door if the renter is just going
to go across the street.
Selectman Musselman
asked about the January to December months of effectiveness. Mark stated that those are the months that
the store is open.
There was discussion about
the U.S. Coast Guard recommending the use of life vests outside of the surf
zone.
Selectman Mills stated
that Randy had brought up an important point as there was not going to be any
instruction. They would be controlling
paddle boards that may be going to Hampton Beach or the Piscataqua River in
Portsmouth and it’s none of their business.
Selectman Musselman said that it is if they have the option of launching
at Jenness Beach.
Mr. Crapo stated that
Pioneers on Route 1 is not coming before them, and may rent boards that will be
brought to Rye. Selectman Musselman
stated that he does not believe that the ordinance makes that distinction.
Lori Carbajal, 18 Tower
Ave., Rye Beach Committee, indicated that she could rent 100 paddleboards out
of her garage and put them in at “E” St.
The problem is that the board is long and weighs 16-20 pounds and
ingress and egress is a problem. They
are very hard to control. She asked
whether the restaurant’s business liability insurance would cover the rentals.
Mark indicated that
they had submitted a policy dealing with this issue. He provided assurance in response to a
question from Selectman Musselman that renters would be required to sign the
Town’s release form.
Mr. Crapo stated that
catamarans used to be launched from Town beaches. Ms. Carbajal noted that there is an ordinance
which prohibits that. Editor’s note: See paragraph 12 of the Beach Ordinance. Mr. Crapo stated that that would not apply to
beachfront property owners. Editor’s note: These are known as “riparian rights” or
“littoral rights.” Pursuant to RSA
483-C:1, towns may make reasonable ordinances relative to the use of public
trust coastal shorelands, which extend seaward from the high water mark. The public has a right to use public trust
shorelands below the high water mark.
However, those rights are “subject to those littoral rights recognized
at common law.” Furthermore, while that
statute attempted to redefine the high water mark so that it would extend to
the highest point in the 19-year tidal cycle, the New Hampshire Supreme Court
determined that extending the high water mark beyond the customary mean high
tide level constituted an unconstitutional taking. Purdie v. Attorney General, 143 N.H.
661 (1999).
Ms. Carbajal stated that the Beach Committee
would be proposing the implementation of restrictions on areas where stand-up
paddleboards can and cannot be used.
Those renting from the Rye General Store will be going across the street
to “E” St., not Hampton.
There was then
discussion about whether Dave Cropper of Cinnamon Rainbows in Hampton refuses
to rent paddle boards due to liability issues, or because he does not want the
paddle board renters to interfere with surfers.
Ms. Carbajal reiterated
that there is a safety issue. Rentals
cannot be controlled, but where there the paddle boards may be used can
be.
Robin Wehbe, 20 Spruce
Ave., stated that he had been surfing these waters for a number of years. He is sympathetic to what the Beach Committee
has gone through. There are too many
boards on the beach without any instruction.
He applauds the beach use ordinance.
The Rye General Store is proposing rentals, not groups on the
beach. He reviewed the ordinance and was
surprised to find that there was language relating to the rental of
surfboards. This will be a challenge as
it is not possible to identify where the boards come from. He suggests that a permit be granted, perhaps
for more than eight boards as this group is well known and there is very safe
crosswalk access to the beach. Services
are an amenity for those coming to the beach, he said.
Frank McDermott, 30 “F”
St., stated that he lives diagonally across the street from the Rye General
Store. At least half of the people on
paddleboards are riding the waves, although they also go beyond the surf
zone. It is not an easy thing to
do. The boards are large. They are a far greater danger to swimmers and
surfers because of the size. It seems
like there is one permit after another.
He wondered where this is going to stop.
The beach is becoming more and more crowded, there is no parking, and
the crosswalk is not safe, he said.
Selectman Jenness
stated that the permit will end at the end of the season and an assessment will
then need to be done.
Mr. McDermott stated
that he had thought that applications were due during the winter. Mr. Crapo responded that the applicant had
not thought that the regulation applied.
The applicant confirmed, stating that all of the discussions had
revolved around groups on the beach.
Selectman Musselman
noted that there were two businesses at Wallis Sands, one of 25 boards, and the
other of eight. He stated that he does
not believe that these are rented all of the time. Adding eight more boards may just be
spreading out the business. He suggested
that the permit be issued for this season.
He stated that he was uncomfortable with winter rentals. The applicant stated that he did not intend
to rent boards at that time. Mr. Crapo
stated that the Rye General Store was the only place that surfers could go to
the bathroom during the winter.
Selectman Musselman moved that the permit be issued through October 1,
and that it be reassessed after then.
Chief Walsh passed out
a photograph of the Wallis Rd. Extension area at low tide showing the swimmers
and the boards provided by the rental companies that were in the water and the
distances between the swimmers and the board renters.
All were in favor of
approving the permit.
Relocation of no parking sign at Cable Rd.
and Ocean Blvd. (51:20 elapsed)
Chief Walsh addressed
the issue. He stated that two residents
had requested that the sign be put further back. The distance is 62-63 feet already. One of the residents has offered to remove
one of his trees blocking the view if the sign were to be removed. Selectman Jenness asked whether all of the
trees were not in the State right of way.
Selectman Musselman asserted that they were. Chief Walsh stated that that would be his
guess, but that he could not be sure without measuring. Selectman Jenness asked how far the sign
would be from the intersection if it were moved 30 feet as requested. Chief Walsh stated that it would be 90 feet. He stated that he was not in favor of
granting the request. Selectman Mills
stated that the issue of the tree had come up with each beach meeting with
Senator Stiles. He said that, had the
tree been trimmed, there would not have been a problem.
Selectman Musselman
stated that Selectman Mills was taking that position because he wanted the wood. Selectman Mills disagreed, saying that the
tree was not that large.
Chief Walsh
acknowledged that cars need to edge their way out on a busy beach day due to
the obstructed view. However, that is no
different from other intersections in the area, he asserted.
Selectman Mills stated
that there was a telephone pole referenced in the letter. He suggested that Public Works Director
Dennis McCarthy research who owns the pole and who gave them permission to
locate the pole there. Selectman Mills
stated that the pole is designated “PSNH 7-53.”
Selectman Mills stated that the result of the research would reveal
whether the location is in the State right of way or not. If they got an easement that is fine.
Selectman Mills raised
his voice and pointed his finger at Chief Walsh, saying “you and I have locked
horns over this for a long time.
Okay. And I don’t agree with your
ideas.” Chief Walsh responded that he
wanted to make it clear that this was not his idea. He started to refer to the two residents. Selectman Mills interrupted, saying “No. Get the tree, the limbs trimmed. There was an article in the paper ten years
ago about a guy who got a ticket because he couldn’t see the sign because of
the tree limbs. Trim the damn tree
limbs.”
Selectmen Jenness and
Musselman interjected that it was the State right of way. Selectman Musselman asked whether a site walk
was needed. Selectman Mills stated that
common sense and a visit to the area would reveal that the sign is not visible
because of the trees.
Selectman Musselman
asked whether the resident was willing to remove the tree regardless of what
the Board of Selectmen decides. Chief
Walsh stated that the offer was contingent upon the Board of Selectmen agreeing
to move the sign.
Selectman Mills stated
that he would take care of it the next day.
He pointed his finger at Town Administrator Magnant and instructed him
to get in touch with State Senator Nancy Stiles first thing in the morning and
Doug DePorter in Durham. “They’ll be
expecting a call from me. And, if I have
to, I’ll go see Governor Hassan,” he said.
Selectman Musselman
asserted that Mr. DePorter had retired.
Public Works Director confirmed, and further noted that the State had
been very responsive to recent letters from the Board of Selectmen. All of that Rosa Rugosa is gone, he
said. Editor’s note: See the notes of
the May 11, 2015 meeting. Selectman
Jenness stated that she was happy about that.
People who walk or bike along that area are glad not to be scratched up
as they traverse the area, she said.
Selectman Musselman
asked whether they could get the State to take down the tree that the resident
is trying to use as leverage. Selectman
Mills stated that he was going to try to have Nancy Stiles do that. Chief Walsh suggested that he “head things
off at the pass” by e-mailing the District Engineer, ask him to take a look at
the area and see what he has to say.
Selectman Jenness
asserted that she believed that they will find that it is a State right of
way. All of the trees need to be limbed
up to permit what parking is available there to be used more safely.
Selectman Mussselman
stated that it appeared that Selectmen Mills and Jenness were in
agreement. He said that they would see
if they could get the State to take the trees down. It was agreed that Chief Walsh would get in
touch with the engineer.
Public Works Director
Dennis McCarthy stated that, if the trees are in the right of way he would
recommend their removal. He added that
they’re not supposed to go in the State right of way. He started laughing and said “I know Joe
would like…” The rest was inaudible due
to his chuckling. Selectman Mills asked
“what State?” Selectman Musselman said
“New Hampshire.”
It was agreed that no
motion was needed.
Town Hall survey estimates (61:29 elapsed)
Town Administrator
Magnant stated that the Selectmen had asked for a proposal from the UNH Survey
Center. They have that in front of
them. The Town Hall Committee has
decided to proceed with the survey. The
proposed cost is $5858.44. The motion to
approve the contract for that amount carried unanimously. Selectman Musselman stated that the
individual was excellent.
Discussion of reasons for Town Hall warrant
article having failed to pass
Selectman Mills asked
Frank McDermott what the rumor was “on the street” as to why the Town Hall
warrant article was turned down. Mr.
McDermott stated that he had heard no discussion about this at all. There is a civic interest in voting things
down in Rye, which he cannot believe given the growth. He referred to the close vote on the
additional police officer. Editor’s note: In 2014, Warrant Article 17 to add such an
officer failed 839-803. However, 2015
Warrant Article 9, for the same purpose, passed 762-709. He personally believes that it needs to
be done and it is way beyond due.
Selectman Mills stated
that he had spoken with a number of younger people and the issue was cost. Mr. McDermott stated that, if one wants to
live in a town and keep the property values up, the beaches, schools and the
seat of government need to be taken care of.
Selectman Jenness noted that the votes on a number of measures that were
absolutely necessary were “way too close.”
There was an across the board push not to vote for anything, which is “a
little scary.”
John Loftus e-mail volunteering for Town Hall Committee (64:49 elapsed)
Selectman Musselman
said that they had already organized and were about to have their third
meeting. His background is excellent but
he would suggest that he be invited to attend the meeting as a member of the
public.
Selectman Mills stated
that he did not have a problem adding him as, so far, only the survey had been
discussed.
It was agreed that Mr.
Loftus would be invited to the next meeting of the Town Hall Committee.
Mr. McDermott asked
whether additional representation from the beach area is needed.
Selectman Mills stated
that Selectman Mills and Paul Goldman are the only holdovers. The next door neighbor of Mr. Loftus was on
the Committee the prior year. Mr.
McDermott offered to volunteer if there are any openings. Selectman Mills stated that it might affect
his Florida vacation. Mr. McDermott
asked whether he could fly back at town expense. There was laughter.
E-mail from Katy Sherman re:
Sawyers Beach and Route 1A traffic (68:04 elapsed)
Selectman Jenness
stated that she would not read the letter as it was two pages long, however it
would be attached to the minutes.
Selectman Mills asked
about the 20 minute response to a fender bender accident by the Police
Department referred to in the e-mail. If
it had been an emergency it would have been five minutes, he asserted.
Letter from Elizabeth Norton regarding a beach sticker (69:24 elapsed)
Selectman Jenness read
the letter, which stated that Ms. Norton had resided in Rye for 32 years at 901
Ocean Blvd. It states that her husband
passed away in October. On June 26, she
had gone to pay her taxes and remove her husband’s name from the “deed” and
obtain a beach sticker, however the sticker was denied as she does not have a
license. She does not own a car and her
daughter provides transportation. She
requests a sticker to be affixed to her daughter’s car.
Selectman Mills moved
to approve, stating that this had been done before for incapacitated residents
so that they can park and look at the ocean.
The motion to approve the permit carried unanimously.
Changes to meeting dates (71:09 elapsed)
Selectman Jenness noted
that Selectman Musselman had some conflicts preventing attendance at two Board
of Selectmen meetings. It was agreed
that the meetings would be July 23, August 10 as currently scheduled, and
August 26.
Discussion of impact of fireworks ordinance (74:29 elapsed)
Selectman Musselman
asked whether fireworks usage had been down due to the new fireworks
ordinance. Chief Walsh stated that it
was, but that he believed that the reduction was due to the weather. The day was a prime beach day, but the
weather cooled in the evening and people left.
Randy Crapo stated that
there were chemical lights but the other fireworks were very limited.
Selectman Musselman
stated that South Berwick had encountered significant public opposition.
Interim Fire Chief Tom
Lambert noted that there were a number of inquiries prior to the holidays, but
people were accepting once the new ordinance had been explained to them. There is some knowledge out there, he
said.
Randy Crapo stated that
a lot of people had probably already purchased their fireworks prior to the
signs going up, which is probably why they had called.
Response time to accident referred to by Katy Sherman (78:20 elapsed)
Chief Walsh stated that
he had had the logs checked, and the response time to the accident referred to
in Ms. Sherman’s letter was 13 minutes.
Selectman Mills questioned the routing of ambulances in the area. Interim Fire Chief Lambert stated that he
would look into the matter.
Randy Crapo stated that
town residents use Big Rock Rd. as the alternative to Route 1A. Editor’s
note: Mr. Crapo lives on Big Rock
Rd.
Adjournment (80:55 elapsed)
The motion to adjourn
carried unanimously.