NOTES OF JULY 11, 2016 RYE BOARD OF SELECTMEN MEETING
Draft Revision B – Provided by the Rye Civic League
Present (clockwise around table): Town Administrator Michael Magnant, Selectmen Musselman, Jenness and Mills, Town Finance Director Cyndi Gillespie, Town Attorney Michael Donovan (left after SKRJ unmerger case completed).
Also present and sitting in the audience: Public Works Director Dennis McCarthy, Police Chief Kevin Walsh.
Persons present from the public included: Victor Azzi, David Borden (State Representative), Steven Borne, Mae Bradshaw, Jim Breen, Stephen Brown, Sharon Consentino, Deb Crapo, Randy Crapo, Shawn Crapo, Peter Crawford, Corey Colwell, Burt Dibble, Charlie Hoyt, Tim Phoenix, Nancy Stiles (State Senator).
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 6:47:04 p.m. (0:00 elapsed).
Summary
Non-public session
The motion by Selectman
Jenness to seal the minutes of the just-completed non-public session carried
unanimously.
Announcements:
Whale on Foss Beach (0:59 elapsed)
Selectman Jenness
stated that, two weeks earlier, Police Chief Kevin Walsh had left the meeting
early to check on the whale at Foss Beach using his flashlight. The whale was fully beached. At that point, no one knew what was going to
happen. It looked like the 40 ton whale
was on Town Administrator Michael Magnant’s plate. Over the next three days, he was able to
coordinate efforts, including those of the State, Public Works and the Police
Department. Three days is not much time
to make a forty pound whale disappear, she said. Burt Dibble interjected that it was forty
tons. There was vigorous applause.
Selectman Musselman
stated that the State had responded quickly at the urging of Mr. Magnant.
Mr. Magnant stated that
the gratitude should go to the Police Chief and the DPW Director who were the
“boots in the ground.” He said that he
was thankful that the State had stepped up, as otherwise they would still be
cutting the whale up into small pieces.
Selectman Mills thanked
State Legislators David Borden and Nancy Stiles, who were in the audience. He said that everything had turned Tuesday
afternoon when the government shifted gears and we found out that we were going
to be off the hook. That was a large expense,
he said.
Public comments (5:06 elapsed)
Peter Crawford
expressed concern regarding the second ambulance. There is apparently a trade in offer for
$9000, he said. Based on the low value,
there is a possible plan to keep the old ambulance along with the new one that
has just been ordered. He stated that he
is not sure what the purpose would be.
If the brand new ambulance broke down there would be another one to
substitute, however, there is not sufficient staffing to run two
ambulances. If one ambulance is out and
another call came in, it would seem as though mutual aid would be faster than
bringing in a firefighter and an EMT to handle the second call. Reading from the warrant article, he noted
that it provides $275,000 to replace the existing ambulance, not add a
second one. The voters were not apprised
of the possibility of a second ambulance.
Mr. Crawford quoted from RSA 32:10, I(d) and
RSA 32:3, V, which restrict funds from being transferred for a purpose not set
forth at the time that the money was appropriated. The purpose does not appear to extend to the
acquisition of a second ambulance as opposed to the replacement of the existing
ambulance, he said.
Selectman Mills said
that he was on the fence until Mr. Crawford stood up and said don’t buy it. Now he
is going to say yes, he said.
Mr. Crawford said that
he believed that more study was needed.
He questioned whether the ambulance was only worth $9000 and suggested
an appraisal.
Steven Borne stated
that Parsons Field, Lang Field and the Rye Junior High fields are in pretty
dire condition. He asked whether the
fire trucks could be used to water the fields before they become
unrecoverable. Selectman Mills stated
that this had not been discussed, however he sarcastically indicated that there
could be a non-public session on the issue.
Sharon Consentino
referred to a late event permit application and cycling on Route 1A. Parking is allowed on both sides. She wondered about biker safety. Police Chief Kevin Walsh stated that the application
had been presented somewhat earlier, however he places the requests on the
agenda closer to the date of the event so that the Selectmen are not
considering permits too far in advance, and so that what has been already
approved is fresh in everyone’s minds.
The race is on Route 1A and it is a competitive event, with 150 riders,
but the start times are staggered throughout the day. This event has not created a lot of congestion
in the past, he said. He asked that he
be informed if there are any problems.
Ms. Consentino
enumerated a number of safety issues related to Route 1A.
Consent Agenda (13:57 elapsed)
The Consent Agenda
item, an Event Permit for the bicycle ride on Saturday, July 16, 2016 for the
Cystic Fibrosis Foundation was unanimously approved.
Minutes (14:26 elapsed)
The minutes of the June
27, 2016 meeting were unanimously approved with changes. Selectman Musselman abstained, not having
been present at that meeting.
Letter of commendation regarding whale on Foss Beach (15:54 elapsed)
Town Administrator
Magnant read his letter, which thanked the Police Department and the Department
of Public Works for their leadership.
Unmerger request SKRJ Realty Trust, Steven
Brown Trustee, Big Rock Rd. (18:17 elapsed)
Editor’s note: What appears
below is a long and complicated discussion.
To summarize, this case involves eleven lots that are all part of the
Myrica-by-the-Sea subdivision, as indicated in plan 0818 with the Rockingham
County Registry of Deeds. These lots
appear on a plan (number 0818) referenced in Registry records at least as early
as 1937. According to the plan, the
eleven lots (numbered 34, 35, 36, 37, 38, 39, 42, 43, 44, 46 and 47) are all
adjacent, except for intervening streets (now apparently paper streets). These eleven lots have now apparently been
consolidated into three lots on the Rye tax maps: map 5.2 lots 79 and 80, and map 8.1, lot
45. The last lot has dashed lines,
apparently indicating nine constituent lots.
Current tax map 8.1 lot 45, according to the
tax card, consists of a parcel that, was, in 2010, “consolidated into 1 lot of
1.23 ac.” On April 1, 2015, the former owners, the DeGlorias, conveyed the
eleven lots to SKRJ Realty Trust, Stephen C Brown, Trustee (see Book 5606, Page
1056 with the Rockingham County Registry of Deeds).
In 2011, N.H. Rev. Stat. Ann.
(“RSA”) 674:39-aa was enacted, permitting involuntarily merged lots that were
merged prior to September 18, 2010, to be unmerged upon owner request, made
prior to December 31, 2016, provided that “[n]o owner in the chain of title
voluntarily merged his or her lots.” A
“voluntary merger” is defined in the statute as “any overt action or conduct
that indicates an owner regarded said lots as merged such as, but not limited
to, abandoning a lot line.” According to
representations made during this hearing, and during the prior one before the
Board of Selectmen on June 13, 2016, it appears that the prior owner had
attempted unsuccessfully to obtain a variance to allow construction of a single
dwelling on the eleven lots, and that the prior owner had agreed to merge the
lots if the variance was granted. The
question is whether the unsuccessful variance request is sufficient to
constitute “overt action” under the statute so as to constitute a voluntary
merger. The owner, through his counsel
(Attorney Phoenix) cited the provisions of RSA 674:39-a, which permits owners
to merge contiguous lots as a matter of right, unless it creates a violation of
then-current ordinances or regulations.
That statute requires that a notice of merger be recorded with the
Registry of Deeds and mailed to the municipality’s assessing officials. He argued that this statute prevents an
implicit merger based on an application alone, whether successful or not.
Selectman
Mills started by reading a letter from Town Attorney Michael Donovan. It states that Planning and Zoning
Administrator Kim Reed had reviewed the Zoning Board of Adjustment and Planning
Board minutes in the Town Clerk’s office from 2000-2011 and found no applications
by the Deglorias after the March 2003 denial of the special exception and
variance application. She also reviewed
the minutes that she has retained since becoming Administrator in 2011, the
letter said.
Mr. Donovan suggested
that, since this is a continued hearing, the Selectmen limit the
information to new information or arguments.
He summarized the reasons that the hearing was continued from June 13:
1. To permit the
Selectmen to review the information submitted at the June 13 hearing.
2. All of the Town
files had not been gathered and submitted to him for review. These were principally DES-related and dealt
with wetlands and drainage issues.
3. Shawn Crapo had
believed that there was another ZBA application after the ones that had been
reviewed.
4. The Selectmen
requested additional information from Attorney Phoenix that has now been
provided. This included a copy of the
Purchase and Sale agreement and copies of DES-related communications since his
client has owned the property.
Mr. Donovan stated that the Town had gathered DES information that was
believed to be relevant. That was
summarized in a June 24 memorandum, a copy of which was provided to Attorney
Phoenix and Mrs. Crapo, he said. Mr.
Donovan stated that he also summarized the information provided at the June 13
hearing. This included a copy of a real
estate listing and a tax card. That
indicated that the lots were not merged on the tax map until 2010. That had been unknown previously. He stated that they had also gone through the
records of the wetlands violations.
These involved the clearing of trees by the DeGlorias to accommodate a
single house on the several tax map lots.
There was also a copy of a letter from Mr. DeGloria to the DES. There were two drainage plans that dealt with
one lot and a single driveway that was proposed in 2009. The application for variance by Mr. DeGloria
was found and attached. It involved a
request to construct a single family home of approximately 2400 sq. ft. on the
11 lots which would become one lot.
(23:46 elapsed)
Attorney Tim Phoenix of
Hoefle, Phoenix, Gormley and Roberts in Portsmouth stated that he is
representing the property owner, Stephen Brown, who is behind him. Corey
Colwell with MSC is also present. He had
done the recent survey and wetland work and was also involved years ago when
the DeGlorias were involved, Mr. Phoenix said.
For the record, Mr. Phoenix stated that he had submitted, by July 6, as
requested, a memorandum which outlines the factual and legal histories and his
legal analysis as to why these lots have not been merged. The discussion at the prior hearing had been
all over the place.
Mr. Phoenix referred to
information from MSC Engineers that is in addition to that summarized by
Attorney Donovan. This consisted of
their correspondence with DES leading to the conclusion that no further action
would be necessary regarding the wetlands.
While the wetlands and the concerns of the neighbors are legitimate
issues, these are not relevant to whether or not anyone’s conduct caused a
merger, he asserted. Mr. Phoenix stated
that he had come in and looked at the additional files which were not in the
Building and Planning Department. He
obtained these from Attorney Donovan’s office and does not know how they were
gathered, he said. He went through every
single page. He stated that he had found
many references to there being eleven lots.
He referred to a number of letters and memoranda, including one from
Attorney Donovan dating from the 1980s and 1990s, where these lots are referred
to as eleven lots. The DeGloria
rehearing request specifically refers to eleven lots, he said.
(27:03 elapsed)
Attorney Phoenix
provided a history of the merger/unmerger statute. Section 601.1 of the Rye Zoning Ordinance was
passed in the 1960s. In 2011 a new
unmerger statute was passed. Until 2012
when the Ordinance was repealed, all substandard lots under common ownership
were deemed merged by operation of law.
That is important to consider when they are referred to later as having
been merged. In 1995, 674:39-a was passed, which allowed voluntary merger, dovetailing
with the Town’s ordinance at the time.
In 2010, 674:39-a was amended to prohibit
further merger without the agreement of the property owner. That statute did not deal with
previously-merged lots, so 674:39-aa was passed which
permits property owners to unmerge their lots, he said.
Attorney Phoenix
asserted that the Board is required to grant the request as long as it can be
proven that there was no merger. There
are two ways that this could occur.
There could be an application to merge, but that is not enough. The statute refers to an application,
Planning Board approval and recording with the Registry of Deeds all being
required. Editor’s note: See RSA 674:39-a. That is not what happened here, but it is
important because there are applications for variances in this case. The second way that lots may be merged, the
one applicable here, is “by any overt action or conduct that indicates an owner
regarded said lots as merged, such as, but not limited to, abandoning a lot
line,” he said.
Continuing, Attorney
Phoenix said that the questions are, what has happened
over the years, what constitutes “overt action or conduct” and what is the
meaning of “regarded said lots as merged.”
A hint is given in the reference to “such as, but not limited to,
abandoning a lot line.” That is
important because some action must be taken to do that, he said.
Attorney Phoenix stated
that, of the eleven lots, two are presently taxed separately. The other nine were merged for tax purposes
in 2010. Before that, they were all
taxed separately. The land was conveyed
from DeGloria to Brown, with each lot being separately identified. From 1937, when Louise Brown (no relation)
began deeding out these lots, every single deed that he found, referenced each
lot separately, he asserted. In the
1970s there was an application for a variance to combine two of the lots. The
application was granted but nothing was ever done. Fifteen years later there was an application
to put ten houses on the eleven lots.
Nothing has ever been built on this property. Attorney Phoenix stated that he could not
find any building permits applied for or granted on the property.
Attorney Phoenix stated that, in 2000, there
was an application to consolidate all of the lots into one building lot. That seems to be where all of the focus
is. He read from Attorney Donovan’s June
2 letter, “if the variance is granted, they would
convey all eleven lots under one ownership and withdraw the suit.” He also read another quote, “they are prepared to stipulate, upon granting of the
variance the lot will be in single ownership.”
A decision on that variance request was never made. It was withdrawn or continued and never followed
up on. The emphasis from the comments is
that they “will” consider the lots merged, not that they already have. They were going to regard them as merged if
they got the relief that they needed, obtained a building permit and built on
the lot, he asserted.
Attorney Phoenix stated that the DeGloria
family had the lots checker boarded at one time, with separate family groups
holding a few lots. Editor’s note: The term “checker
boarding” apparently refers to the various lots being held by two or more separate
owners in such a fashion that there would be no adjacent lots under common
ownership that would allow the Town to merge them “by operation of law.” See Registry deeds book 3677, pages 1471,
1472 and 1473, placing the eleven lots under common ownership and removing the
“checker boarding.” They were all
deeded to the parents in two separate deeds with all of the lots listed
separately, Attorney Phoenix said. The
DeGlorias applied for a variance to place one house on the lot. He read from Attorney Donovan’s letter which
referred to building on the eleven lots which would then become one lot,
although that had not yet occurred. The
variance was denied. The rehearing request
specifically identifies the lots as separate.
It never went anywhere until the lots were sold to Steve Brown through
his trust. Editor’s note: See Registry
deed, book 5606, page 1056, recorded April 1, 2015.
Attorney Donovan balanced these facts
against what some might regard as evidence that the lots have been merged. There is a real estate listing agreement
which refers to three parcels, however it references the deeds which in turn
refer to each of the eleven lots. There
is the variance application and the tax card.
There is a letter from DeGlorias expert relating to a wetland
violation. There is a drainage report by
MSC. Both of those refer to construction
of a house on “the lot.” There is a
letter from DeGloria from April 2002 which refers to himself as the owner of a
parcel of land. These are not enough compared to 80 or 90 years of history
showing no such intention, Attorney Phoenix argued.
(36:26 elapsed)
Attorney Phoenix then turned to the legal
analysis. He stated that RSA 674:39-aa, II(b) places the burden of proof on the municipality. The municipality must demonstrate by a
preponderance of evidence that the owner regarded the lots as in fact
merged. The only evidence is mostly
offhand, third person statements, not even by owners, except for one occasion. There are ZBA applications with no action, he
said.
Attorney Phoenix stated that there are two
New Hampshire cases so far on unmerger.
The first is Roberts v. Windham, he said. Editor’s
note: That case appears at 165 N.H. 186
(2013). There was an application to
unmerge seven lots. The application to unmerge
three of the lots with nothing on them was granted. The request with respect to the other three
was denied as there was a reference to one tract on a deed and structures
consisting of a home, seasonal cottages, a garage and a dock with building across
boundary lines. One driveway provided
access. The Supreme Court overturned the
Superior Court with respect to the reference of a single tract evidencing
merger. It also stated that acquiescence
to taxation does not, standing alone, does not constitute voluntary
merger. However, the Supreme Court
determined that the owner regarded the lots as merged by considering the
physical characteristics of the lot, considering the use of the subject
property in its entirety. Those not
built on were OK. Those with buildings
on them were deemed merged, he said.
Attorney Phoenix stated that the second
case, Newbury v. Landrigan, involved an owner that had recorded plans,
he said. Editor’s note: That case appears
at 165 N.H. 236 (2013). An attempt
to transfer the lots separately without subdivision approval was made. The Superior Court, which was upheld by the
Supreme Court, held that it been merged and treated as a single lot for 50
years or more. The deeds did not support
the position that there were separate parcels.
Plans had been recorded at the Registry showing the lots as a single
parcel, one lot. There were building
permit applications identifying a single lot that were presumably granted as
there was building on the lot. The
Landrigans testified that they knew and understood that they were buying a
single lot. That is not the case here,
he said.
Attorney Phoenix stated that a third case, Robillard
v. Town of Hudson, was decided prior to the unmerger
statute. Editor’s note: That case appears
at 120 N.H. 477 (1980). There,
someone had two lots supporting two single family homes but not a duplex on
either of them. The owner sought
permission to build a duplex by combining the lots, which was granted. The house was built on one of the lots. A subsequent owner sought to unmerge the lots
as one of the lots had not been built on.
There, the court determined that applying for and getting permission to
build, and then building, constituted treating the lots as one. That is not the case here.
Looking at all of the circumstances there
has been no merger, he asserted.
Attorney Phoenix stated that this Board of
Selectmen has addressed five or six unmerger requests. There were two circumstances that were
comparable to the present one. The first
is the Shayna (sp?) request that was granted even though there was a temporary
garage on the other lot that they wanted to unmerge. The Garceau case is more illustrative as the
house was on one lot, while there was a pier and dock on the other lot that
serviced the house on the other lot.
Both applications were granted by the Board even though there was
activity on the other lot.
Here, Attorney Phoenix stated that the overt
action consisted of referring to the property as a “parcel.” Attorney Phoenix referred to the definitions
of “parcel” and “lot” and argued that referring to a “parcel” does not mean
that it is not eleven lots. He then
referred to the definition of “overt,” and “conduct.” The so-called overt actions outweigh the
mostly casual references. Three of the
five relate to Mr. DeGloria trying to get the lots merged, he said.
Attorney Phoenix
closed by stating that Mr. Brown is mindful of the concerns of the neighbors
regarding water. When a lot is
developed it must be demonstrated that the water situation, post-construction,
will not exceed the pre-construction situation.
There is a lot more to be done with respect to this lot. Other hearings must take place where everyone’s
concerns will be vetted, he said.
(48:37 elapsed)
Sharon Consentino stated that she and her
husband own the piece of land with the most access to the lots in
question. From 1935 until very recently
this was deemed an unbuildable lot. The
three or four Supreme Court decisions relate to buildable lots. The Conservation Committee (sic) did not
purchase this land because it was deemed unbuildable. From 1935 through today, nothing has changed
to make this a buildable lot.
Selectman Mills stated that the lots had
been advertised in 1993 as eleven lots.
The owner was contacted regarding the buildability of the lots and the
ad was pulled. That land was always
regarded as unbuildable until Assessor David Hynes came in and changed it to
“possibly buildable.” He is no longer
with us, Selectman Mills said.
Attorney Phoenix referred to the Garceau
application. He stated that Attorney
Donovan had expressed a view that it was unbuildable due to tidal
influence. Buildability is not the
issue. That is a separate determination
which is not relevant to whether lots may be unmerged. Secondly, the Assessor makes a determination
for tax purposes. Buildability is a
Building Inspector and Zoning Board decision and a Planning Board decision,
where applicable. In addition, at one
point the wetland area on the lot was much larger. Whether it was due to Mr. DeGloria’s
activities or not, it did not occur after Mr. Brown bought the lot. The statute is clear as to the basis for the
Board of Selectmen to grant or deny the application. Whether the lot is buildable or unbuildable
is not the test, he said.
Robert Consentino, Sharon’s husband,
objected to a comment that the wetland is smaller than it was. He showed a photograph showing the wetland
extending into the adjacent Philbrick lot.
It may appear that it is not particularly wet due to the dry year, he
asserted.
Attorney Phoenix stated that the wetland
determination had not been made by a certified wetland scientist and approved
by the DES.
Mrs. Consentino stated that the MLS listing
stated that the property was not buildable and that the buyer would have to do
“due diligence” to change that. If
someone with the Town has determined that it is “possibly buildable,” someone
from the Town can come out to the land, do further studies, and reverse the position.
Selectman Mills stated that he does not
believe that will happen as the person had sat where Attorney Phoenix is
sitting and, when asked who had given him the right to make the change, pointed
to himself and said “I did.” He is not
employed here anymore, Selectman Mills said.
Attorney Phoenix stated that the MLS listing
nowhere says that the property is unbuildable.
Mr. Hynes went all over town changing the buildability of lots. The effect was to increase values and tax
revenues, he said.
Mrs. Consentino stated that Attorney Phoenix
would not be doing all of this work unless they had the intention of making the
property buildable.
(56:36 elapsed)
Shawn Crapo, stated
that his mother was ill and had to leave.
He passed out copies of information from the three file boxes. Editor’s
note: During the June 13 hearing, there
was discussion about three file boxes of Town records relating to the property. The Supreme Court cases involved properties
with structures on them, Mr. Crapo said.
Case law has to be applicable, he argued. Should the unmerger go, I guess we’re going
to go to the Supreme Court and argue over the meaning of the term “overt
action,” he said. Both sets of plans
have clear indications on them of lot lines to be removed. The 62,000 sq. ft. referred to is arrived at
by combining all of the lots. He argued
that “an attempt to glean the benefits of this being one lot, whether it be
successful or not, constitutes an overt act.”
There could be 4000 references to separate lots, but all it takes is one
instance where a judge could find that it constituted an overt act, he
said.
Mr. Crapo stated that
he was around when it was eleven lots and owned by the Margolskees. Thompson Court ran through it at that point,
he said.
Mr. Crapo agreed that
he had thought that the 2003 application had been later than he had thought.
He further stated that
Mr. DeGloria had accepted half of Thompson Court, which removes access to the
eleven lots and landlocks them. Since a
single house on this lot was denied, a new application must be materially
different under Fisher v. Dover. Editor’s note: This case appears at 120 N.H. 187 (1980). An unmerger could create that. There is a 1988 letter in the file from
Building Inspector Bill Jenness stating that he had witnessed test pits and that
the land is unbuildable, he said.
Mr. Crapo asserted
that, once he passes the bar, this will be one of the first cases that he will
argue before the Supreme Court. We will
go up and argue what “overt act” means, he said.
Robert Consentino
confirmed that there are the owners of the eastern portion of Thompson
Court. Each owner was given ownership of
half of the road, he said.
Attorney Phoenix stated
that everything was supposed to be submitted by the sixth, so he is
disappointed by the late submission by Mr. Crapo. Mr. Crapo’s statements support his point, he
said, as he refers to lot lines to be removed.
This was a failed effort. Fisher
v. Dover is inapposite, he said. He
reiterated the standard. It is not one
effort, he said.
Selectman Mills asked
Corey Colwell how many people had tried to develop the land. Mr. Colwell stated that he had worked for
three owners: Whitney Sadla (sp?), Mr.
DeGloria and Mr. Brown. In each
circumstance they found the lot buildable.
He held up a chart showing the wetland and the buffers.
Selectman Mills asked
about D.D. Cook. Mr. Colwell stated that
he had not worked for Mr. Cook on this property. At Selectman Mills prompting, Mr. Colwell
confirmed that Mr. Cook had been one of the possible developers and had walked
away from the property.
Attorney Phoenix stated
that, if there is not some action such as building on the lot or recording a
plan, it is virtually impossible for someone down the chain of title to know
what someone did and what they are stuck with or not stuck with.
Mr. Crapo stated that
Mr. Brown is a land use attorney and had access to the box and a half of
information. The statute does not say
that the act need be successful, only that it be overt, he said. The drainage plans required the use of all of
the land as Thompson Court was no longer there and access from Powers Ave. was
not available.
Stephen Brown stated
that he is the owner and that he is a civil and criminal litigator, not a land
use attorney. He has no idea what is
going on here, he asserted. He stated
that he had done as much due diligence as he could. There seems to be a frenetic paranoia about
developing the land and water. It’s not
fair to me when I do my due diligence and the Building Inspector says that it
is probably buildable and the Assessor says that it is probably buildable, he
said. There needs to be consistency in
how residents are treated. You folks
have lived here for thirty years and have known the Crapos for thirty
years. I get a little uncomfortable as
to how things work, he said. He said
that he has reached out to the neighbors.
It has nothing to do with wetlands.
It is what it is today, he said.
He asked that the property be unmerged.
Mrs. Consentino stated
that they have lived here for five years.
The property in question is extremely wet and there are a lot of
problems with the land. The MLS listing
refers to the need for due diligence, she said.
(73:26 elapsed)
Mr. Crapo said that Mr.
Hynes had gotten “in his mother’s face” with regard to this lot. Mr. Crapo asserted that Mr. Hynes had said
that “if anybody could build on it, his friend who just bought it, who is a
land use attorney, would be the one.”
You can check your minutes, he said.
Jim Breen, 42 Cable
Rd., asked Mr. Colwell whether all of the lots didn’t need to be together, for
drainage and wetlands mitigation.
Selectman Mills
asserted that they were trying to go back to before Zoning was in effect.
Mr. Colwell stated that
more than one house could be built on the lot.
He showed his chart and referred to the small wetland. Several houses could be put there as long as
the setbacks are applied. There is 89
feet of frontage on Big Rock Rd. Randy
Crapo interjected that that was insufficient.
Mr. Colwell replied that subdivision would be necessary. Someone said that a variance would be
necessary. Mr. Colwell agreed.
Ms. Consentino asked
whether they would go back to 1993 and many buildable lots.
Attorney Phoenix stated
that there were eleven lots when the subdivision was done back in the
1920s. Most of the lots in the Myrica
subdivision were 5000 sq. ft. Some of
the roads were built, others were not.
They are asking that the eleven lots be restored. Then they would be before the various boards
with a plan for one or more lots, which remains to be determined. All of these other factors are not relevant
to the unmerger question.
Robert Consentino asked
how many houses they would like to build.
Attorney Phoenix responded that they would like to build as many as
could reasonably be put there.
Shawn Crapo asked
Attorney Donovan whether back lots would be created, contrary to the
subdivision regulation, due to the absence of Thompson Court. Attorney Donovan said that he did not have
the answer to that now. There was
discussion about the current grouping of the lots for tax purposes that arose
out of how the checker boarding occurred.
Attorney Phoenix agreed
that back lots apparently would be created, but that is a question for another
day. The statute allows the owner to go
back to before the merger by operation of law.
Shawn Crapo is arguing that the lots be deemed merged by virtue of an
attempt to do so. That is not right and
that is not fair, he said.
Selectman Mills asked
whether there needed to be a sign in sheet as a continuation of a public
hearing. Attorney Donovan said that it
was a continuation of a public hearing and asked whether there was a procedure
that required a sign in. There was no
sign in on June 13 either, he said. It
is clearly a public hearing, he said.
Attorney Donovan
suggested that the public hearing be closed.
The motion to close the
hearing carried.
Selectman Mills stated
that they would converse regarding whether some of the new material that Shawn
Crapo had brought in was allowable.
Selectman Musselman
said that they were ready for a motion.
Selectman Jenness agreed.
Attorney Donovan stated that, if the Board felt that it had the
information that it needed, a motion could be made.
(83:06 elapsed)
Selectman Musselman
moved to deny the application, for the following reasons:
1. In 2001 the
prior owners, the DeGlorias, applied to construct one single family home on the
lot.
2. After that, the
DeGlorias applied for a special exception to build a driveway to the single
house.
3. In 2001, the
DeGlorias cut most of the trees on the land to accommodate the construction of
a single house.
4. In 2001, they
retained an engineer to prepare a drainage study to build one house on the lot
and a driveway on the land.
5. Even though the
ZBA applications were denied, these are overt actions by the DeGlorias that
indicate that they regard the nine lots as merged.
He further moved that the Town Counsel prepare a notice of decision to
be approved at the July 25 meeting.
Selectman Jenness
seconded. All were in favor.
Following this, a large
number of persons left, including Attorney Donovan.
Berry’s Brook water testing (85:56 elapsed)
Mindi Messmer came up
to sit at the front table.
State Representative
David Borden stated that a number of things had happened since they last
met. The Governor has appointed a task
force on the Seacoast Cancer Cluster investigation. Tom Sherman, Nancy Stiles, he and Mindi
Messmer are on the task force. At the
last meeting, there was a discussion about PFCs, a term which encompasses a
number of chemical compounds. At that
time, they had not been found in the Coakley landfill, but last week they
were. That does not necessarily connect
the Coakley Landfill with the Cancer Cluster, so there is still a lot of research
to be done. Although he is not
necessarily speaking for all of them, from the beginning they have had concern
about the Berry’s Brook Watershed because it cuts across Rye from the Coakley
landfill across to the sea. Ms. Messmer
is a hydrologist and is on the task force because of that expertise, Mr. Borden
said.
Ms. Messmer stated that
PFCs had been detected in some of the wells around Coakley Landfill. The presence of other compounds had been
previously known, including iron, magnesium (sic), as well as 1,4-Dioxane which has been identified in the past few years
as a possible known carcinogen. Editor’s note: The reference to magnesium should possibly be
to manganese, which has previously been associated with the Coakley Landfill.
Ms. Messmer referred to a map which was
projected on the back wall. The water
flows from the landfill towards Berry’s Brook, Ms. Messmer said. Some of the water flows towards North Hampton
and some towards Berry’s Brook. She
referred to an area enclosed by an orange line on the map from a 2015
report. The line showing areas exceeding
the State limit bending and flowing around the Berry’s Brook area, she
said. It looks like it is discharging
into the Brook, she said. Berry’s Brook
has not yet been sampled in Rye, she said.
She showed another diagram showing the flow in the bedrock. There are some fractures that are being
pumped on either side that is causing the contamination to flow.
Selectman Musselman
disputed the location of a well that, he said, was not located at the position
indicated on the map. Ms. Messmer said
that she was not trying to mislead anyone, and that there 1,4-Dioxane
was found in the well in 2013. Selectman
Musselman stated that the level was zero more recently. Editor’s
note: Selectman Musselman’s firm is
involved in the testing of certain wells associated with the Breakfast Hill
Landfill, located in Rye, which is not far from the Coakley Landfill (which is
not in Rye). His firm does this for the Town
of Rye at no charge. There was discussion
between Selectman Musselman and Ms. Messmer regarding the accuracy of the information and the implications suggested by Ms.
Messmer.
In response to a
question from Selectman Musselman, Ms. Messmer stated that PFOAs and PFCs have
been detected in all of the wells sampled, but the results have not yet been
released publicly. She indicated that
the parts per trillion is not known, but Mr. Borden stated that it is around 70
ppt, which is now the EPA norm.
State Senator Nancy
Stiles said that Berry’s Brook has been a concern and that they hope to have
research done. Information on “your
website” indicates that there should not have been building in this area. Editor’s
note: It is unclear what Senator Stiles
is referring to. There is a section of the
Town website addressing the Parsons Creek Watershed and bacterial contamination
in that area, which is a separate issue. She said that she had mentioned it to
Joe. There have been some moisture
issues in some of the areas. It falls
down behind the Senior Building. Editor’s note: This is an apparent reference to the White
Birch housing units near the Rye Airfield off of Lafayette Rd. Mr. Borden added that these are right in
the watershed. There are all kinds of
moisture and mold issues, she said. David,
Tom and she had been meeting with them, and the issue extends back to the time
of Representative Murphy.
Selectman Musselman
said that, if there is an issue, it seems to all be coming from the same source
at Pease and their use of chemicals in some fashion. He asked whether, if there is an impact on
Berry’s Brook, there aren’t also impacts on Hodgson’s Brook and Peverly Brook
as well. The problem with sampling
Berry’s Brook is that they have no idea of the background level. There are sources other than the runway
chemicals, including deposition from the atmosphere. There should be other samples in the region
so that Berry’s Brook can be compared with the others.
Senator Stiles said
that that was a very good point, and the reason for the concern with Berry’s
Brook was the cancer clusters in Rye.
Ms. Messmer said that
there is also the 1,4-Dioxane to consider.
Mr. Borden said that he
had been going to the meetings related to Pease as well. The blood of about 9000 people, everyone who
has ever worked at Pease, has been tested.
Ms. Stiles stated that
this is the beginning of the process.
Mr. Borden said that
they would keep bringing this up.
Selectman Musselman
expressed surprise that Mr. Borden was not running for Representative, saying
that he thought that he should run for Senate.
Steven Borne asked for
a copy of the slides, which Mr. Magnant handed to him.
Town Hall discussion (105:11 elapsed)
Selectman Mills asked
who had put this on the agenda. Mr.
Magnant responded.
Selectman Mills asked Selectman Musselman if he had anything to
say. When he objected to going first,
Selectman Jenness started.
She said that she does
not have an answer. We know that we are
polarized as a Town. Committee after
committee after committee has been tried.
Perhaps they need to go back to the UNH Survey and mine it for areas
with more than 60 percent agreement as a basis.
There was agreement on certain things.
There was agreement that Town Hall should remain in the center. A high percentage believed that Town Hall
should be on this site, although not necessarily on this foundation or
footprint. Without sixty percent we’re
going nowhere and the building is falling down around us, she said.
Selectman Musselman
said that they have learned that people clearly do not want to spend $4 million
or $4.5 million. They want to spend
somewhere in the $2 million to $2.5 million range, perhaps. What that will buy has not really been
investigated. A shiny new facility with
a completely renovated existing building would cost too much. A close look at the space needs to be taken
and matched to what can be afforded. It
is clear that the building needs to be on this parcel. In order to guard the majority, some of the
historic aspects, but not necessarily all of them, need to be retained. At the last Town Meeting where people were
given all of the choices, people rejected that completely. Something needs to be proposed back to the
voters that is concrete and makes sense.
There is this huge debate about tearing the building down and rebuilding
it versus restoring it. There is a
meeting in the middle of that. If the
building is restored quite a bit is replaced anyway, as we have rotting
everything, he said.
Selectman Musselman
asked how many families of birds lived in the building. Mr. Magnant responded that there were three,
but now there are two.
Almost all of the
clapboards were going to be replaced from the “get go,” Selectman Musselman
said. A hard look needs to be taken at
the distinctive features and how they can be dealt with. A compromise looking at “this” or “this” plus
something satellited, perhaps the Old Police Station,
needs to be structured so that we can afford it and can reasonably provide for
our needs. It would not be a marvelous
facility for $2 million or $2.5 million.
We can’t let this paint peel and the building fall apart, he said.
(112:00 elapsed)
Shawn Crapo referred to the Kensington Town
Hall, which went through a similar process as Rye. Wolfeboro had also been mentioned. The initial Kensington attempts failed but
there was some out of the box fundraising and public/private partnerships. That might be part of the answer here. He stated that the building looks similar to
this one, is historic and is built into a hill.
Burt Dibble said that
there was discussion a year ago to assemble a group including the architect,
the preservation society and Mike Magnant to have a discussion about less
expensive ways to approach the problem.
The Board decided not to involve Mr. Magnant. While free information is being collected,
that might be an alternative route. The
architectural study that we spent a lot of money on should be milked for
additional information. Noting that the
building is a State Historic Landmark, he suggested that the Board consider
painting the building before it suffers further decay over the winter.
Mae Bradshaw provided
an update on what the Heritage Commission had been working on. Editor’s
note: Ms. Bradshaw is former Chairman of
that Commission and currently a member. The
Selectmen had given permission to look into fixing up the cupola. The original grant for the engineering study
was declined as the cost of that was too great.
They have asked that two engineering firms that they deal with be
approached. They would do the work for
less, they thought. The very much wanted
to provide the money, but it was too much.
She asked for permission to pursue that.
With regard to the Town
Hall, that should be part of a study of all of the buildings in the center of
Rye. She suggested a Charrette, done by a
Portsmouth group for no charge. The
buildings include the Parsonage, the Old Trolley Barn and the Town Hall. Editor’s
note: The Trolley Barn is another name
for the Old Police Station. Input from
the community is needed from the ground up.
Charles Hoyt said that
he sits on the Parsonage Committee. The
hiring of a firm to do a Charrette has come up and all felt that it was a good
idea.
(118:14 elapsed)
Victor Azzi said that he would like to
reinforce some of what he had heard.
There have been many unsuccessful attempts. There are a number of essential elements that
most people would like to be retained in the Rye Town Center. One is this building, in one form or
another. The Parsonage is another
subject of ongoing study, but there are a number of others to be considered or
addressed. Plan New Hampshire is made up
of a number of people. As professionals,
they make their expertise available free of charge to do planning studies in a
focused, concentrated fashion, involving the townspeople. They are planning level studies, not
architectural details, Mr. Azzi started to say.
At this point, Selectman Mills started to cut him off. Mr. Azzi was able to add a few sentences, but
then Selectman Mills called on the next person.
(120:42 elapsed)
Deb Crapo said that the
Town of Stratham had gotten $5 million to make the center of Stratham into a
more town-like atmosphere. She agreed to
provide the information. Some of the
towns do not use all of their grant money and these funds can be accessed, she
said.
Selectman Musselman
said that he had received a letter asking if he would like to buy Stratham’s
old building that they bought with the intention of it being their Town Hall,
but then decided against it.
Charlie Hoyt said that
Newmarket had done something similar.
There were several grants. The
Town of Rye can obtain grants, he asserted.
(122:56 elapsed)
As Peter Crawford got
up to speak, Selectman Mills stated that his time would be limited. Mr. Crawford said that he agreed with some of
what had been said. The 2011-2016
election results should be looked at.
Town Hall was on the ballot each year, but 2013 was the only year where
it got more than 60 percent. Some years
it got over 50 percent, which was sufficient to fund whatever architectural or
other study was being advanced. Editor’s note: A simple majority is normally sufficient to
appropriate money, unless a bond issue is being authorized, in which case 60
percent approval is necessary. At
that time, the estimate was $2.1 million and 10,500 sq. ft., he said. That and the UNH study last year need to be
looked at. That study was pretty clear
that teardown would not be supported and the level of expenditure that is
supported is about $2 million. The
amount of space needs to be cut back.
There is not support for the area upstairs, which reduces the 10,500 sq.
ft. significantly. Editor’s note: He was referring
to the Great Hall or Meeting Room, which is currently being used for
offices. That was to be returned to its
prior state as an open area for meetings under the plan rejected by voters in
2015. The room downstairs at the
Public Safety Building could be used for some meetings, Mr. Crawford said. The pencil needs to be sharpened and a way
figured out how to do this for a lot less money and saving this building. The support in town for tearing down this
building is only 20-30 percent. Mae
Bradshaw interjected that it was 22 percent.
Even saving pieces of this building and integrating them into a new
building is a non-starter, Mr. Crawford said.
A lot of people with a lot of expertise came up with $2.1 million back
in 2013. The structure wasn’t quite as
they thought, but somehow the price increased to $4.5 million. A lot of that was increased space, increased
frills like a geothermal heating system, and bigger meeting areas. Those could certainly be taken out, he
argued.
Selectman Mills asked
what the geothermal system cost was. Mr.
Magnant said that he would need to look into that. Selectman Musselman said that there is
already a geothermal system. Selectman
Musselman and Mr. Magnant said that that system cost the Town $20,000. Selectman Mills asked whether that was a
frill.
Mr. Crawford responded
that the numbers were wrong. The
geothermal system that was part of the $4.1 million included expansion… Selectman Mills interrupted and asked how the
system had been paid for if that did not pass.
Editor’s note: Mr. Crawford was referring to the $4.1
million warrant article that was defeated in 2015, which would have renovated
the Town Hall and paid for a new, connected building on the same site. The plan called for two large additional
geothermal wells to be drilled, and additional
equipment.
Mr. Crawford said that
Selectman Mills was mixing two things.
There was never a warrant article for the geothermal system. Back in 2012, the Town decided to go ahead
with that system. Most of the cost was
paid for with federal grants. The
$20,000 was the Town portion. That
program is long gone. We have a
geothermal system for this building, but if a second building is to be built,
that needs heating and cooling, he said.
Selectman Mills said that he had been informed that the geothermal could
be hooked up and extended. Mr. Crawford
said that that would depend on the size and how good the insulation is. Selectman Musselman said that both Mr.
Crawford and Selectman Mills are correct.
(127:26 elapsed)
Selectman Mills then cut Mr. Crawford off
and asked for other comments.
Selectman Musselman asked whether there was
a consensus. There was laughter.
Burt Dibble said that, among the speakers,
there was a consensus to have a Charrette.
Selectman Jenness agreed.
Ramp/steps east of Ocean Blvd. near Bass drive (128:31
elapsed)
Mr. Magnant stated that
the benches were hard and suggested that Mr. Hoyt’s letter be addressed prior
to the Eversource tree trimming.
Mr. Hoyt stated that he
had spoken to Dennis McCarthy, who had suggested a petition. He had drafted such a petition by residents
near Shoals View, Bass and Cole Noyes.
Recent work by the State has made access difficult and dangerous. A ramp/stairs similar to that near Ray’s
Restaurant is needed. About 60
signatures were gathered of full-time and part-time residents. It is State-owned property but is in Rye and
services the residents and those that vacation there.
Selectman Mills said
that the residents want everything this year, including paving of the
roads. Editor’s note: There was a site
walk on Shoals View Drive on June 7, 2016 to address the issue of paving that
street. Public Works Director Dennis
McCarthy stated that Bass Dr. is one of the roads that is currently
gravel. All five roads will be priced,
because if one is paved they will hear from residents on the other
streets.
Mr. Hoyt said that the
proposed ramp/steps would service the citizens that live there. Selectman Mills interrupted and asked whether
that would include the Hoyts Cabins. Mr.
Hoyt confirmed, but said that it was not his business.
There was discussion
about the instability of the boulders and the difficulty of crossing.
Mrs. Toumpas, 10 Bass
Dr., referred to in two storms in 17 years that had made a mess. If the storm is big enough and they lose
power and there’s no phone or cell phone service they can’t call Public Works
to have them come and plow it out.
Selectman Mills said that they don’t have cell phones because “you
people” wouldn’t let us come and put up a cell tower. Mrs. Toumpas disagreed, saying they could put
a fake tree tower in her yard.
Nick Toumpas, 10 Bass
Dr., said that, after repeated storms, the bigger rocks move and the water will
come through. Some of the large boulders
are unstable. People can get to the top
and cannot get down.
Mr. Hoyt read from
Chapter One of the Master Plan, which refers to unencumbered access by all
citizens to all Town beaches and Rye Harbor.
Selectman Mills asked
Public Works Director Dennis McCarthy to get ahold of Division Six and arrange
a site walk. Editor’s note: This is an
apparent reference to Division Six of the State Department of Transportation.
Ann Hoyt said that she
owned Hoyts Lodges and that Charlie Hoyt is her brother in law. She said that she had been trying to get a
figure for the annual cost of placing the shale and rock, she said.
Selectman Mills said
that the State is doing this to protect “their” road. Selectman Musselman added “and your
houses.” Selectman Mills said that a lot
of the State funds had been used for removal of the whale.
There was further
discussion about the problem and possible configurations of a solution.
Charlie Hoyt said that
he had a front row seat during storms.
Selectman Mills stated
that he used to deliver Mr. Hoyt’s mail prior to 1978. He referred to a guy with a white Volkswagen
and a white hat sitting on the wall. Mr.
Hoyt asked whether that was Selectman Mills.
Selectman Mills said no. There
was vigorous laughter.
Mr. Magnant agreed that
he would set up a site walk. Randy Crapo
said that it was too bad they couldn’t move to Jenness Beach. Then he could help put a walkway in. Editor’s
note: Mr. Crapo is one of the Jenness
Beach Village District Commissioners. There
was more laughter.
Eversource tree trimming (153:26 elapsed)
Mr. Magnant reported
that Public Works Director Dennis McCarthy and Selectmen’s Assistant Janice
Ireland had gotten together and dusted off a letter that had been sent out in
2008. That letter informing residents
that they have a right to refuse Eversource’s requests was sent to
residents. He is still working with the
Town Attorney on drafting something to mandate that they make that information
available to homeowners.
Second ambulance (154:06 elapsed)
With regard to this
agenda item, Mr. Magnant requested that the issue be postponed until the Fire
Chief is back. He is on vacation, he
said. Selectman Musselman said that they
have a lot of questions before they proceed with a second ambulance.
$2000 contribution to Seacoast Stormwater Coalition (154:36 elapsed)
Public Works Director Dennis McCarthy
addressed. He referred to a MS4 urban
storm water permit. The comment period
is closed, but he does not expect a huge effect on Rye. The Town is doing many of the required
things, such as marking the basins and recording them on a computer. The group is asking for $2000 from each
community. There are ten towns so the
budget is $20,000. There was discussion
on how the Town would get out of the Coalition if the Town decides to do so,
and the level of formality of the arrangement.
FEMA High Water Mark Initiative (168:04 elapsed)
Town Administrator
Michael Magnant referred to a FEMA grant and the fact that 90 percent of the
people in the flood insurance program do not believe that flooding can happen
to them. The program involves the
posting of signs indicating the level to which the water could rise. The only cost to the Town would be $3500 in
in kind work by Planning Administrator Kim Reed. He said that he needs the Selectmen’s
permission to file the grant application.
The motion of Selectman Musselman to do so carried unanimously.
Town policies (dress code and children in workplace) (170:51 elapsed)
Mr. Magnant stated that
there are two policies involved. Town
Finance Director Cyndi Gillespie is looking to soften the dress code
policy. Ms. Gillespie stated that some
of the ladies believe that the existing policy is old fashioned. A
second policy would prohibit children in the workplace unless the Town
Administrator permits. The motion of
Selectman Mills to adopt the second policy carried unanimously.
Governor Hassan letter regarding Cancer
Clusters (172:52 elapsed)
Mr. Magnant stated that
he had attended the first meeting on behalf of the Selectmen. The question was who would be designated to
sit. There was mention of meetings
regarding Fire Department consolidation with North Hampton. It was agreed that Mr. Magnant would be
designated to attend the Cancer Clusters meeting. Selectman Musselman stated that he had heard
Mr. Magnant speak a lot at his daughter’s wedding and
that the Selectmen do not get him to speak enough. Editor’s
note: Mr. Magnant is the cousin of
Selectman Musselman’s wife, which possibly explains his presence at the wedding. Selectman Musselman said that, if he
would shut up at the Deliberative Session, Mr. Magnant would speak a lot more. He said that they ought to endeavor to do
that, and chuckled.
Jenness Beach lighting project, Aquarion meeting and beach parking (176:00
elapsed)
Randy Crapo announced
that he had two pieces of information.
First, about 400 post cards had been sent out regarding the
lighting. Certain poles have been
designated where the lights could be turned off. Comments are being accepted until
September. The contractor will not be
doing anything until the Fall. Also, they would be meeting with Aquarion
regarding the well at Central and Cable Roads.
There have been complaints about the taste of the water, he said.
Mr. Crapo also stated
that there may be a petition trying to get more parking spaces assigned to
those with stickers. He suggested that
those advancing such a position be told that the State requires access.
Adjournment
Whereupon the
meeting adjourned at approximately 9:45 p.m.